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Suing Cold Medication Manufacturers Because Drug Dealers Make Drugs out of the Medication:

No, it's not some hypothetical offered by critics of lawsuits against gun manufacturers; it's a real case. From Ashley County v. Pfizer, Inc., decided today by the U.S. Court of Appeals for the Eight Circuit (some paragraph breaks added):

The Defendants are manufacturers and distributors of over-the-counter cold and allergy medications containing either ephedrine or pseudoephedrine. None of the Defendants are retailers, nor do they sell the medications directly to the public. The Counties allege that the Defendants marketed and sold their products in Arkansas knowing that the products were being used illegally to manufacture methamphetamine. [Footnote: In their briefs to this court, the Counties allege that the Defendants intentionally targeted methamphetamine cooks by printing "pseudoephedrine" on the outside packaging of their cold medicines. These allegations were not included in the complaint, by which we are constrained in reviewing this dismissal on the pleadings. In any event, the Counties do not dispute that the packaging complied with the federal Food and Drug Administration regulations.]

The Counties allege that the Defendants knew that their products were being used illegally at least as early as 1986 when the federal Drug Enforcement Administration (DEA) began pushing for controls over the sale of products containing ephedrine or pseudoephedrine. During two different time periods, in 1995-1996 and in 1998-1999, the DEA placed restrictions on the importation of bulk ephedrine and tracked the sales of ephedrine and pseudoephedrine outside of "blister packs." According to the Counties, methamphetamine use and abuse declined dramatically during these time periods, but the Defendants allegedly fought to create loopholes in the regulations to continue reaping large profits in the sale of their products. In time, the Counties say, methamphetamine cooks learned how to exploit the loopholes, and methamphetamine use rose again.

The Counties claim that the Defendants knew of measures they could have voluntarily taken to reduce the availability of their products to methamphetamine cooks but consciously chose not to, fighting regulatory efforts in order to continue reaping large profits. The actions that the Defendants (who are manufacturers and wholesalers) allegedly should have voluntarily taken included directing the retailers to place the products behind the counter of retail stores; requiring the retailers to make retail purchasers sign for products when purchased from the retailer; educating the retailers and their employees about suspicious behavior by persons seeking to purchase the products for illegal use; requiring the retailers to lock the products in display cases; and requiring the retailers to limit the amount of product that could be purchased at retail by an individual during a specified period of time. These measures were eventually included in DEA regulations issued in 2005. The Counties also alleged that two of the Defendants, Warner Lambert and Pfizer, developed effective alternative cold medications that did not contain ephedrine or pseudoephedrine and that could not be used to produce methamphetamine, but that neither of them brought the alternative products to market.

The Counties assert that the Defendants knew they were selling far more than the legitimate market for their products consumed as evidenced by the fact that the revenues of one of the Defendants, Perrigo, declined rapidly from $182 million to $30 million once regulations were passed in 2005 limiting access to the Defendants' products. The Counties also allege that the DEA sent letters to some of the Defendants warning them that their products were being used to make methamphetamine and that an executive from Pfizer admitted that the pharmaceutical industry was responsible for a portion of the methamphetamine problem in the United States. The Counties do not allege, however, that any of the Defendants violated any federal or state regulation governing the manufacture, distribution, packaging, or sale of their products. Nor do the Counties dispute that the sale of products containing ephedrine and pseudoephedrine is heavily regulated by both state and federal agencies.

frankcross (mail):
I don't know about this case, but I'd take strong issue with this:

Perhaps under certain unusual circumstances it is proper to impose such costs, and to change the consumer-seller relationship this way. But that should be done through legislatures setting up clear and narrow rules before the fact, and not by judges and juries making after-the-fact decisions based on vague standards of what sorts of consumer sacrifices a reasonable manufacturer should have indirectly imposed.

It's vastly overbroad and an argument against the common law. Yet we know from study after study that common law nations have superior, more efficient, and more effective law than those where the rules are set by legislatures. The fact is, legislatures have many flaws, not the least influence by affected parties, and they simply lack the information to set sound rules in the abstract, before the fact. Courts see these things on the ground, in cases, and often can craft better rules than can a legislature.
1.5.2009 5:18pm
Eugene Volokh (www):
Frank: So what do you think about my examples of the drinking age and the speeding transmitter?

Would it be sound for judges and juries to impose liability on distillers who allow retailers to sell to 21-year-olds, on the theory that the judge and jury thinking the drinking age is better set at 23? Or, if you prefer to set aside questions of actual preemption by statute, say there was no drinking age set at all -- should juries be free to hold that manufacturers should have set such a drinking age in their internal policies?

Likewise, would it be sound for a judge or a jury to impose liability on car manufacturers who produce cars that neglect to send a radio signal to the local police station when the driver is speeding? If not, then why not, given the rationale of your comment?
1.5.2009 5:29pm
Jay Myers:
What I find most offensive about this case is the county trying to blame the manufacturer for not forcing the retailers to take certain actions. Assuming you thought that such actions must be taken, why would the manufacturer bear responsibility for ensuring that a third party performs them instead of holding the retailers themselves responsible for undertaking those actions?

Answer: Because the manufacturers are non-local deep pockets.
1.5.2009 5:44pm
BLT:
This is like the benefit of easily applied bright line tests, that may be imprecise, but just make things in general work better.

18 to enter a contract is arbitrary, but it prevents the horrendous alternative of ever contract maker having a burden to determine the subjective ability of the other parties to enter a contract.

Look at credit reports, SAT scores, brethalyzer tests, and all manner of tests that quantify some value, and binary choices are made based on those results. Quite unfair to the person who misses the cutoff by a fraction, but extremely efficient for society as a whole.

"Perfection" is the enemy of "good enough."
1.5.2009 5:45pm
einhverfr (mail) (www):
It seems this is part of a doctrine of responsibility which manifests in other areas as the betamax precedent.

In other words, if you make a product for lawful uses, and those uses are substantive, you can't be held responsible for unlawful or malicious uses of the product.* This seems to be necessary because the companies shouldn't be policing their users.

* Of course if you make such a product and market it for unlawful uses, as in Grokster, this is different.
1.5.2009 5:52pm
Mark Buehner (mail):
Actually you could take EV's second scenario to court today- no state has a speed limit over 80 mph yet car manufacturers have intentionally built almost every line of cars to exceed that limit handily. The manufacturers could easily have built engines that top out at much lower speeds, but they have chosen not to. Realistically they are designing cars specifically to allow consumers to break the law. Finding victims surely wouldn't be a problem. Its almost inevitable that we will see this one in the headlines (at least assuming there are any auto manufacturers with any money left to sue).

I'd say that is a far better case than going after pharma manufacturers who were almost certainly NOT intentionally supplying a product specifically to cater to the crystal meth market. Scary world.
1.5.2009 6:03pm
Houston Lawyer:
Shouldn't you then also be able to sue the light company for allowing a residential customer to consume 10 times the electricity that a normal residence consumes. We all know that this is a likely indication that a house is being used to grow pot using ultraviolet lighting.
1.5.2009 6:17pm
frankcross (mail):
EV, I never defended liability here. I defended courts making the decision. And the court's finding of no liability is consistent with that.

However, I can imagine facts, such as a drug manufacturer contracting directly and knowingly with meth dealers, and in a case like that, I think there should be liability. Which is why it is often wise to leave it case by case to the courts.
1.5.2009 6:33pm
whit:
a good example of how this kind of hysteria has negative effects is oxycontin.

oxycontin is a VERY effective opioid pain reliever. it's literally a godsend for many who suffer pain/injury. it provides a pretty good steady pulse of pain reliever over a much longer period (much longer 1/2 life) than most other opioids. this makes it much more effective, because drugs like this work better to prevent pain offset, and with relatively steady blood levels.

in drugs with much shorter half-life, patients have to continually take more pills, suffer greater swings in blood concentration, etc.

anyway...

some enterprising dopers discovered that by scraping off the time release coating, and crushing it into a powder, it because a bitchen "pharmaceutical heroin". result: a burgeoning black market trade, pharmacy burglaries and robberies, overdose deaths, etc.

response?

the govt. moved oxycontin from schedule III to Schedule II

this placed MD's under far more scrutiny and MD's became loathe to prescribe the drug to many who would benefit for fear of DEA scrutiny.

many pharmacies won't even stock it any more and have signs up to that effect, warning potential robbers that they have no oxycontin on hand.

so, by regulation, and practive, legitimate patients with severe pain are signficiantly inconvenienced and/or not prescribed the drug, because some #($#($# dopers like to abuse the stuff.
1.5.2009 6:35pm
Dr. T (mail) (www):
The main evidence presented is that sales fell by a factor six after restrictions were placed on distribution of pseudoephedrine-containing compounds. To me, this shows what a farce the case is. The sales of everything containing pseudoephedrine fell dramatically after the new restrictions were in place, because the sales requirements were too onerous. In many stores, all sales of pseudoephrine-containing medicines were stopped. They had to remove products from regular shelves, relocate them to the secure pharmacy area (if there was room), develop a log-keeping system, develop a reporting system to the state government, retrain employees about the ID and log-keeping requirements, etc. Many pseudoephedrine-containing medicines were dropped altogether due to lack of space: the pharmacies decided to handle only one brand of medicine of each type (allergy pills, cough syrup, etc.).

I could have made a fortune writing pseudoephedrine prescriptions during this change-over period. Getting a pseudoephrine prescription filled was far easier (though costlier) than buying it over-the-counter.

To add insult to injury, the federal government promoted the use of phenylephrine (evilly abbreviated as PE so gullible consumers would think it is pseudoephedrine) as a substitute for pseudoephedrine, despite knowing from FDA studies that phenylephrine is a poor decongestant with variable absorption, minimal decongestant affect, and a half-life of less than two hours. It also has more side effects (in people with hypertension) than pseudoephridrine and was only used in three commercial products (with very low market shares) prior to the pseudeoephedrine nonsense.
1.5.2009 7:03pm
adam Scales:
Nice post, Eugene.

Frank, you could be right, but yours is a novel view in this context. Virtually no other country has adopted a tort law as expansive (jurisdictionally speaking) as prevails in the United States. Until ten years ago, there had been exactly four strict liability cases in the United Kingdom. Most European countries regulate product safety via administrative rule. They do not employ juries to sit as mini-legislatures deciding anew claims brought by tort plaintiffs.

Is pharmaceutical safety at risk in Germany? Are there more defective cars or drunk drivers in the U.K.? I'd like to see the evidence of that.

Our system can be defended. Common-law rulemaking is indeed more supple than administrative fiat, and you cannot bribe every judge and jury (as you might a central authority). Time will often reveal flaws in product design unappreciated at the time of approval. And, social customs surely evolve. Tort law is at its best in such cases.

But it is also at its worst. Courts in the 1970s and 80s used a flexible notion of duty to create social host liability. Legislatures generally responded by overruling these courts in substantial measure. There is no reason whatsoever to suspect that twelve people who could not tell you the first thing about pharmaceutical engineering are qualified to sit in judgment of a possibly faulty drug.

And yet, the common-law system serves other purposes. It is a check on legislatures as well as agencies. It can operate at the interstices where no authority has spoken with finality. This is great, but it has costs. One of those costs is that, unchecked, tort law invites individual courts to revisit and discard expert or democratic judgments based not on constitutional rights (inherently countermajoritarian), but based on their particular view of what is desirable. That is an awesome power, and Eugene's post reminds us of the difficulties one quickly encounters when trying to discipline it.
1.5.2009 7:07pm
Oren:

The Counties also alleged that two of the Defendants, Warner Lambert and Pfizer, developed effective alternative cold medications that did not contain ephedrine or pseudoephedrine and that could not be used to produce methamphetamine, but that neither of them brought the alternative products to market.

Calling those bullshit medications effective has got to be a sick joke. As part of the resolution of this lawsuit, the principals and their counsel should be barred from using any (pseudo)ephedrine products for one year. When their kids are snotting all over everything in the house and they can't get any sleep perhaps they will change their minds.

Every time, I go to the pharmacy and have to convince the pharmacist that I really want the good stuff. The last one had the temerity to ask me what my symptoms were (I was about say "severe annoyance at your inability to sell me decongestants" but I miraculously held my tongue).

There is no substitute for pseudo, just none. Society will just have to live with the fact that some people will divert it to meth production. It's not like there isn't enough meth coming up from Mexico to make up for any loss in domestic production anyway.

Also, as usual, whit is right. Oxycodone is wonderful stuff and should probably be mixed in small amounts into table salt just to mellow out the populace a bit.
1.5.2009 7:09pm
Oren:


Our system can be defended. Common-law rulemaking is indeed more supple than administrative fiat, and you cannot bribe every judge and jury (as you might a central authority).

On the other hand, you don't need to bribe (or mislead) a large authority to get a large payout. Companies can just as well be killed by a thousand small pricks from bumpkin juries than from a single swoop from an all-powerful regulator.
1.5.2009 7:12pm
Eugene Volokh (www):
Frank: The trouble is that, once judges decide that they and jury could impose liability in cases like these, all it takes is for a few outliers to cause a great deal of trouble. Even if most judgment of what's "reasonable" are indeed reasonable by your and my lights, some won't be.

Moreover, part of why this case came out right is precisely that the judges decided not to decide what retailer and consumer restrictions are reasonable, but to say that manufacturers just aren't responsible for misconduct by criminal users in these sorts of cases.

Your hypothetical -- a manufacturer's normal aiding and abetting of a particular individual criminal, with the knowledge that this particular person will use the product criminally -- is a different matter. Among other things, the question then isn't what constitutes reasonable restraints on retailers and innocent consumers, because by hypothesis we know that this manufacturer knows that this customer will be acting criminally.
1.5.2009 7:14pm
NicholasV (mail):
If we assume that somebody could successfully sue car manufacturers for making cars that can break the speed limit, and the response is to speed limit all cars sold, who could the relatives of the people killed in the sudden rash of head-on collisions caused by the radical reduction in the margins for overtaking sue?

I think that kind of scenario goes to show how silly this kind of lawsuit is. It could go back and forth forever as different judges make different decisions about what is and isn't prudent, until legislators come up with more sensible rules (which IMO is what should happen in the first place).
1.5.2009 7:34pm
Oren:

Among other things, the question then isn't what constitutes reasonable restraints on retailers and innocent consumers, because by hypothesis we know that this manufacturer knows that this customer will be acting criminally.

So the distinction turns on whether the manufacturer knows the identity of the person misusing the product? That seems quite odd to me (and contrary to Sony v. Betamax, which focuses on whether the product has substantive legal uses).
1.5.2009 7:44pm
Oren:
s/substantive/substantial/
1.5.2009 7:44pm
einhverfr (mail) (www):
I would add to Oren's point that the Breyer's concurring opinion in Grokster is of interest in that he noted that when Betamax was decided, it was estimated that more than 90% of the actual use of the product was in furtherance of copyright violation. The question then was whether Betamax could be liable for this when the overwhelming use was illegal.

In Grokster, the court held that a company could be held liable to the extent they were actively encouraging illegal activities. For example, Grokster's advertisements featured illegal uses of the software, and therefore Grokster could be held liable, irrespective of Betamax.

So I would think that if I invent a special, improved form of crow bar and market it solely for legitimate use, and later find out that 95% of my customers are using it for illegal uses, that I am not required to withdraw it from the market. IANAL though.
1.5.2009 7:52pm
Seamus (mail):

Shouldn't you then also be able to sue the light company for allowing a residential customer to consume 10 times the electricity that a normal residence consumes. We all know that this is a likely indication that a house is being used to grow pot using ultraviolet lighting.



Or that it's owned by Al Gore.
1.5.2009 7:57pm
einhverfr (mail) (www):
Frank:

However, I can imagine facts, such as a drug manufacturer contracting directly and knowingly with meth dealers, and in a case like that, I think there should be liability. Which is why it is often wise to leave it case by case to the courts.[emphasis mine]


IANAL, but I think that the key part of your hypothetical is the knowing and intentional contracting with meth dealers (more than just an allegation). I would think if they were selling large amounts to someone they knew was using it to make meth, it might be liability. If a pharmacy knows that someone is a meth dealer and sells a normal amount to that individual, I don't think there should be liability.

It seems to me that such a matter would be quite fact-centric and turn on whether the manufacturer really was encouraging illegal uses of their products. I would think that such a hypothetical would be unlikely to occur in practice, and might be very hard to prosecute.
1.5.2009 7:59pm
Seamus (mail):

Calling those bullshit medications effective has got to be a sick joke.



I second that. Last week, having come down with a cold, I decided I no longer had any patience for those poor second-best alternatives available on the shelf, so I went up to the pharmacy counter and said I wanted the store brand equivalent of Sudafed. After jumping through the stupid hoops the government provided for me (and explaining to my 13-year-old daughter, who was with me, how the law inconvenienced law-abiding citizens, while having no impact on meth production levels), I walked away with my meds. Those puppies dried up my head in no time, and I was symptom-free in four days, instead of suffering for two weeks like I usually do.

I guess I'd better stock up on Sudafed now, since if Ashley County gets its way the stuff will become a Schedule I drug.

Boy, I hate those bastards.
1.5.2009 8:04pm
Garth:
without having studied the facts, i must say, i am disappointed. on the face it of it, i have to say it's a question of degree. here is a company actively politicking against common-sense measures that would reduce it's sales almost exclusively amongst drug dealers. imagine it was a man doing that..

assume the above facts and what you have is a prime example of a corporation acting like a psychopath... i think the outrage of a jury is the last possible check on corporate malfeasance. google's slogan is do no evil. i wonder what they would have done...
1.5.2009 8:09pm
Toby:
It's not even the easiest Meth synthesis - just the one most easily done by numbskulls who slept through Chemistry class.

Personally, I'm for registering Meth-Heads. Anyone who wishes to register must spend a month in the hoosegow, with an infinite supply of meth. THose with the tendency will kill themselves quickly and voluntarilty, with little harmto the rest of us. Those that survive have proven that they can handle the responsibility.

Same with several other drugs, too.

Overall, it would be cheaper than today's approach, and would let those of us witha chronic pain, or low level allergies, or... to get medicines that work without being hassled because of the idiots who are happily removing themselves from the gene pool anyway.
1.5.2009 8:09pm
David Schwartz (mail):
The argument, and particularly the evidence for it, defies logic. It's akin to arguing that laws requiring motorcycle riders to wear helmets reduce accidents because when States pass laws requiring them, the incidence of unhelmeted fatalities goes down. (The same would, of course, apply to laws requiring motorcycle riders to wear green shirts. Since most riders will obey the law, the number of non-green-shirt fatalities would go down.)

Of course manufacturers fought restrictions on the sale of their products -- because they inconvenience legitimate users and cause them to switch to unrestricted products. Of course the restrictions resulted in a reduction in their sales -- it's quite obvious most of the reduction was lost legitimate sales.

Garth: "... here is a company actively politicking against common-sense measures that would reduce it's sales almost exclusively amongst drug dealers." Actually, those measures have dramatically reduced the legitimate sales of products containing those ingredients to the point where many manufacturers have reformulated rather than forcing their customers to comply with them.
1.5.2009 8:17pm
tsotha:
Actually you could take EV's second scenario to court today- no state has a speed limit over 80 mph yet car manufacturers have intentionally built almost every line of cars to exceed that limit handily. The manufacturers could easily have built engines that top out at much lower speeds, but they have chosen not to. Realistically they are designing cars specifically to allow consumers to break the law.

Or to tow a boat. Or to climb a hill. Also you need enough overhead power-wise to allow for ring and valve wear. You wouldn't do this by putting in a smaller engine, you'd do it by modifying the car's software. Speed governors aren't unheard of - I think school buses are required to have them in many states.

But speed laws don't cover a car's operation in all situations. An argument could be made (in the past tense, heh heh) that buyers may wish to race their vehicles on private property, a legitimate use which would be precluded by a speed governor.
1.5.2009 8:28pm
tsotha:
Yet we know from study after study that common law nations have superior, more efficient, and more effective law than those where the rules are set by legislatures. The fact is, legislatures have many flaws, not the least influence by affected parties, and they simply lack the information to set sound rules in the abstract, before the fact. Courts see these things on the ground, in cases, and often can craft better rules than can a legislature.

That may well be. Plato also thought rule by philosopher king would be the way to go. But that's not how our system was designed to work. You may be right about it being more efficient, but efficiency isn't the primary concern when it comes to government.
1.5.2009 8:37pm
Bill Poser (mail) (www):
As a regular and legitimate user of pseudoephedrine I agree that the restrictions are a pain in the neck. Here in Canada it doesn't require a prescription but you have to ask the pharmacist for it. If you run out after the pharmacy closes, you can't get it. That can be quite unpleasant for someone with, e.g., a bad sinus problem.

A question to which I have never found the answer is whether it is even worth it for a meth cooker to buy pseudoephedrine in retail quantities. I understand why one might want to restrict the availability of the drug in bulk, but is it really economical to run a meth lab by buying a couple of 3g bottles here and a couple there?
1.5.2009 9:08pm
whit:

I guess I'd better stock up on Sudafed now,


you might want to check your state laws first. at least in my state, "stocking up on Sudafed" could run you afoul of the law. the law prohibits possession of over a certain amount of pseudoephedrine. any possession over this threshold amount is illegal EVEN IF THERE IS NO EVIDENCE you intend to do anything illegal with it.

also note that ephedrine (not pseudoephedrine) is a phenomenally effective diet drug, first made popular in "ultimate orange" and the ECA (Ephedrine/Caffeine/Aspirin) stack.

there are few more effective agents for maintaining muscle mass while cutting fat, and staving off diet induced catabolism than an ephedrine/caffeine stack.

then, congress got all whack, and did those stupid hearings and banned the sale of ephedrine AS a dietary supplement (note: did not make possession or use illegal, just the marketing of it as a diet aid or supplement) in direct contravention of DSHEA, which was later overturned.

ephedrine/caffeine (used for centuries by the chinese) is metric a**loads better than 99% of prescription diet pills, and far far far far safer.

many strength athletes find it invaluable in making weight.

yohimbine/norephedrine is excellent too
1.5.2009 9:11pm
Bill Poser (mail) (www):
Another reason not to stock up on Sudafed is that generic pseudoephedrine is much cheaper.
1.5.2009 9:14pm
frankcross (mail):
As noted above, the issues are very fact-centric, which is why to leave it to individualized cases.

Sure there may be common law outliers that get it wrong, but the system overall gets it on balance right. Saying that "some" common law decisions will be wrong is a biased standard -- I bet some legislative decisions will be wrong too. The question is which is on balance superior

We have plenty of evidence that common law systems have better law, more efficient law, more injury reducing law, than those who rely on legislatures and civil law. I'm not just talking economic efficiency, I'm talking overall better law for the economy and the benefits of injury reduction.
1.5.2009 9:33pm
DavidBak (www):
I used to take dextroamphetamine. The prescription was written on a special pad for Schedule II drugs, but once I turned it in to the pharmacy I could just walk up later, say my name, and walk out with a 30 day supply. (It isn't as if the pharmacist who handed it over was the one who took the prescription and knew me.)

For Advil Cold &Sinus (my decongestant of choice) I have to provide a driver's license and sign my name to a register. Plus I can't buy more than 2 boxes at a time.

The comments above on Oxycontin are quite correct, and it is a shocking travesty that because of the "war on drugs" the DEA targets doctors who treat pain and treats them as criminals - see R Balko's blog "The Agitator" for details.

Stupid government drug "warriors".

But here's a question based on the opinion excerpt Eugene posted above: Am I reading it correctly that the Counties claim that the Defendents should have known, at a particular time, that the drugs were being using illegally because their sales dropped at a later time when the legal restrictions were put in place? Wouldn't the Defendents have needed time travel or fortune telling to figure that out? (Not to mention that maybe sales dropped because it became a pain in the a** for a non-illegal-user to get the stuff.)
1.5.2009 9:42pm
Hoosier:
Attention "Louisville Slugger":

You're next!
1.5.2009 10:24pm
autolykos:
EV - Regarding this point...


They might put in special devices into which the driver must breathe every so often in order to confirm that he's not driving drunk (I'm sure they have their weaknesses, but imagine that they're perfected).


Not only is this not merely conceptual, it's already become the law in a number of states (including Illinois) for drivers who are convicted of a first time DUI - see the article located at

I can't put into words how glad I am that MADD isn't able to impose these on all of us through the court system.
1.5.2009 10:41pm
autolykos:
Oops, here's the link - AP Article
1.5.2009 10:42pm
Ricardo (mail):
Sure there may be common law outliers that get it wrong, but the system overall gets it on balance right. Saying that "some" common law decisions will be wrong is a biased standard -- I bet some legislative decisions will be wrong too. The question is which is on balance superior

A critical fact that's being left out here is that it is the government that is a plaintiff in these lawsuits. It is one thing if an individual sues a company claiming the company failed in its obligation to provide a safe product. That concept can even be stretched (with controversy, of course, but it's a separate topic) to individuals harmed by second-hand smoke or individuals wounded by handguns.

But here a local government is a "victim" because, having decided to pass laws against certain illegal drugs, it has to use extra resources because of the marketing of pseudoephedrine. The correct response when the government is the "victim" is a legislative one, not a judicial one based on the dubious notion that companies have an obligation to make the lives of police and prosecutors easier.
1.5.2009 11:10pm
einhverfr (mail) (www):
A note on Sudafed:

As noted on Reason.com a while back, sudafed purchases are now tracked by the DEA. Stocking up on it may be a bad idea.
1.5.2009 11:50pm
oMan (mail):
I agree with Ricardo. If there were a plaintiff in this case who had suffered real injury, I might be more sympathetic. But this was clearly a gold-digging exercise by some ambitious government officials. If they want a better system, they can lobby their legislature for it. This was a waste of everyone's time and if I'd been on the bench I would have imposed sanctions.

Beyond that, the key issue for me is how much social loss is avoided by the proposed change, and whether that loss is more cheaply avoided by some other actor. Manufacturers of this stuff cannot tell retailers how to behave. They have no privity of contract. They are regulated by FDA on what they can say about the product, and to whom. They have no practical means of teaching retailers what controls to use, nor even of assessing which controls are best (locked cases? convert to Rx dispensing only? buyer log? running total on how much a buyer has bought, going back how far? buyer certification? etc.), so as to avoid further post hoc complaints about failure to manage the meth cooker problem. So any "solution" along these lines is going to enormously disruptive and expensive and, because success is not easily defined or measured (how much reduction in meth use will mean "success"? How can that statistic be correlated to the specific behaviors of a given retailer? Where located relative to the reduced meth use? What time lag? Whose product putatively used in the meth production?), all this work will be seen, by the corporation, as "boiling the ocean" and destroying its business without necessarily avoiding the risk of more lawsuits.

Result? They will just making the product. Now THERE's a solution. It happened in the 1980's with vaccines, where jackpot awards based on weak or absent epidemiology first drove up the price of vaccines and then drove most makers out of the game. Public health crisis resulted, corrected (poorly) only by NCVIA program. Sudafed etc, being merely quality of life meds and not life-saving ones, would simply disappear from the market. And the genius plaintiffs would be nowhere to be found.

It's that lack of accountability, as well as the out-of-range uncertainties that a bizarre tort award like this could generate, that make me crazy.
1.6.2009 12:24am
oMan (mail):
apologies, in foregoing, "stop" should appear in the sentence "Result? They will just [stop] making the product."
1.6.2009 12:26am
J Richardson:
As an every day user of pseudoephdrine due to chronic sinusitis and allergies, what I'd like to do to the politicians who passed these stupid laws, the politicians in Ashley and the other ne'er do-well Arkansas counties who file this lawsuit, and the meth drug manufacturers is unprintable. Suffice it to say, I say a pox on all of them and the ground they walk on.

An even better and infinitely better punishment for them is to have my sinuses. I wonder how they would like it if they could rarely, if ever, be able to breath through their nose without some congestion. And this is after four endoscopic sinus surgeries. Maybe then they would understand the rage I feel when I am forced to jump through their hoops every time I buy Sudafed.
1.6.2009 1:07am
JeremyR (mail):
As someone who has allergies, the laws against the drugs make my life a hassle. Besides actually having to drive over town to find a place actually selling them, then showing my id and signing, I got raided by the local police. All for buying 2 boxes a month. (And not even an apology when they left)

The supposed replacements just don't work very, period. Generic claritin works a little, but if they ever completely get rid of these drugs, I'm really screwed, since I can't afford prescription stuff or even Zyrtec.
1.6.2009 1:13am
ReaderY:
Even in states that permit the creation (excuse me, "discovery") of brand-new common-law crimes, there is often a rule that once the legislature occupies the field, judges must graze their common-law cattle elsewhere.

Throughout the period the drugs involved were under extensive regulation, as was methamphetamine, which was criminalized. It's not as if the legislature had never considered these subjects. The existence of this extent of regulation, this far and no farther, suggests that the legislature likely considered further regulation but decided against it. A decision not to make a decision is itself a decision, which courts should honor.
1.6.2009 1:17am
Kilo (mail):
Suing the suppliers is actually the only real option for curtailing the availability of these drugs.

Apart from their over the counter sales, which they clearly are aware are used for this purpose, they also have defacto control over the source of the chemical components, from which the available sources are tiny (seven IIRC from PBS Frontline meth special).

If there were only 7 manufacturing plants which produced all the world's opiate products and those were controlled by drug manufacturers who refused to control who obtained it because they made too much money from the heroin trade, what is you other option? Is not suing them even an option?
1.6.2009 2:27am
DavidBak (www):
Kilo: Well, that's not true. They could make the drugs illegal to sell. Or maybe they're preempted by federal law: in that case they can work to convince Congress to make the drugs illegal to sell (it's not as if there aren't sufficient drug warriors in the executive branch to support them).

But in fact, it is legal to sell these drugs. And a good thing, because they're useful to the 99.999% of the population who doesn't misuse them. And at least some of those 99.999% of the population will complain bitterly to their politicans and may even vote them out of office if they make it illegal. So they're trying to make them "illegal" via "other means".

(Same as they've tried with guns and tobacco.)
1.6.2009 2:45am
DiversityHire:
Toby, I like your idea. I think meth sanctuaries should be part of the President's Stimulus Package.

I'd go further, the federal government could carve-out safe-havens for drug addicts where they can get the drugs they want or need at no cost, in a safe environment with subsistence level food, reasonable shelter, and Amtrack service. They could be part of the national park service.
1.6.2009 2:50am
Ricardo (mail):
DavidBak is right. I believe that existing law allows the DEA to ban or impose restrictions on precursor chemicals. And if pseudoephedrine is not covered for some reason, Congress can choose to regulate it with legislation.

Regulation and legislation are far from perfect but they at least allow for some degree of public accountability and input. For instance, a regulatory change has to be published in the Federal Register to give various experts (and, yes, lobbyists) time to respond. In a lawsuit in some Federal district court, it is much easier for the lawsuit to fly under the radar screen of experts and concerned citizens.

Courts are increasingly called upon, through class-action lawsuits and government initiated suits like this, to act as regulators even though judges and juries are almost guaranteed to lack all the necessary information to make these calls. Not to mention the effect on businesses, who not only now have to comply with pages and pages of federal, state and local regulations but also have to anticipate how some federal judge somewhere will rule on some barely anticipated legal challenge. Failure to anticipate properly can mean bankruptcy.
1.6.2009 3:01am
Chief Overlord (mail):
The real problem here is the USA's pathetic war on drugs.

If some loser wants to get high, what business of that is yours?

If the drug were legal it wouldn't cost an arm and a leg, and then he could buy it from his wage without having to go out and rob.

The law is (or should be) about preventing one person from harming another. How does Person A smoking weed (or using amphetamines) in his bedroom harm anyone, except possibly himself? Answer: it doesn't. If he chooses to harm himself, so be it.

As to the burden on healthcare such users may create, I have no problem in penalising them in that respect.

Also, people who get on drugs and then go out and commit crimes: fine, arrest them, but not for the drugs... arrest them for the actual harmful crimes they commit.

Many people use drugs and the vast majority of them DO NOT feel the need to go out and murder, rape, steal, burn, or pillage. The argument that drugs cause these things is a straw man.

Drugs should be legal. If you can't be responsible in your use of them then either don't use them or accept the consequences of your retarded actions.

Unfortunately, no legislators or jurists will ever come across to this view because it is politically inconvenient.

So let the cycle of retardism continue.
1.6.2009 4:03am
Hoosier:
If some loser wants to get high, what business of that is yours?

Depends: Is he willing to share?

So let the cycle of retardism continue.

And let it begin with the inventification of words!
1.6.2009 7:00am
WHOI Jacket:
I think the counties should sue the meth-kitchens.

That'd be a fun summons........
1.6.2009 10:05am
ray_g:
The line of argument here sounds to me to be very similar to the arguments in the suits some cities were filing against the firearm manufacturers. And weren't those fairly soundly defeated?
1.6.2009 11:08am
Tracy W (mail):
Yet we know from study after study that common law nations have superior, more efficient, and more effective law than those where the rules are set by legislatures.

However in all those studies that I know of, the common law countries had legislatures. The UK, the USA, Canada, Australia and NZ are all common law countries and they have legislatures. And in all these cases, the legislatures pass laws sometimes. The contrast in those studies is not between common law countries and legislatures, it's between common law countries and civil law countries. In civil law countries what is happening is that the legislature sets the rules and judges are expected to derive their decisions from that, while in common law countries courts draw from case law much more. I don't know of a study that looks at a system where legislatures don't set laws at all.
1.6.2009 11:23am
trad and anon (mail):
Another reason not to stock up on Sudafed is that generic pseudoephedrine is much cheaper.
Hard to find, though. Once it went behind-the-counter, the selection got much worse. Often the brand name is your only option.
1.6.2009 11:39am
Brian Garst (www):

so, by regulation, and practive, legitimate patients with severe pain are signficiantly inconvenienced and/or not prescribed the drug, because some #($#($# dopers like to abuse the stuff.


Not quite. They're inconvenienced by the government's frantic and unnecessary response to the "#($#($# dopers," not the dopers themselves.
1.6.2009 12:10pm
einhverfr (mail) (www):
Kilo:

The issue to my mind is whether a company is intentionally encouraging illegal uses. If the company were to be advertising their opiates as heroine precursors, sure, go ahead and sue them.

However, failure to control downstream sales is not enough. It should require at least active marketing of a product for illegal uses, or otherwise ENCOURAGING sales of this sort in an active manner. I don't think companies are nor should be required to be nannies to their customers.
1.6.2009 12:33pm
Oren:

Hard to find, though. Once it went behind-the-counter, the selection got much worse. Often the brand name is your only option.

Every Walgreens in the country stocks WalFed, which is decently cheaper than the brand-name stuff.
1.6.2009 1:01pm
Brian G (mail) (www):
I wish I were defending this suit. I'd habe billed so many hours on a sure winner it would have been ridiculous.
1.6.2009 2:36pm
tsotha:
I wish I were defending this suit. I'd habe billed so many hours on a sure winner it would have been ridiculous.

I'm not a lawyer, but I was always under the impression you guys billed for losers too.

Kinda like bookies.
1.6.2009 5:32pm
Annonymous Coward:

Shouldn't you then also be able to sue the light company for allowing a residential customer to consume 10 times the electricity that a normal residence consumes. We all know that this is a likely indication that a house is being used to grow pot using ultraviolet lighting.


What Al Gore can't have air conditioning?
1.7.2009 6:02pm

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