The development of Internet pharmacy law is really only in its infancy. This may come as a surprise to those who have witnessed numerous pre Ryan Haight Act prosecutions over the last five years. While there have been many indictments, convictions, mistrials and acquittals in the past few years, Appellate Courts have yet to render decisions on some of the more substantive legal issues of disagreement between criminal defense lawyers and the DOJ. For example, Appellate Courts have yet to hear the Ryan Haight Act argument that I constantly allude to (for detail on the argument, click here). A favorable appellate criminal defense decision here would certainly affect the remaining pre-Ryan Haight prosecutions.
The Ryan Haight Act issue is, of course, not the only substantive legal issue within internet pharmacy law. Indeed, online pharmacy law is particularly unique. First, online pharmacy trials are generally very long. Not only is there a lot of information presented, but there are also a lot of defendants (web site owners, affiliates, doctors, pharmacists, and pharmacies). Most of the trials are 4-12 weeks long. With a long trial, comes a long transcript. Scouring through a long transcript to find sources of reversible error requires skill and experience. Not only does an internet pharmacy trial contain the standard evidentiary error issues that any trial would have, it also is likely to contain a number of unique sources of reversible error such as:
1. The ability for defendants to utilize the “advice of counsel” defense. Some courts prevent defendants from arguing that their corporate or regulatory compliance attorney told them that internet pharmacies were legal. An Appellate court will need to analyze this issue, if a criminal defendant is prevented from utilizing this defense at trial.
2. In some trials, prosecutors seek to endorse experts to testify as to what a “legitimate medical purpose” or a “usual course of professional practice“ is with respect to a physician. Whether this is appropriate, given the circumstances, will be up for an Appellate court to decide.
3. The ability for the Government to qualify an expert to statistically compare pharmaceutical sales of a defendant pharmacy or pharmacists to a non-internet pharmacy located in a similarly situated neighborhood in order to prove knowledge on the part of the pharmacy. In layman’s terms, the government attempts to prove that the pharmacist knew he or she was filling invalid prescriptions, because he or she was filling infinitely more prescriptions than a neighbor pharmacy. The obvious fallacy here is that the defendant pharmacy has a greater market (i.e. the internet) than does the neighbor pharmacy (i.e. the immediately local geographical region). For example see here.
Second, internet pharmacy law trials almost inevitably contain a number of rich, extensive, and complex substantive pre-trial legal issues, including:
1. Ryan Haight Act argument. If the Court denies a criminal defense attorney’s Ryan Haight Act Motion to Dismiss argument, an Appellate Court will need to review the decision. For Pre-Ryan Haight Act prosecutions, this should be the most important aspect of an appellate brief, especially given the fact that Appellate Courts have yet to hear this issue.
2. Motions to Suppress. Many internet pharmacy cases involve some very complex 4th amendment issues, usually dealing with business records and computers. Denials of Motions to Suppress evidence should take up a large portion of an appellate brief.
3. Grand Jury Issues: Some Circuits do not permit Grand Jury records to be disclosed to Defendants. This is a potential source of constitutional error that can be raised on Appeal.
Given that Appellate Courts have yet to decide many of these fundamental issues, it is important that qualified and experienced counsel is utilized in internet pharmacy appeals. What is necessary is to obtain a dedicated, knowledgeable, and experienced attorney to tackle these issues in front of any Appellate Circuit. There are a lot of skillful appellate attorneys out there, but I think what is truly needed is someone who can educate and persuade these Appellate Courts on internet pharmacy law. An experienced appellate attorney with knowledge of internet pharmacy law from a criminal defense perspective, thus, is an absolute necessity. I am gearing up and looking forward to doing just that.
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 lawyer knowledgeable in prescription, drug and internet pharmacy law, including the Controlled Substances Act, the Ryan Haight Act amendment and Federal Food, Drug and Cosmetic Act violations, please feel free to contact me directly.
Category: Internet Pharmacy Law