There’s nothing wrong with making opioids. But what about how they’re promoted?
That’s the question at the center of the Oklahoma state opioid trial, which began this week. The case is being closely watched by hundreds of other states and local and tribal governments seeking to pin blame on opioid makers for the crisis ravaging the country.
It’s also a gut check for any marketer who’s ever worked on an opioid brand. Johnson & Johnson may be the only company in the defendant’s chair, as Teva and Purdue both reached separate settlements with the state, but the case is a referendum on the promotional practices of any pharma company that makes opioids.
With scenes from the courtroom streaming live, and the televised trial set to drag on into the summer, this case will be as much spectacle as legal proceeding. And it’s only the beginning, as several other state trials are in the works, from Alaska to New Jersey.
It’s anybody’s guess who will ultimately prevail, or whether the legal departments at the opioid companies named as defendants will eventually reach a cumulative settlement with the governments (and what that number could look like if they do). Marketers, meanwhile, should brace for change.
Oklahoma’s argument centers around a claim of deception. As its attorney general Mike Hunter said on day one of the trial, to make its case Oklahoma will argue that J&J marketed its opioids as “safe and effective for everyday pain” and downplayed their addictive qualities while flooding the market—or in legal parlance, created a “public nuisance.”
Hunter contends that the manufacturer’s responsibility doesn’t end once its products leave the plant. J&J and its subsidiary Janssen do in fact shoulder blame for how those products are used and, ultimately, for their role in the opioid crisis, according to the AG.
On the contrary, as J&J argued in its opening statements, the manufacture of opioids is a perfectly legal endeavor, and the drug maker should not be held liable for the way its opioid painkillers—which have included the Duragesic patch and pills Nucynta and Nucynta ER (both Nucynta brands are now owned by Collegium Pharma)—are prescribed by doctors or used by patients.
That’s one reason legal experts see this trial as distinct from the case against big tobacco in the 1990s. There is a great need among patients suffering from chronic pain, many of whom would suffer harm without unabated access to these powerful analgesics.
But analysts are drawing similarities between the cases, too. Minnesota was the first state to settle with big tobacco, after which a universal settlement was eventually reached. That makes Oklahoma’s case all the more important: As the benchmark case in the opiate multidistrict litigation, the Sooner State gets to set the pace.
And, just as the $200 billion tobacco settlement included marketing and advertising restrictions, I don’t think it’s unreasonable to suspect that those could be coming down the pike here, too.
State attorneys are calling to the stand industry insiders to lay bare the practices used to promote these drugs, from on-label medical education to CME and peer-to-peer speaking by physician key opinion leaders, often at the behest of sales reps (who, as we’ve noted before, are usually on the front lines of recruiting doctors to preach the gospel to other doctors).
Never mind that federal regulators, state boards of pharmacy and drug distributors have been largely ineffectual in preventing the seemingly hopeless spiral of opioid-related deaths in which the country now finds itself. When you’re in the spotlight, it matters less to the public (or, perhaps, the judge) whether your actions were right or wrong.
In addition, in the wake of this litigation, healthcare marketers—already held to some of the highest regulatory standards in all of advertising—could begin applying an extra level of scrutiny and rigor to their efforts. Social consciousness may become a more widespread business practice.
“I can tell you in my 20-plus years in healthcare marketing,” one very senior marketer who’s worked on the opioid brands in question told me, “I haven’t viewed clients in terms of ‘How will this play in Peoria?'” And that was a bit misguided, he said. To the extent marketers tend to look at clients and messaging in a somewhat “formulaic” fashion, “This [litigation] will cause us to pause and say, ‘Now that everything looks right, is there a social responsibility?'”
What might that look like? “My gut reaction,” he continued, “would be that social responsibility would be front-and-center in the messaging and/or creative. It couldn’t just be in the back, sort of in the ISI [important safety information], but something everyone sees, clear and on the nose.”
Marketers all have a sense of where that “line” is, another opioid marketer told me. If that changes, people will need to reevaluate what is the best balance of messaging for these clients, since so many patient lives are at stake.
Changes in marketing could, in turn, lead to further dents in the number of opioid prescriptions. The position in pharma circles has always been that access to pain therapy for patients is sacrosanct. But the pendulum is swinging anyway.
After peaking in 2012, opioid scripts have been decreasing ever since and reached an all-time low in 2017, per the CDC, although rates remain very high in certain parts of the country, such as Alabama and Arkansas. Estimates on the number of people on long-term opioid therapy vary from 8 million to 18 million patients.
In 2016 the CDC introduced guidelines encouraging clinicians to taper dosages, and many states have put prescription limits in place. The opiate litigation could expedite these trends.
To be sure, Oklahoma’s nuisance claim is no open-and-shut case. North Dakota’s judge, for instance, agreed with Purdue, saying the state did not have “cause of action” for nuisance, in its dismissal of a liability case against the OxyContin maker.
Nevertheless, for anyone who’s ever taken up the copywriter’s pen, been a creative lead or otherwise applied their energies to marketing an opioid brand, the approach to the category may never be the same.