For the U.S. system of private-sector-led pharmaceutical research and development, there has perhaps never been a greater success story than the swift discovery, production and distribution of effective vaccines against the coronavirus. As such, it illustrates the good things that can happen when the profit motive is put to work in the service of public health — and it refutes the stereotype about “greedy drug companies.”

Yet like many stereotypes, this one has a kernel of truth, as the events in a New York bankruptcy court on Sept. 1 also remind us. A settlement has been reached to restructure the maker of a highly addictive opioid, OxyContin. The company, Purdue Pharma, brought the drug to market roughly a quarter century ago, and aggressively — but, as the firm was later forced to admit in a federal criminal plea deal, falsely — sold it as a low-risk treatment for non-cancer pain. (In 2020, the company pleaded guilty to violating federal fraud and making illegal payments to prescribers.)

A deadly addiction epidemic followed, involving eventually not only OxyContin but also other drugs, licit and illicit, whose consequences still plague the country. Members of the Sackler family, which owns Purdue, will pay $4.3 billion to settle outstanding litigation, in return for which they will be shielded from personal liability. The money is supposed to fund addiction treatment as well as compensation to those harmed by Purdue products, while the firm itself will be converted into a “public benefit company” to supply addiction and overdose treatments.

Critics of the deal, including the attorneys general of two states, Washington and Connecticut, that plan to appeal it, argue that it imposes insufficient accountability on the Sacklers, who will probably retain most of the wealth they made from Purdue but have issued no clear apology. This result, the critics argue, blunts the deal’s impact not only in terms of retrospective justice but also in terms of future deterrence.

They have a point. Yet the truth is that after-the-fact legal accountability, civil or criminal, was bound to be frustrating. No amount of money, or even prison time for alleged corporate authors of the epidemic, could bring back the 500,000 who have died, much less repair all the collateral damage that figure implies.

A crucial lesson of this episode, and its inevitably unsatisfactory denouement in court, is that more must be done to prevent such catastrophes. Between for-profit medicine’s potential for good and its potential for harm stand regulatory institutions — federal, state and professional. In hindsight, it is clear that these gatekeepers failed disastrously regarding opioids. Purdue captured the regulatory process, promoted questionable pro-opioid science in conferences and medical journals, and overwhelmed doctors with direct-to-physician marketing. It cannot be said too often that the opioid epidemic began with legal drug use. Indeed, it began, as many disasters do, with the best of intentions — to heal pain — which the makers of OxyContin exploited.

Those charged with regulating the pharmaceutical industry, and the legislators to which the regulators ultimately answer, must constantly question conventional wisdom and remain alert to potential unintended consequences. By the time the lawyers get involved, it is usually too late.

— The Washington Post

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