Monday, November 5, 2007

House Bill 270: Criminalizing the search for inexpensive medicine is a good idea?

This bill, sponsored by Representative Bethany Hall-Long (D-Middletown), currently resides in the House Analysis & Governmental Accountability Committee, and in its current incarnation should die there.

Here’s the synopsis of this bill to strangle internet pharmacies:

The intent of this Act is to completely stop the sale and delivery of prescription drugs to the residents of this State by unlicensed internet pharmacies.

Currently, there are numerous internet sites which sell or offer to sell prescription drugs to Delaware residents based on nothing more than a brief medical questionnaire which is reviewed by a doctor who is unknown to the patient and unlicensed to practice or prescribe drugs in this State.

Many of the prescription drugs being sold by these internet sites are extremely addictive and can cause serious injury or death if abused.

The General Assembly considers the practices of these internet sites to constitute an extreme danger to the safety and welfare of the residents of this State and has enacted this Act to protect the residents of this State from the dangers associated with unlicensed and illegitimate internet pharmacies.

Does this high-sounding rhetoric front for legitimate oversight, or is it another example of authoritarian bureaucrats attempting to criminalize the poor and elderly?

First, some background.

The internet has opened up vast new markets and challenged existing commercial and regulatory assumptions. Far too many legislators see burgeoning e-commerce as an untapped source of new tax revenues; others try to build intellectual walls to keep out erotic materials; and far more want to exploit it for fund-raising and propaganda purposes

Internet pharmacies based in the US, Canada, and all sorts of foreign locations, have developed into a multi-million-dollar business in the past few years, much to the chagrin of regulators, licensing organizations, and do-gooders of all stripes. To be sure, as with almost any new industry there are problems:

Do you actually get what you order from an internet pharmacy?

Are medications with usage and drug-interaction warnings accurately labeled?

Can teens use lax prescription policies to get their hands on massive amounts of potentially dangerous drugs?

A good Libertarian premise: start by doing your own research.

First read the 2004 GAO report on internet pharmacies.

(While this report is predictably skeptical about internet pharmacies, and concludes that they need to be regulated, there is a devil in the details. Look carefully and you will discover that internet pharmacies in the US and Canada have good records of providing exactly the drugs a consumer ordered.)

Then there’s this May 2007 article from the Washington Post, “’Rogue’ Internet Pharmacies Fueling RX Abuse, Panel Told"

(This article is harshly anti-internet pharmacy, and makes an inferential case for them as being primarily dangerous as peddlers of dangerous, addictive drugs to teenagers. It points out that 88% of so-called “rogue” pharmacies operate from outside the US-Canada, though that apparently hasn’t stopped the DEA from pursuing them. In 2006 the DEA ran 90+ investigations, arrested 64 suspects, and seized $30 million worth of drugs. But the article also cautiously concludes, “Industry groups agree that rouge pharmacies should be targeted but are wary of any tough laws that come with unintended consequences,” such as increased FDA authority that might infringe on traditional state authority to regulate the practice of medicine and pharmacy.)

For a more balanced view, which carefully considers the problems and potential of internet pharmacies, see the article, “Internet Pharmacies: Good or Bad?” at Kuro5hin:

(Read this one and you will come away with the idea that internet pharmacies have a tremendous potential to provide a very necessary service—lower cost medications for those who cannot afford high rates, especially if they don’t have a pharmacy plan.)

So now that we’ve established some background, how does HB 270 plan to attack the problem?

The bill strictly regulates the licensing of internet pharmacies and imposes severe criminal penalties on unlicensed internet pharmacies and the unscrupulous practitioners and pharmacists who knowingly violate its provisions.

Despite the stiff penalties imposed, this is an essentially meaningless proposition: How does Delaware plan to enforce its licensing requirements on pharmacies in other states? Probably in the same fashion it intends to penalize physicians outside the state who provide the prescriptions necessary to gain access to these medications.

These sections of the proposed legislation are tantamount to the anti-porn laws so ostentatiously passed by Congress a few years back. It seems that legislators either lack the understanding of the internet to realize that you cannot legislate for sites in other countries, OR they’re more interested in criminalizing the behavior of their own constituents than in helping them use internet pharmacies in a responsible and cost-effective manner.

Virtually the only provision of this bill that is enforceable in any practical sense is the section that criminalizes not the physician, not the internet pharmacy, but the consumer in search of affordable medications:

No person within or outside of this State shall purchase, attempt to purchase, offer to purchase or submit an order to purchase, by email or otherwise, any prescription drug from an internet pharmacy to be delivered to a location within this State unless the person has been issued a valid prescription drug order from licensed Delaware practitioner with whom the person has a qualifying medical relationship…. A person who knowingly violates this subsection shall be guilty of a Class F felony and shall be fined not less than $1,000.00 nor more than $10,000.00.

(Please note that having a MD, NJ, or PA post office box would apparently get you out of this on a technicality.)

(Let’s also spare a shiver for the fact that the government wants to tell you what a “qualifying medical relationship” with your own doctor has to be.)

Tthink about this for a moment. The State of Delaware intends to justify pretty much any means necessary to follow your web-browsing (and potentially your credit card transactions) in order to prosecute you for choosing to purchase inexpensive medications.

I personally think anybody who’d order medications sight unseen from an unverified internet address operating out of Jamaica or Portugal is an idiot.

But Americans have the right to make idiotic decisions that don’t directly harm anyone else.

Just like someone who has researched the pharmacies and their medications should have the right to shop around for the best deal without attracting the attention of Delaware’s Attorney General.

I also think that teens who are managing to use credit cards on their home computers to order addictive drugs from pharmacies in Canada or Iowa represent a failure of parents who aren’t paying enough attention, rather than an excuse to diminish the freedom of responsible Delaware consumers.

Yes, internet pharmacies do raise certain concerns which no responsible citizen—Libertarian or otherwise—should deny. But there are far better, far less coercive alternatives….

If Delaware is serious about protecting rather than criminalizing people, then why not contemplate legislation that

• Charges the Attorney General (or other applicable office) to develop a list of dependable internet pharmacies that agree to subscribe to a voluntary monitoring system in order to earn a state seal of approval, which includes random order and quality verification
• Creates a state hot-line for consumer reporting of internet pharmacies that engage in unethical or unprofessional business practices
• Provides for an educational outreach program to show potential internet pharmacy customers how to research for themselves the hazards, dosage restrictions, and interaction dangers of specific medications

There will be those (probably a lot of them) who read this and counter that voluntary measures and providing information don’t represent enough protection for our citizens, even as they make felons out of septuagenarians on fixed incomes. Nothing I say will budge them from their commitment to creating a “nanny state” that keeps us all safe from riding bicycles without helmets, running with scissors, or eating movie theater popcorn slathered in that wonderful pseudo-butter you can feel filling your arteries with plaque during the previews.

On the other hand, I think there are thoughtful people throughout Delaware who seriously measure the cost of “protection” that comes with a price tag of diminished liberty.

They should be taking a close look at HB 270, and then telling their legislators to keep it in committee until it dies or can be revised so as not criminalize our neighbors.


Anonymous said...

Nice job.

Anonymous said...

Here's my thought on this subject: If they want to protect people, especially teenagers, from abusing prescription pain medications... then why don't they focus on enforcing where they receive these medications? Seniors who receive Medicaid and Medicare receive prescriptions with little or no resistance, and are easily pressured to sell due to trying to live off of SSI, easily scoring $2 or $3 per pill from people addicted to a pill equivalent to heroin.

If they aren't pressured to sell, it's easy for them to be stolen.

Maybe a re-classification of these addictive drugs is in order, maybe some tighter restriction on why these drugs are allowed to be prescribed... but this bill is not the solution, and it restricts otherwise lawful people from receiving a cheaper alternative.

I wouldn't be surprised if some big-pharma did some lobbying, and that's the real reason why this bill has been proposed.

tom said...

I realize that it's nearly pointless to mention this since no one (particularly our state legislators) cares about the Constitution anymore, but House Bill 270 is prima facie unconstitutional for several reasons:

First, the entire object of the bill is outside the General Assembly's jurisdiction. Regulation of "... Commerce with foreign Nations, and among the several States..." [1] is one of the very small number of powers that Delaware explicitly ceded to the federal government by ratifying the U.S. Constitution; and

Second, any attempt to enforce the provisions of the bill against a Sovereign citizen of Delaware would be a clear violation of their rights as protected by the 4th Amendment to the U.S. Constitution.

Perhaps instead of discussing the outrageous consequences of this bill, we should be questioning whether or not Rep(s) Hall-Long, McWilliams, Maier, Manolakos, Mitchell, Schooley, and Sen(s) Henry, Blevins, Marshall, McDowell, and Sokola need to be removed from office [2] and/or prosecuted for Perjury [3],[4] for sponsoring it.

[1] U.S Constitution, Art I, Sec 8, Clause 3.
[2] Del. Constitution, Art II, Sec 9.
[3] U.S Constitution, Art VI, Clause 3.
[4] Del. Constitution, Art XIV, Sec 1.