STEVE INSKEEP, HOST:
How, if at all, could the law hold drug companies criminally accountable for the opioid crisis? We may find out. Federal prosecutors have begun issuing subpoenas to drug companies. We do not know for sure if the probe out of Brooklyn is pointing toward criminal charges. We don't know, but it raises the question of further jeopardy for an industry that has already faced giant judgments in civil lawsuits.
Regina LaBelle will talk us through the facts and the law. She's at Georgetown University Law Center here in Washington, D.C. She directs Georgetown's Addiction and Public Policy Initiative, and she knows about this topic because she was chief of staff of the Office of National Drug Control Policy under President Obama.
Thanks for coming by this morning.
REGINA LABELLE: Good morning. Thanks.
INSKEEP: So the U.S. attorney's office is not saying what they're up to, of course, but six companies acknowledged they received subpoenas. What does that suggest to you?
LABELLE: Well, it certainly suggests there's an extensive criminal probe. There have been other charges that have been brought in the state of Ohio and also in other parts of New York against drug distributors. So this is against distributors and manufacturers, which makes it very extensive. And we're not - as you said, we're not really sure what the results of this will be over a long period of time - if this is, as the distributors are saying, merely an investigation to look at practices or if it could result in criminal charges being brought against some of the officials in these drug distribution companies.
INSKEEP: It's good to take note of that suggestion that this might be smaller, narrower than it seems. But suppose it is bigger. Suppose it does go that way. What criminal laws could conceivably apply to people who were doing a perfectly legal business but maybe in an irresponsible way?
LABELLE: Right. So they're bringing these actions under the Controlled Substances Act, which is, again, how these cases have been brought in other parts of the country. Over the years, the Drug Enforcement Administration has brought administrative actions against many of these same distributors where they have shown willful disregard for drug distribution practices where - so I'll give you an example.
In - Kermit is a small town of 400 people. From 2008 to 2011, there were 3.7 million units - so doses of the opioid hydrocodone - that were distributed to this little pharmacy in a town of 400.
INSKEEP: In which state was this?
LABELLE: This was in West Virginia.
INSKEEP: Oh, OK. Right, right, right.
LABELLE: So that's an example of the type of kind of willful disregard for regulatory practices that they could be looking at in this case.
INSKEEP: Meaning you guys could look at the numbers and tell that something was happening here and that you were effectively drug dealers.
LABELLE: Pretty much. And what they're supposed to do in best practices - they're supposed to tell the Drug Enforcement Administration, hey, there's something going on here; we're going to take a look at this and work with you to regulate it. But that - clearly, that's the question here. Did that happen? We've seen over a number of years that that isn't what happened, and that's what this could be about.
INSKEEP: Common sense would tell us that if millions of doses of drugs are being sold in a town of a few hundred, that something odd is going on here. But is there a law - a specific law for which you could face criminal penalties because you failed to do something there?
LABELLE: Right. That's the Controlled Substances Act. That's what...
INSKEEP: That's what does it. OK.
INSKEEP: And that law is written in a way that someone could go to jail. A former executive or current executive could go to jail.
LABELLE: Right. Right.
INSKEEP: Now, of course, the companies - Johnson & Johnson, to give an example - they've already faced huge civil judgments. But they've said when it comes to monitoring the flow of drugs, whatever they did complied with the law. Could there be a case to be made there?
LABELLE: Certainly. I mean, so they - they'll look at - they'll have to have discovery. They'll look at what would happen if - you know, if the compliance officers weren't really doing their job, if they encouraged people to provide more drugs to these small towns. So they'll look at all of this during discovery.
INSKEEP: Given that companies are paying or being told to pay billions of dollars in civil settlements, is there a point at which this becomes too much?
LABELLE: So I think from a policy perspective, what we want to do is make sure this doesn't happen again. And will we reach that point - when will we reach that point? And I think that that's the question before us. Is incarcerating these directors of these corporations going to make sure that we change the practices that led us to this?
INSKEEP: Would you do that - put somebody in jail?
LABELLE: I - my interest is in changing the policies and practices that got us to where we are today.
INSKEEP: Does that mean - if that means jail time for someone, you'd do it.
LABELLE: I think that that's a larger issue. My concern is changing marketing practices.
INSKEEP: Whatever helps things in the future. Regina LaBelle, thank you so much.
LABELLE: Thank you very much.
INSKEEP: She's at Georgetown University Law Center.
NPR transcripts are created on a rush deadline by Verb8tm, Inc., an NPR contractor, and produced using a proprietary transcription process developed with NPR. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.