Action is needed now to redirect state resources in the fight against illegal opioids

Op-ed views and opinions expressed are solely those of the author.

Recently released government data found that in 2020 fentanyl overdose deaths surged to become the leading cause of death for adults ages 18-45. The fact that more adults died from one illegal drug than from cancer, car accidents, or from the COVID-19 pandemic that has gripped the country for now well over a year puts the issue at hand into stark perspective. It also offers a sobering reminder as to how far we still have to go to end America’s opioid crisis.

For several years now fentanyl has been the main driver of much of the death and despair associated with the opioid crisis. A synthetic opioid that is up to 50 times more potent than heroin, fentanyl has quickly become the main illicit opioid available on the streets. For the first time ever in 2021 in fact, more fentanyl was seized at the border than heroin. The drug is also frequently pressed into counterfeit pills made to look like legitimate prescription opioids and has been used to lace other drugs such as methamphetamines and cocaine, with all too often tragic results.

Two important and interconnected steps should be taken to help stem the flow of these illegal drugs and to end this nationwide opioid crisis once and for all: a stronger and more coordinated law enforcement response against illegal narcotic distributors as well as an expansion of access to treatment programs for those suffering from addiction.

Both efforts have to date been hampered by litigation efforts against the manufacturers and distributors of prescription opioids that are happening at the city, county, and state level. Over 3,300 lawsuits have been filed to date and while no one would disagree that it is important that pharmaceutical companies do their part to help end the nation’s opioid crisis. But many of these legal efforts are wasting precious limited legal resources that could be better spent building cases against illegal drug networks, have delayed the rollout of treatment resources, and have borne little fruit.

Take for example a recent case in Oklahoma where the state’s Attorney General was attempting to hold a pharmaceutical company liable for creating a public nuisance for manufacturing, marketing and distributing opioids. In a 5-1 decision the Oklahoma Supreme Court held that the company was not liable under the state’s public nuisance law and that such public policy matters should be dealt with by the legislative and executive branches which are more capable of dealing with such complex issues. Given the outcome of this ruling, many other states that have looked to Oklahoma as the model for similar legal efforts have been left to rethink the wisdom of such strategies.

Fortunately, a pathway forward has presented itself to help accomplish both goals. In July of this year a $26 billion nationwide settlement was announced with several key drug companies and distributors to conclude years of counterproductive legal wrangling. Such a settlement will free up resources in D.A. and A.G. offices that were previously focused on opioid litigation to build cases against the drug cartels and illicit manufacturing operations that are flooding American streets with illicit fentanyl.

It will also immediately make funds available to expand treatment programs that would have otherwise been tied up in several more years of litigation. At one of the lowest points of the opioid crisis funding to support programs such as Denver’s “Treatment on Demand” program, which was recently highlighted in the National Council for Mental Wellbeing roadmap for health departments to reduce substance-use related harms, is more critical now then ever.

To date 45 states and 5 territories have formally entered into the agreement, including my home state of Colorado. Given the complexities of the formulas involved with distributing settlement funds across such a wide range of jurisdictions, a critical mass of cities and counties in each state needed to join in order to unlock the full amount of settlement money available. Earlier this month it was announced that enough jurisdictions in Colorado had done so to receive its full allotment of funds under the terms of this settlement, leaving the state well positioned to fight the devastation caused by opioid abuse.

The January 26th deadline to formally enter into this settlement has just passed. Approximately 90% of local governments nationwide that were eligible to participate in the settlement have opted to do so, moving one step closer to a finalized agreement that will unlock these much-needed funds. The fact is we will not be able to end the opioid crisis without the full attention of our law enforcement officials or without adequate financial support for our local public health efforts. Ensuring those resources are in place will be an important first step towards helping America finally end the opioid crisis for good.

Ken Summers is a former member of the Attorney General’s Drug Trend and Response Task Force and the former chair of the Health Committee in the Colorado House of Representatives. During his time in public service, he also served as the Executive Director of a residential drug and alcohol recovery program.


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