Torino Jennings, a Virgnia doctor, faces Internet pharmacy charges in a Boston District Court. A felony Information was filed on May 28, 2009 charging Jennings with seven (7) counts of allegedly introducing a misbranded drug into interstate commerce in violation of the Federal Food, Drug and Cosmetic Act and four (4) counts of tax fraud for allegedly not reporting his online pharmacy income. Specifically, the Information alleges that Jennings issued between 50,000 and 100,000 prescriptions of Soma and other drugs between 2004 and 2007 and received between $5.00 and $7.00 per prescription. Furthermore, the Information alleges that virtually no request was rejected by Jennings. While the Information alleges that Jennings prescribed other drugs besides Soma, Jennings is only charged with issuing seven Soma prescriptions to an individual identified as “E.D.”
Soma is a federal non-controlled substance; consequently, Jennings is charged under the Federal Food, Drug and Cosmetic Act (”FFDCA”) rather than the Controlled Substances Act and Ryan Haight Act amendment. I have previously written extensively on non-controlled subtance internet pharmacy law issues associated with the FFDCA here. As a brief summary, the FFDCA outlaws the misbranding of drugs. A number of different actions qualify as misbranding, including the issuance of a prescription drug without a prescription. Like many FFDCA cases, the Information in this case mistakenly states that “a prescription drug was misbranded when it is not dispensed pursuant to a valid prescription.”
Simply put, the FFDCA does not use the word valid. Admittedly, it is up to a court to decide whether this is mere surplusage. I question whether it is, however, given that the FFDCA uses the phrase “valid prescription” on other occasions in the same statute. As a criminal defense attorney, I would be salivating at the opportunity to file a Motion to Dismiss in this case.
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Category: Court Cases