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Provisions in House version of Fentanyl bill could inadvertently increase civil liability for businesses

Chip Brownlee

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A provision added to the House version of a bill to increase penalties for the trafficking and distribution of Fentanyl could inadvertently increase civil penalties for a wide-ranging sector of Alabama businesses.

The bill’s Senate sponsor, Sen. Cam Ward, R-Alabaster, said Monday he would attempt to remove some of the House changes after discovering the provisions might harm pharmacies and any businesses that are involved in lawsuits related to the opioid crisis — not just the large manufacturers.

“It would expand civil liability to a huge portion of the business community in Alabama, to lawsuits that they currently are not subject to,” Ward said. “That gets beyond the scope of what the bill is about.”

The original version of the bill would have mainly made Fentanyl and synthetic Fentanyl analogues Schedule I controlled substances and provided harsher criminal penalties for the trafficking of these drugs. But amendments as part of a substitute passed in the House added five pages to the bill and would change the way Alabama deals with civil lawsuits related to controlled substances like Fentanyl and other opioids.

A provision in the bill called marketplace liability would hold, essentially, that if a pharmacy sold 80 percent of opioids in Alabama, for example, then that pharmacy would be liable for 80 percent of all opioid damages in the state. The provision would apply to not only pharmacies but any business that had a role in the distribution of said opioids — regardless of whether they did it right.

“The problem with that is, even though I sold 80 percent, I may have done everything exactly the way I was supposed to and I didn’t hurt anybody, but now I’m covering 80 percent of all of the total damages,” Ward said. “It sets up a formula in place that doesn’t necessarily look at who was wrong and who was right in the scenario.”

The sponsor of the House amendments, Rep. April Weaver, R-Mobile, was not available for comment before the time of the publication of this article.

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The House passed the legislation last week. With the changes, the Senate will either need to concur or send the bill to a conference committee where the disparities between the two chambers will be worked out.

Ward, who will carry his bill in the Senate again, said he will push the body to non-concur with the House changes and send the bill to a conference committee, where he hopes the House changes will be removed.

Ward said the bill just gets beyond its original scope.

“What we’re trying to get at is the illegal trafficking of Fentanyl,” Ward said. “There are things that we have got to do to fix the opioid problem in Alabama beyond just trafficking, there’s no doubt about it. But doing this (the additional provisions) directly interferes with the current class action lawsuit that’s going on all across the country. I think it would create more mischief than it does getting what we want out of the process.”

Alabama in February sued one of America’s largest drug manufacturers, Purdue,  for allegedly jeopardizing public health and safety through shoddy opioid marketing and sales practices.

The Attorney General’s Office filed the lawsuit against Purdue Pharma, Purdue Frederick Company Inc. and Rhodes Pharmaceuticals — which are collectively known as Purdue — for violating the Alabama Deceptive Trade Practices Act.

Purdue is one of the most active opioid makers, manufacturing brand names like OxyContin, MS Contin and Targiniq ER, along with other generic opioid drugs — all of which are at the center of a nationwide opioid epidemic.

If lawmakers want to change the way Alabama deals with civil liability and litigation, they should propose a stand-alone bill, Ward said.

“You’re getting into a whole other area that gets into the complexities of civil litigation,” Ward said. “When someone sees a vehicle, they just go ‘why don’t we just do this.’ That happens a lot. That’s just part of the legislative process. That’s also why you have two chambers, so both have to agree on the same bill.”

 

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