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Globe editorial: Paltry OxyContin settlement is a betrayal of Canadians

The governments of all 10 provinces have betrayed the interests of Canadians by accepting a piddling legal settlement with a drug company whose misleading claims may have contributed to this country's epidemic of opioid addiction.

The proposed class-action settlement with Purdue Pharma, maker of the defunct prescription painkiller OxyContin, would see the company pay the insultingly low amount of $20-million, including $2-million to the provinces – a pittance compared to the cost of the well-documented misery that OxyContin has wrought on this country, and even more of a pittance when compared to the tens of billions the company made selling the product.

All 10 provinces have agreed to the proposed national settlement. An Ontario court judge approved it two weeks ago; courts in three other provinces still have to do the same. Once that is done, Canadian taxpayers could be stuck forever footing the ever-increasing financial and social bill for the damage caused by opioid addiction.

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What is perhaps even more galling is the fact that this paltry settlement appears to be the best the provinces could hope for. Because there is no federal legislation that would allow the provinces to take direct legal action against drug companies, they were reduced to taking part in a class-action lawsuit brought on behalf of 1,500 Canadians who became addicted to OxyContin.

As a result, once the settlement is finalized by the courts, the provinces will be barred from "initiating, asserting or prosecuting any claim, action, litigation, investigation or other proceeding in any court of law … or any other forum," according to the deal's terms.

And that will be a truly tragicomic outcome. In the years between 1996, when OxyContin was released in Canada, and 2012, when Purdue stopped making it, this country became one of the world's largest per-capita consumers of prescription opioids. Much of that was due to the persistent and misleading marketing of OxyContin as a safe, abuse-resistant and non-addictive opioid pill.

Purdue asserted that the pill's novel time-release properties meant that users wouldn't get an instant high, thereby preventing abuse and addiction. Thanks to those claims, doctors started prescribing OxyContin for non-chronic, moderate pain that previously would have been treated by over-the-counter analgesics.

But OxyContin is, in fact, just as highly addictive as any other opioid. While many users abused OxyContin by crushing the pill to defeat its time-release properties, legitimate users, who merely wanted relief from pain and were not seeking a high, unwittingly became dependent on the drug. They did nothing wrong, and yet their lives were ruined.

In the United States, the company's false marketing led to its U.S. parent and three of its top executives pleading guilty to criminal and civil charges in 2007. They paid a total of $634.5-million (U.S.) in fines – one of the largest settlements a pharmaceutical firm had ever paid for false marketing.

Purdue paid another $24-million (U.S.) in 2015 just to settle a lawsuit with the tiny state of Kentucky, population 4.4 million.

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And yet Canada, population 36.2 million, is settling for $2-million (Canadian).

That drop in the bucket is meant to recoup costs associated with the treatment of opioid addictions, but the real costs are magnitudes larger than that. From 2011 to 2015 alone, provincial drug plans spent $423.3-million on medications to treat addictions to prescription and illicit opioids, according to data gathered by The Globe and Mail.

Those costs don't include the thousands of deaths caused by opioid overdoses. A study published in 2014 in the journal Addiction found that overdoses killed nearly 6,000 people in Ontario between 1991 and 2010. The national toll is much higher than that.

There is also an argument to be made that the high opioid addiction rate in Canada opened the door to the ongoing crisis involving fentanyl, a much stronger opioid that criminals flooded into the country to meet the demand after OxyContin was pulled from the market. Toronto police suspect fentanyl was behind four deaths and 20 overdoses in that city over the past weekend alone.

And yet Canada is prepared to settle for $2-million. It is letting Purdue off with a gentle tickle on the wrist, while failing to even attempt to hold the company to account for marketing claims that its American executives admitted were misleading.

If there is a direct legal case to be made that Purdue's false marketing led to thousands of Canadians becoming addicted to a painkiller they were told was non-addictive, it now falls to Ottawa to do so and, if it succeeds, to extract meaningful compensation. It must do so immediately.

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The provinces should immediately enact legislation allowing them to take legal action against drug companies. Let's at least learn a lesson from this debacle.

Editor’s Note This editorial has been modified to reflect three corrections. The settlement agreed to by the provinces would see them collect $2-million to cover their costs, not $20-million. Also, the population of Canada is 36.2-million, not 32.6-million. Finally, this editorial earlier stated that the federal government should quickly table legislation allowing the provinces to take direct legal action against drug companies in the future. In fact, any decision is up to the provinces, not the federal government.
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