Posted on Tuesday, 16th September 2008 by dcooley
The DEA’s argument that online consultation services (”OCS”) are illegal under The Controlled Substances Act requires a four step analysis.
- The Controlled Substances Act, 21 U.S.C. 801-971, outlaws the distribution of controlled substances without a valid prescription;
- The Code of Federal Regulations, 21 C.F.R. 1306.04(a), states that, for a prescription to be valid, it must be issued for a legitimate medical purpose and in the usual course of professional practice;
- To determine whether a prescription was issued in the usual course of professional practice, one must determine whether a doctor-patient relationship exists; and
- No doctor-patient relationship exists without a physical examination.
As I mentioned in Part 1 of my criminal defense legal issues series, the first two presumptions are undeniable. The last two, however, are tenuous at best. The very fact that Congress is currently seeking to pass the Ryan Haight Act supports an argument that number four is patently incorrect.
The Ryan Haight Act would expressly outlaw prescriptions issued over the internet without physical examinations. In other words, this proposed legislation is meant to effectively outlaw online consultation service websites. One must ask, if the current law already outlaws prescriptions without physical examinations, as the DEA presumes, why is Congress wasting its time passing redundant legislation?
Consequently, the fact that Congress seeks to pass the Ryan Haight Act indicates one of two things:
- The current law simply does not outlaw online consultation services; or
- While the current law might outlaw OCS, it was vague enough that Congress found the need to make it much more specific and detailed.
Either way, OCS website owners, doctors, and pharmacists can’t be prosecuted under the current law. If the former, then the reasoning is obvious. If the latter, there are serious issues regarding constitutional vagueness and notice. If Congress itself felt that the regulation was too vague, it seems entirely unreasonable to prosecute an individual and argue that they should have known what they were doing was illegal beyond a reasonable doubt. It is even implausible to assume doctors should have known better, given the fact that the Federation of State Medical Boards has specifically said that online consultations do constitute doctor-patient relationships.
Even if the court overrules a constitutionality or directed verdict motion, the argument can be molded into a very persuasive factual issue for the jury. The jury must find that the person beyond a reasonable doubt knowingly distributed or aided and abetted the distribution of controlled substances without a valid prescription. If Congress is uncertain about the meaning of the current law, so is everyone else.
This is Part 2 of my internet pharmacy criminal defense legal issues series concerning federal online pharmacy prosecutions under The Controlled Substances Act. Part 1 detailed the DEA’s typical indictment against internet pharmacies, website owners, and doctors. For a general internet pharmacy primer, I’d advise reviewing my post on the variety of internet pharmacy business models.
The content on this post does not constitute legal advice and is for informational purposes only. You should not act upon the information presented on this website without seeking the advice of legal counsel. Should you wish to speak to an experienced criminal defense attorney knowledgeable in internet pharmacy, prescription, and drug law, please feel free to contact me directly.
Tags: Controlled Substances, Criminal Appeals, Criminal Defense, Internet Pharmacy Law, Ryan Haight Act
Posted in DEA, Doctors, Online Consultations, Pharmacies, Ryan Haight Act, Website Owners | Comments (15)
September 22nd, 2008 at 6:59 pm
[...] Ryan Haight Act that I discussed in my Internet Pharmacy Criminal Defense Issues Part 2 article was unanimously passed by the House Energy and Commerce Committee last week. Adding [...]
September 23rd, 2008 at 2:13 am
[...] there isn’t much to say here that I haven’t said already. You have read many of my criminal defense arguments against these online pharmacy indictments and convictions. However, this press release contains [...]
September 24th, 2008 at 11:03 pm
[...] The Ryan Haight Online Pharmacy Consumer Protection Act, which I discussed in my internet pharmacy and doctor criminal defense legal issues series, was passed by the House today. The Committee amended some language, so it must be re-passed by the Senate before it heads to the President’s desk. How soon the President views the bill is anyone’s guess, given the current economic crisis. [...]
September 30th, 2008 at 7:56 pm
[...] National Community Pharmacists Association (NCPA) released a statement today supporting The Ryan Haight Act. Big [...]
October 1st, 2008 at 5:08 am
[...] Ryan Haight Act (also known as The Ryan Haight Online Pharmacy Protection Act) is making its way through Congress [...]
October 2nd, 2008 at 12:06 pm
[...] Internet Pharmacy Prosecution Criminal Defense Legal Issues: Part 2 [...]
October 7th, 2008 at 5:54 pm
[...] the focus on the Ryan Haight Act, I imagine many are wondering when the Act becomes effective should the President sign it (which he [...]
October 8th, 2008 at 10:28 pm
[...] why the DOJ went ahead with this online pharmacy indictment when they could have waited until the Ryan Haight Act becomes effective. Keep in mind, however, that the Ryan Haight Act will [...]
October 9th, 2008 at 4:24 pm
[...] previously wrote in my internet pharmacy criminal defense strategies article that the Ryan Haight Act, somewhat counter-intuitively, provides a potential defense for [...]
October 14th, 2008 at 2:03 pm
[...] have written extensively about the ramifications of the Ryan Haight Act on pending online pharmacy criminal indictments and prosecutions, the effectiveness of the Act at [...]
October 16th, 2008 at 2:30 pm
[...] Internet Pharmacy Prosecution Criminal Defense Legal Issues: Part 2 [...]
October 29th, 2008 at 10:59 am
[...] faced with a prosecutor’s pre Ryan Haight Act legal theories which, in my opinion, are fundamentally flawed, constitutionally impermissible, and expressly inconsistent with congressional intent. Given my [...]
November 4th, 2008 at 12:24 am
[...] Internet Pharmacy Criminal Defense Law Analysis Part 2 (Discussion of Ryan Haight Act): Further background discussion of online pharmacy law, including my argument that the Ryan Haight Act undermines pending internet pharmacy prosecutions against website owners, affiliates, pharmacists, and doctors (especially those involved with online consultations services). [...]
April 8th, 2009 at 3:44 pm
[...] is great news. Finally, a court has implicitly accepted the “Ryan Haight Act criminal defense argument” that I have long been [...]
April 10th, 2009 at 11:19 pm
[...] seeks to outlaw long before the law’s enactment. Aside from the fact that this practice is legally flawed, the real question is what will the feds do now? Do they postpone future indictments until the [...]