Pulling the Wrong Lever Opens a Trap Door: Using Taxes to Fight the Opioid Epidemic

By the late 1990s, a cultural shift that helped to normalize prescription opioid use was underway in the United States. Pharmaceutical companies, regulators, and prescribers were among the intentional or unwitting change agents in this cultural revolution. Between 1999 and 2010, the number of opioid prescriptions written in the United States increased by 300%. 1 Between 1999 and 2015, the number of opioid-related deaths quadrupled2 Like a prescribed wildland burn that grows out of control, America's dependence on prescription opioids has become overpowering and uncontainable. The opioid epidemic has taken an obvious human toll. It has also exacted a charge to the economy from the burdening of our health care, law enforcement, and criminal justice systems to the loss in productivity and tax revenues.Once the alarm was sounded, lawmakers began to fight the opioid war by pushing and pulling on various policy levers, including educational campaigns and regulation. Since 2018, five states have enacted taxes or fees on prescription opioids. Much has been written about the effectiveness of various educational campaigns and regulatory reforms to quell the opioid epidemic, but missing from the discussion is the use of price instruments such as taxes. This Article fills that gap by considering whether a tax on prescription opioids could be an effective strategy to combat America's opioid crisis.This Article posits that opioid excise taxes are misguided if their purpose is to reduce consumption unless the taxes are reflected in consumers' out-of-pocket expenses. Such taxes may also be an ineffective mechanism in the effort to cause drug makers to internalize the social costs of their products. Nonetheless, opioid excise taxes might generate much needed funding for states to battle the opioid epidemic. This Article considers certain issues in designing such a tax and potential drawbacks.