Prescribing Medicine for Online Pharmacies: An Assessment of the Law and a Proposal to Combat Illegal Drug Outlets
Lipman, Bethany, American Criminal Law Review
In 1999, Clayton Fuchs developed a business plan that would allow him to use his pharmacy license and the rapidly developing internet consumer market: he established an online pharmacy. (1) Fuchs set up Friendly Pharmacy, a company that allowed customers to visit a website, complete an online profile, and order their prescription drugs of choice. (2) Fuchs' website then forwarded those orders to a physician for his review. (3) The physician, who was licensed and living in Texas, never once spoke to or physically examined any of his "patients" before issuing their prescriptions. (4) After he approved the orders, Friendly Pharmacy's employees filled the prescriptions and shipped them to consumers around the country. (5) Although the online pharmacy used several compliance checks, (6) Friendly Pharmacy filled virtually every order customers placed. (7) When a Field Compliance Officer with the Texas State Board of Pharmacy ("TSBP") informed Fuchs that Friendly Pharmacy was operating illegally, (8) he moved his operation across the state line to Oklahoma where he began Main Street Pharmacy, another drug distribution website (9) that operated for several additional years before authorities shut it down.
Among Fuchs' customers was Ryan Haight, a seventeen-year-old high school
honors student who began buying prescription drugs from his family's home computer in California. (10) He purchased Vicodin and other drugs from Fuchs' online pharmacy. (11) On February 12, 2001, Ryan Haight died from an overdose of prescription drugs Fuchs' business delivered to his doorstep. (12) Haight's story inspired amendments to the Controlled Substances Act ("CSA"), called the Ryan Haight Online Pharmacy Consumer Protection Act, (13) which took effect in April 2009 (nearly ten years after Haight's death).
By the time federal officials shut down Fuchs' second internet operation in 2001, (14) "the pharmacy was processing between 300 and 500 prescriptions per day, approximately seventy percent of which were for hydrocodone," a Schedule III controlled substance. (15) Fuchs paid prescribing physicians according to the number of prescriptions they approved, (16) motivating the doctors to approve large numbers of prescriptions with minimal consideration. Fuchs' online operations ultimately generated more than $8 million and distributed prescription drugs to thousands of consumers nationwide. (17) A jury convicted Fuchs of conspiracy to distribute controlled substances, operating a continuing criminal enterprise, and money laundering. (18) He is now serving twenty years in prison. (19)
Government officials have noted the Ryan Haight Act's apparent success at "virtually eliminat[ing]" the types of illegal online pharmacies described above. (20) However, others argue that the threat has not been eliminated because these and other types of these pharmacies still exist. (21) Prescription drug use is the second most common form of drug abuse in the United States. (22) A recent survey indicated that "approximately seven million Americans currently use prescription-type psychotherapeutic drugs non-medically." (23) The Office of National Drug Control Policy calls prescription drug abuse "the Nation's fastest-growing drug problem." (24) While there were 4,000 deaths resulting from prescription drug overdoses in 1999, such deaths "now outnumber deaths involving heroin and cocaine combined, accounting for 20,044 of 36,450 overdose deaths in the U.S. in 2008." (25) In addition to the human cost, drug abuse and addiction totals an estimated $193 billion in preventable health care, law enforcement, crime, and other expenses every year. (26)
Although the vast majority of those abusing prescription drugs obtain them from friends or relatives, (27) the rise of the internet has likely contributed to the problem. As of 2010, 77.31 percent of American adults had access to the internet. (28) The amount of money generated by the online prescription drug industry reached an estimated $15-20 billion in 2004. …