THE ELDERLAW FORUM

Professor Michael Myers

Prescription Drugs via Websites: Legal?

          "I am interested in buying my prescription drugs through a website link," said a woman caller to the USD Senior Legal Hotline (1-800-747-1895).  "They are a lot cheaper and I would like to do it, but is it legal?  Can I get into trouble?  Is it a good idea?"

          I answered the last question first:  " I believe it is a great idea: using international competition to save money is the 'American Way.'  We do it everyday when shopping at WalMart, Best Buy, a General Motors dealership, or a grocery chain.  Global product distribution permeates every aspect of our daily lives.  Prescription drugs are no exception.

          Competition for price and quality has a way of jumping international borders.  That is why busloads of Americans regularly visit Canada, not as tourists, but for the express purpose of buying prescribed drugs at deeply discounted rates.  Our southern neighbors visit Mexico for the same reason.  Also, that is why scores of websites not offer an elaborate network of outlets for selling prescription drugs.

          "But is it legal?" to use these websites, asked the caller.  No, it is not.  Congress, that legislative body whose members now publicly lament the gouging of seniors by the pharmaceutical industry, is the source of the protectionist laws that prohibit drug importation.  The industry has enjoyed a long and well-funded relationship with members of Congress.  Its agency cop, the Federal Drug Administration (FDA), is an appointment turn-still for pharmaceutical executives.

          And finally, the caller asked, "Can I get into trouble?"  Theoretically, yes.  But as a practical matter, probably not.  The FDA, with the help of state pharmacy boards, is going after the websites, not its users.  For example, The South Dakota State Board of Pharmacy has initiated an effort to shut down a Watertown website under a statute requiring the licensure of nonresident pharmacies.

          Several websites in Oklahoma, Arkansas and California have come under combined federal-state enforcement.  Dennis Jones, the South Dakota Board's president, says he is only trying to enforce the laws as they have been enacted.  The real solution, suggests Jones, is to repeal the federal laws that prevent practicing pharmacists from using the global market for the benefit of their patients.

          But that would be difficult.  After all, why does the pharmaceutical industry contribute millions of dollars to both political parties and their candidates?  You guessed it:  To enact laws that protect it from market competition.  You may wish to call your favorite person in Washington, D.C., and suggest it is time for some real consumer protection - protection from bought-and-paid for congressional offices.