The Ryan Haight Act of 2008 gave the DEA the power to prosecute and shut down illegal online pharmacies. So why are so many still in business?

On the morning of February 12, 2001, Francine Haight found her 18 year old son, Ryan, lying lifeless in his bed. Francine, a nurse, tried to resuscitate her son but it was too late. Ryan was dead of a Vicodin overdose.

“I was in shock,” Francinerecounts. “Just the night before, we had dinner together after he came home from work at a nearby retail store. He used my Jacuzzi tub because he said his back bothered him from lifting things at work. At midnight I had kissed him goodnight and he said ‘love you, Mom.’”

After asking Ryan’s friends about the drugs and finding out that he had purchased them on the Internet, Francine sent Ryan’s computer to the DEA. The DEA found that Ryan had purchased the Vicodin from an online pharmacy which had then delivered the drugs directly to the Haights’ home.

If you look in your spam folder, you will probably find an ad for an online pharmacy. The majority advertise Viagra and Cialis and maybe some cholesterol drugs; drugs that require prescriptions but are not controlled substances restricted by the federal government. If you dig deeper, however, you can very quickly find whatever you’re looking for.

I once tried to score on the Internet. Many years ago, mid-kick and desperate, I searched online classifieds, looking for hidden code or secret meanings in every post; I was sure I could find someone discreetly selling heroin or other strong opiates. Why wouldn’t a dealer exploit the new global access of the web? I followed a “Pain Relief, all kinds” to a trailer park in the valley. The woman who answered the door was disheveled and her place was stacked floor to ceiling with newspapers, electronics, clothing. “Do you have the money?” She asked. Turned out she didn’t have the dope, but if I gave her my money she would “make some calls.”

These days you no longer have to wait around for an unreliable dealer, forge prescriptions, doctor shop, or engage in some other hustle to score your dope. While the FBI goes after deep underground drug selling sites like Silk Road, illegal online pharmacies have sprung up on every virtual corner. All you have to do is visit a website, make your choices, give your credit card info, and you’re set with a month’s (or more) supply of Ambien, Xanax, Ritalin, or morphine.

Jennifer was addicted to Ambien. She was the kind of drug addict who would take a handful of pills, lose consciousness, and wake up on the sidewalk in the middle of the night half-dressed. Or she would walk into a favorite restaurant, sober, and find that she’d been 86’d because of some Ambien-induced behavior that she didn’t remember.

“I was getting them prescribed by three doctors with refills, but my tolerance was so high and my body needed them so I wouldn’t go into withdrawal.” Jennifer was constantly requesting early refills and she knew that her behavior was sending up red flags at the pharmacies, so last year she decided to try her luck online.

Jennifer did a search and clicked on the first online pharmacy that popped up. She placed her order and the pharmacy called her back to get her debit card info. There was no request for a prescription, no doctor’s consultation. It was as easy to order Ambien, a federally controlled schedule 4 drug, as it was to order aspirin. Jennifer’s problems getting early refills were over. “This pharmacy doesn’t care about when you order. If I ordered 200 pills on a Tuesday, I could order another 200 on that Friday. They didn’t care, they were all about the money.”

After Ryan’s death, Francine Haight found that there were hundreds of online pharmacies (as of 2013, more than 34,000) selling prescription drugs. These pharmacies were able to dispense federally controlled drugs because there was never any explicit law against it. Laws governing the distribution of controlled substances were written in the 1970s, when no one could have predicted that one day sales could be made over a computer network. Consequently the law included no explicit prohibition against online pharmacies prescribing and distributing controlled substances. If prosecutors wanted to convict, they had to rely on an implicit prohibition, and do some tricky maneuvering in order to prove that online pharmacists’ methods “fall outside the usual course of professional practice.” This argument was used successfully in Ryan Haight’s case, and the online pharmacist and associated doctor were sentenced to prison.

The Ryan Haight Act and the DEA

As a result of Ryan’s case, Congress passed the Ryan Haight Online Pharmacy Consumer Protection Act of 2008. The act went into effect in April of 2009 and states that “No controlled substance that is a prescription drug as determined under the Federal Food, Drug, and Cosmetic Act may be delivered, distributed, or dispensed by means of the Internet without a valid prescription.” “Valid” means that the person writing the prescription has had at least one in-person visit with the recipient of the prescription. Also, each online pharmacy is required to list, on its homepage, the name of the affiliated pharmacist, his or her licensing info, the full name and address and phone number of the pharmacy, and a certification that the pharmacy is licensed to deliver controlled substances through the Internet.

Shortly after the Ryan Haight Act was made law, the DEA announced that the online pharmacy problem was close to being solved. According to a senior DEA official, “The Ryan Haight Act has pretty much eliminated the online business in the United States [and] the DEA hasn’t found a large number of foreign sites selling controlled substances to the U.S.” In 2010, the DEA’s pharmaceutical investigations chief said that “(t)he Internet is not as big of a problem as we all think it is…especially dealing with controlled substances.” He added that he thought that the illegal pharmacies that were still in business were probably selling fake and counterfeit drugs. He went on to claim that the lack of any prosecutions (there have since been a couple of successful prosecutions, but they are drops in an ocean of illegal online pharmacies) under the Ryan Haight Act was due to the law having a successful deterrent effect.

Online pharmacies are interested in turning a profit by ensuring repeat customers. Selling fake drugs defeats that purpose unless the fake can consistently mimic the real drug well enough that the customer keeps coming back for more. The competition between rogue pharmacies is fierce; they operate like street dealers, offering specials and bulk discounts to regular customers. Their job is to keep you addicted so they can keep raking in profits. Whether the drug is counterfeit or genuine shouldn’t matter to the DEA anyway: the Haight Act prohibits the unrestricted selling of drugs that even claim to be controlled substances. Whether they are counterfeit or not is irrelevant.

Lisa placed her first online pharmacy order in 2009, the same year that the Ryan Haight Act went into effect. Like Jennifer, Lisa originally found her online pharmacy by doing a search. She placed an order then was contacted by phone the following day. “Jon” confirmed her order, told her she had VIP status which entitled her to certain benefits, and directed her to order from him going forward.

Lisa was a regular customer for two years. Her “personal account manager” was Jon for a while, then she started getting calls and emails from “Derrick” (sometimes Derrik), then “Lilly,” “David,” and “Chandra.” Each had a personal email address from Gmail or Hotmail and a U.S. phone number. Each account manager urged her to order only from him or her. In the beginning she would order in quantities of 180-200 which would last for a month or two.

“I was always paranoid to order too much because I thought they were going to think I was selling. I also didn’t want them to know I was a ‘drug addict.’ Ridiculous, right? They were thrilled to take my order.”

By 2012, two years after the DEA claimed it had successfully solved the rogue pharmacy problem, Lisa was spending about $4,000 a month on Ambien and Xanax. Lisa was never asked for a prescription, never directed to fill out a medical questionnaire, and never had to answer any questions about why she needed the medication.

Empirical data supports the anecdotal evidence provided by Jennifer and Lisa: According to a recent survey done by the National Association of Boards of Pharmacy on over 10,500 Internet pharmacy sites, 88% did not require prescriptions. An additional 9% were operating in violation of other pharmacy laws and practice standards, meaning that a remarkable 97% of online pharmacies are breaking federal law or otherwise compromising the security and safety of the consumer.

How can the DEA possibly claim that they have “pretty much eliminated the online business in the United States”?

The Ryan Haight Act is a U.S. law, and therefore can only be used by the DEA to prosecute and/or shut down online pharmacies operating in violation of the act in the U.S. Many, if not most, online pharmacies operate overseas. Both Jennifer and Lisa received their packages from Pakistan or India, or occasionally from the U.K. The DEA claims it cannot use the Haight Law to prosecute, but that is incorrect. Since these pharmacies operate as websites, no one knows where the physical supply of drugs actually is. It could be in some guy’s garage in Pakistan, or in a warehouse in England. But the selling is happening via website, and in order to reach the huge U.S. market, the websites almost always need to use domain name registrars, payment processors, and shipping services in North America. In some cases, the website hosting company is within the U.S. Since all of the selling is facilitated by U.S. channels, the businesses are operating within the DEA’s domain and should be subject to federal prosecution. If the DEA will not or cannot prosecute for some reason, they could at least alert these processing companies that they are being used for illegal purposes, something they all expressly prohibit. Presumably a letter from the DEA would carry enough weight to get these services to stop dealing with the rogue pharmacies. The pharmacies would then find themselves without a website, payment processor, or shipping service to use for their North American customers.

It can be difficult to pin down a rogue pharmacy because of the nature of the Internet – sites can be taken down and put up within minutes, and domain names can be pointed to new URLs easily. Also, many rogue pharmacies use tricks where they only advertise non-controlled substances on their homepages but have other domain names which, when clicked on, “unlock” hidden parts of their websites. So although the homepage for catchynamepharmacy.com only shows ads for Viagra and Celebrex (non-controlled substances), if you access the site via a different, heavily-advertised site name (something like getphenfennow.com, for example), you will get taken to a separate, interior page which will sell you phentermine, a federally controlled substance.

So these pharmacies are sneaky, but in the course of writing this article I was able to easily find more than one place to buy Ambien, Xanax, even morphine. If I can do it from my laptop in my living room, then surely the DEA has the ability and tools to do it. These rogue pharmacies are profiting at the expense, addiction, and sometimes lives of their customers. The DEA is the only federal agency that has the power to enforce the Ryan Haight Act and shut down these illegal businesses.

The DEA maintains a page about the Haight Act with a hotline for people to report suspicious pharmacies. I called the hotline and was given two menu items – one to report the abuse of controlled substances and one to report extortion scams. There was nothing about online pharmacies. After looking around more, I found a “Consumer Alert” with a link to a form which you can use to report a suspicious online pharmacy. The Consumer Alert also explains that buying controlled substances online without a valid prescription is a punishable offense, and that it is a felony to import drugs into the U.S. and ship to a non-DEA registrant. (All individuals and businesses that prescribe or dispense controlled substances must be registered with the DEA.)

So were Jennifer and Lisa committing federal crimes? Yes. Does it matter? No. Read More “the fix”…