I love neither DEA or PhARMA, but the business about Congress passing a last year to make it “harder for DEE to stop drug companies selling drugs to drug dealers” is a load of crap. Or, perhaps more accurately, it is a brilliant example of how the DEA and other police organizations retaliate against lawmakers who curb their authority when they abuse it, and how an easily manipulatable press and easily manipulatable public eats it up with a spoon.
Here’s the infamous 2016 final statute. If you click through to the text, and then look at the statute amended (21 U.S.C. 824), you will observe that what the 2016 statute did was require that before DEA arbitrarily stripped companies of their license to ship controlled substances (like opioids), they had to (a) identify what law they thought was being broken, and (b) had to show that there was a real likelihood the drugs would be diverted for misuse, rather than just arbitrarily decide that hospital X or pharmacy Y had already received “too much” Oxycontin for the month.
As usual, explaining something like this is complicated. Short version, the bill curbed a bunch of nasty abuses by the DEA. Of course PhARMA spent millions to get it passed. DEA is obscenely powerful and their abuses in this regard are fairly disruptive and legendary in the pharmacy and hospital world. And the thorough nature of their revenge here shows how DEA gets away with it. By spinning a bill that curbed DEA’s extra-legal abuses as a corrupt bargain between the hated drug makers and corrupt members of Congress, DEA has made it very clear what happens when you cross them. If you wonder why so few lawmakers want to take on issues like police brutality, civil asset forfeiture, or even horrendously price gouging prison phone rates, this is why.
I explain in great detail below.
Here’s a transcript of the original 60 Minutes Report. It certain is quite dramatic, with noble DEA agents lamenting how smarmy drug manufacturers are killing innocent women and children while a corrupt Congress turns a blind eye. Worse, our brave and noble DEA agents get heat from the corrupt political appointees and elected officials just for doing their jobs! It’s like a real life Steven Bochco drama, but without the naked tushies.
But a closer look at the facts, with a bit more emphasis on how the law actually works and what the DEA actually did instead of all the focus on noble DEA v. corrupt system, raises some disturbing questions. As with civil asset forfeiture and other tools used to “get the bad guys,” it starts to look a lot less “law and order” and a lot more “bully and abuse.”
How the Law For Shipping Drugs Works
To ship a controlled substance, you need a certificate from the DEA. The DEA requires that you and the supply chain take various steps to avoid “diversion.” Diversion means drugs going to an unauthorized/illegal destination. Under existing controls, you can track a specific Oxycontin pill from its manufacture to its warehouse to the pharmacy to the patient. Letting any wander off is called “diversion.” This makes a great deal of sense. While medication is vitally important, we do need make sure it does not get stolen and otherwise diverted to illegal use, and there is lots of incentive to make that happen without a comprehensive system of controls.
None of this, of course, stops doctors from overprescribing pain medications. And everyone agrees that is a huge part of the problem, and that the manufacturers did their darndest to persuade doctors to prescribe their opioids at every opportunity and marketed their pain killing drugs to the public, advising them “if you think Oxy is right for you — and it totally is — nag your doctor at every opportunity to write you a prescription!”
DEA Tries To Stop The Opioid Crisis but Runs Into Pesky Laws and Procedures.
DEA knew that, and therefore regarded companies like Purdue as no different from illegal drug cartels — just with better stock options. That may be an accurate moral judgment, but does not change the fact that DEA could do nothing about legally ordered drugs being manufactured and shipped legally to hospitals and pharmacies that are licensed to receive them and to dispense them in response to a doctor’s prescription. The problem, from DEA’s perspective, was that too many doctors and dentist and others were legally prescribing Opioids. This was not “diversion” and therefore the DEA had no direct power over it.
But couldn’t DEA go after doctors for overprescribing? Totally! If DEA caught individual doctors over-prescribing, they could remove their power to write prescriptions and even get them convicted on criminal charges. There were, however, many problems with this strategy. For one thing, while lots of people do not need opioids for control of pain, lots of people really do need these drugs for both acute pain and chronic pain. If you come to town and start arresting doctors and dentists that gets unpopular. Patients annoyingly show up in court and explain that when you have chemo, it is really painful and that getting a Bucket ‘o Oxy is actually medically necessary. Experts show up and testify that doctors are acting in accordance with the standards of the industry, blah blah blah.
Also, there are a LOT of doctors and dentists. You can’t possibly track them all down and arrest them. But there are relatively few drug companies. In fact, thanks to industry consolidation, these guys are basically monopolies! So DEA had a great, money saving, totally efficient idea. Rather than go through all that tedious and expensive “evidence gathering” and “arresting” and “due process,” DEA would just tell the manufacturers to stop delivering so much product. No, of course we’re not saying you can’t ship any opioids, the DEA explained. We just want you to refuse to deliver any “suspicious” amounts. Oh, and then tell us who is ordering the drugs so we can go and start investigating them and stuff.
Oddly, the drug companies were not thrilled with just randomly holding up drug shipments. I’m not claiming this was from any great commitment to justice and due process. They had obvious financial interest in delivering mamoth orders to hick towns just like the DEA guys pointed out in the 60 Minutes interview. Heck, their sales reps were the ones generating the demand. On the other hand, we do have laws and stuff designed to protect people who are not doing anything illegal — and filling legal orders from doctors authorized to write prescriptions and delivering them to facilities certified to receive and dispense them is, in fact, legal. So the drug manufacturers were all “DEA dude, we are not the police. We are drug company. If you come to us with a warrant or evidence as required under the law, then sure. We will stop the shipment as we are required to do. That’s why there is a procedure for that in the law. but otherwise, please stop asking us to spy on our customers and cause random drug shortages for hospitals and pharmacies because an order “looks suspicious.””
DEA did not like this answer, so they started fining drug companies hundreds of millions of dollars for making illegal shipments, under the provision of the statute that requires drug manufacturers to act if they suspect that drugs are being diverted for illegal purposes. These fines, while quite eye catching when issued, did not actually stand up in court, because the law requires actual evidence that a law is being broken. Courts agreed that it is weird that small towns in rural America could order like a metric ton of Oxy a month and that the local mascot is named “Mr. Perky” for the Percoset dispensary. But while this might be morally wrong, it didn’t change the fact that doctors authorized to write the prescriptions were writing the scripts and that the manufacturers and pharmacies were all following the appropriate safeguards. It wasn’t a diversion violation, because nothing was actually belong illegally diverted.
DEA Decides To Take The Law Into It’s Own Hands, Because Dirty Harry Blah Blah Save Society Blah Blah Break Eggs Cowardly Bureaucrats #WhatCouldGoWrong?
When fines didn’t work, the DEA simply started randomly suspending the shipping licenses of manufacturers without any evidence. How? Because the law, as it was written at the time, provided a shortcut to the DEA around all that tedious “evidence” and “due process” stuff. If the DEA determined that there was “an imminent risk to life or safety,” they could immediately suspend the shipping license and require the licensee to show up at a special proceeding conducted by the Attorney General/designee (i.e., DEA). So DEA decided that letting too much legally ordered Oxycontin (or other opioid) get to pharmacies and doctors constituted “an imminent risk to life or safety” and started suspending the licenses of drug manufacturers they deemed not “cooperative enough” about spying on their customers and or voluntarily refusing to fill legal orders.
While this is always absolutely OK in movies — especially those staring white heroic looking dudes named “Clint,” “Mel” or “Steven” — it does have some downsides in real life. For one thing, hospitals and pharmacies actually need these drugs. So when you suspend entire shipments, you create drug shortages. That has massive consequences for patients — especially those awaiting surgery because we have a shortage of fentanyl. Also, while the drug companies may be scumscuking soulless profit-maximizing villains addicting innocent children to Vicodin popsicles, they do employ a lot of honest people who are just trying to do their work — like drive a truck that is suddenly seized by a DEA without any due process.
Anyhoo, whether from good and noble motives of standing up for their rights, or evil sleazy motives of defending their obscene profits, drug manufacturers lobbied Congress to reign in the DEA. And, whatever you may think of the drug companies, they had a reasonable point. The whole idea of the “rule of law” is that the police (DEA) do not get to just do whatever they think is necessary to “protect and to serve” us. Still, while the DEA behavior was objectively pretty outrageous, getting Congress to do something about it was not easy. Members of Congress are scared shitless of looking soft on drugs or crossing the DEA — and the current story cycle painting those who defied the DEA as villains demonstrates exactly why. But eventually, GOP leaders negotiated a change in the law that made it modestly harder to randomly suspend shipping licenses without any proof of illegal activity or failure to have sufficient protections against diversion.
What the 2016 Law Actually Did — Require DEA Have Some Evidence a Law Was Actually Being Broken.
The 2016 law, that supposedly guts the DEA’s super awesome weapon of justice agains the wicked Captain Fentanyl and his army of Schedule Twos, did 2 things:
1. Any citation suspending a license to ship drugs must actually list what statute or regulation is being violated.
2. “Imminent risk to life and safety” was given an a clear definition. Rather than being totally discretionary to the DEA, suspending a license to ship now required showing that “due to the failure of the registrant to maintain effective controls against diversion or otherwise comply with the obligations of a registrant under this subchapter or subchapter II, there is a substantial likelihood of an immediate threat that death, serious bodily harm, or abuse of a controlled substance will occur in the absence of an immediate suspension of the registration.”
In other words, the law continued to allow DEA to stop shipments without any warrant or other due process showing provided that THERE IS SOME ACTUAL REASON TO THINK THE DRUGS ARE GOING TO BE USED ILLEGALLY. “We think you should just stop selling and shipping so many opioids, so your lawful business is now an imminent threat to life and health” may be true as a policy matter — but the DEA should not have the power to make that determination and hold up shipments to hospitals and people who actually NEED pain control meds.
And yes, DEA’s abusive use of their “most effective weapon” in fighting the opioid academic created real drug shortages in hospitals and elsewhere. We had serious delays in surgery — as well as lots of folks in actual, intense pain — because some DEA agent said “no fentanyl for you, PG County!”
With this in mind, go back and read the 60 minutes interview linked to above and the light it puts on this “stunning expose.” In particular, consider this little exchange, which becomes a lot more chilling.
BILL WHITAKER: Frank, you said you were tough but fair. The industry says you guys were unfair. That you were taking unfair hits at them.
FRANK YOUNKER: Tell that to the people who lost their sons and daughters. See how fair they think it is.
This is the usual defense from law enforcement on accusation of overreach. Which brings me to my last point. it is tempting — particularly for Democrats — to regard all of this with some amusement. After all, the drug companies *are* major contributors to the opioid crisis. And given the major hack jobs Republicans have done to Democrats over the years, watching Republicans get taken down by the DEA is kinda sweet for Dems.
Scary Long Term Consequences For Reforming Abuses In Policing.
But the reality is actually pretty scary — and will make reforms that the left wants on for-profit policing, police brutality, and civil asset forfeiture that much harder to get. The DEA has just shown that they can exact revenge on any lawmaker who dares defy them, because they know precisely how to manipulate the press and play to the public. Do you think this lesson is lost on these and other members of Congress? Do you think when you try to get a law passed to curb civil asset forfeiture, these members (and their counterparts in the states) will forget how trivially easy it was for DEA to destroy someone’s career by taking the facts and getting them reported in a particular way.
There is a wonderful movie staring Paul Newman called “Absence of Malice.” In the movie, a local assistant US Attorney decides to pressure a longshoreman (Newman) to give evidence in a murder case by letting the press know he is a “person of interest” — even though there is no evidence that Newman has any involvement in the case. As the movie goes on, Newman turns the tables and creates the most damning circumstantial evidence of bribery against the actual U.S. Attorney possible, *knowing* that the press will follow it, run the stories in a particular way, destroy the career of the US Attorney, and get the Assistant US Attorney fired.
The DEA here was Paul Newman, flawlessly setting up the members of Congress who dared to curb their arbitrary use of authority for the public’s own good. And everyone in the public, even those who face the same kinds of police abuse in other contexts, ate it up with a spoon. Because it was a good story, and it fit all our preconceived Hollywood notions about corrupt drug companies and corrupt congressmen and nobel law enforcement sometimes bending the law because, sometimes, justice mens breaking the law — gosh darn it!
Yes, 60 Minutes (or any of the other news outlets that have covered this) could have dug a little deeper and asked such penetrating questions as “wait a minute, these were all legal shipments in response to legal orders, right? Sure, the numbers showed that doctors were ordering way too much, but there is no evidence that the drug manufacturers were breaking any laws or that these shipments were going someplace unauthorize?” But that would have spoiled a good story.
In the penultimate scene of Absence of Malice, the new young reporter is asking the departing older reporter (played by Sally Field) (and who was, of course, sleeping with Paul Newman) for a quote characterizing her “relationship” with Newman’s character.
Fields: You can say we were ‘intimate.’
Other Reporter: Is that true?
Fields: No, but it’s accurate.
Which is pretty much how the reporting went down here. It’s accurate, but it’s not exactly true. It’s not “fake news,” but it is sloppy reporting. And the long-term consequence means that when Black Lives Matter is looking for sponsors for bills to hold the police accountable, that the wise elected representative will sadly say no. Because law enforcement does not take kindly to having their powers curbed — and a public raised on Dirty Harry doesn’t mind when cops break the law “to do whats right.”
Stay tuned . . . .