Criminal Defense Attorney Analysis of Internet Pharmacy, Prescription, and Drug Law

More on the Ohio Steroid Possession Internet Pharmacy Indictment

While most of the news coverage on the Ohio steroid possession indictment two weeks ago concerned the fact that the drug prescriptions were allegedly obtained online from Dr. Ramon Scruggs (i.e. an “internet pharmacy”), the method of obtaining drugs does not appear to be legally relevant under Ohio law (after a brief, cursory inspection of Ohio’s Controlled Substances Act).  Ohio Revised Code 2925.11(A)-(B) outlaws the possession of a controlled substance; however it exempts from prosecution “[a]ny person who obtained the controlled substance pursuant to a lawful prescription issued by a licensed health professional authorized to prescribe drugs.”  Thus, initially, this statute appears to be very similar to the federal version of The Controlled Substances Act (which the Ryan Haight Act recently amended).

The definition section of the same statute, Ohio Revised Code 2925.01(KK), defines a “lawful prescription” as:

a prescription that is issued for a legitimate medical purpose by a licensed health professional authorized to prescribe drugs, that is not altered or forged, and that was not obtained by means of deception or by the commission of any theft offense.

Here is where the similarities evidently end.  The federal pre-Ryan Haight Controlled Substances Act referred readers to the Code of Federal Regulations, 21 C.F.R. 1306.04(a), for the federal definition of a valid prescription:

“A prescription for a controlled substance to be effective must be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.

Unlike the federal regulation, the Ohio statute does not mention the usual course of professional practice requirement.  Instead, it only focuses on whether the prescription was issued for a legitimate medical purpose.

Consequently, it does not appear that Ohio state law concerns itself with the method in which the prescription was issued (i.e. the course of professional practice issue).  It follows, therefore, that the primary issue in an Ohio drug possession prosecution in which the validity of a prescription is at issue is simply whether the prescription was appropriate.  In other words, given the medical history and records of a patient, was the prescription issued to the patient in a good faith attempt to alleviate, cure, or treat the complained of symptoms, ailment, or disease by a medical doctor.  Since, at least in my opinion, whether the prescription was issued after a face to face consultation and medical evaluation, phone conversation, fax communication, or even a smoke signal is irrelevant with respect to whether there was a legitimate medical purpose for the prescription, it appears that the legal analysis in these cases is much more simplistic than the pre-Ryan Haight Act federal prosecution.  Admittedly, I should note, I have yet to read any Ohio case law on the subject.  If courts have counter-intuitively interpreted what a “legitimate medical purpose” is, then my argument would undoubtedly fail.

This obviously does not mean that an internet pharmacy physician could not be disciplined.  Ohio’s respective medical board might have guidelines which require face to face consultations (I have not checked on them yet).  Nonetheless, a literal reading of the Ohio Controlled Substances Act indicates, in my opinion, that the criminal law does require physical examinations or expressly outlaw internet pharmacy prescription drugs (of course, just because the state might permit conduct does not mean the feds can not come after you for the exact same offense).

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: Internet Pharmacy Law