Settling for Less? An Analysis of the Use of Settlement Agreements to Mitigate Non-Communicable Diseases

• Author: Kayla Ahmed
• Position: J.D., Georgetown University Law Center (expected May 2023); B.A., University of Connecticut (2018)
• Pages: 489-508

Settling for Less? An Analysis of the Use of

Settlement Agreements to Mitigate

Non-Communicable Diseases

KAYLA AHMED*

INTRODUCTION

There is a pressing need to address the rise of non-communicable diseases

worldwide.

1

Non-communicable diseases (NCDs) are the number one cause of

death in the United States and account for 71% of all deaths globally.

2

Some of

the most common NCDs include heart disease, stroke, cancer, and diabetes.

3

Noncommunicable Diseases, WORLD HEALTH ORG., https://www.who.int/health-topics/noncommunic

able-diseases [https://perma.cc/ZV58-YB2L] (last visited Apr. 1, 2022).

The

World Health Organization has identified four primary risk factors for NCDs

including (1) tobacco use, (2) physical inactivity, (3) alcohol use, and (4) unheal-

thy diets.

4

NCDs have devastating health consequences for individuals as well

as damaging non-health consequences worldwide. According to the World

Economic Forum, NCDs present a severe threat to world development by “driv-

ing up healthcare costs, disabling workers, and imposing debilitating financial

burdens on households.”

5

Due to the significant harms posed by NCDs, it is im-

perative that there be action to alleviate their prevalence.

NCDs, as stated by David Peters, the Chair of International Health at Johns

Hopkins Bloomberg School of Public Health, “once were considered diseases of

the rich.”

6

NCDs were previously thought of as diseases of the rich because of their previous prominence in devel-

oped nations. See Poverty Increases Risk of Non-Communicable Diseases in Lower Income Countries, JOHNS

HOPKINS BLOOMBERG SCH. PUB. HEALTH (Apr. 5, 2018), https://publichealth.jhu.edu/2018/poverty-increases-

risk-of-non-communicable-diseases-in-lower-income-countries [https://perma.cc/NJ76-U8U2].

However, today, research shows that poverty increases the risk of

death and disability from NCDs and that NCDs increase the risk of falling into

poverty.

7

Industries known to perpetuate the rise in NCD rates include Big

Alcohol, Big Tobacco, and Big Food.

8

In the United States, individuals living

* J.D., Georgetown University Law Center (expected May 2023); B.A., University of Connecticut (2018).

© 2022, Kayla Ahmed.

1. NCDs are a leading cause of death globally. See Melissa Mialon, An Overview of the Commercial

Determinants of Health, 16 GLOBALIZATION AND HEALTH, no. 74, 2020, at 2.

2. Id.

3.

4. Id.

5. NICHOLAS FREUDENBERG, LETHAL BUT LEGAL: CORPORATIONS, CONSUMPTION, AND PROTECTING PUBLIC

HEALTH 38 (2014).

6.

7. Id.

8. Mialon, supra note 1, at 1.

489

below the poverty line have higher rates of tobacco use than the general popula-

tion

9

Cigarette Smoking and Tobacco Use Among People of Low Socioeconomic Status, Ctrs. for Disease

Control and Prevention, https://www.cdc.gov/tobacco/disparities/low-ses/index.htm [https://perma.cc/B69H-

SPS2] (last visited Apr. 1, 2022).

and individuals living in low income homes are more likely to purchase less

healthful foods.

10

With the high prevalence of NCD risk factors among low-

income individuals, it is clear that NCDs should no longer be thought of as dis-

eases of the rich. Therefore, addressing the rise of NCDs is imperative to promote

health equity.

I. ROADMAP

Throughout this Note, three prominent health settlement agreements will be

analyzed to evaluate the efficacy of settlement agreements: the Tobacco Master

Settlement Agreement of 1998, the Juul-North Carolina Settlement Agreement of

2021, and the Purdue Pharma Settlement Agreement of 2021.

11

See PUBLIC HEALTH LAW CENTER TOBACCO CONTROL LEGAL CONSORTIUM, THE MASTER SETTLEMENT

AGREEMENT: AN OVERVIEW 4 (Jan. 2019), https://publichealthlawcenter.org/sites/default/files/resources/MSA-

Overview-2019.pdf [https://perma.cc/D9LT-W3C8]; Jan Hoffman, Purdue Pharma Is Dissolved and Sacklers

Pay $4.5 Billion to Settle Opioid Claims, N.Y. TIMES (Sept. 1, 2021), https://www.nytimes.com/2021/09/01/

health/purdue-sacklers-opioids-settlement.html [https://perma.cc/49M6-C32F]; Sheila Kaplan, Juul to Pay $40

Million to Settle N.C. Vaping Case, N.Y. TIMES (June 28, 2021), https://www.nytimes.com/2021/06/28/health/

juul-vaping-settlement-north-carolina.html [https://perma.cc/M793-HZ5H].

These case stud-

ies provide the lessons that settlement agreements are beneficial because they can

(1) provide funds for public programming, (2) include provisions that regulate

corporate action, (3) publish corporate documents, and (4) create costs associated

with negative corporate behavior.

12

Further, these case studies also showcase lim-

itations in settlement agreements for combatting NCDs that need to be overcome

including (1) the misuse of settlement funds by state legislatures, (2) lack of

stakeholder involvement, (3) the possibility of coercion amongst plaintiffs

involved in the lawsuits, and (4) misalignment of state regulations.

13

See A State-by-State Look at the 1998 Tobacco Settlement 22 Years Later, CAMPAIGN FOR TOBACCO-

FREE KIDS, https://www.tobaccofreekids.org/what-we-do/us/statereport [https://perma.cc/56CV-DT2V] (last

visited Apr. 1, 2022); PUBLIC HEALTH LAW CENTER TOBACCO CONTROL LEGAL CONSORTIUM, supra note 11,

at 4; Kaplan, supra note 11; ONDCP Announces Model Law for States to Help Ensure Opioid Litigation

Settlements Funds Address Addiction and Overdose, THE WHITE HOUSE (Oct. 21, 2021), https://www.

whitehouse.gov/ondcp/briefing-room/2021/10/21/ondcp-announces-model-law-for-states-to-help-ensure-opioid-

litigation-settlements-funds-address-addiction-and-overdose/ [https://perma.cc/45FA-33GR].

However, the limitations of settlement agreements can be overcome by (1) ear-

marking settlement funds to ensure they are properly allocated, (2) consulting

with public health experts and stakeholders when negotiating settlement agree-

ments, (3) following strict attorney compliance with the Model Rules of

9.

10. Simone A. French, Christy C. Tangney, Melissa M. Crane, Yasmin Wang & Bradley M. Appelhans,

Nutrition Quality of Food Purchases Varies by Household Income: the SHoPPER Study, 19 BMC PUBLIC

HEALTH, no. 231, 2019, at 1.

11.

12. See, e.g., PUBLIC HEALTH LAW CENTER TOBACCO CONTROL LEGAL CONSORTIUM, supra note 11, at 4–6;

Hoffman, supra note 11; Kaplan, supra note 11.

13.

490 THE GEORGETOWN JOURNAL OF LEGAL ETHICS [Vol. 35:489