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Klixxx Magazine Archive - Legal Tips |
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Enforcement Actions Against Online Pharmacies: Part 2
by Richard A. Chapo, Esq., www.adultinternetlaw.com
As I have been reporting for Klixxx readers, online pharmacies have come under attack from various states. As predicted, the attacks are increasing in both volume and impact.
In February, the Medical Board of California levied fines totaling $48,000,000 against six doctors for filing online prescriptions. In light of these fines, Klixxx readers should seriously reconsider any involvement in sponsor programs for online pharmacies.
$25,000 Fine Per Prescription
The Business and Professions Code for California was revised in 2001 for the purpose of providing the California Medical Board with the authority to go after online pharmacies. Under the revised code, section 2242.1(a) now includes language authorizing the Medical Board to levy fines up to $25,000 per prescription against medical professionals that write illegal online prescriptions. The specific law is as follows:
2242.1(a) No person or entity may prescribe, dispense, or, furnish…dangerous drugs…on the Internet for delivery to any person in this state, without a good faith prior examination and medical indication, therefore…
(b) …a violation of this section may subject the person or entity to…to a fine of up to $25,000 per occurrence…
Using the above authority, the Medical Board investigated 1,952 online prescriptions written for residents of California for such drugs as Viagra, Celebrex, Propecia, Xenical, Meridia and Phentermine. Based on the investigation, the board applied the maximum $25,000 penalty per prescription in issuing the following fines:
Michael Brunsman, M.D, licensed in Arizona, fined $1,800,000 for issuing 72 prescriptions to Californians.
Martin Feldman, M.D., licensed in Rhode Island and Florida, fined $3,925,000 for issuing 157 prescriptions to Californians.
Harry Hoff, M.D., licensed in Florida, fined $1,250,000 for issuing 50 prescriptions to Californians.
Carlos Levy, D.O., licensed in Florida, fined $39,175,000 for issuing 1,567 prescriptions to Californians.
David Livingston, M.D., licensed in Tennessee, fined $1,500,000 for issuing 60 prescriptions to Californians.
Jose Crespin, M.D., licensed in Florida, fined $1,115,000 for issuing 46 prescriptions to Californians.
Enforcement Reaction
Representatives for the Medical Board indicated that the fines levied were to protect consumers from the "irresponsible and illegal" prescribing of medication over the Internet. The Board has taken the position that any prescription written without a physical examination is improper.
Importantly, the various legal counsels for the physicians have indicated a strong appeal effort will be undertaken to reverse the fines. Unlike other enforcement actions, the size of the fines levied by the Medical Board make a settlement highly unlikely. Webmasters should expect to see this case move through the appellate courts and, potentially, to the U.S. Supreme Court. If the courts uphold the fines levied in a published opinion, particularly if the appeal is handled by federal court, the future of the online pharmacy industry will be in serious doubt.
Impact On Webmasters
The statute used in these enforcement actions does not have a provision punishing affiliates of online pharmacies. As a result, it is not anticipated that California will pursue affiliates in the near future. Affiliates must recognize, however, that laws in other states such as Nevada do allow for enforcement against affiliates sending traffic to online pharmacies.
Regardless of the state law referenced, online pharmacies and affiliates of such sites should give significant consideration to whether the "game is up" for the online pharmacy industry. With major fines being levied, one has to wonder how much longer physicians will be willing to write online prescriptions. If physicians stop writing these prescriptions, the sites will necessarily go out of business. If this occurs, many affiliates could lose significant anticipated revenues. In short, Klixxx readers should be reconsidering sending traffic to online pharmacy sites.
The above discussion is intended to be a general commentary on pharmacy issues. Each situation is different and this article is not intended as legal advice for your specific situation. Further, nothing in this article is intended to create an attorney-client relationship. If you have additional questions, please contact Richard A. Chapo at AdultInternetLaw.com.
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