EIGHTH CIRCUIT UPHOLDS CONVICTION FOR SELLING MEDICINE OVER THE INTERNET

Marshall Kanner was a principal owner of Pharmacon International Corporation. Pharmacon sold prescription medication over the internet. Patients sent descriptions of their medical problems over the internet. Doctors reviewed the descriptions and prescribed medication. Pharmacon filled the prescriptions.

Among the prescriptions filled were prescriptions for Schedule III and Schedule IV controlled substances for which a prescription is necessary. The government charged Kanner and others with conspiring to distribute controlled substances in violation of 21 U. S. C. 841(a)(1) much like it charges people with conspiring to sell illegal drugs. It’s theory was that since the doctors never saw the patients the doctors were not practicing medicine and therefore the distribution was in violation of the Controlled Substance Act. (CSA)

The guiding law on this matter is the Supreme Court case, United States v. Moore. In Moore the Supreme Court held that doctors could be prosecuted for violating the CSA if “their activities fall outside the usual course of professional practice.” Kanner argued that Moore had been supplanted by Gonzales v. Oregon in which the Supreme Court considered a 2001 Interpretative Rule by the Attorney General prohibiting doctors from prescribing medication in compliance with Oregon’s assisted suicide law. In Gonzales the court said the CSA bars the prescription of drugs for illicit purposes and since the Oregon doctors were prescribing medication in compliance with Oregon law they were not violating the CSA. While the CSA bars prescriptions issued for illicit purposes it still only protects doctors who are prescribing medication in the “usual course of professional practice.” Since prescribing medication without ever seeing or examining the patient and without the ability to verify patient’s complaints is not within the “usual course of professional practice according to the Eighth Circuit Court of Appeals, Pharmacon violated the Controlled Substance Act and it upheld Kanner’s conviction.

While I am not sure I would want to be prescribed medication by a doctor who never examined me and had no way of verifying my complaints, it does seem overly harsh to prosecute pharmacies and doctors who prescribe legitimate medication over the internet in the same way the government prosecutes drug dealers.