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By Lenny Bernstein and Scott Higham,
Forty-four state attorneys general asked Congress on Tuesday to repeal a law that effectively strips the Drug Enforcement Administration of potent weapons against large drug companies that have allowed hundreds of millions of pain pills to spill onto the black market.
The state law enforcement officials, many from places hit hard by the opioid epidemic, signed a letter from the National Association of Attorneys General to Republican and Democratic leaders in both the House and Senate. Congress approved the law by unanimous consent, without a vote in either chamber, in 2016.
The Washington Post and “60 Minutes” revealed in a joint investigation last month that an early version of the legislation had been written by a drug industry lawyer and shepherded through the House by Rep. Tom Marino (R-Pa.) for two years. Sen. Orrin G. Hatch (R-Utah) negotiated the final version of the bill with the DEA. Two days after the media reports, Marino withdrew his nomination to be the nation’s next drug czar.
“The Ensuring Patient Access and Effective Drug Enforcement Act neither safeguards patient access to medication nor allows for effective drug enforcement efforts,” the bipartisan group of attorneys general wrote. “We urge you to repeal the act so that the public is protected and drug manufacturers and distributors may be held accountable for their actions.”
Marino and Hatch did not immediately respond to a request for comment.
“I welcome feedback from the Attorneys General as we continue working to combat the opioid crisis,” said Rep. Greg Walden (R-Ore.), chairman of the House Energy and Commerce Committee, which approved the House version of the bill. “It is of the utmost importance to this committee that we better understand how any legislative actions can improve the agencies’ ability to prevent potentially addictive drugs from reaching our communities,” he said in a statement.
The investigation showed that by defining language in the Controlled Substances Act of 1970, drug industry supporters in Congress upended more than four decades of DEA practice. The new law made it virtually impossible for the DEA to impose an “immediate suspension order” on distributors of highly addictive painkillers that had failed to report suspicious orders of drugs such as oxycodone placed by pharmacies and other dispensers.
The wholesale distributors — huge companies such as McKesson Corp., Cardinal Health and AmerisourceBergen that serve as middlemen in the nation’s drug supply chain — feared immediate suspension orders most among the DEA’s weapons. That authority allowed the agency to immediately lock up the controlled substances in a drug company warehouse, halting all commerce in those drugs.
Nearly 200,000 people have died of overdoses of prescription opioids since 2000.
Hatch and Marino — each of whom has received substantial campaign contributions from the drug industry — have defended the law as necessary to keep drugs flowing to legitimate users and have denied undermining the DEA. The association that represents drug distributors has said the law does not decrease the DEA’s authority.
But DEA Chief Administrative Law Judge John J. Mulrooney II wrote in an upcoming law review article that it is now “all but logically impossible” for the DEA to suspend a drug company’s operations for failing to comply with federal law.
The attorneys general made the same point, citing Mulrooney’s opinion. “In the midst of this deepening public health crisis — at a time when our nation needs every available weapon at its disposal to combat the opioid epidemic — the act effectively strips the Drug Enforcement Administration (“DEA”) of a mission-critical tool, namely, the ability to issue an immediate suspension order against a drug manufacturer or distributor whose unlawful conduct poses an imminent danger to public health or safety.”
Some Democratic lawmakers have called for repeal or amendment of the law in the wake of the media reports, and Sen. Charles E. Grassley (R-Iowa), chairman of the Senate Judiciary Committee, has said he would consider holding an oversight hearing. But efforts to repeal the bill have stalled because no Republicans have signed on.
Separately, a coalition of 41 state attorneys general is investigating whether drug companies broke the law when they poured millions of pills into small towns in West Virginia, Ohio and elsewhere.