Academic journal article The Journal of High Technology Law

The Application of Civil RICO Laws to Rogue Internet Pharmacies

Academic journal article The Journal of High Technology Law

The Application of Civil RICO Laws to Rogue Internet Pharmacies

Article excerpt

I. INTRODUCTION

Anyone in the United States who has ever been ill knows that many medications require prescriptions. (1) Although the federal government requires that pharmacists register with the Drug Enforcement Agency (DEA), the states ultimately control the licensing and regulation of pharmacists. (2) As a result of state-specific licensing and regulation, a pharmacist licensed in one state may not be permitted to fill prescriptions in another state. (3) The government's ultimate purpose in this multilevel regulation is the protection of the consumer. (4)

The issue of pharmacy regulation is important and becomes more complex when pharmacies fill prescriptions though the Internet and across state borders. The first Internet pharmacies began operating in 1999. (5) Since then, the industry has grown phenomenally. In 1999, there was an estimated 300 to 400 online pharmacies thought to be dispensing drugs, of which, only 6 were thought to be operating legally. (6) This proliferation continued and in 2000, sources estimated that sales for 2001 would reach $1.4 billion and would exceed $15 billion by 2004. (7) The high potential for profit coupled with the anonymity of the Internet and legally ambiguous jurisdiction pose a consumer protection risk.

Online pharmacies fall into three basic categories: those that require a written prescription from a licensed physician, those that provide a prescription to the consumer, and those that dispense drugs without the requirement of a prescription. Pharmacies that require a written prescription from a licensed physician are the closest to the traditional neighborhood pharmacy. (8) This type of pharmacy is the least susceptible to abuse, and may include cyber-versions of well known national chains. (9) Pharmacies that refer the customer to an online prescription service or provide a consultation prior to prescribing and dispensing a prescription, and pharmacies that dispense drugs without a prescription are known as rogue pharmacies. (10) In addition, about half of the online pharmacies that sell drugs in the United States do so from inside its borders. (11) Therefore, this Note will discuss the application of civil RICO laws to rogue pharmacies based in the United States.

II. BENEFITS AND RISKS

Online pharmacies, although a possible source of fraud and abuse, may supply some benefit to the consumer, if run legally. Internet pharmacies offer the convenience of having one's prescriptions delivered directly to the door. (12) This may be of great importance to the elderly or other people who may be unable to leave their homes. (13) Also, Internet pharmacies may benefit consumers who do not live near a pharmacy and who may prefer to receive their prescriptions in the mail. (14) In addition, Internet pharmacies may have less overhead expenditures and more competition, thus resulting in lower drug costs. (15)

Although Internet pharmacies may be convenient because they ship prescriptions via the mail or they may not require a prescription, the risks involved with these pharmacies outweigh the benefits. (16) One of the main purposes of the Federal Food, Drug, and Cosmetic Act (FDCA) is to protect the public from unsafe or adulterated drugs. (17) When prescription drugs are improperly prescribed or distributed with no prescription at all, Congress's intent is bypassed and the public is put at risk. (18)

The dispensing of drugs by rogue pharmacies without a proper prescription endangers the public because it bypasses the patient-doctor and patient-pharmacist relationship. (19) In one tragic case, a man, without a prescription, placed an order over the Internet for the drug Viagra (sildenafil citrate), (20) a medicine to treat erectile dysfunction and later suffered a heart attack. (21) A proper check-up and medical history would likely have shown a family history of heart disease, which is a contraindication for the drug. (22) A responsible physician would not have prescribed Viagra to a patient with a history of heart disease. …

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