State and local governments are about to get a $50 billion windfall. Former Mississippi Attorney General Mike Moore is worried they’re going to blow it.
Moore sued Big Tobacco, then watched states pilfer the multibillion dollar settlements to plug budget holes, fix potholes — and even pay tobacco farmers. Now he’s convinced they’re at risk of making the same mistakes again as a flood of cash arrives from the companies that played a key role in the country’s opioid crisis.
Drug overdose deaths have quintupled over the last two decades, driven first by prescription opioids, then heroin, and now illicit fentanyl.
Moore, a Democrat, was a key player in negotiating the $246 billion tobacco settlement in the 1990s, and he represented a handful of states and local governments that filed lawsuits against drug companies, distributors, pharmacies and other parties that contributed to the addiction epidemic.
There are more guardrails in place this go-around, developed out of lessons learned from the tobacco settlement.
But those measures, Moore warns, have little teeth.
“The problem is there’s no real accountability,” Moore said in an interview earlier this month. “There’s not a penalty to pay. You’re not going to go to jail if you don’t spend the settlement dollars the right way.”
Complicating matters is the sheer number of recipients of opioid settlement dollars — 4,000 claims were filed by state and local governments — threatening to snarl efforts to develop a coordinated response to the opioid crisis. Victims and families, hospitals and insurance companies sued drug companies, too. That means the money is far more spread out than it was in the tobacco settlement days, when just the states were plaintiffs.
Some states, like Ohio, have developed a statewide plan. But others are taking a less comprehensive approach or leaving the decisions up to local government officials. Already, some jurisdictions have spent their early opioid settlement dollars on new police cruisers, phone-hacking equipment and restraint devices for law enforcement.
“What I worry about the most is that in some states money is going to flow to cities and counties without any infrastructure set up,” Moore said. “I know how stretched out this money’s going to be. That’s why I say it really needs to be prioritized. There’s really not enough money there to solve the opioid epidemic.”
This interview has been edited for length and clarity.
States and local governments will receive more than $50 billion from opioid settlements over the next two decades. That sounds like a lot — but with how many plaintiffs were involved in these cases, how thin is that money going to be spread? And how hard is it going to be to create a coherent, effective plan to attack the problem?
From the very beginning, I told everybody that the first thing you need to do before you get a settlement is you need to figure out if you win, what is it you’re going to do with the money? In other words, what’s the purpose of this case? If it’s to abate the opioid epidemic, you’ve got to have a plan, and it needs to be an organized, concerted plan, not, let’s split the money up 100,000 ways.
We worked very hard on that, trying to get people to do that. Unfortunately, we couldn’t get everybody, because you had 50 states, and then you had 4,000 cities and counties, and then lots and lots of other interests — individuals, hospitals, insurance companies — a very, very complicated thing that you didn’t have in tobacco. We had states. We didn’t have all these cities and counties or anything like that.
The problem is everybody had their hand out — every little city, every little county that filed a case, whether they should have filed a case or not, whether they even had an opioid overdose in their city or their county ever in history. If you’re a big city like Los Angeles or New York or Cleveland, Ohio, or something like that, I get it. But if you’re Lucedale, Mississippi, you probably don’t have a lot of expenditures on the opioid problem, but you might get a share. If you’ve got $10,000, what are you going to do with it?
The opioid settlement dollars come with some guardrails that weren’t in place back in the tobacco settlement days. Are those measures strict enough to ensure the settlement dollars are appropriately spent?
The good thing we’ve done with opioids is we’ve required 85 percent of the money to be spent on opioid abatement. Then, in the settlement agreement itself, it includes a template — in other words, here are the things that all the experts have agreed will have an impact to reduce and prevent opioid use.
That’s known as Exhibit E, right?
Yeah, and everybody’s required to do that now.
The problem is, let’s just pick a state — Ohio. My good friend Governor [Mike] DeWine, his idea is absolutely to have everybody work together. He created something called OneOhio. It’s a memorandum of understanding. He got all the cities and counties and the state to agree to it. They decided when Ohio receives $100, here’s how that money is going to get divided, here’s where it goes. It’s a pretty good effort toward making sure the money’s spent on opioid abatement.
What I worry about the most is that in some states money is going to flow to cities and counties without any infrastructure set up like I’ve just described in Ohio. I’m worried that with the amount of money that goes to one of those places, there’s just no possibility for that to do a lot of good unless it was coupled with a whole bunch of other folks in a region, and they all decided, “We’re going to do Narcan and make sure Narcan is available in every public place, here’s where people can go get treatment, and here’s how you get to treatment.” But you can’t do that if the money is split up 4,000 different ways.
The good side is we required 85 percent of the money to be spent on abatement. The questionable side is will they do it, and will they do it in an organized way so it actually gets done and it actually saves lives?
How much can states bend those guardrails?
It’s dependent on the structure each state sets up. Florida and Ohio have set up pretty robust organizations. They’ve got a board, and it’s overseen by the attorney general. That would suggest that they’re going to be sticklers that that money be spent the right way.
That’s the main thing. You’ve got to have somebody overseeing it. If you don’t, then there’s a chance that a $50,000 payment or a $100,000 payment goes down to a small town and they decide, “We bought a new patrol car, let’s just reimburse ourselves for that.”
How much of this approach was taken from what you learned with tobacco?
I wish we could have mandated that folks spend money on what the fight was about.
I actually went to every state in the country — every single state — and gave speeches [about the tobacco settlement] before legislators. I’d go to Tennessee and speak in the Senate, and then I’d run down the hallway and I’d speak in the House, and of course I’d get standing ovations and everybody would be all fired up about it. It would be great and wonderful, and then I’d leave town and they didn’t do anything. It’s a little disappointing.
In my own state, they set up a tobacco trust fund. All the money had to go into the trust fund, and you could only spend the interest, and the interest could only be spent on tobacco prevention and cessation and the like. As long as I was attorney general, we had a trust fund. Then, I didn’t run again and all of a sudden, the new governor, Haley Barbour and that group came in and they raided the trust fund. Now our trust fund has zero in it. They just spent the money every single year folding it into the budget. That’s what happens unless you have a plan.
There are a lot of tools in the toolbox when it comes to addressing the opioid crisis. But sometimes it seems like state and local governments are grasping at straws when it comes to actually putting them into practice. Do state and local governments know how to effectively put these dollars to use?
You can’t do everything on Exhibit E, so why not figure out the top five things you want to do, or top three, and do them extremely well?
If it were me, I’d make sure I had a prevention and education program that was robust to try to keep people away from abuse. Obviously, fentanyl needs some more education out there and warnings. You still have a bunch of young people dying.
Then, make sure you prevent people from dying — make sure Narcan is available. And then treatment: You’ve got to figure out a way to get treatment to people. Do the things that save the most lives first.
There’s this push and pull over how much of the settlement dollars should be spent on public health and how much should be spent on law enforcement. Some opioid settlement dollars have been already spent on things like new police cruisers, phone-hacking equipment and restraint devices. From where you sit, is that an appropriate use of funds?
I know how stretched out this money’s going to be. That’s why I say it really needs to be prioritized. There’s really not enough money there to solve the opioid epidemic. There’s just not. You can’t buy law enforcement equipment and fund law enforcement to do this or that and not do treatment and prevention and lifesaving things like Narcan.
There’s a whole lot of enforcement. We need, frankly, treatment. Treatment’s what’s missing.
Some states have committed to 100 percent transparency in their opioid spending. Others haven't made any promises. How hard is it going to be to hold governments accountable?
The problem is there’s no real accountability. There’s not a penalty to pay. You’re not going to go to jail if you don’t spend the settlement dollars the right way. There’s an agreement, and people are supposed to do that, but office holders get elected, they serve, they move on to another place, they get defeated, whatever. People forget their commitment. They think, “That was the last guy that did that.”
That’s why you set up these groups. If you set up a statewide opioid task force or commission, it has a life of its own, and it has some independence, then you have accountability.
Opioid manufacturers and distributors were the target of these lawsuits. But the overwhelming majority of drug overdose deaths involve illicit fentanyl and other synthetic opioids. How does that complicate the response to the overdose crisis compared to something like what we saw with tobacco where there was a legal entity that you could regulate?
It is complicated, and it changes every day. Since fentanyl, now we’ve got tranq and all of these other drugs and chemical compounds that are coming out. You’ve got to stay on top of that. The key is looking at it as substance use disorder. It doesn’t really matter what the substance is. What matters is can you get help to people who need it?
I’ve been in this public life for so many years that people know me and they walk up to me and say, “I don’t know if you know, but I lost my son to opioids, I saw you on TV.” They’ll tell me a story about it. It might be a 17-year-old.
Are there lessons to be learned from tobacco on opioid prevention?
Tobacco is not something that kills you immediately. It kills you over time. But look at the progress we’ve made on that.
That’s been done by public education. We spend probably $100 million a year doing these ads and reaching kids on Instagram and Snapchat. We help them get off of their vaping pens or whatever it might be. But we send messages right to their telephone. If we have the sophistication to do that kind of thing for that, certainly we can do it for opioids and the like. I just think people didn’t focus on the prevention side of this as much.
The drug problem is a demand and supply side problem. Law enforcement works on the supply side and they do a pretty dang good job, always have done a pretty dang good job. Where we have not done a good job is on the demand side. The way to cut down on demand is through a very strong public education campaign, and it works. It sends the right messages to the right people over and over and over through generations. But we’ve never done that on drugs in this country.
We had a “just say no” program — abysmal failure. With tobacco, we came up with all kinds of wild and crazy and unique and interesting ways to attack this. It took some time, but it worked, so it can work here.
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