This is part 1 of an article that originally appeared on Beacon, where Jonah Engle writes about drug policy, and is posted here with permission. To read the full article and receive new stories each month, subscribe to Engle's work
As the vote tally flashed on the board, 18-14, State Senator Dan Foster felt elated, as did the sea of green-uniformed state troopers and paramedics looking down from the gallery. It had been a bruising battle for the bill's sponsors — two pharmacists, a physician and a lawyer — against the country's biggest pharmaceutical companies.
Industry lobbyists had tried to run out the clock, but with two days to go before the close of the 2011 legislative session, the bill inched across the finish line. A senator who'd voted against it turned around to congratulate Foster.
West Virginia was set to make pseudoephedrine a prescription drug. The decongestant found in some popular brands of cold and allergy medications is also the one ingredient required to make homegrown meth. Nationally, the number of these toxic and highly combustible meth labs had more than doubled in three years, with the Midwest and Southeast the hardest hit. Oregon and Mississippi however were bright spots. The only two states to return pseudoephedrine to the status it had nationally until 1976 — that of a prescription drug — had seen significant drops in meth labs.
Then, in the blink of an eye, Foster's victory fell apart. Two senators changed their votes from “yes” to “no” in the last second before voting closed. The final tally read 16 for, 16 against. A tie vote meant the bill was defeated. It was a terrible disappointment for Foster.
It had been a very close call for the pharmaceutical companies, including Pfizer, Johnson & Johnson, Bayer and Merck, who sell over half a billion dollars worth of pseudoephedrine annually. The Consumer Healthcare Products Association (CHPA), which lobbies on behalf of makers of over-the-counter medicines, opposes these laws saying they are both unfair and ineffective.
“We feel the most effective solution to addressing the meth problem in West Virginia and in other states is to find that balanced solution; one that doesn't punish law-abiding citizens who really need access to these medicines, but find a way to effectively target the criminals who are illegally purchasing these medicines,” says CHPA spokesperson Elizabeth Funderburk.
As more and more states like West Virginia have sought to follow Oregon and Mississippi's lead, CHPA has set state lobbying spending records in a remarkably successful campaign that has seen the defeat of over 70 pseudoephedrine prescription bills in nearly half the states in the country in recent years.
Big Pharma Caught Off-Guard
CHPA had been caught flat-footed in West Virginia in 2011. The pseudoephedrine prescription bill was filed with little fanfare on the last day of January and passed easily in the House by a vote of 77-23. The pharmaceutical industry took notice and sprang into action employing well-connected lobbyists in the state. Among these were two children of sitting legislators, lobbyist and Charleston City Counselor Sam Minardi, whose father, Joseph Minard, was a Senator at the time, and is now the Senate Clerk; and lobbyist Abby Sobonya, who is the daughter of House Delegate Kelli Sobonya.
“They were going around from senator to senator and they probably had 15 lobbyists, and it was the largest group I think that some people said they'd ever seen on a specific issue,” says Senator Dan Foster. “They just had immense influence from past battles and the industry knew where to go and they had the money to pay 'em.”
CHPA also worked hard to mobilize public opinion against the pseudoephedrine bill. It paid for full-page newspapers ads, spots on the radio, and an online campaign. “They were able to get together with conservative media folks who portrayed it as an unwarranted incursion into your rights,” says Delegate Don Perdue, a pharmacist for 35 years and the longtime chair of the House Health Committee, who co-sponsored the pseudoephedrine prescription bill.
CHPA also hired DC-based robo-call firm Winning Connections. It delivered the industry's message to West Virginians after which people were given the option of being patched through to the legislature. (Winning Connections' describes its successful campaign in West Virginia on its website but makes no mention of meth labs).
Senator Foster says the results of these robocalls were sometimes absurd. “A lot of times they didn't know who they were talking to or what they were supposed to say or what was going on and that was sort of comical.” But the barrage of phone calls to senators had an effect. “It's very powerful to someone who needs votes for election,” says Foster.
Enter Governor Tomblin
In the end, the industry's last minute blitz had worked. But with the number of meth labs on the rise in West Virginia, a similar bill was sure to be filed in 2012 and the pharmaceutical industry wasn't taking any chances.
They turned their attention to Governor Earl Ray Tomblin. After the death of America's longest serving Senator, Robert Byrd, West Virginia Governor Joe Manchin was elected to the Senate, leaving Tomblin, the longtime President of the state Senate, as acting Governor. Tomblin was running to keep his job as governor in a general election scheduled for November of 2011.
Within a couple of weeks of the dramatic vote on the pseudoephedrine bill in the state Senate, the Consumer Healthcare Products Association made a campaign contribution to Governor Tomblin. One by one, over the summer and fall the makers of the top pseudoephedrine brands, (all of them members of CHPA), Merck, Pfizer, Bayer, Novartis and Johnson & Johnson also contributed to the governor's war chest.
CHPA says it has no comment on the timing of these donations to the Governor or the reason for them. But the pharmaceutical industry had good reason to curry favor with the Governor.
High on Tomblin's agenda was a comprehensive substance abuse bill that stood to have a significant impact on the pharmaceutical industry in West Virginia. Pseudoephedrine wasn't the only profitable pharmaceutical drug being diverted in the state; West Virginia has the highest rate of fatal drug overdoses in the US, much of it involving prescription drugs.
In September, Tomblin issued executive order No. 5-11 creating the Governor's Advisory Council on Substance Abuse. The Council included department heads, law enforcement, public health and addiction specialists, and clergy. They were to submit their recommendations on substance abuse policy to the Governor at the end of the year ahead of the 2012 legislative session.
As part of the process, six regional task forces held public hearings over the course of the fall of 2011 across the state. These provided the basis for recommendations to the Governor's Advisory Council. One of the recommendations that emerged from the hearings was that pseudoephedrine be changed from an over-the-counter, to a prescription drug.
The Council convened on December 7th. Senator Dan Foster, who was present, came away thinking the Council had endorsed the measure. “They made these recommendations and this issue was discussed because it had been obviously a very high profile issue seven or eight months ago when the legislative session ended. That group, I thought, in a quasi-formal format, recommended prescription-only as part of their recommendations to the governor,” says Foster. Council member Dr. Alan Ducatman says he and another physician on the Council spoke in favor of the proposal at that meeting. “The problems we were seeing from (pseudoephedrine) — not necessarily through its fault or the fault of the people who sell the medicine per se — were outweighing the potential benefits of the medicine,” explains Ducatman.
But when the Council finally delivered its recommendations report to the Governor on December 31, 2011, the document contained no mention of methamphetamine labs or pseudoephedrine.
Ducatman figures he didn't convince enough people on the Council for it to be included among the recommendations delivered to the Governor. (When I interviewed him, Ducatman stressed that he was not speaking to me on behalf of the Council but rather in his capacity as a physician.)
Senator Foster recalls that various reasons were given at the time for the absence of recommendations on pseudoephedrine in the Council's report. “It never really happened, they never really had a formal vote, it wasn't high enough on the priority list,” says Foster.
Governor Tomblin's substance abuse bill, filed a few weeks later, did however contain measures dealing with meth labs. How the Governor decided on these in the absence of recommendations from his advisory council is unclear. I made several interview requests to the Governor's press office. I was encouraged to send my questions in writing but received no response. CHPA says it provided assistance with Governor Tomblin's bill but didn't offer more details.
The pharmaceutical industry got what it wanted.
The Pharmaceutical Industry's Solution
Meth labs are concentrated in some of the poorest parts of the country and this toxic cottage industry has given rise to a black market in pseudoephedrine. In a phenomenon known as “smurfing” people buy pseudoephedrine at the pharmacy and sell it to meth cooks at a considerable markup or in exchange for methamphetamine itself.
As CHPA fights off attempts by states to follow the model adopted by Oregon and Mississippi, it offers an alternative approach to preventing the diversion of pseudoephedrine. It’s called NPLEx, short for National Precursor Log Exchange. Funded by the pharmaceutical industry, the system tracks sales of medicine containing pseudoephedrine electronically, in real time. When a customer reaches the daily or monthly limit established by state or federal law, they are prevented from buying more. (Under the Federal Combat Meth Act of 2005, an individual can buy no more than 3.6 grams a day, and 9 grams of pseudoephedrine per month without a prescription). Police can also use NPLEx data to track suspicious sales and investigate possible diversion of the drug.
Tomblin's bill provided for the adoption of NPLEx in West Virginia.
There was another provision in the bill that was essential to the pharmaceutical industry. It barred cities and counties from passing their own pseudoephedrine laws. This is a key demand of CHPA when it pushes for states to adopt NPLEx. In recent years, the pharmaceutical industry has not only had to put out fires in state capitals across the country, it now has to dispatch lobbyists to small towns and uncharacteristically, it's losing. Since 2010, over 70 cities and counties, in Missouri, Tennessee and Kansas, have made pseudoephedrine a prescription-only drug.
Meanwhile, Delegates John Ellem and Don Perdue reintroduced a prescription bill named after their colleague, Delegate Larry Border. Like Perdue, he was a pharmacist and legislator who had fought for a prescription law in 2011 and had since passed away.
But with the Governor's wide-ranging substance abuse bill taking preeminence, their bill didn't even come up for a vote in Committee. “I couldn't get any votes whatsoever because everybody was saying the same thing, lets give NPLEx a chance,” recalls Perdue. He and Senator Foster were favorable to much of Tomblin's bill. They even voted for it. But they thought the governor's plan to tackle meth labs would not work.
Delegate Perdue tried to win some concessions by pushing for a reduction in the annual pseudoephedrine sales limit. The governor's bill called for a reduction in the cap on monthly pseudoephedrine sales from 9 grams to 7.5 grams, for an annual limit of 90 grams. As the bill made its way through the legislature various amendments modified the sales limit.
Under federal law, a person can buy up to 109 grams of pseudoephedrine a year without a prescription. But pseudoephedrine warning labels recommend anyone taking the drug for seven consecutive days and still experiencing congestion see a physician, leading some to say that the limit could be decreased without unduly inconveniencing cold and allergy sufferers. CHPA for its part has resisted efforts in several states to lower sales limits. (According to the State Police, less than 1.6% of West Virginians bought more than 7.2 grams of pseudoephedrine in all of 2013).
Delegate Don Perdue was holding the Governor’s substance abuse bill back until he got support for a reduction of the sales limit to 44 grams per year. With the 2012 legislation session about to come to a close, he got a visit from Bridget Lambert, President of the West Virginia Retailers Association. The organization represents business interests including national pharmacy chains. Lambert told Perdue that if the sales limit were reduced to 44 grams, the pharmaceutical industry would no longer be able to afford to pay for NPLEx.
For Perdue it was a moment of revelation. As far as he was concerned the industry was admitting that it had to sell a certain amount of a drug it knew was being used illicitly in order to afford a program that was supposed to prevent illicit sales. “Right then, it absolutely confirmed in my mind that this organization was only concerned about one thing, and that was their profits,” says Perdue. Bridget Lambert says she was relaying what she had been told by the industry.
With only hours to go before the end of the legislative session and his comprehensive substance abuse bill on the line, the Governor agreed to a reduction of the sales limit to 48 grams a year. The bill became law. “It wasn't what I wanted all together, but it was what I could get,” says Perdue.
In Part 2 Jonah Engle investigates what happened to the meth lab problem in West Virginia after the implementation of Governor Tomblin’s substance abuse bill. He also describes how West Virginia is shaping up to be one of CHPA's biggest battlegrounds in 2014. Read Part 2 here.