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.
Category: DEA Doctors Legislation Online Consultations Pharmacies Website Owners
