AG Probe Into Pharmaceutical Marketing of Opioids Hits Roadblock

Mar 10, 2016

The New Hampshire Attorney General’s investigation into marketing practices by large pharmaceutical companies hit a roadblock this week. The Attorney General wants to know if those companies have been deceptively marketing opioids - drugs that have been diverted in mass quantities to fuel addictions and overdoses. But a court order now slows down that process.

In New Hampshire, more and more people are dying of opiate overdoses – 420 last year. And most people who get hooked on black-market opiates like heroin start their addictions with diverted prescription drugs like OxyContin and Oxycodone. It’s become a nationwide problem.

"We have five percent of the world’s population and consume 80 percent of the world’s opiates," says Attorney General Joe Foster. "These drugs are dangerous. They were used sparingly."

Foster says these drugs were used sparingly until pharmaceutical companies aggressively marketed them to doctors in the 1990s. He points to Purdue as an example. That company downplayed OxyContin’s addictiveness while overselling its effectiveness for chronic pain. Purdue executives pleaded guilty to criminal charges in 2007.

But since then, opioid addiction and deaths have skyrocketed. And Foster suspects that’s linked to more misleading marketing.

"If they are continuing to mislead the public, we are going to continue to improperly create addicts in our state," says Foster.

Disputed subpoeanas

Last August, the Attorney General subpoenaed five companies: Actavis, Endo, Janssen, Purdue and Teva. And there are parallel efforts around the country. The State of Mississippi recently filed a 255-page lawsuit against some of these same companies.

Jim Boffetti heads the Attorney General's Consumer Protection Bureau. He says the subpoenas demanded the companies hand over a huge amount of internal marketing materials.

"The sales reps, the contacts they had, any seminars that they were sponsoring, and as well as national promotional materials that they were engaged in. It’s millions of pages, I think, at the end of the day. So this is a sizeable undertaking for an office that is fairly small staffed," says Boffetti.

Attorney General Joe Foster says the pharmaceutical companies are deliberately trying to inundate his office with paperwork by claiming the state can’t get outside help to pick through those millions of pages.

"Pharmaceuticals are pretty profitable entities. They can hire the best and the largest law firms in the state. And they want to make sure that AG’s offices can’t sort of stand toe-to-toe in the ring with them. You know you might ask yourself, ‘Why are they fighting so hard if they have nothing to hide?’"

Court order slows things down

And here's where we get to the thorny legal question. The Attorney General signed a contract to hire outside counsel to help sift through that raft of paperwork. But the pharmaceutical companies asked for protection in Merrimack County Superior Court, arguing the state has no legal authority to outsource this work.

The court nullified the contract, but said the Attorney General could sign another one – so long as it’s approved by the Governor, the Executive Council and the Joint Legislative Fiscal Committee.

No word yet from the Attorney General’s office on how it will respond to the court order. Lawyers for the pharmaceutical companies didn’t respond to requests for comment.