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Kansas Disciplinary Hearings: A Ryan Haight Act Argument Microcosm?

Posted on Sunday, 21st December 2008 by dcooley

Disciplinary proceedings for pharmacist Rick Kloxin and Hogan’s Pharmacy owners Mark Poindexter and JoLane Poindexter wrapped up last week. Their licenses were suspended last March, as a result of several complaints about their internet pharmacy business. The three were later charged in August “with felony counts of computer crime, conspiracy to commit computer crime, commercial bribery and misdemeanor violations of the Pharmacy Act of Kansas and the Kansas Food, Drug and Cosmetic Act.”

Attorneys for Kloxin and the Poindexters argued that Kansas law does not currently prohibit the actions that the three were alleged to have committed. The Attorney General representing the Board of Pharmacy acknowledged that this is a case of first impression:

“One of the interesting things that came out in the hearing is that the Board of Pharmacy has proposed legislation that will deal specifically with Internet pharmacies, but the rules that were in effect at the time Hogan’s was operating don’t speak specifically to that. The technology has developed faster than the rules of operation.”

Obviously the Ryan Haight Act in inapplicable to these Kansas state court proceedings; however, this appears to be a very similar argument to the one I have made utilizing the Ryan Haight Act in federal prosecutions. Presumably, the argument was made that the very fact that Kansas sought to amend the law to prohibit the conduct in question implies that the current law does not expressly outlaw the same actions. In other words, why would the state legislature and regulatory agencies waste time passing redundant legislation and regulation? The Kansas administrative judge is scheduled to make her decision in February.

The criminal trial is scheduled for March 12, 2009. In the criminal compliant, the state alleged that the pharmacy shipped prescription drugs without a valid prescription or consultation to customers nationwide after they filled out an online questionnaire over the internet.

View: March 2008 disciplinary order suspending Mark Poindexter’s License.

View: LegistScript’s analysis of the alleged Hogan’s Pharmacy network.

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.