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On October 15, 2017, the Washington Post and 60 Minutes released a scathing report on the pharmaceutical industry’s influence of the Drug Enforcement Administration (DEA). This report, in large part, scrutinized Representative Tom Marino (R-PA) and his potential appointment as the head of the Office of National Drug Control Policy (ONDCP) also known as the Drug Czar because of his ties with and sponsorship of legislation favoring the pharmaceutical industry.

In the days following the initial report, controversy swirled around Rep. Marino heading an office responsible for setting much of the nation’s drug policy. Senator Joe Manchin of West Virginia penned a letter to President Trump, urging the appointment of someone who would “protect our people, not the pharmaceutical industry.” Senator Manchin, whose state has been hit particularly hard by the opioid crisis, was joined in his opposition by several other lawmakers.

Upon learning of the report, President Trump indicated he would take it under consideration in selecting Representative Marino to lead the ONDCP. Before the White House could issue a follow up communication, Marino withdrew his name from consideration on the morning of October 17, 2017.

Marino’s Bill

The controversy surrounding Marino’s bill resulted from almost a decade of drug company influence on Congress and the DEA. Between 2014 and 2016 alone, the pharmaceutical industry spent $102 million dollars lobbying congress, and gave at least $1.5 million dollars to the sponsors of Marino’s legislation, showing the extreme financial influence that the drug industry has over some members of Congress.

Prior to the introduction of Marino’s bill, the DEA could stop shipments from drug companies that posed an “imminent danger” to the community. This imminent danger standard was construed very broadly and gave the DEA significant authority to go after pharmaceutical manufacturers. Marino’s bill changed the standard to a “substantial likelihood of an immediate threat” creating a more difficult standard.

As DEA Chief Administrative Law Judge John J. Mulrooney II indicated, suspending a drug company's operations for failing to comply with federal law is “all but logically impossible”.

Before Representative Marino’s bill, the DEA would repeatedly warn drug companies shipping suspiciously large volumes of opioids. These warnings frequently resulted in prosecutions and criminal fines. It is worth noting, however, that the government only assessed $425 million dollars in fines over the span of a decade, which is a fraction of the $333 billion annual total sales of pharmaceutical companies.

However, Marino is not solely to blame. The bill passed unanimously in Congress and was signed into law by the President Obama.

Interestingly, the Senate version was sponsored by Sen. Orrin Hatch (R-UT). Hatch has defended his commitment to fighting the opioid crisis including pointing to his support of medical cannabis as a tool to combat the opioid epidemic.

National Emergency

The chaos surrounding the Drug Czar commissions comes as the Trump administration is still working to find solutions and strategies to fight the opioid epidemic. Despite saying he would do so in August, the president has still failed to officially declare the opioid crisis a national health emergency, though he has promised to do so “next week”.  Declaring the opioid crisis an official national health emergency would free up federal funds that could help reduce the number of preventable deaths.

With updated CDC numbers showing overdose deaths reaching 64,070 in 2016 (up almost 12,000 from the previous year), there can not be any continued delay in crafting a response to this crisis.

An Empty Chair

With Rep. Marino withdrawing from consideration as the Drug Czar, the country's leadership on national drug policy remains unclear.

• ONDCP does not have a permanent person in role of Drug Czar

• Department of Health and Human Services is without a Secretary of Health after Tom Price’s resignation

• The DEA only has an acting director, and

• The President’s Commission on Combating Addiction and the Opioid Crisis has continued to delay and postpone its meetings.

Effectively, nothing is being done because no one is in the role to do it. Unless and until President Trump fills the drug policy positions in his administration, it is up to Congress to act. By renewing the Rohrabacher-Blumenauer amendment, passing the CARERS Act and sticking up for chronic pain patients who use medical cannabis, Congress can help fight the opioid epidemic.