Online Pharmacy Sales Now
Illegal In Nevada?
By: Richard A. Chapo, Esq.
www.adultinternetlaw.com
Nevada has historically been considered an "Internet friendly" jurisdiction.
Indeed, Nevada has undertaken a major lobbying effort to legalize online gambling
due to the perceived business lost to online gambling sites. How much business
has been lost? Well, enough that the top bid on Overture is $15.09 for the keyword "gambling" as
of the writing of this article.
Recent steps taken by Nevada's legislature, however, have revealed that the state
is not so much "Internet friendly" as it is sensitive to online companies that
compete with those in the state. Specifically, few online marketers or pharmacies
are aware of the fact that they can now get into serious legal difficulties for
selling prescription drugs to individuals residing in Nevada.
Within the last year, the legislature in Nevada has modified the Uniform Controlled
Substance Act to address "illegal online pharmacies." Illegal online pharmacies
are those that are not licensed by the relevant Nevada state agency, to wit,
most online sites selling prescription drugs. Of interest, the Act also appears
to prohibit pharmacies in Nevada from filling prescriptions online.
The specific statute that has been enacted in
Nevada is NRS 453.3638. The language of that statute reads as follows:
1. A person who is located within this state and who owns, operates, controls,
profits from or is employed or paid by an illegal Internet pharmacy shall not:
- Fill or refill a prescription
for a prescription drug for another person located within
or outside this state; or
- Deliver or cause, allow
or aid in the deliver of a controlled substance, imitation
controlled substance, counterfeit substance or prescription
drug to another person located within or outside this state.
2. A person who is located outside this state, who owns, operates,
controls, profits from or is employed or paid by an illegal Internet
pharmacy and who knows or has reasonable cause to believe that
another person is located within this state shall not:
- (a) Fill or refill a prescription
for a prescription drug for the other person; or
- (b) Deliver or cause, allow
or aid in the delivery of a controlled substance, imitation
controlled substance, counterfeit substance or prescription
drug to the other person.
The key element of the above statute is clause 2 and its subsections.
Although there is no current case law on the books interpreting
this section, a plain reading of the language suggests that online
pharmacies filling prescriptions in Nevada are violating the
law.
Importantly, Webmasters must realize that the statute is applicable to those
that "profit from�or [are] paid by an illegal Internet pharmacy." In short, the
statute appears to apply to both the online pharmacies and affiliates sending
traffic to the online pharmacies if said traffic converts into sales.
Ostensibly, the above statute is aimed at terminating the every growing online
pharmacy sales of various prescription medications in Nevada. The legislature
is effectively "marking the territory" after undoubtedly being lobbied by local
Nevada interest that have lost sales to the Internet. Any online pharmacy that
is conducting sales in Nevada is running a huge risk of criminal prosecution
if it accepts orders from residents of Nevada. The same risk applies to affiliates
of the unlicensed pharmacies.
Penalties for Violating NRS 453.3638
Of major significance to online pharmacies and Webmasters, the penalties for
violating NRS 453.3638 by making a sale to a resident of Nevada are extreme.
Specifically, section 4 of the statute calls for the following punishment:
- Conviction shall be considered a Category
C Felony;
- Imprisonment in the state prison for a minimum
term of not less than one (1) year and not more than a maximum term of
five (5) years; and
- A potential fine of not more than $10,000.
As if such penalties were not enough, the legislature has authorizes even more
restrictive penalties if the substance or drug involved proximately causes substantial
bodily harm or death to a person or, alternatively, is classified as a Schedule
I narcotic under pharmacy regulations. A list of Schedule I narcotics is beyond
the scope of this article, but the issue is somewhat irrelevant in light of the
penalties previously mentioned. Regardless, the extreme penalties for a conviction
on this additional element of the statute are as follows:
- Conviction shall be considered a Class B
Felony;
- Imprisonment in the state prison for a minimum
term of not less than three (3) years and not more than a maximum term
of fifteen (15) years; and
- A fine of not more than $100,000.
- No probation or suspended sentence options
permitted.
Simply put, this is not a law that should be considered toothless by those in
the online prescription industry. Online pharmacies and Webmasters promoting
sales for the same need to give serious thought to tracking the location of their
customers to eliminate sales in Nevada. While it is somewhat surprising that
Nevada would take this position, readers should watch for the enactment of similar
statutes in other states.
If you run an online prescription site, a review of your sales procedures is
an immediate requirement. If you are a Webmaster sending traffic to a site that
conducts prescription sales, you should immediately contact the site to find
out how the above law is being addressed and whether the sponsor is selling prescription
drugs that fall within the statute. Certain online pharmacies are no longer accepting
sales from Nevada while others appear to be avoiding the issue. In light of the
stiff penalties associated with NRS 453.3638, those involved in the online pharmacy
industry must not bury their heads in the sand when dealing with this issue.
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. |
