The Government Can’t Have It Both Ways in the War on Opiate Abuse


The State of North Dakota – and, separately, multiple political subdivisions of the state – are suing the pharmaceutical industry for its alleged contributions to the opioid epidemic.

The politics of this are obvious. The pharmaceutical industry – like the tobacco industry, the target of a similar litigation not so long ago – is not viewed sympathetically by the public. Illicit abuse of the legal products produced by that industry is a real societal ill which has harmed thousands in North Dakota and millions across the nation, be it directly or indirectly.

Also, the industry has some very deep pockets.

So the politicians are suing. They want some of that money to fund public health and criminal justice programs aimed at addressing drug abuse.

It’s easy to be sympathetic to that goal.

What’s problematic to the point of being hypocritical is the arguments they’re making in pursuit of it.

[mks_pullquote align=”right” width=”300″ size=”24″ bg_color=”#ffffff” txt_color=”#000000″]If the user of illegal drugs is liable for their actions, how can the drug industry also be liable for those actions?[/mks_pullquote]

Yesterday I wrote about a state district court judge tossing the State of North Dakota’s suit against Purdue Pharma. “The state’s effort to hold one company to account for this entire, complex public health issue oversimplifies the problem,” Judge James Hill wrote in his opinion (read it in full below).

He also threw cold water on the idea that a drug company can be held liable for the ways in which its legal product might be used in illegal ways.

“Purdue has no control over its product after it is sold to distributors, then to pharmacies, and then prescribed to customers,” he wrote.

Those are strong points, and proper grounds for dismissal (though I’m certain we haven’t heard the last of this case), but there’s also a problem with state and local governments blaming the pharmaceutical industry even as they aggressively arrest and convict drug abusers.

It’s a question of where to assign responsibility for drug abuse. Does it lay in those who make the drugs? Or those who abuse them?

The government clearly believes the latter given how many people they arrest, convict, and punish for taking drugs. My colleague April Baumgarten recently reported that North Dakota is third in the nation when it comes to arresting juveniles on drug charges, and while her article didn’t really break down those arrests by type of drug, I think we can probably assume a significant percentage was for opiates.

If the user of illegal drugs is liable for their actions, how can the drug industry also be liable for those actions?

If I buy a legal purchase of a chain saw, and then use that chain saw to assault my neighbor for not mowing their grass, is the chainsaw company liable for my unlawful use of their product?

A caveat: If Purdue Pharma, or any other drug company, manufactured a faulty product then they should be held responsible.

Another caveat: If Purdue Pharma, or any other drug company, worked in any way to facilitate the illicit use of or trade in their products they should be held responsible.

But, as Judge Hill noted, the State of North Dakota (and others, though Hill wasn’t ruling on their suits) are trying to hold this company and industry responsible for the illegal use of their legal drugs use even as they hold drug abusers responsible for their actions in court every day.

This seems hypocritical, and a fatal law to the arguments in favor of this litigation.

On a somewhat related note, anyone else thinks it’s ironic that our Attorney General has the authority to entangle the State of North Dakota in all manner of lawsuits which cost the taxpayers money, but lawmakers are now forcing the state Auditor to come begging to them for permission to conduct audits which also cost money?

I think the AG should have this authority, and I think Stenehjem has generally exercised it wisely. If he hadn’t we could elect someone else. But his exercise of authority certainly puts what lawmakers did to the Auditor in context.

[scribd id=410312552 key=key-ORN7AZfK9WNI8UpnDMvK mode=scroll]