Attorney General David Eby has announced a class-action lawsuit by B.C. against more than 40 manufacturers and distributors of opioid drugs. He has invited other provinces to join him.
Eby’s complaint against the manufacturers centres on two main allegations. First, that they knowingly understated the addictive qualities of opioids. And second, that they advocated using these drugs to treat conditions for which they were not designed.
The complaint against distributors, such as Shoppers Drug Mart, rests on a different premise — that they supplied opioids to hospitals and retail pharmacies in quantities they knew, or should have known, exceeded any legitimate market.
In both cases, Eby is seeking damages to cover the cost to the health-care system of treating opioid addiction.
In his complaint against the manufacturers, the minister appears to be on solid ground. It is well established that some pharmaceutical firms consistently misled medical practitioners as to the risk of addiction associated with opioids.
In particular, they advocated employing drugs such as fentanyl and oxycodone for the treatment of chronic pain, claiming this was a safe use of these medications. But it has been known for some time that long-term use of opioids frequently results in addiction.
Heavy-duty medications like these are more appropriately prescribed for temporary pain following surgery, for late-stage cancer or in treating terminal illness.
In the U.S., there have been numerous successful lawsuits against drug manufacturers for deceptive advertising. Some companies paid hundreds of millions in damages. In part, this is because the regulatory regime around addictive drugs is well defined in the U.S., which makes a conviction easier to achieve.
But Eby’s case is not so much that drug companies defied Canadian regulations, as that they deliberately acted in a manner calculated to mislead hospitals, pharmacies and physicians. While this is still just an allegation — it has not yet been proven in court — the serious nature of the claimed misbehaviour makes this a case worth pursuing.
However, it might seem the minister is on shakier ground when he extends his lawsuit to wholesalers. The complaint here — that they were supplying opioids in quantities they ought to have known were reckless — runs into several obvious objections.
First, how are wholesalers to know the correct volume of a drug intended for a given market? There is no well-defined formula or rule of thumb to determine quantities.
Both the National Pain Centre at McMaster University and the B.C. College of Pharmacists have published guidelines on the use of opioids for chronic pain. But these are relatively recent, and provide no way to assess the overall amounts that should be sold.
Again, distributors are not marketing their products to uninformed patients or members of the public. They are selling to hospitals, and to retail pharmacies that fill prescriptions written by physicians.
But isn’t it up to these medical authorities to police their own behaviour? If physicians have been misled by the manufacturers, that’s one thing, but why are supply and delivery firms to blame?
Eby might suspect the distributors have been willing accomplices in the kind of shady practices alleged against big pharma. However, he makes no such claim in his notice of civil action.
His complaint is simply that suppliers were in a unique position to observe the large quantities of opioids being distributed, and did nothing. Perhaps so, but in the absence of an agreed limit, is it reasonable to suggest these firms should have adopted an arbitrary cap?
Like the province’s attempt to sue tobacco companies for misleading advertising, this case will require years, and perhaps decades, to work its way through the courts.
Nevertheless, Eby has taken an important step. It is long overdue that the pharmaceutical industry accept its role in the opioid crisis sweeping our country.
