Posted on Monday, 20th October 2008 by dcooley
I have argued in the past that the Ryan Haight Act benefits criminal defendants in pending internet pharmacy federal prosecutions (i.e. those indicted for actions occurring prior to the effective date of the Controlled Substances Act Ryan Haight Amendments). In short, if the Ryan Haight Act attempts to outlaw prescriptions issued by doctors without a physical evaluation via online pharmacies (not falling within the telemedicine exception), it should follow that such conduct was legal prior to the new law’s effective date. Otherwise, why was Congress wasting its time passing redundant legislation?
Despite the logical and intuitive nature of this argument, the DEA and DOJ have prosecuted internet pharmacies for the same conduct long before the Ryan Haight Act was signed into law. To explain, some argue that the Ryan Haight Amendment, instead of criminalizing something new, meant to clarify actions already illegal. Aside from the fact that, if true, the lack of clarity itself justifies the dismissal of the case or an acquittal, this argument is dead wrong (see my argument here).
I continue to find support for this position via legislative history and other related documentation. While I don’t anticipate posting everything I find here, I thought I would post an interesting piece of evidence that I came across tonight.
The Congressional Budget Office (CBO) is the primary congressional agency charged with determining the budgetary ramifications of pending legislation. The Congressional Budget Office Report on the Ryan Haight Act expressly states:
H.R. 6353 would establish new crimes and increase penalties for activities relating to illegal use of controlled substances.
I anxiously await and welcome any good faith response to this, especially when you add this to the multitude of Congressional quotes claiming the Ryan Haight Act fills gaps in current criminal legislation.
Click here for an outline of my previous Ryan Haight Act analysis.
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 Court Cases, DEA, Direct "Script", Doctors, License Revocation, Online Consultations, Pharmacies, Ryan Haight Act, Website Owners | Comments (7)
October 20th, 2008 at 10:57 am
“Otherwise, why was Congress wasting its time passing redundant legislation?”
To this jaded layperson, it looks good for Congresspeople up for re-election to claim they did something about the “drug problem”. They needn’t elaborate, just say they’re “protecting the children”.
Indeed, it would seem you and other lawyers who represented defendents in cases can make an excellent case for appeal for those procesecuted and punished before the “effective date” of this “new” crime.
“it should follow that such conduct was legal prior to the new law’s effective date.”
It seems the “effective date” of this “new” law is not clear even to those Doctors engaged in treating patients through the promises Telemedicine offered.
What is that “effective date” so many are asking?
Thank you!
October 20th, 2008 at 12:10 pm
More evidence to support th fact this was not illegal prior to the Ryan Haight Law: in 2005 the Congressional Research Service issued a report in response to a request by Congress entitled “Legal Issues Related to Prescription Drug Sales on the Internet” which was authored by Jody Feder a Legislative Attorney in the American Law Division.
In this report the following quotes were found:
Page 1:
Some rogue sites operate in a legal gray area in which the online pharmacy, as mandated by federal law, requires a prescription before dispensing prescription drugs, but allows patients to secure a prescription by completing an online questionnaire that is reviewed by a doctor who never examines or speaks to the patient. This practice, though potentially unsafe for patients who may be diagnosed incorrectly, is not necessarily illegal.
Page 3:
As noted above, prescription drugs are also regulated by the FDA under the FFDCA. Although state law also governs the prescribing of drugs, the FFDCA covers certain aspects of the prescribing process, including the requirement that prescription drugs may not be dispensed without a valid prescription. The FFDCA, however, does not define the meaning of “prescription.” Rather, each state defines what constitutes a valid prescription under its pharmacy laws. Because such definitions differ from state to state, there is no uniform, national definition of the term “prescription.” Thus, certain activities, such as prescribing drugs without performing an in-person examination, may be explicitly illegal in one state but of ambiguous legal status in another.
Concerned about reports of rogue online pharmacies, Congress has considered legislation to establish a federal definition of what constitutes a valid prescription.
Page 6:
Conclusion
The current legal framework for regulating online pharmacies and doctors is a patchwork of federal and state laws regarding controlled substances, prescription drugs, pharmacies, and the practice of medicine. Although many doctors and pharmacies who use the Internet prescribe and dispense drugs in a safe and legal fashion, others have exploited gaps in the current system to prescribe and dispense potentially dangerous quantities of highly addictive prescription drugs. To combat such abuses, legislators and interest groups have proposed an array of solutions, including establishing a federal definition of what constitutes a valid prescription, requiring doctors to conduct in-person examinations, mandating that online pharmacies disclose identifying information about themselves and their employees, establishing state prescription drug monitoring programs to track data regarding the prescription and use of controlled substances, giving state prosecutors the authority to seek nationwide injunctions against rogue sites, educating consumers about the potential dangers of buying drugs online, establishing certification programs to identify legitimate online pharmacies, and regulating search engines and shipping companies that enable rogue sites to do business.
October 20th, 2008 at 1:43 pm
Hi Raymond,
Keep in mind there are different effective dates for various provisions of the act. I assume you are talking about the 180 day effective date provision and not, for example, the phase-in provision for telemedicine or the 30 day reporting period. This takes place 180 days from the law’s enactment (president’s signature), which I believe was on October 15, 2008.
October 20th, 2008 at 2:11 pm
[...] Further Evidence for Criminal Defendants: Evidence that the Ryan Haight Act might have outlawed something previously legal benefiting those indicted and prosecuted pre-Ryan Haight Act. [...]
March 12th, 2009 at 5:01 pm
[...] Legislative History Evidence for Pre-Ryan Haight Act Criminal Defendants Part 2 [...]
April 10th, 2009 at 11:09 pm
[...] Pre Ryan Haight Act Criminal Defense Legislative History Evidence Part 2: continued [...]
April 11th, 2009 at 1:52 pm
[...] Congressional Budget Office: “H.R. 6353 would establish new crimes and increase penalties for activities relating to illegal use of controlled substances.” (emphasis added) [...]