The endgame of the sprawling mass of opioid lawsuits is starting to come into focus: Already, a settlement with Johnson & Johnson and three major drug distributors will pour billions of dollars into communities to combat the addiction crisis, with more to come.
But what that looks like, exactly, will vary from place to place. States are likely to see lump sums of money doled out for years, and they will be left to decide how to spend it under the guideposts set up in the settlements. It could easily become subject to competing interests: Legislatures could squabble with governors over priorities, while in some places, counties could demand more autonomy. Some public health experts are also raising questions about the quality of addiction programs to which states could allocate funding.
“This is extremely complicated, and getting it right is going to be tough,” said Kelly Dineen, the director of the health law program at Creighton University’s law school.
The attorneys spearheading the suits are promising that the bulk of the billions will be dedicated to preventing and treating addiction. They say they’re building safeguards into the agreements to guarantee the money goes to the root of the problem that led states, cities, counties, and tribes to file these cases in the first place — a crisis that has only reached new depths during the Covid-19 pandemic.
It’s a direct response to the historic 1998 tobacco settlement worth more than $200 billion, in which money advocates argued should go to smoking cessation and prevention was instead dropped into states’ general funds — and used, in some places, for services as unrelated as filling potholes.
“This money must go down and address addiction,” Louisiana Attorney General Jeff Landry said last week as a group of state attorneys general announced the $26 billion pact with the three distributors and Johnson & Johnson. “We’re here because of addiction.”
More agreements could be coming, as plaintiffs and the defendants in the opioid supply chain — including manufacturers, distributors, and pharmacies — negotiate ways to resolve the thousands of lawsuits alleging the companies helped ignite the country’s opioid epidemic.
State officials often look for any available revenue source to bolster their constrained budgets. If the settlements outline that the money should go to abatement programs, perhaps a state might siphon some of the funds to build a general hospital that includes addiction care, even if it’s not just a facility for opioid addiction, some experts speculated.
“There is always room in these things for states to perhaps wriggle out of what the original intent was,” said Nicolas Terry, the executive director of the Hall Center for Law and Health at Indiana University’s law school.
And as the money starts moving, different parties could spar over how to spend it.
When Oklahoma settled an individual case against Purdue Pharma in 2019, the money helped establish an addiction treatment center at Oklahoma State University, in an initiative steered by Attorney General Mike Hunter. But members of the state legislature were outraged that the money had not been placed in the state’s treasury for them to decide what to do with. They’ve since changed the law so they get authority over divvying up money from future settlements.
Other states are trying to get ahead of the process. Tennessee has established an opioid abatement council that will help direct any funding, while New York set up a “lock box” for money from the settlements to ensure it goes to addiction services.
“Yes, we’ve reached a settlement after many months and years of negotiation, but it will not bring back the loss of life,” New York Attorney General Letitia James said last week. “What it will do is prevent this tragedy from happening again. What it will do is provide prevention and education and abatement and beds to those organizations and hospitals who need it now more than ever.”
New York also established a board to advise the legislature on allocating the money, consisting of health officials as well as people who’ve experienced addiction themselves or in their families, which Melissa Moore, the state director for the Drug Policy Alliance, called “a really crucial degree of accountability.”
In Oregon, county officials are arguing that most of the settlement money the state receives should be directed to them, since county governments are largely responsible for addiction services, said Brad Anderson, the senior assistant counsel in Washington County, the state’s second largest.
“These were local government-initiated lawsuits,” Anderson said. “Local governments have disproportionately felt the implications of the opioid epidemic, and are best suited to being part of the solution.”
The county has plans to devote the funding it receives to help build its planned Center for Addictions Triage and Treatment.
“Folks are going to emergency rooms, they’re going to jail a lot of the time,” said Kristin Burke of the county’s health department. “But what we really want is to get people treatment.”
There are still lots of details to be worked out before much of the money starts arriving in state coffers. More states and communities are reviewing the deal with the distributors and Johnson & Johnson and have the option to sign on, but Washington state Attorney General Bob Ferguson has already rejected the compact, arguing the $26 billion over 18 years — and the estimated $527.5 million the state would get over that period — isn’t sufficient for the toll of the addiction crisis. (Nearly $24 billion from the agreement will go to the states, with the remaining $2 billion covering fees and costs, attorneys general said.)
Public health experts have credited lawyers with delineating the types of addiction programs to which the settlement money can go. In the deal struck last week with the distributors and Johnson & Johnson, the agreement lists a number of abatement strategies that align with public health approaches to addressing addiction, including distributing the opioid overdose reversal medication naloxone; providing medication-assisted treatment to people without insurance and to incarcerated people; and expanding syringe exchange programs.
Still, experts have raised concerns about how exactly states will allocate their dollars, with worries about which types of programs they will or won’t fund. Political and law enforcement officials sometimes oppose some of the most effective treatments for opioid addiction — the medications methadone and buprenorphine — because they are opioids themselves, and instead favor programs that promote abstinence but have less evidence of success and are not backed by addiction medicine specialists.
“We want opportunities for states to be able to tailor the settlement dollars to the needs of the population in their state,” said Creighton’s Dineen. “But we also know that, especially when it comes to drug policy, states don’t always make health decisions that go with the evidence.”
In Louisiana, for example, the legislature passed a bill backed by Landry to steer any settlement money to drug courts. (The governor vetoed the measure, saying it had too vaguely defined an acceptable use of the money.) Many public health advocates argue that drug courts are an extension of the criminal justice system that often don’t help people get evidence-based treatments, and instead call for medical experts to guide addiction care.
While the settlement agreement points to what experts say are the best types of interventions, the deals are also expected to start doling out millions of dollars at a time when officials in some states are rolling back harm-reduction programs. Local officials in Indiana and New Jersey communities have recently voted to shutter syringe exchange programs, which can be conduits to addiction treatment and have been shown to reduce the transmission of viruses like hepatitis C and HIV among people who inject drugs.
“They have to put their money where their mouth is,” Dineen said of the officials who will oversee settlement dollars. “If they really want to help people who have an opioid use disorder, or help prevent it, then they have to get behind programs and services that have a track record of working.”