The Baldy Center Podcast

The Baldy Center for Law and Social Policy
Podcast Season 3, Episode 20
Podcast recording date: August 25, 2021
Host-producer: Edgar Girtain
Speaker: David Herzberg
Contact information: baldycenter@buffalo.edu

Podcast transcript begins.

Edgar: Hello, and thank you for listening in to the Baldy Center for Law and Social Policy Podcast produced by the University at Buffalo. I'm Edgar Girtain, your host. Today we'll be speaking with Dr. David Herzberg about race and the history of opioid use in the United States. Dr. Herzberg is a historian of drugs and associate professor at the University at Buffalo. Where he teaches courses like Drugs and Global Capitalism, Alcohol and Drugs in American History, and Bad Medicine: Race and the Tuskegee Syphilis Study, 1932 to '72. His research explores the nature and trajectory of drug commerce, drug use, and drug policy in American racial capitalism. His new book "White Market Drugs: Big Pharma and the Hidden History of Addiction in America" is available now through the University of Chicago Press. On a personal note, I'd like to say that I really enjoyed my conversation with Dr. Herzberg, and I think you will too. He has a lot of fascinating insights about the history of race and drugs in the United States, and how those two things are intertwined. It was very informative and I hope you enjoy it. Without any further ado.

Good morning, Dr. Herzberg, and thank you for being here. To get started, I was wondering if you could tell us, what exactly is an opioid?

David: An opioid is a large class of drugs. Originally, they were derived from the opium poppy, and these are a class of drugs called analgesics, which are drugs used to ease suffering coming from pain. It was starting about 60 years ago, there have also been synthetic versions of this drug. Originally all opioids were something called opiates, which means derived from a plant. Now ‘opioids’ is a term that includes both drugs that were derived from the opium poppy, and drugs that were synthesized in a laboratory.

Edgar: You're a historian by trade, when and how did your work shift toward drugs?

David: I have always – since I started doing my own research, I've always looked at drugs, understood as a class broadly, not just drugs, when you think cannabis or heroin. But drugs including the kind that are sold legally like alcohol and like pharmaceuticals. And that started late in graduate school when I became interested in the cultural hoopla surrounding Prozac, this blockbuster antidepressant that was released in the late 1980s. In the 1990s, a whole bunch of white middle class intellectuals became fascinated with Prozac. I was interested, not so much in Prozac itself, I was interested in the cultural conversation that was provoked by everyone's enthusiasm for using Prozac.

Edgar: So, when did opioids first start being used in America?

David: Opioids have been used, to some degree or another in America, since before there were records being kept of it. Opioids became widely used in America at the end of the 19th century. Why? Why at the end of the 19th century? The broad answer is everything started to be used more widely at the end of the 19th century. Why did everything start to be used more widely? Because of this process called industrialization, where products were being made in larger scale, they could be sold more cheaply, they could be transported more easily. Just like there were more chairs sold, more shirts sold, more eyeglasses sold, there were more opioids sold. So, use began to be more widespread, not just through medical channels: doctors were prescribing it more, pharmacies had more of it and were selling more. But also through, what I'm going to call informal markets, which means markets that weren't governed by any particular authority. For example, someone might buy some from a pharmacy and then sell some to other people who didn't go to the pharmacy.

Edgar: So, at the dawn of the 20th century, caveat emptor was the rule of the market. Problematically at that time, there were little or no legal requirements that food or drug labels be truthful about their contents. Among other things, the 1906 Food and Drug Act was seemingly a measure to protect consumers from unwittingly consuming narcotic substances, which at the time were shockingly commonplace. Dr. Herzberg, just how common was use of these substances at that time?

David: Yeah, so, the real boom started in about 1870 or so, in the wake of the Civil War. A lot of wounded people suffering from long term injuries, and it expanded for the next two or three decades. The high point was estimated the mid-1890s. At that point, it's hard to say exactly how common because the kind of surveillance that we have now wasn't available then. But the heroic detective work of historian David Courtwright, pieced together through import tariffs and so on and so forth, and he found that enough opium was being sold that it could have supported a number of people with average addictions at a level that was not met again until probably the last 20 years. So, it was very high in the late 19th century. Very common, common enough that just like during the recent opioid crisis there were newspaper articles about it, politicians were raging about it, congress was acting, you know, priests were writing sermons about it. So, it was a big deal.

Edgar: You posit the 1906 Food and Drug Act had some unintended consequences. What were they?

David: As I said, this big boom in opioid use, it happened in a lot of different contexts. The most people who were using opioids got them from their doctors and bought them from pharmacies. But there were a significant number of people who weren't part of the doctor visiting classes. They didn't have the money to go see doctors, there weren't doctors in their communities. Especially these racially mixed urban populations that were also growing thanks to industrialization. With increased use of opium at that time, there was increasing people who experienced this pattern of compulsive harmful use that later came to be called addiction in both of these contexts: both people who went to doctors, they were people who experienced addiction the most, and people who were buying in informal markets. This created a public health crisis, just like it did recently in the US.

When authorities took steps to respond to this crisis, they, in a very important development, they looked out at what they were seeing, and instead of seeing, hmmm, you know, we have markets booming with few rules, and as a result, you're having all these unintended consequences, they looked out and they saw two different social crisis going on. One, amongst people who are going to doctors, they liked these people, they were those people, and these were their wives and their children and parents. And so, they were like, well, these people clearly are good people who have fallen victim to a market that's gone out of control. What we need to do is we need to fix that market.

Then for the other people, the people who they were not – the people who at this time had very little political representation, certainly at the national level; these were immigrants from Italy and Southern and Eastern Europe, Jews and Catholics, people who were considered to be alien, and inferior versions of white people. Those folks, they were like, well, we already knew those were bad people. Now we really know they're bad people. They weren't being told what to do by the doctor. They were seeking this stuff out because they're perverse. They want pleasure without work. We need to govern and police the markets that provide for us and we need to govern and police those scary people in those cities. And so, they saw them as two different problems.

Now, the Food and Drug Act was the first effort to try to regulate the market that they feared were harming people like them. And what it did is it said the label cannot lie, and if your medicine includes any ingredient that we think is habit forming; and by the way, their ideas of what was habit forming and ours were quite different, but it did include opium. And so, that way, you know, they start with the assumption that good, white, Anglo-Saxon Protestant, middle-class people don't have any desire to experience drug effects. Therefore, if they look at the label and see opium, they're going to go, never would I want to take something with opium in it. I'll put that back on the shelf.

This is obviously madness, right? There was no group in America that exhibited a greater desire to use opium than white, Anglo-Saxon, middle-class Protestants. The evidence was right there in your face. That reform was designed to make sure people got, quote, what they thought they were buying, but what it did, it kind of set in the motion, the wheels of creating this white market for these drugs. I call them white markets both because they're legal, and because they were designed to serve people categorized as white in American society. Instead of just setting the first layer of rules for what would eventually become an incredibly Byzantine and powerful set of government agencies and state bureaucracies to control these markets, it also began to segregate them from the informal markets through the way that they're regulated.

Edgar: So, is there a misperception as to how addictive opioids are? You know, like, can you put it in context alongside, perhaps, alcohol? How many people become addicted to alcohol compared to opioid users?

David: I don't have that kind of number right off the top of my head. I can say that, popularly speaking, there's definitely misperceptions. When I tell students that 80-90% of the people who buy heroin, obviously illegally not as part of medical treatment, don't go on to develop any problems with the drug, I think people are surprised. Because they're taught in their anti-drug education classes that, you know, one taste and you're hooked, and you're ultimately doomed to, you know, experience all these hardships of addiction. There is that misperception, but there also is genuine ambiguity.

People who advocate for more opioid use say that addictiveness isn't a quality of opioids, addictiveness is a quality of a certain person's troubles at a certain time. People who have suffered trauma, people who are experiencing really intense types of suffering. Then when they encounter relief, they are unusually drawn by that relief, and that could be opioids, that could be alcohol, that could be gambling, that could be sex. The point being there that the problem – that the person has an unmet need, not that the drug has this quality being addicted.

But there's risks of this way of thinking as well, because how do we know who it is that's suffering from this particular kind of trauma that would make them susceptible to addiction? Well, in practice, we tend to answer these incredibly complicated questions – we look for simple answers by being racist, and by being classist, and by being misogynist. So, what we say is, well you know, hey, well, gosh, when I look at our society, look at the way black people are treated, that must produce a lot of trauma. That makes them very dangerous to prescribe opioids for. Then you have this problem which has never eased, despite the big opioid bonanza of the 2000s, of undertreatment of pain for people of color. There are risks any way that you think about opioids, because the complexity is so deep and the stakes are so high.

Edgar: In your work, I feel like you have plenty of reason to be critical of the pharmaceutical industry, and at times you are. But I get the sense now speaking to you that actually, questions of race and these kinds of societal questions seem to me like they're actually more important to you and you were more critical of moral crusaders, perhaps even more than the pharmaceutical industry. When did questions of race become central in your work?

David: Yeah, you're quite right to say that questions of race and other social hierarchies are central. I'm just going to say those two things are connected. The pharmaceutical industry has, in this area, been a bad actor in the sense that they have very consistently sought to sell as many of these drugs as possible while downplaying their risks as much as they can. That's produced a lot of harm. Another question you might ask is, well, you know, in this story you have these people who are constantly saying, we need to reign in this industry. We need to strengthen the professions to guard the public against this profit seeking malign industry. Why didn't it work? I mean, why was the industry still able to do that so often? The answer is in part that the risks of these drugs were regularly associated with the kinds of people who weren't buying them from pharmacies.

So, if you had developed this stereotypical idea of who a quote, addict, you've developed a whole noun so this isn't a person anymore. This is an addict. That person is a non-white, poor person who lives in a city. Those are the kind of people who get addicted. Then when you're talking about, well, how are we going to regulate the pharmaceutical industry? They're selling Valium to middle-class white housewives. Middle-class white housewives aren't at risk of addiction. They don't want drug pleasure, they're just trying to, you know, follow medical advice. And so, you have this tendency to, when you are most hyperventilating, when our social authorities are most hyperventilating about the threat of these, what they used to call the dangerous classes and their drug use, is ironically the time when they are least concerned about sales in white markets. Meaning that, at the same time as when they destructively crack down on the communities in which informal drug sales are going on – causing all kinds of harm and increasing the risks and the harms associated with drugs – they're at the same time just throwing white markets to the wind and just letting unsafe sales shoot through the roof.

So, obviously that wouldn't matter if you could rely on the pharmaceutical industry to be ethical and to pursue the public good as a higher priority than profit, but that hasn't been the case.

Edgar: That's a really fascinating answer and thank you so much. That's really great. I'm curious as to why doctors might be afraid to continue prescribing opioids regardless of how people come to use heroin or overdose. There is officially an opioid epidemic occurring in America today, alright. In 2017, the US Department of Health and Human Services declared, actually, a public health emergency. In 2019, nearly 50,000 people died from opioid involved overdoses, which for context, is more than the total of people that died from nephrosis, or kidney disease, suicide, influenza, or pneumonia. So, Dr. Herzberg, if we know that opioids are addictive, why do we use them as prescription drugs in America? What is the exact purpose that they serve and how do we justify their public health risk?

David: Let me just start off by saying that all medications carry risk, and so the question is not how can we handle any risk at all, it's how do we make that decision about a particular drug with its risk profile? Opioids are crucial medications for handling pain. This can be pain in surgery, this can be pain of cancer, this can be pain of physical injury – there are all kinds of ways that we manage pain with opioids. They're crucial for the practice of medicine. There has never been a time in the recorded history of human efforts to heal and deal with injury and illness where opioids of one kind or another didn't play a significant role. No one has ever even tried to practice medicine without them. That's one reason we use them is because there's nothing else to take their place, but that doesn't define how much we should use them.

That’s the debate. It’s not should we use them or not, it's how much danger do they present? How much caution should we exercise in using them? The danger is that they are addictive. What does that mean? That means that some people essentially fall in love with this drug. When they use it fulfills some purpose for them that is incredibly captivating and they are very, very highly motivated to continue using it, highly motivated enough that they continue to do so even if it is causing negative consequences in their life. That's what addiction means, and it's important to remember that this is some people. That there's debates that the range of people who use an opioid and become addicted to it range from 4% to 20%, depending on the circumstances in which they're exposed to that drug.

So now, the first reasonable question you might ask is well, how do you tell the difference between the people who aren't going to become addicted the people who are? Because that would help when to use it. The answer to that is we do not know. We know some things, but there is no clear, simple equation for determining one type of person and another. Moreover, this is a dynamic quality of a person. You could be one type of person when you're 17, and by the time you're 30, you're a different type of person. So, this is why it's such a thorny problem. It's so incredibly important as a tool to ease suffering and pain, but it's so unpredictable in terms of its dangers. So, you know, we use it because we must and we accept the risk because we must. But there are intense debates over any solution is going to deprive some people of something that could help them experience relief and it's going to expose some people to risk that could have dire consequences for them.

Edgar: You Have a recent article published on the online platform The Conversation about how Purdue Pharma, the maker of Oxycontin, may settle legal claims against it by forming a new public trust that would be, quote, dedicated to profit. What does that mean? And is there any kind of precedent for this?

David: Before I answer this, I need to make a couple of small disclosures. The first is that as a historian, I have been employed, in other words paid as a consultant on some of the litigation against opioid manufacturers, distributors, et cetera, et cetera. People listening to me opine about that should be aware of that fact. Also, specifically in the Purdue case, the bankruptcy judge overseeing that case cited my book White Market Drugs in trying to make a point about an aspect of that case. I felt that he had mischaracterized what I had said in the book, and so I wrote with a colleague, a letter to that judge trying to correct the record and making an argument about why I thought the judge should reject that settlement. So, in other words, I'm about to say things about topics that I'm actively involved in. I think people know that.

There were thousands of lawsuits against everyone involved in inflating this opioid bonanza: the companies, opioid manufacturers, the distributors, the pharmacies, the consultants, McKinsey and company that help them do that. Everyone is being litigated against because they recklessly imperiled the public health with very expensive consequences. And so, Purdue pharma, as the kind of first out of the box on these things, they were subject to a lot of these lawsuits and it's not looking good for Purdue. What do they do? They declare bankruptcy. One of the reasons to do that is that you move out of all these courts and jurisdictions where you're going to be heard by juries who may have personal reasons to have been affected by opioid crisis. You move out of jurisdictions where judges may be particularly unsympathetic to you, and you move into bankruptcy court, which is famously quite sympathetic to large companies.

And so, Purdue disappeared from all of those lawsuits. They are no longer the target of any of those lawsuits. Instead, they go into a bankruptcy court where this one dude, Judge Drain, gets to decide what happens with their assets, alright? And so, the proposal that Purdue put forward, it's a mixture of different elements, but basically what they say is look, we're going to put this amount of money on the table. It looks like a lot, looks like a big amount. It's like billions with a B. Ten billion, I can't remember exactly. But when you look at it closely, only a couple of billion of it come from the family that owns Purdue Pharma. It's not a publicly traded company, it's like, a family owns this company. They have made enormous amount of money; the Sacklers. And they're going to put up some small fraction of their profits and they'll still be billionaires, and being happy, and still be running their companies outside the US selling opioids elsewhere and so on.

The rest of the money is supposed to come from the future profits of the company. But the company, having been acknowledged to have engaged in all of this bad behavior, can't just keep existing as it was. They say, it's going to be turned into a public benefit corporation, so every profit will go to benefiting the public. It won't be a typical private sector company anymore; it'll be this public benefit corporation.

Edgar: Is the conflict of interest not glaringly obvious here?

David: Yeah, well, right. They would no longer be part of the company. Sorry, so their conflict of interest would be resolved by being, they get shielded from any future litigation and they're still billionaires, so they're happy. The conflict that you're talking about is the conflict that the resulting company is supposed to serve the public good. But to do that, it has to sell as many opioids as possible. That's a peculiar setup of course, aside from a lot of other questions. Purdue isn't like a lot of the other companies that are being sued that do a lot of things and many of the things they do, we really like. Take Johnson & Johnson, they were really bad actors in the context of opioids, but hey, they just came up with a vaccine. We're really happy about the vaccine. And that’s just one of, you know, Johnson & Johnson does lots of stuff. It's a big company, opioids are one part of what they do.

Purdue, like, opioids were the overwhelming majority of what made them a big profitable company over the last few decades. So, that company's culture was defined by boosting Oxycontin and pursuing profits with vicious disdain for the public health. Like, when you read the internal emails that have been released, it's, frankly, morally repugnant. This is a whole company built around doing that. Is it actually possible to say, now you just are going to flip a switch and you're going to care about different things, your corporate culture doesn't exist, that will just switch it on a dime. It seems like there are a lot of reasons to be skeptical that this revamped Purdue would in fact be dedicated to the public good. Moreover, by being redeemed in this way, then it's not clear what lesson other pharmaceutical companies would learn from it.

Ok, Purdue did about as bad a behavior as you can do: from cooking studies, to open contempt for your consumers, to everything. And yet, the people who founded Purdue are still billionaires, and the company itself is still there, present, and is still, according to the plan, in 15 years, it will still be a respected organization. It's not clear why should I not do all that? What if I just happened to be a bad person who's running a pharmaceutical company? Why wouldn't I do exactly what Purdue did and end up a billionaire, and have the history books remember my company as this public benefit company? So, there's a lot of problems with it. And, of course, it doesn't even try to address the broader issues that allowed this malign actor to do what it did for 25 years.

Edgar: Wonderful. I guess to wrap up here, do have any books, publications that you want to plug, anything that you'd like the listeners to know about? Where can they get a copy of your books?

David: Yeah. The thing that I would most like people to read is the recently published book. It's called White Market Drugs: Big Pharma and the Hidden History of Addiction in America. It's available where books are sold. It's published by the University of Chicago Press, you can buy it directly from them. Obviously, that's my fantasy that people would read a whole book. If you aren't up for reading a whole book, I have published a bunch of shorter things about it, and most of them can be found in one way or another at my website, davidherzberg.com, and you can find some of the shorter stuff there.

Edgar: Dr. Herzberg, thank you so much for coming onto the Baldy Center Podcast to speak with us today, and please come back soon.

David: It was my pleasure. I look forward to it. Thank you.

Edgar: Okay. Very good. That was professor David Herzberg who book White Market Drugs: Big Pharma and the Hidden history of Addiction in America is available now from the University of Chicago Press. This has been the Baldy Center for Law & Social Policy Podcast produced by the University at Buffalo. Let us know what you thought about this conversation on our Twitter @Baldycenter. You can also learn more about the center on our website: buffalo.edu/baldycenter. The theme music for the season was composed by University at Buffalo composer Matias Homar. My name is Edgar Girtain, and we appreciate you listening to our program today. Be well.