Attorneys for the state of Oklahoma are trying to prove that Johnson & Johnson contributed to the opioid crisis by engaging in unethical marketing of its opioid products.
In day two of the landmark pharma trial, prosecutors showed video testimony from Dr. Russell Portenoy, a pain specialist who previously advocated for the use of opioids for chronic pain and was paid by pharma companies to do so. He discussed how drugmakers such as J&J and subsidiary Janssen would pay doctors to speak favorably about their products at third-party conferences or publish papers under their names showing J&J products in a positive light.
Portenoy also described how Janssen used continuing medical education programs as marketing tools. He previously co-chaired a program called the National Pain Education Council.
Despite serving as co-chair and knowing that it was funded by Janssen, Portenoy said he had no idea the company was using its CME content selectively for marketing purposes.
“At best, there is a firewall between CME and marketing,” he said in his testimony. “This demonstrates why the firewall was necessary, why the rules have gotten much stronger. Continuing medical education programming, which was not intended for marketing purposes, and certainly the academic people who were devoting their energies to it did not consider themselves contributing to marketing in any way, it was actually being used by the company as a marketing strategy.”
Portenoy and Oklahoma’s lawyers reviewed J&J’s business plans for its opioid products Nucynta and Duragesic for 2012 and 2002, respectively. In these documents, J&J described using CME, key opinion leaders and paid speakers to promote the drugs and take market share from its competitor, OxyContin maker Purdue Pharma.
Portenoy said he had been paid to speak by companies such as J&J and Purdue and discussed how these drugmakers could get around rules against kickbacks by paying doctors through third-party professional societies.
“If a drug company was sponsoring a conference at a professional society meeting…the educational payment would go to professional society and then the professional society may be able to transfer it to the speakers,” he explained. “The speakers programs had the primary objective to educate doctors, but the messages that doctors would give when giving talks for the speakers bureau were generally favorable.”
Much of the marketing of opioids targeted doctors, but Oklahoma argued that because of the use of paid speaker programs and biased academic publications, doctors weren’t getting the whole picture.
Portenoy said that pharma companies were trying to obscure the risks of opioids in their marketing and education to doctors. He added that the companies highlighted the favorable aspects of opioids to doctors while downplaying risks and education about how to properly choose patients for opioid treatment and monitor them for signs of addiction.
“I’ve come to conclude that their conduct in marketing without context, without education about risk, produced an increase of inappropriate and unsafe prescribing that contributed to the public health problem,” Portenoy said.
If doctors aren’t properly educated about the drugs they are prescribing, patients who come in for pain problems may be incorrectly chosen to receive products not suited for them.
While there was little to no direct-to-consumer advertising for opioids, Portenoy discussed how DTC paired with undereducated doctors could affect the prescribing of opioids. He said there should not be any DTC campaigns, either branded or unbranded, for opioids.
“Patients don’t have the knowledge to make a judgement about what the risks are of that treatment,” Portenoy said. “If marketing is done that suggests to them that pain relief is a possibility, they’re going to focus on that, they’re going to bring the information to their physician and are going to ask for these drugs. They have to be hopeful that their physician had been adequately educated and has the ability to say no to a patient who, perhaps assertively, says treat me I have terrible pain. That just increases the risk that patients are going to get access to opioids and suffer negative consequences.”
The Oklahoma case is the first lawsuit in the country to reach trial that is trying to hold pharma companies liable for the opioid crisis. J&J is the only defendant remaining after two other drugmakers, Purdue and Teva, settled. The trial began on Tuesday, with the prosecution beginning to lay out its case against J&J, and is expected to last for weeks.