What States Preparing for Opioid Lawsuit Funds Can Learn from Tobacco Settlements

In 1998 the five largest cigarette manufacturers settled lawsuits with U.S. states for billions of dollars to be paid in perpetuity. Over the last 20 years, states received $157.6 billion from the settlements.

Despite rhetoric that revenue from these settlements should address tobacco’s harms, and while several states initially used some funds for prevention and cessation, today less than 3% of the settlement money tackles tobacco use. Instead, health agencies and programs struggle to retain funding as legislatures use settlement payments to fill budget gaps and for other non-tobacco-related purposes. The health community considers this a missed opportunity to fight what is still the leading cause of death 20 years later.

A similar scenario could play out with funds from today’s opioid lawsuits. By considering how states used tobacco settlements, opioid litigation stakeholders may avoid mistakes that moved the bulk of these funds away from tobacco control.

States have used a variety of approaches to direct tobacco funds to public health. For example, in 2000, Oklahoma amended its state constitution to protect its settlement funds by placing them the Tobacco Settlement Endowment Trust (TSET). TSET administers grants and programs to prevent cancer and cardiovascular disease. While not solely dedicated to tobacco control, this trust is one approach to securing funds for a public health purpose.

Similarly, in 2000, the Ohio General Assembly allocated $235 million of its first settlement distribution to the “Tobacco Use Prevention and Control Endowment Fund,” which funded tobacco control programming. Yet, eight years ago, the Ohio Governor and General Assembly diverted nearly all money in this fund into a job creation program during the economic slowdown. This reallocation ultimately eliminated the fund and ended the settlement funding of tobacco control programs in Ohio.

Minnesota, however, successfully reserved some settlement dollars for tobacco control specifically. This post highlights Minnesota’s experience and offers recommendations for stakeholders and the courts to consider as opioid lawsuits are resolved.

Minnesota used $202 million of its $6 billion settlement to establish ClearWay Minnesota, a tobacco control nonprofit independent of state government. Established as a limited-life organization with a 25-year lifespan, ClearWay Minnesota developed a comprehensive approach including funding research, establishing a quitline, running mass-media campaigns, working with communities most impacted by tobacco, and advocating for policies that reduce tobacco use.

These initiatives have accelerated progress towards reducing tobacco use. After 20 years, ClearWay Minnesota, in collaboration with partners, has helped Minnesota rank 14^th in the nation for tobacco prevention and cessation funding, pass the seventh-highest cigarette excise tax, become the 14^th state to pass a comprehensive statewide smoke-free law including restaurants and bars, and achieve the 11^th-lowest smoking prevalence rate. These efforts have saved Minnesota over $5 billion in health care and worker productivity costs and prevented 4,118 smoking attributable deaths over 20 years.

ClearWay Minnesota also faced a number of challenges, including a lawsuit from Minnesota’s Attorney General attempting to defund the organization, as well as large tobacco use disparities in minority populations, a youth nicotine epidemic driven by e-cigarette use, and preparations for the end of its limited lifetime.

Based on this experience, we offer these recommendations to those who can influence the direction of opioid settlement dollars:

1. Establish an organization with protected funds for public health benefit.

To protect any investment in addressing opioid addiction, dedicated funds must be distributed to an independent entity charged with using those funds for the intended purpose. We know that when tobacco settlement funds were loosely allocated, they were redirected based on decisions made by governmental officials. It is also important that funds be adequate to comprehensively address opioid addiction.

2. The organization should have a focused mission.

The more focused the mission is on opioid addiction, the better. Broadening scope invites mission creep and weakens potential impact. Public health experts should determine which strategies would best fulfill the mission, which could include programs, services, grant making and direct advocacy for strong public policies.

3. The organization should pursue strategies grounded in science and equity.

The organization’s activities should be centered in equity and based in science; these twin principles should be embodied in the organization’s charter. The toll of the opioid epidemic, like tobacco, falls heavily on marginalized and disadvantaged populations, and their needs should take high priority in the organization’s agenda. At the same time, that agenda should rely on the best available evidence. In particular, the organization must balance its focus on treatment and prevention strategies: while both are essential, over time, effective prevention delivers the greatest return.

4. The organization needs to be accountable.

Funded with public moneys, the organization must operate transparently and be accountable for how funds are used. ClearWay Minnesota was established with a board of political appointees and at-large members and is subject to the state’s open meeting and open records laws and to review by the state’s Legislative Auditor. Moreover, ClearWay Minnesota is required to submit detailed annual reports to both the court and the Minnesota Legislature.

5. The organization should be goal-oriented and time-sensitive.

Its 25-year lifespan allowed ClearWay Minnesota to pursue its mission with urgency and innovation. The organization established three “Legacy Goals”: to reduce smoking prevalence, reduce nonsmokers’ exposure to secondhand smoke, and advance the science of eliminating tobacco-related health disparities. These goals allow board and staff to be laser-focused on how the organization’s grants and programs contribute to its long-term goals.

A limitation, however, in being life-limited, is the ability to address population-level addiction that will still exist after the organization’s closure. More time and resources are also needed to sufficiently address disparities. Such challenges should be considered when establishing both timelines and funding levels for other addictive substances like opioids.

6. The pharmaceutical industry documents should be publicly available.

One legacy of the tobacco litigation was the release of long-secret internal tobacco industry documents. This 90-million-page archive of industry research, marketing, and internal memos revealed what the industry knew about cigarettes’ addictive and deadly nature, how it deliberately hid this information from its customers, and how it marketed to children and other specific populations. The documents became the source for thousands of peer-reviewed articles and government reports, which in turn altered our understanding of science, drove public policy, and changed America’s attitudes about smoking. The pharmaceutical companies’ internal documents may likewise be critical to reversing the opioid epidemic. Any settlement should ensure they are made public in fully searchable form online, under the management of a neutral body, with adequate funding to maintain them for the foreseeable future.

7. Any opioid settlement should include plans for systematic evaluation.

Finally, data streams and collection systems need to be established early so that progress toward goals can be monitored and evaluated. Evaluation will help ensure accountability and program improvement by measuring progress towards strategic goals and, when disseminated, contributing to the knowledge base.

Allocating settlement dollars into an independent organization dedicated to addressing tobacco use has been a great experiment, but ClearWay Minnesota is a successful example that can be replicated in other states and related to other health concerns like the opioid crisis. Less is known about how much it costs or how long it takes to successfully reach an “end game” for persistent health problems like tobacco use. Those working on the public health implications of opioid misuse would be wise to carefully consider lessons learned using settlement dollars to address tobacco.

Ann W. St. Claire, MPH, is the Director of Evaluation and Survey Research at ClearWay Minnesota

Adam Kintopf is the Director of Strategic Communications at ClearWay Minnesota

Doug Blanke, JD, is the Executive Director of the Public Health Law Center at the Mitchell Hamline School of Law

David J. Willoughby, MA, is the Chief Executive Officer at ClearWay Minnesota