As we begin to turn the corner on the COVID-19 pandemic in the United States, it is important not to forget about another public health emergency that reemerged alongside this virus over the last year and has yet to be put at bay.
Years of progress in combating the opioid crisis were wiped out in 2020 as Americans increasingly turned to drugs to combat the social isolation and boredom caused by the COVID-19 lockdowns. While drug overdose deaths had been on the decline over the past few years, 2020 sadly saw a resurgence in overdose deaths driven primarily by the abuse of fentanyl. The synthetic opioid which is nearly 100 times more potent than morphine was a significant factor in the 38% increase in overdose deaths Washington state experienced year over year in 2020, outlining the seriousness of the issue.
As our nation’s public health experts work to beat back this third wave of the opioid crisis, our country’s top law enforcement officials are naturally also looking for ways to do their part to beat back this scourge of addiction. Unfortunately, it appears that Washington state’s top law enforcement official, Attorney General Bob Ferguson, may be taking the wrong approach when it comes to his efforts to combat the opioid crisis.
Prosecuting the drug cartels and gangs that are pushing the illicit fentanyl and other poisons that are driving this overdose surge in our communities would be the most effective way the attorney general could help end this crisis. Instead, Mr. Ferguson has directed some of the limited resources of his office toward attempts to exact a big payday from the pharmaceutical companies that manufactured prescription opioids. Suing them for violations of Washington state’s public nuisance statute may be a convenient legal shortcut, but it is a complete misinterpretation of the law and will do little to help solve the current drug crisis.
The Washington State Department of Health has acknowledged that many of the overdoses in the state are being driven by illicit fentanyl, not prescription opioids. The number of opioids prescribed in the state has been in a steady decline and from 2015-2019 decreased by over 35%, making Washington state one of the lowest prescribing opioid states in the country.
No one is saying that pharmaceutical companies shouldn’t help work toward a solution to the opioid crisis and pay their fair share. Many of these companies have already independently funded opioid treatment and education programs. They have also offered up billions of dollars in settlement money to get much needed treatment resources into the communities most affected by the opioid crisis.
But instead of utilizing these much-needed resources and putting them to work right away, Attorney General Bob Ferguson has decided to opt out of this settlement. He has chosen to pursue his own legal action that will take years to resolve, delaying and perhaps jeopardizing the arrival of resources for the residents of the Evergreen State who die of overdoses every day.
Pursuing drug companies for violations of public nuisance law also threatens to have broad ramifications for businesses that will extend far beyond just the pharmaceutical companies currently facing legal action. Public nuisance law is generally constricted to the misuse of property, not the marketing of property. In his attempts to hold drug manufacturers liable for their marketing of a product, the attorney general is considerably expanding the original intent of public nuisance law. One attorney who was involved in similar litigation in Oklahoma referred to it as a violation of “well-established constitutional principles, including due process of law.”
In today’s world anyone selling anything could be considered as a nuisance to someone else. Success in this case therefore, could mean that any company, big or small, could be attacked if someone has an issue with their product. That is why the U.S. Chamber of Commerce and the American Tort Reform Association have both expressed concern with pursuing this line of legal reasoning, fearing it might unleash a “public nuisance monster.”
The opioid crisis is a scourge upon American and Washington state that has cost too many lives. But we will not be able to simply sue our way out of this epidemic and pursuing the attorney general’s current course of legal action threatens to unleash a raft of other unintended consequences. Targeting our efforts toward combating the rise of illicit fentanyl and focusing our law enforcement efforts on shutting down the cartels and criminal enterprises that are pushing this poison on our streets will be the best way to end this crisis once and for all.
George Nethercutt previously represented Washington state in Congress from 1995 to 2005 and is an attorney.
Editor’s note (added June 11): Per the Attorney General’s Office, the author incorrectly states the scope of its authority. The office does not have original criminal jurisdiction, meaning they do not have the authority to initiate criminal investigations and prosecutions as suggested by the author.
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