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You have a stomach cramp. You want relief. You go online. You come to an emedicine website filled with marvelous and generous information. After a bit you decide that you must indeed have an ulcer and you are sure that this site has just the thing for you. You engage an interactive questionnaire that produces a diagnosis, and, based on this online diagnosis, the website service writes you a prescription and places the medicine in the mail.

Question: is this practice akin to snake oil vendors of the Wild West, willing to sell you whatever they can convince will cure you? Is this a way to bypass federal prescription drug laws or bypassing high domestic perscription prices? No doctor has ever seen you in person. What if you are a native American on a reservation in North Dakota where there is not a doctor within 200 miles? Is this part of the Internet's promise of the death of distance, bring telemedicine to reaches otherwise inaccessible to medical professionals?

Prescription drug sales, online or off, are regulated by the Food and Drug Administration pursuant to the Food, Drug, and Cosmetic Act. [21 U.S.C. § 353] Pursuant to the FDCA,

Kansas, Maryland, Washington have taken action against websites that have written prescriptions based solely on online diagnosis, and the State Federation of Medical Boards has concluded that online diagnosis cannot produce valid prescriptions. The Department of Justice does not appear to be over enamored with online prescriptions. [Posner] [Fong]

But perhaps the miracle cure to your ulcer does not require a prescription. Perhaps you have found a bottle of marvelous stuff at snakeoil.com. And perhaps, much to your surprise, the stuff does not work. Here the Federal Trade Commission once again steps in with its fraud and deceptive practice authority. The FTC brings enforcement actions against online pharmacies and stores that make false or misleading claims about the wonders of their products or services. FTC activity in this area falls under their project Operation Cure.all.

The FTC provides advice for business engaged in online medicine. Some of this information is specific to the health industry such as guidelines for dietary supplements and some of this information includes the general guidance for all merchants doing business online. See Ecommerce.

Issue

Potentially Applicable Federal Law

Distribution of prescription drugs without a valid prescription

Food, Drug, and Cosmetic Act,
21 U.S.C. § 353

Distribution of controlled substances without a valid prescription.

Controlled Substances Act,
21 U.S.C. §§ 822, 829 & 841

Unfair or deceptive marketing of prescription drugs

Federal Trade Commission Act,
15 U.S.C. § 45

Internet Sales of Date Rape Drugs 21 USC § 841

Violations of these laws can fall under the jurisdiction of the Department of Justice, the US Attorney's Office, the FBI, the Food and Drug Administration, The Drug Enforcement Administration, and the Federal Trade Commission.

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FTC Operation Cure.all

"Looking to cure a serious ailment? Unfortunately, consumers spend millions of dollars every year on unproven - and often useless - health products and services. Health fraud trades on false hope. It promises quick cures for dozens of medical conditions - from arthritis and obesity to osteoporosis, cancer and AIDS.

"Fraudulently marketed health products can keep people from the medical treatment they need, and some can cause serious harm.

"The Federal Trade Commission is targeting false and unsubstantiated health claims on the Internet through Operation Cure.All - a law enforcement and consumer education campaign. This website offers information for consumers on how to recognize health fraud, guidance for businesses on how to market health products and services truthfully, and information about the FTC's initiatives."  Operate Cure.all

 "Operate Cure.all," an initiative begun in 1997 in response to rising concerns about the proliferation of questionable marketing claims for health products on the Internet, is an integral part of the Commission's campaign against the fraudulent marketing of health-related products on the Internet. "Operation Cure.All" is an ongoing, coordinated law enforcement and consumer/business education initiative targeting deceptive and misleading Internet promotion of products and services that promise to cure or treat serious diseases or conditions such as cancer, HIV/AIDS, arthritis, diabetes, multiple sclerosis, and heart disease. The FTC works with numerous law enforcement partners including the FDA, Health Canada, the Competition Bureau of Industry Canada, Procuraduria Federal del Consumidor of Mexico, the Secretaria de Salud of Mexico, several state attorney general offices, and several state health departments as part of this initiative.

As part of the agencies' effort to identify appropriate law enforcement targets, "Operation Cure.All" partners periodically conduct Internet surfs. To date, the FTC and its partners have conducted three international surfs, in 1997, 1998, and 2002, and a number of narrowly targeted surfs focused on specific types of diseases or products such as anthrax. Since June 1999, the FTC has filed 18 "Operation Cure.All" cases.

"Like other health care promotions on the Internet," Director Beales testified, "the availability of prescription drugs via online pharmacies can offer benefits to consumers, including convenience and value. However, significant potential for injury exists when prescriptions are issued without adequate review of the consumer's medical history or when unapproved drugs are sold to consumers over the Internet by overseas pharmacies." -March 27, 2003 FTC Testifies on the Internet Sale of Prescription Drugs From Domestic Web Sites 

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