Why 2012 in Post stories? We know now...

Posted 8/8/19

There has been some confusion about why the drug information passed along by the Washington Post recently only went to 2012. We've had several questions about that, and, as journalists, it has nagged …

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Why 2012 in Post stories? We know now...

Posted

There has been some confusion about why the drug information passed along by the Washington Post recently only went to 2012. We've had several questions about that, and, as journalists, it has nagged us, too. I have tried through one federal source to maybe get some background on the matter, but I haven't heard back.

Many people are saying that the local opioid situation has improved since 2012. My understanding is that several doctors who were particularly bad at prescribing opioids were shut down by authorities, which has helped. (Sadly, I'm still looking for medical professionals to talk about it.) 

But why stop at 2012 in the first place? You would think the Washington Post could go out a little longer. 

The truth is, we are lucky to get any information. The Post and another newspaper had to go to court in a year-long battle that finally won out on appeal. 

Let's start with the data. ARCOS, for Automation of Reports and Consolidated Orders System, was established by the Drug Enforcement Administration (DEA) to track the manufacture and distribution of prescription drugs, including billions of opioid painkillers that have sparked a deadly epidemic. The Post and the Charleston Gazette-Mail of West Virginia (the latter of which used ARCOS information released by West Virginia's attorney general to show how West Virginia was overrun with opioids, resulting in a Pulitzer) sued to get database information, as the drug industry and the federal government wanted to keep the records secret. 

Again, let's backtrack a little. That information was originally withheld from the public after more than 2,000 drug-affected cities, counties, Native American tribes and government agencies sued in Cleveland, wanting the data. All have been suing the drug companies, much like others sued Big Tobacco to end marketing practices and have damages paid. And to do a lawsuit right, to show how the drug companies manipulated the market, you need discovery of material. Which the drug companies and your federally funded DEA was loath to make public at all. 

The drug companies said the information could hurt them commercially and the DEA had the same information and could have intervened if it detected criminal activity. 

"An attorney for the Justice Department told (U.S. District Judge Dan Polster) in 2018 that the ARCOS database should remain largely confidential to protect trade secrets, the location of warehouses containing drugs, and ongoing and future criminal investigations," the Post reported. 

Finally, Polster ordered information turned over to plaintiffs, but with protections so the information couldn't be shared with the media and the public. 

I talked with some reporters from the Washington Post Wednesday who have been involved in this reporting - who were fast to respond and nice to talk with, by the way - and they said in the judge's efforts to bring the sides to compromise, he set the years 2006 to 2014 for the data, as he felt that would satisfy the demands of the defendants. Again, the DEA was concerned that releasing more recent information would compromise criminal investigations and the drug companies were concerned releasing new info would compromise their competitive position. And again, no one was allowed to let the public see the information. 

Enter the two newspapers, who sued for the information. Polster ruled against them last summer, but an appeal was made to the U.S. Court of Appeals for the 6th Circuit, based in Cincinnati. The drug companies said aggregated data available showed in general where pills were going, but the media countered raw transactional data was needed. 

"By a 2-1 vote (on June 20 the appellate judges) ruled that Polster had exceeded his discretion in issuing the protective order sealing the ARCOS data," the Post reported. "The appellate judges called Polster’s reasoning 'bizarre' and said the judge abused his discretion by 'acting irrationally.' They also noted Polster had said the data would have become public if the case went to trial, leading them to conclude a threat of publicly disclosing the material was actually a bargaining chip for settlement discussions, which the appeals court found improper. 

"The appellate court ordered Polster to amend his protective order, a process that led not only to the release of ARCOS data from 2006 to 2012 but also the unsealing of numerous court filings," the Post said.

Lawyers for the local governments suing the companies hailed the release of the data, according to the Post.

“The data provides statistical insights that help pinpoint the origins and spread of the opioid epidemic — an epidemic that thousands of communities across the country argue was both sparked and inflamed by opioid manufacturers, distributors, and pharmacies,” said Paul T. Farrell Jr. of West Virginia, co-lead counsel for the plaintiffs.

But wait a minute - what about 2014, versus ...

I'm getting to that.

When Polster amended his order, as the appeals court called for, he decided to further protect the DEA and the drug companies in light of the information being made public, the reporters told me. So he cut off two more years and restricted the information to no more than 2012. 

So you can blame a judge - twice - for the fact that the plaintiff communities, the media and you, Mr. Joe Q. Taxpayer, can't find out how communities have done since 2012, even if it was better. 

Not surprisingly, the Post is still fighting in court for those extra two years. I took it if they got data up to this year, they would do backflips in the newsroom, but they'll be happy (and lucky) to get two more years. 

In fact, the Post reporters said they have heard the same question about the 2012 limit, and admitted it was a good question. After we talked about it, I wouldn't be surprised if they find a way to explain it to their readers. 

By the way, I described to them how newspapers and news organizations across the state were doing opioid stories in Alabama, including us. I could tell they were delighted, as that is exactly what they hoped for, that community figures would filter down to the local and state levels. To me, the intent was to show how opioids' overmarketing rose in this country.  

But I will say this: People think statistics and reports just flow like honey out of the faucet. When it is what the government wants to release, on its terms, and it isn't going to cause congressmen and donors to complain, it does flow. Ohhhhh, it can flow.

But when it is stuff that is not on its terms, no, it is not necessarily easy to get. And we are talking about complicated data that has to be analyzed, and a lot of times it is a year or two out of date anyway. 

And I would not say we are doing that much better. We are probably better, but this area, and this nation, still have a ways to go. 

On Tuesday, the Pharmacy Times online started a story saying, "The opioid epidemic has become widespread throughout the country and is considered a top public health priority.  According to the (Centers of Disease Control and Prevention), 130 Americans die every day from an opioid overdose," which is a 2017 statistic. It then reported the CDC "revealed that in 2016 and 2017, age-adjusted rates of drug overdose deaths were higher in urban (20 per 100,000 in 2016, and 22 in 2017) than in rural (18.7 in 2016, and 20 in 2017) counties. This is a change from previous years where drug overdose deaths occurred more in rural areas." 

Looking at the CDC sourcing link itself, "from 1999-2017, almost 400,000 people died from an overdose involving any opioid, including prescription and illicit opioids." It noted there was a first opioid wave in the 1990s involving prescription opioids, a second wave in 2010 involving heroin and then a third wave in 2013 "with significant increases in overdose deaths involving synthetic opioids – particularly those involving illicitly-manufactured fentanyl (IMF)." 

I can't imagine that we can celebrate in Walker County with national numbers like that.

Certainly other news organizations are still finding plenty to report on our problem in Walker County and Alabama; the Montgomery Advertiser did an excellent story based in Walker County the other day. We might as well give you a local view on this problem, and it will not be done in one week or one month. It will have to be continuous. 

We need to show where we have been, and I think this data has been the most concrete example of how bad it has gotten here. I would not be so concerned about how we are rating up to the minute as doubling down to get the problem resolved. 

There is much more pertinent information to look at in terms of what the aftermath of this epidemic, even in a weakening, changing form, still does to ruin our county. Where have we been, how are we right now and how much further do we need to go?

The next priority to me, for the Daily Mountain Eagle, is to look at the faces and the lives affected, the people themselves, no matter whether they were in a upper income or homeless. We are planning on a series to profile a number of people who have or are dealing with opioids - some who have died, some who are in the battle and some who have outright won. 

And then we are planning a series to show the resources that are available, and what those wanting treatment can do. And there will be other angles we will look into. 

Perhaps some of you feel beat down on the matter. The truth is, this is a problem being seen throughout the nation; now the urban areas are beginning to surpass the rural areas on opioid abuse. We have to concentrate on the problem and the solutions as much as ever. These are real people we are talking about, people who have a problem and who need help, and who have possibly been abused by drug companies for years. It is time we give some increased attention to this problem - actually long overdue, and not just here but across the nation. The Washington Post is owed a major thanks for bringing this data to our attention, as it confirms what we have suspected for years. 

And, by the way, both the Post and the Eagle have digital subscriptions. If you want to fund finding out data about your county, even when the government doesn't want you to have it and you deserve to know, well, this is how it is done. Support your newspapers, because we ask the questions and we fight the battles. And otherwise, people would not know if the media is not here.  And that is why what the Post did is a victory - albeit sober - for us all. 

Ed Howell is the Daily Mountain Eagle's news editor.