Justice Department sues Walmart for alleged role in opioid crisis

If Walmart is found to have violated the Controlled Substances Act, the DOJ says it could face penalties of up to $67,627 for each unlawful prescription it filled and $15,691 for each suspicious order that it did not report, which means it could be on the hook for millions, if not billions, of dollars.

In a statement responding to the lawsuit, Walmart said, “The Justice Department’s investigation is tainted by historical ethics violations, and this lawsuit invents a legal theory that unlawfully forces pharmacists to come between patients and their doctors, and is riddled with factual inaccuracies and cherry-picked documents taken out of context.”

The lawsuit accuses Walmart of understaffing its pharmacies and forcing the staff it did hire to work too quickly, thus making it difficult for invalid prescriptions to be rejected. It says that pharmacists repeatedly requested the ability to institute blanket rejections against clinics they believed were pill mills but were regularly denied. Prosecutors allege that this led offending doctors to send their patients to Walmart pharmacies, knowing their prescriptions wouldn’t receive the same scrutiny.

The lawsuit specifies that, at some point, the company began allowing blanket rejections but doesn’t specify when.

“It has been a priority of this administration to hold accountable those responsible for the prescription opioid crisis. As one of the largest pharmacy chains and wholesale drug distributors in the country, Walmart had the responsibility and the means to help prevent the diversion of prescription opioids,” Jeffrey Bossert Clark, acting assistant attorney general of the DOJ’s Civil Division, said in a press release. “Instead, for years, it did the opposite — filling thousands of invalid prescriptions at its pharmacies and failing to report suspicious orders of opioids and other drugs placed by those pharmacies.”

“As both a pharmacy and a distributor, Walmart assumed critical gatekeeping responsibilities under the Controlled Substances Act. At two stages — when deciding whether to fill its pharmacies’ wholesale orders for controlled substances from its distribution warehouse, and when deciding whether to fill individuals’ prescriptions for controlled substances — Walmart was required by the CSA to take steps to prevent the diversion of the prescription drugs it sold,” the DOJ said. “As a nationwide dispenser and distributor of opioids, and given the sheer number of pharmacies it operates, Walmart was uniquely well positioned to prevent the illegal diversion of opioids. Yet, for years, as the prescription drug abuse epidemic ravaged the country, Walmart abdicated those responsibilities.”

Federal investigators allege that “first, as a pharmacy, Walmart knowingly violated well established rules requiring it to scrutinize controlled-substance prescriptions to ensure that they were valid.” The Justice Department added “second, as a wholesale distributor, Walmart had a basic obligation to detect suspicious orders placed by its own pharmacies for controlled substances, and to report those orders to the Drug Enforcement Administration” but that “because Walmart shirked this key legal obligation as a distributor, Walmart failed to detect and report at least hundreds of thousands of suspicious orders.”

Walmart filed a lawsuit in October in order to preempt the incoming allegations, accusing the federal government of blaming the company for its own failures. The company said that about 70% of the doctors that the government has identified as suspicious still hadn’t had their Drug Enforcement Agency registration revoked.

“In other words, defendants want to blame Walmart for continuing to fill purportedly bad prescriptions written by doctors that DEA and state regulators enabled to write those prescriptions in the first place and continue to stand by today,” the lawsuit read.

Tuesday’s statement added, “In contrast to DEA’s own failures, Walmart always empowered our pharmacists to refuse to fill problematic opioids prescriptions, and they refused to fill hundreds of thousands of such prescriptions. Walmart sent DEA tens of thousands of investigative leads, and we blocked thousands of questionable doctors from having their opioid prescriptions filled at our pharmacies.”

The Centers for Disease Control and Prevention reports that “from 1999 to 2018, more than 232,000 people died in the United States from overdoses involving to prescription opioids” and that “overdose deaths involving prescription opioids were more than four times higher in 2018 than in 1999.” The CDC said that the age-adjusted rate of drug overdose deaths, specifically involving synthetic opioids other than methadone, such as fentanyl, oxycodone, hydrocodone, and morphine, increased from 1 per 100,000 in 2013 to 11.4 per 100,000 in 2019. The data from the Department of Health and Human Services on the epidemic notes that “opioid overdoses accounted for more than 42,000 deaths in 2016” alone, which was more than any previous year on record, and “an estimated 40% of opioid overdose deaths involved a prescription opioid.”

The CDC’s most recent data from 2019 shows that there were 70,630 total drug overdose deaths from all drug types, not just opioids, last year, with an age-adjusted rate of 21.6 deaths per 100,000 people.

The White House released a statement from the Office of National Drug Control Policy on Tuesday, which noted that the CDC data “showed a continued decrease in opioid-related overdose deaths involving heroin as well as natural and semi-synthetic opioids” over the past couple of years, and that “overdoses involving specific prescription opioids like these declined five percent in 2019 as compared to 2018” and “declined by more than 13 percent from 2017 to 2018.” The ONDCP argued Tuesday that “this cumulative decrease — and now downward trend — is substantial and encouraging.”