“With the intent to defraud or mislead”: Opioids, corporate propaganda, and epistemic rights

In May 2007, Purdue Frederick Company Inc., an affiliate of Purdue Pharma, along with three of its top executives, were ordered to pay fines totalling $634 million after pleading guilty to criminal charges of misbranding in relation to the opioid-based painkiller, OxyContin. Among other things, the company falsely claimed that OxyContin was less addictive than other opioids and less subject to abuse.

In its aggressive marketing of OxyContin, Purdue made liberal use of fabricated information about the addictive properties of the painkiller and repeatedly issued false claims about the effectiveness of the drug, the likelihood of harmful withdrawal symptoms, and the potential for abuse. Purdue armed its sizable salesforce with graphics, charts and information which downplayed the addictive properties of OxyContin and trained salespersons to respond to concerns by conveying the (false) message that the risk of addiction was “less than one percent” (Van Zee, 2009, p.223).

Through its aggressive marketing of OxyContin, Purdue Pharma controlled the extensive and systematic spread of false and misleading information throughout the US medical community for the purpose of profit. In the 2007 trial, its company executives were forced to admit that Purdue had marketed OxyContin “with the intent to defraud or mislead.”[1]

The deliberate spread of false and misleading information is a central theme in the Purdue Pharma case. It amounts, as I argue in my book (Watson, 2021), to a serious and harmful violation of epistemic rights, including the epistemic rights of many of the medical professionals targeted by Purdue and those of the patients that they serve. As the case illustrates, these rights play an increasingly prominent role in our lives and communities and yet they often go unnoticed, disregarded and unprotected.

So, what are epistemic rights and when are they violated? Simply put, epistemic rights are rights concerning epistemic goods such as information, knowledge and truth. Epistemic rights govern the quality, accessibility and distribution of epistemic goods. Somewhat more technically, I define an epistemic right as a complex entitlement that provides justification for the performance and prohibition of actions and omissions concerning epistemic goods. An epistemic right is violated when any epistemic duties resulting from that right, to perform, or not to perform certain actions, are unjustifiably disregarded. One’s epistemic rights can be violated in numerous ways, according to the different types of epistemic duties others have. To see this, one can look at several prominent forms of epistemic rights violations found in the Purdue Pharma case.

Firstly, Purdue knowingly propagated falsehoods about the safety profile of OxyContin in order to convince medical professionals that it was safer than other opioids on the market. For example, they instructed sales representatives to tell doctors that the risk of addiction from the drug is less than 1% when in fact it is much higher. As Paul Hanly, a lawyer who attempted to bring a criminal trial against Purdue in 2003, stated “These pronouncements about how safe the drug was emanated from the marketing department, not the scientific department… They just made this stuff up.”[2] Purdue knowingly propagated falsehoods regarding the safety profile of OxyContin and, in doing so, unjustifiably disregarded their epistemic duty to provide doctors and patients with accurate information about OxyContin. The propagation of falsehoods is a common form of epistemic rights violation.

Secondly, as well as propagating outright falsehoods, Purdue engaged in extensive misinformation regarding various aspects of OxyContin. For example, a key original selling point of OxyContin over other opioids was the time-release formula that allowed patients to take the painkiller every twelve hours, rather than every eight. However, Purdue was aware that not all patients would respond to the time-release formula in the same way. An early study of OxyContin users in Puerto Rico showed that approximately half of the patients taking the drug required further doses before twelve hours. Three LA Times journalists behind a 2016 exposé highlighted the damage caused by improper dosage: “OxyContin is a chemical cousin of heroin, and when it doesn’t last, patients can experience excruciating symptoms of withdrawal, including an intense craving for the drug.”[3]

Nonetheless, Purdue pushed the twelve-hour time-release formula as a key selling-point in its marketing of OxyContin, misleading both doctors and patients into believing that two doses at twelve hour intervals would be effective for all. Purdue knowingly propagated misinformation about the effectiveness of a key element of OxyContin. In doing so, as before, they unjustifiably disregarded their epistemic duty and so violated their customers’ epistemic rights. The propagation of misinformation is another common form of epistemic rights violation.

Thirdly, the propagation of misinformation often relies heavily on a policy of withholding information. This has the effect of distorting one’s assessment of the misinformation that is made available. Purdue knowingly withheld vital information regarding the risks and effectiveness of OxyContin from the outset. For example, the study of Puerto Rican patients that found the twelve-hour time-release formula to be ineffective for half of patients, was never published. Later evidence that also demonstrated this, as well as complaints from prescribing doctors, were similarly ignored and supressed. As New Yorker journalist Patrick Radden Keefe comments:

“For Purdue, the business reason for obscuring such results was clear: the claim of twelve-hour relief was an invaluable marketing tool. But prescribing a pill on a twelve-hour schedule when, for many patients, it works for only eight is a recipe for withdrawal, addiction, and abuse.”[4]

Purdue knowingly withheld information about the effectiveness of OxyContin’s time-release formula. Again, this amounts to an unjustifiable disregard of their epistemic duty and represents another common form of epistemic rights violation.

In addition to propagating false and misleading information, and withholding accurate information, Purdue also unjustifiably disregarded their duty to receive information about OxyContin’s time-release formula from the authors of the Puerto Rican study. In other words, they failed to take the results of the study seriously and act accordingly. In fact, Purdue failed to take seriously the results of multiple further studies and warnings from numerous other key individuals and organisations, including the Food and Drug Administration as well as, according to 2007 US Attorney General John Brownlee, “health care professionals, the media, and members of its own sales force that OxyContin was being widely abused and causing harm”.[5]

Moreover, despite clear evidence from multiple studies that OxyContin is required at shorter than twelve-hour intervals for many patients, Purdue failed to run any studies testing the effectiveness of OxyContin at shorter intervals, such as the standard eight-hour intervals required for many other painkillers. Doing so would have undermined their competitive advantage. By failing to conduct such studies, Purdue unjustifiably disregarded their epistemic duty to seek vital information about the safety profile and addictive properties of OxyContin. Purdue’s unjustifiable disregard for their epistemic duties both to receive and to seek vital information about OxyContin amount to further violations of epistemic rights.

A final, widespread form of epistemic rights violation is also worth highlighting, which I call the abuse of perceived epistemic authority. Abuse of perceived epistemic authority is possible in any situation where an individual or organisation is perceived as an epistemic authority on a given subject. In other words, where they are perceived as a source of accurate, reliable and relevant information about that subject. Crucially, abuse of perceived epistemic authority is made possible by an individual or organisation’s perceived rather than actual epistemic authority (so regardless of whether they in fact are an authority on a given subject).

As a major global producer of pharmaceuticals, Purdue Pharma can reasonably be perceived as a source of accurate, reliable and relevant information about its own pharmaceutical products. Particularly if one has no knowledge of, for example, the misinformation practices that they systematically employ. A doctor who is not aware of these practices and is told by a Purdue salesperson that OxyContin has an effective twelve-hour time-release formula and a risk of addiction at less than 1% might, reasonably and blamelessly, form the corresponding false beliefs and prescribe OxyContin on this basis. Her patients, moreover, being one step further removed, might well perceive the doctor as an epistemic authority on which drugs they should take to relieve pain. As a result, a patient might, reasonably and blamelessly, inherit her doctor’s false beliefs regarding OxyContin and/or act on the basis of them.

The abuse of perceived epistemic authority is particularly pernicious when overt epistemic power-dynamics are in play. A person is more likely to believe information on a given subject when it comes from a source that they perceive to be an epistemic authority, especially if they have good reason for doing so. This can lead to credibility excess, whereby unwarranted credibility is given to information from a perceived epistemic authority, even though it is in fact false or misleading (Fricker 2007; Medina 2011). Doctors and patients at the sharp end of Purdue’s manipulative and misleading sales and marketing practices are not only at risk of receiving false, misleading and incomplete information about OxyContin, they are also at risk of assigning unwarranted credibility to that information as a result of the abuse of perceived epistemic authority. This constitutes a widespread and pernicious form of epistemic rights violation.

In summary, the epistemic rights violations in play in the Purdue Pharma case include, at least, propagating false or misleading information, withholding accurate information, failing to collect, take seriously and publicise relevant, vital information, and abusing perceived epistemic authority. These by no means represent all possible forms of epistemic rights violation. They are, however, some of the most prevalent and significant. Moreover, the Purdue Pharma case is just one among literally hundreds encountered whilst writing the book, that concretely illustrate the real and serious harms caused by epistemic rights violations. It is, I believe, important that these violations are recognised and better understood, in order to work towards appropriate regulation and legislation in the epistemic domain.

There are few, I think, who would argue that the epistemic dimension of our lives doesn’t matter. This is perhaps especially so in recent years when the threats of widespread misinformation, distortion and obfuscation of the truth, deception and outright lies have become a particularly potent topic of public concern. It is no coincidence that epistemology has changed significantly in the past two decades, and perhaps most dramatically in only the past five years. Epistemologists are increasingly concerned with the social and political dimensions of the epistemic, in a mirroring of the public’s increased concern with the epistemic dimensions of the social and political.

The concept of epistemic rights is particularly apt in this contemporary setting. Epistemic rights arise within and are bound by epistemic communities comprised of individuals with different epistemic abilities, opportunities and duties. As such, one’s epistemic rights are inextricably tied to the social and political world that one inhabits as an epistemic agent. Moreover, epistemic rights serve to highlight the active nature of the epistemic within our social, political and, ultimately, moral landscape. The violation of rights is something that people do to each other.

Recognising that sometimes the rights that are violated are epistemic rights, allows us to understand the active and sometimes harmful force of the epistemic in our lives and communities. Knowledge and ignorance can empower and disempower, lies can subjugate, misinformation can harm. The concept of epistemic rights reflects the close alignment between the epistemic, moral and political dimensions of our lives, allowing us to more accurately describe and better understand their interrelatedness within the complex social world in which we live.

The case of Purdue Pharma, and the many other cases discussed in the book, illustrate that widespread harms and injustice are as real and damaging in the epistemic domain as in any other. These cases demonstrate a pressing need for greater protection and accountability. One need only consider the deliberate and systematic misinformation campaigns of major corporations, political parties and mass media outlets. There is no question that extensive epistemic rights violations take place. There is no question that we are all subject to them. Ultimately, I have detailed here only a tiny fragment of the reality of this in the twenty-first century. I hope that it nonetheless demonstrates the need for common conceptual and linguistic resources to articulate, address, and legislate against a distinct form of serious and harmful misconduct in the epistemic domain.

Portions of this post are taken from my book, The Right To Know: Epistemic Rights and Why We Need Them (Routledge, 2021).

References:

Fricker, M. 2007. Epistemic Injustice: Power and the Ethics and Knowing. Oxford: Oxford University Press.

Medina, José. 2011. The Relevance of Credibility Excess in a Proportional View of Epistemic Injustice: Differential Epistemic Authority and the Social Imaginary. Social Epistemology 25(1): 15-35.

Van Zee, Art. 2009. The promotion and marketing of OxyContin: commercial triumph, public health tragedy. American Journal of Public Health 99(2): 221-227.

Watson, 2021. The Right To Know: Epistemic Rights and Why We Need Them. London: Routledge.

Notes:

[1] https://www.newyorker.com/magazine/2017/10/30/the-family-that-built-an-empire-of-pain# [Accessed 28 May 2021]

[2] https://www.newyorker.com/magazine/2017/10/30/the-family-that-built-an-empire-of-pain# [Accessed 28 May 2021]

[3] https://www.latimes.com/projects/oxycontin-part1/ [Accessed: 28 May 2021]

[4] https://www.newyorker.com/magazine/2017/10/30/the-family-that-built-an-empire-of-pain# [Accessed 28 May 2021]

[5] https://www.health.mil/Reference-Center/Publications/2007/05/10/The-Purdue-Frederick-Company-Inc-and-Top-Executives-Plead-Guilty [Accessed 6 Feb 2020]

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