- - Thursday, April 8, 2021

Lost in the shadow of the worldwide battle against the COVID-19 pandemic has been America’s fight against opioid addiction, which has taken hundreds of thousands of American lives. 

According to the National Institute on Drug Abuse, in 2018 alone my home state of Utah tragically lost 437 to drug overdose deaths involving opioids. Unfortunately, because of the distractive pressures of the COVID-19 pandemic, we will see much higher numbers in 2020. Sensible work must be done to finally end this plague. 

Solving the opioid crisis will require an all hands-on-deck effort and attorneys general in states across the country play an important role, by upholding laws and pursuing those who violate them by, for instance, importing illicit opioids. However, in their zeal to conquer the scourge of addiction, they must guard against going too far, which is always a risk when mixing law enforcement with politics, particularly when over-enforcement could bring additional state revenues.

In addition to their prosecution roles, state attorneys general have been involved in a number of high-profile civil cases against pharmaceutical manufacturers for their alleged role in contributing to the opioid epidemic. Many have combined their legal actions into a manageable multi-district litigation that is working its way through the courts in Ohio, while other states have decided to go it alone.

Oklahoma in particular has stood out for lawsuits against three pharmaceutical companies producing prescription opioids. While Purdue Pharma and Teva Pharmaceutical settled for $270 million and $85 million, respectively, Johnson & Johnson defended its case in court and now faces a judgment of $465 million, not for violating any law specifically related to opioids, but for creating a “public nuisance.”

In its lawsuit Oklahoma claims that Johnson & Johnson “created a public nuisance launching an aggressive and misleading marketing campaign that overstated how effective the drugs were for treating chronic pain and understated the risk of addiction.” These claims appear overblown when one considers that Johnson & Johnson’s opioid medications accounted for less than 1% of total opioids prescribed by doctors in Oklahoma as well as the United States.

As a former attorney general and state lawmaker, I am concerned by government’s attempt to address a societal problem, deserving of a deliberative solution, by asking a court to expand the meaning of public nuisance to include legal products prescribed by licensed physicians. This is being done “after the fact” giving no notice to a company that provides otherwise lawful medications.

While this may seem applaudable during this crisis, when it comes to the rule of law, the “ends” never justify an unconstitutional “means.” Indeed, if successful, Oklahoma’s strategy will promote the future use of public nuisance laws with economically devastating results in politically-driven cases.

Laws are created by legislatures for a reason. Public nuisance laws prevent bona-fide nuisances or annoyances. Now, at the urging of an elected attorney general, an Oklahoma judge has redefined public nuisance to include politically unpopular, but otherwise legal products. This alarming precedent will grant to other courts a license to kill lawful products and even manufacturers.

The Oklahoma litigation is creating a slippery slope. Its formula could negatively impact any industry falling out of favor with the media, such as energy, agriculture and even domestic manufacturing, because no one wants an industrial plant in their backyard. Indeed, it is no secret that environmental activists across America have sued oil and gas companies on public nuisance grounds but have so far been unsuccessful. However, if this case is successful in energy-rich Oklahoma today, tomorrow the precedent could be used to bankrupt national energy companies with a presence in the Sooner State, crippling our domestic energy industry.

This is largely why both the U.S. Chamber of Commerce and the American Tort Reform Association, have serious concerns about using public nuisance laws to address claims of crisis. I therefore urge any judge, attorney general, or lawyer involved in this case — or any similar to it — to consider the unintended ramifications as they pursue further action. 

Oklahoma Attorney General Mike Hunter’s statement, “we did it in Oklahoma. You can do it elsewhere,” confirms to those who understand the principles of our American republic the fundamental problem with Oklahoma’s litigation. Arbitrary government power should be limited by “checks and balances,” meaning that laws defining the legality of products and industries reside with legislatures, not attorneys and judges. 

The opioid crisis is serious and to end it will require a serious and deliberative response by the legislative branch, which represents us. Those laws can then be enforced by the courts. Together, through this constitutional process, we will work to end the opioid crisis once and for all without sacrificing, on the altar of expediency or convenience, our core constitutional protections.

• John Swallow is the former attorney general of Utah. Earlier in his career he served as the state’s chief civil deputy A.G., overseeing seven divisions and all litigation involving the State of Utah. 

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