The attorney general holds a unique position in state government. As the chief legal officer of the state, commonwealth, or territory, the attorney general is the legal advisor to and legal representative of state government branches and agencies, as well as the principal legal representative of the public interest for all the state’s citizens. Each attorney general enforces a variety of state laws that may apply to the distribution of opioids and other substances. Attorneys general are responsible for protecting the state’s citizens by enforcing the state’s consumer protection laws, including laws that prohibit deceptive acts and practices and misleading advertising. State attorneys general also may sue to protect the public from “public nuisances,” which are acts or things that interfere with the rights of the public as a whole. Finally, the attorney general protects the state itself and its taxpayers by enforcing the laws against submitting false claims to the government or committing Medicaid fraud.
Attorneys general have a long history of enforcing consumer protection laws against pharmaceutical manufacturers. For the past decade, attorneys general have worked together to maximize shared resources to hold accountable those who have created and have benefited from the opioid epidemic. The opioid epidemic refers to the serious public health issue caused by the increased prescription of opioid medications from 1993 to the early 2010s. This increase in prescriptions has led to widespread misuse of opioids, with nearly 500,000 people dying from an overdose involving any opioid in the past 20 years.
State attorneys general have pursued opioid makers, distributors, and national pharmacy chains in an effort to halt unlawful conduct that led to the epidemic. Enforcement actions have been filed against various beneficiaries of the opioid epidemic, including pharmaceutical manufacturers Purdue Pharma (and members of the Sackler family who owned Purdue and directed its actions), Endo International, Johnson & Johnson (and its subsidiary Janssen), Allergan, and Teva Pharmaceuticals, McKinsey & Co. (a consultant that assisted in developing manufacturers’ allegedly deceptive marketing campaigns), and wholesale opioids distributors AmerisourceBergen Drug Co., Cardinal Health Inc., and McKesson Corp. These companies have helped fuel the opioid crisis by supplying excessive amounts of opioids despite allegedly knowing that they were grossly exceeding allowable prescribed amounts. Moreover, the attorneys general alleged that leading pharmacy chains such as CVS, Walgreens, and Walmart supplied a grossly excessive number of opioid prescriptions without adequate safeguards in place.
The first national settlement, involving a $26 billion recovery, was announced in 2021 and finalized in 2022. A bipartisan coalition of attorneys general reached a final agreement with prescription opioids manufacturer Johnson & Johnson and pharmaceutical distributors AmerisourceBergen, Cardinal Health, and McKesson. These settlements, in part, require that the companies change the way they conduct their business, including improving safety and oversight over the distribution of prescription opioids. Other multistate settlements have followed. In 2021, 48 attorneys general announced a $573 million settlement with consulting company McKinsey & Co. for its role advising Purdue Pharma on how to maximize profits, fueling the opioid epidemic. In 2022, 36 attorneys general announced a $450 million agreement with opioid maker Endo International and its lenders as part of Endo’s bankruptcy filing. This agreement will provide up to $450 million to participating states and local governments, ban promotion of Endo’s opioids, and require Endo to turn over millions of documents related to its role in the opioid crisis for publication in a public online archive.
Later in 2022, 16 attorneys general announced a $3.1 billion national settlement with Walmart over opioid epidemic allegations. This settlement requires significant improvements in how Walmart’s pharmacies handle opioids, as well as resolves allegations that the company contributed to the opioid addiction crisis by failing to appropriately oversee the dispensing of opioids at its stores. (In December 2022, Walmart settled with all 50 states, including four states that previously settled, as well as the District of Columbia, Puerto Rico, and three other U.S. territories.) Also in 2022, 13 attorneys general announced a $6.6 billion settlement with opioid manufacturers Teva Pharmaceuticals and Allergan. This settlement not only will provide much-needed funds for addressing the opioids crisis, it also includes fundamental business practice changes and transparency requirements. (As of January 2023, Teva either has already settled with or confirmed participation from 48 of the 50 states.) Most recently, attorneys general announced a $10.7 billion national settlement with CVS and Walgreens for the pharmacies’ conduct in fueling the opioid epidemic. CVS will pay $5 billion and Walgreens $5.7 billion for the excessively issuing prescriptions without oversight.
Attorneys general have taken different approaches to best address situations in their respective states. To combat the epidemic and assist with funds utilization, some attorneys general have engaged in a plethora of responses, such as creating multi-agency and partner task forces, preparing blueprint reports as guidance, allocating abatement funds to municipalities to develop strategies, and engaging in harm reduction, treatment, and recovery, all with support from public health officials, municipal leaders, and families who have been affected by the epidemic.
Similar efforts have been taken in other states. Although national settlements and judgments have been reached with certain defendants, the opioid crisis continues to negatively impact our country. With the addition of the COVID-19 pandemic, approximately 41 percent of adults in the United States have experienced an adverse mental health or substance use–related event during the pandemic, while 13 percent specifically have started or increased substance use. In 2020 alone, a 30 percent increase in drug overdose deaths occurred since the prior year, reaching an all-time high. As settlement monies become available to states, each state is determining how best to allocate funds in an effort to reduce the effects of the epidemic and attempt to make those communities harmed whole again.
© 2023. Published in GPSolo, Vol. 40, No. 2, March/April 2023, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.