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A Different Perspective on the Reason for the Online Pharmacy Consumer Protection Act

There’s been a good amount of debate by respected bloggers (see, e.g., InternetDrugLaw and InternetPharmacyLaw about what the Ryan Haight Online Pharmacy Consumer Act, now on the President’s desk for signing, really means. Specifically, if this bill requires a prior in-person examination in order for a controlled substance prescription to be lawful, does that mean that current law doesn’t actually require one? If so, how do we explain some of the convictions against controlled substance online pharmacy operators? And doesn’t the exclusion of non-controlled substances from the bill mean that a non-controlled substance can lawfully be prescribed following an online consultation without an in-person exam?

We think that these questions don’t get to the real reasons for the bill. (Obviously, the surface level reasons for the bill are to save lives and reduce addiction, but let’s dig deeper than that.) From the DOJ’s perspective, the overriding problem has been a bureaucratic one: a lack of desire by Assistant US Attorneys to accept and pursue these cases. That trickles down to DEA agents, who don’t want to spend months investigating an Internet pharmacy case that never gets filed.

This leads to the question: what are the two things that prosecutors want in order to file cases against rogue Internet pharmacies? This bill provides both: a case that is easier to win, and real time if the defendant is convicted. Let’s look at both factors.

First: much of the debate has correctly focused on the bill’s definition of “valid prescription,” the lack thereof in codified law, and how that relates to “online consultations.” Yet it’s arguable that existing law on this point isn’t so much unclear as it is convoluted. After all, good prosecutors can and do get convictions for “online consultation” controlled substance websites under current law. However, jury instructions, closing arguments, and the presentation of evidence can be a complicated nightmare. The bill doesn’t so much enact something new as much as it does codify what the DEA has argued, mostly successfully, is the right interpretation of existing law. As a result, the government’s prosecutions will simply be more straightforward.

Second: the increased penalties within the bill have largely been overlooked. They’re important. Why? Federal prosecutors usually don’t want to spend much time on a case that will only result in a few months prison. That’s one reason, in our view, that it’s fairly difficult to acquire Schedule II and III drugs via an online consultation these days, but Schedule IV drugs are comparatively more available that way. And there have been fewer prosecutions for Schedule IV schemes, with exceptions. The current penalties for Schedule III, IV and V drugs provide little prison time, at least compared to Schedule I and II offenses. By raising the possible penalties, the bill provides incentives to prosecutors who want to see real prison time available against the defendants they prosecute.

Those were the reasons for the bill, not a belief within the DEA that a prescription for a controlled substance based only on an online consultation was, in fact, a lawful act. Our prediction: if there’s an increase in the number of cases filed against online pharmacies selling controlled substances based only on an online consultation, it won’t be primarily because of the definition of “valid prescription.” Rather, it will be because the increased penalties for Schedule IV drugs (like Ambien, Xanax, Valium and Phentermine) make those cases more attractive to federal prosecutors, and thus, DEA agents will similarly be more willing to investigate those cases.