Substance Abuse Newsletter August 2017

The following is a compendium of news reports over the past month that may be of interest to our AG offices who are dealing with substance abuse issues. Neither the National Association of Attorneys General nor the National Attorneys General Training & Research Institute expresses a view as to the accuracy of news accounts, nor as to the position expounded by the authors of the hyperlinked articles.

Opioids

The President's Commission on Combating Drug Addiction and the Opioid Crisis issued a preliminary report on July 31 stating that its “first and most urgent recommendation” is for the president to “declare a national emergency under either the Public Health Service Act or the Stafford Act.” In addition to declaring a national emergency, the commission's first report includes a number of recommendations that public health experts and drug policy reformers have been advocating for years. They include: expanding capacity for drug treatment under Medicaid; increasing the use of medication-assisted treatments, like buprenorphine and suboxone, for opioid disorders; encouraging the development of non-opioid pain relievers; mandating that every local law enforcement officer in the nation carry naloxone, the drug that rapidly reverses opiate overdose, and broadening “good Samaritan” laws that shield individuals from prosecution when they report a drug overdose to first responders or law enforcement officials.

With increasing frequency, law enforcement officers are exposed to potentially-dangerous unidentified powders. To assist law enforcement in quickly identifying unknown powders, Attorney General Brad Schimel has directed the Wisconsin State Crime Laboratory (WSCL) Bureau to permit law enforcement officers to perform their own field tests at the WSCL, instead of at an uncontrolled location, such as a crime scene or agency evidence storage room. Under the supervision of WSCL analysts, participating officers will open the unidentified powder in a fume hood; remove a sample with WSCL disposable pipettes; conduct the field test; reclose the sample in the hood; and securely double-bag the sample. The WSCL requires officers to bring a personal protective medical mask or respirator, latex gloves, protective eye goggles, packaging supplies, and field test kits. The WSCL maintains an inventory of emergency doses of Narcan® for laboratory emergencies. After law enforcement officers complete their field test, their agency may submit the sample for further testing.

Food and Drug Administration Commissioner Scott Gottlieb announced plans to require manufacturers of painkillers to provide more extensive education for physicians and other health-care professionals who prescribe the drugs. In remarks that opened a two-day FDA meeting on painkiller abuse, Gottlieb said the agency will now require makers of immediate-release opioids to provide prescriber training. These formulations, which account for 90 percent of the opioids prescribed in the United States, include hydrocodone as well as oxycodone/acetaminophen combinations.

Oklahoma Attorney General Mike Hunter has charged Dr. James Fleckenstein with obtaining possession of opioid pain medication by fraud, after an investigation by the Oklahoma Bureau of Narcotics and Dangerous Drugs Control (OBNDD) and Tulsa County District Attorney’s Office. According to court documents, an investigation into Fleckenstein’s prescribing practices began in December 2016 by the OBNDD after a pharmacist became concerned with the amount of opioid medication being prescribed to a patient, who is Fleckenstein’s wife. Court documents say during the investigation, Fleckenstein admitted to investigators he was writing the majority of the prescriptions for his wife and his wife’s friend, who would fill the prescriptions and give the medication to him for his personal use.

Attorney General Hector Balderas announced that New Mexico has joined with four other states in filing a lawsuit in federal court alleging that six generic drug-makers entered into illegal conspiracies in order to unreasonably restrain trade, artificially inflate and manipulate prices and reduce competition in the United States for two generic drugs. The complaint alleges that the defendants routinely coordinated their schemes through direct interaction with their competitors at industry trade shows, customer conferences and other events, as well as through direct email, phone and text message communications. The alleged anticompetitive conduct – including efforts to fix and maintain prices, allocate markets and otherwise thwart competition – caused significant, harmful and continuing effects in the country’s healthcare system, the states allege. New Mexico and the states further allege that the drug companies knew that their conduct was illegal and made efforts to avoid communicating with each other in writing or, in some instances, to delete written communications after becoming aware of the investigation. New Mexico and the states are asking the court to enjoin the companies from engaging in illegal, anticompetitive behavior and for equitable relief, including substantial financial relief, to address the violations of law and restore competition.

The Pennsylvania Office of Attorney General is providing drug deactivation and disposal pouches to 44 pharmacies in Lehigh County. The pouches are being provided to pharmacies to reduce the diversion of prescription drugs in the 12 Pennsylvania counties hit hardest by the opioid epidemic. Through the drug pouch initiative, Attorney General Josh Shapiro is acting to make sure everyone receiving a Schedule II narcotic at a participating pharmacy will be offered a free disposal pouch, and that anyone who requests one can obtain a free pouch to safely dispose of unwanted and unused prescription drugs. The drug pouches can deactivate up to 45 unwanted pills when warm water is added and the pouches are sealed. The pouches can then be safely disposed of in the trash.

Arkansas Attorney General Leslie Rutledge announced an education initiative called “Prescription for Life” featuring a digital platform to be offered at no cost to all high school students in the state to help them understand the dangers of prescription drug misuse and how to prevent abuse. Prescription for Life will come at no cost to participating schools. Using an evidence-based public health approach, the digital course will empower high school students with the skills and knowledge they need to make safe and healthy decisions about prescription drugs. The course will be aligned with the Centers for Disease Control’s National Health Education Standards and state academic standards. The self-paced modular course will use video, animations, simulations, and interactivity to deliver a personalized, self-guided learning experience. The real-life simulations will demonstrate the impact misuse can have on students’ physical and mental health, relationships, and future goals. The scenario-based exercises will help students practice how to support other students in their choices regarding the safe use of prescription drugs.

The City of Buffalo, New York, is experimenting with the nation's first opioid crisis intervention court, which can get users into treatment within hours of their arrest instead of days. To participate in this specialized court, defendants are required to check in with a judge every day for a month instead of once a week and must adhere to strict curfews. Funded with a three-year $300,000 U.S. Justice Department grant, the program began May 1 with the intent of treating 200 people in a year and providing a model that other heroin-wracked cities can replicate. Two months in, organizers are optimistic. As of early July, none of the 80 people who agreed to the program had overdosed, though about 10 warrants had been issued for missed appearances.

Medical/Marijuana/Synthetics

Massachusetts Gov. Charlie Baker (R) has signed a new measure that sets in motion a nearly yearlong process to legalize marijuana for recreational use, after months of negotiations with the state legislature. The law comes nine months after voters in Massachusetts approved ballot measures to allow recreational marijuana. The first recreational pot shops are set to open in July 2018. The state will levy a 17 percent tax, while municipalities will issue their own 3 percent tax. Massachusetts anticipates generating as much as $83 million in tax revenue from marijuana sales during the first year of legalization alone, the state Department of Revenue estimated earlier this year.

Massachusetts companies cannot fire employees who have a prescription for medical marijuana simply because they use the drug, the state’s highest court ruled, rejecting employers’ arguments that they could summarily enforce strict no-drug policies against such patients. Supreme Judicial Court Chief Justice Ralph D. Gants said a California sales and marketing firm discriminated against an employee of its Massachusetts operation who uses marijuana to treat Crohn’s disease when it fired her for failing a drug test. Justice Gants wrote, “the use and possession of medically prescribed marijuana by a qualifying patient is as lawful as the use and possession of any other prescribed medication.” Therefore, he said, employers can’t use blanket anti-marijuana policies to dismiss workers whose doctors have prescribed the drug to treat their illnesses.

New Hampshire Gov. Chris Sununu (R) has signed a new law decriminalizing marijuana, making the Granite State the 22nd in the nation to eliminate the possibility of jail time for those convicted of simple possession. When it takes effect this fall, the new law will reduce fines for possession of up to three-quarters of an ounce of marijuana from $2,000 to just $100 for a first or second offense. New Hampshire is the last state in New England to drop marijuana possession from a criminal misdemeanor to a civil offense.

Three U.S. Postal Service workers were found guilty after they conspired together to distribute hundreds of pounds of marijuana for money while on the job in D.C. Deenvaughn Rowe, 48, of Odenton, Md., Kendra Brantley, 32, of D.C., and Alicia Norman, 39, of D.C., were each convicted on one count of conspiracy to commit bribery, bribery, and conspiracy to distribute marijuana after a week-long trial, according to the U.S. Department of Justice. Evidence in the trial showed that Rowe, who was working as the acting manager of the River Terrace Post Office at the time, would use his work computer to track packages being mailed from the West Coast to another post office location in the District. According to the DOJ, the packages were normally addressed to people who either did not exist or to fake addresses altogether. Conspiring with Rowe by text message at the Lamond-Riggs Post Office, was Brantley, a letter carrier, and Norman, a carrier technician. The DOJ states that, upon arrival of the packages of marijuana, Brantley and Norman would "load the packages into their postal vehicles and deliver them to individuals they met on the street in exchange for cash."

Regulators of the state’s budding medical marijuana industry have received approval to spend an additional $6 million over the next two years on projects including a seed-to-sale tracking system. The funds for the Ohio Medical Marijuana Control Program were approved Monday, adding to the previously approved $5 million. Officials say the program will repay the state using revenue from licensing fees. “None of it is going to be taxpayer shouldered,” program official Justin Hunt stated.

PDMP

Governor Eric Greitens signed an executive order directing the Missouri Department of Health and Senior Services to begin work creating a Prescription Drug Monitoring Program. Through partnerships with private sector leaders, the state will be able to monitor prescribers and dispensers in the system. The full text of the executive order may be accessed here.

Other

The Justice Department announced the seizure of the largest criminal marketplace on the Internet, AlphaBay, which operated for over two years on the dark web and was used to sell deadly illegal drugs, stolen and fraudulent identification documents and access devices, counterfeit goods, malware and other computer hacking tools, firearms, and toxic chemicals throughout the world. The international operation to seize AlphaBay’s infrastructure was led by the United States and involved cooperation and efforts by law enforcement authorities in Thailand, the Netherlands, Lithuania, Canada, the United Kingdom, and France, as well as the European law enforcement agency Europol. On July 5, Alexandre Cazes, aka Alpha02 and Admin, 25, a Canadian citizen residing in Thailand, was arrested by Thai authorities on behalf of the United States for his role as the creator and administrator of AlphaBay. On July 12, Cazes apparently took his own life while in custody in Thailand. On July 19, the U.S. Attorney’s Office for the Eastern District of California filed a civil forfeiture complaint against Alexandre Cazes and his wife's assets located throughout the world, including in Thailand, Cyprus, Lichtenstein, and Antigua & Barbuda. Cazes and his wife amassed numerous high value assets, including luxury vehicles, residences and a hotel in Thailand. Cazes also possessed millions of dollars in cryptocurrency, which has been seized by the FBI and the Drug Enforcement Administration (DEA).

The owner and director of compliance of Pharmakon, an Indiana compounding pharmacy, were charged criminally in connection with their distribution of over- and under-potent drugs, and defrauding the United States by interfering with and obstructing the lawful functions of the Food and Drug Administration (FDA), the Department of Justice announced today. Paul J. Elmer, 64, of Fishers, Indiana, and Caprice R. Bearden, 62, of Carmel, Indiana, were charged in a 10-count indictment with one count of conspiracy to defraud the United States, three counts of distributing an adulterated drug in interstate commerce and six counts of adulterating drugs while held for sale after shipment of a drug component in interstate commerce. The U.S. District Court in the Southern District of Indiana has jurisdiction of the case. The indictment alleges that, from July 2013 through mid-February 2016, Bearden received approximately 70 potency test failure notices from companies used by Pharmakon to test for potency, indicating that drugs such as morphine sulfate and fentanyl were either under- or over-potent. According to the indictment, Bearden discussed the out-of-specification test results with Elmer, a licensed pharmacist, and, until Pharmakon compounded over potent morphine sulfate in February 2016, Elmer determined that Pharmakon should not contact any individuals or entities – including hospitals – who received the drugs, nor conduct any product recalls before FDA intervention.

The Foundation for Advancing Alcohol Responsibility (Responsibility.org), a national not-for-profit organization that leads the fight against drunk driving and underage drinking, announced the recipients of its 2017 Leadership Awards. Among the recipients is Montana Attorney General Tim Fox for his leadership in preventing impaired driving and underage drinking and for promoting teen driver safety. Attorney General Fox has made it a priority to prevent underage drinking through numerous efforts including public service announcements, the Ask, Listen, Learn Program, and public awareness efforts during Alcohol Awareness Month and back to school timeframes. He has also focused on the broader issue of teen driver safety with the IKnowEverything program during Global Youth Traffic Safety Month and National Teen Driver Safety Week.


Joanne Thomka is the Editor of Substance Abuse News and may be reached at 202-326-6269. Substance Abuse News is a publication of the National Association of Attorneys General. Any use and/or copies of this newsletter in whole or part must include the customary bibliographic citation. NAAG retains copyright and all other intellectual property rights in the material presented in this publication. For content submissions or to contact the editor directly, please e-mail jthomka@naag.org.

Faculty Spotlight

NAGTRI's faculty are top-rated experts in their field. Read about them.

Course Schedule

NAGTRI offers high-quality, responsive and innovative trainings.

Research & Newsletters

NAGTRI produces comprehensive research and newsletters on topical legal issues.