The War on Opioids: History of the Controlled Substances Act and its impact on physicians

In the nineteenth and twentieth centuries, drug control policy was largely a revenue measure in order to capture revenue from the extensive Chinese opium trade.[i] Noticing the growing problem of addiction due to the high availability of opium products, the United States enacted the Tariff Act of 1832 to curb addiction.[ii] While opium was not initially taxed as part of the law, in 1842, opium was placed on the tariff lists and a tax of 75 cents per pound was levied on all opium.[iii] As opium use became more popular, subsequent amendments to the Tariff Act of 1832 increased the tax until opium was taxed at the astonishing rate of 80% in 1862.[iv] During the late nineteenth century the national appetite for opium continued to grow, and chemists began making patent medicines heavily laced with opium, morphine, and cocaine.[v] The federal response to rampant opiate addiction in the early twentieth century was swift, but only focused on labeling restrictions in order to increase consumer information about the effects of opiates.[vi] The Pure Food and Drug Act of 1906 made it unlawful to sell a mixture containing opium, cocaine, and other listed substances if the label did not clearly indicate the presence of the listed substance.[vii] Further controls during the early twentieth century came in the form of import and export controls in order to stem the flow of opium from China.[viii] CHECK OUT OUR HEALTHCARE FRAUD DEFENSE RESOURCES PAGE The Harrison Narcotic Tax Act of 1914 (“the Act”) was the first substantial step towards the closed system of distribution of narcotics and the limitation of narcotics to prescriptions issued by physicians for “legitimate medical purposes.”[ix] Interestingly, like its predecessors, the Act was still a revenue measure essentially making it illegal to distribute narcotics without a tax stamp, which cost one dollar per year.[x] However, the Act went further and required that distributors register with the local Internal Revenue Collector and keep meticulous records of drug transfers.[xi] In addition, the Act required a “written order” which must be kept by the distributor or prescriber for two years.[xii] The Act also contained a specific exemption where an order for a drug was issued by a physician to a patient in the “course of his professional practice.”[xiii] CHECK OUT OUR OTHER BLOG ENTRIES United States v. Jin Fuey Moy was one of the first cases in which the Supreme Court was asked to determine the applicability of the Harrison Tax Act to a physician’s practice.[xiv] Dr. Jin Fuey Moy was indicted for engaging in a conspiracy with Willie Martin to distribute morphine sulphate.[xv] Mr. Martin was not registered with the local Internal Revenue Collector as required by the Act and, as such, could only receive the morphine sulfate pursuant to a written prescription.[xvi] Dr. Moy issued prescriptions to Mr. Martin and the indictment alleged that the prescriptions were not written “in good faith” and not for a “medical purpose” but rather simply for the purpose of supplying Mr. Martin drugs to feed his addiction.[xvii] Given that Mr. Martin was not registered under the Act and was not a patient receiving medication for a “medical purpose,” the government indicted Dr. Jin Fuey Moy.[xviii] The court reasoned that the Act was created pursuant to a treaty and was enacted pursuant to the government’s spending power and, therefore, did not apply generally to the public but rather only to those that the Act sought to regulate.[xix] The court declined to give the Act the power of a general police measure because it was enacted as a revenue act under Congress’s spending power.[xx] The constitutionality of passing a revenue measure that had the purpose and effect of an encroachment on the states’ police power to regulate the practice of medicine was revisited three years later in United States v. Doremus.[xxi] Dr. Doremus was indicted for providing heroin to an individual “not in the course of professional practice” but because the patient was a “dope fiend.”[xxii] The district court, following Jin Fuey Moy, declared that the Act was not a proper revenue measure and was an invasion of the police power reserved to the states.[xxiii] Declining to usurp Congress’ constitutional shell game, the Supreme Court disagreed and held that the Act cannot be declared unconstitutional simply because it accomplishes another purpose other than raising revenue.[xxiv] The effect of Doremus was sweeping; the Supreme Court gave Congress the authority to “supplant any contrary state law and impose a nationwide blanket prohibition on the sale of narcotics to be enforced with severe criminal penalties, excepting only distribution that the Treasury Department (and the Court) deemed to be in the regular course of the professional practice of medicine.”[xxv] The Supreme Court did not waste any time in weighing in on whether a physician’s practice was appropriate. On the same day as its decision in Doremus, the Supreme Court issued its opinion in Webb v. United States which was the first time the Supreme Court delved into the murky waters of determining the legality of a physician’s prescribing practices.[xxvi] Dr. Webb was a properly registered practicing physician who worked in close proximity with Mr. Goldbaum, a retail pharmacist in Memphis.[xxvii] Dr. Webb prescribed morphine for “addicts” without examination and solely for the purpose of treating addiction, provided they apply and pay the necessary office visit fee of 50 cents. Dr. Webb claimed that he would prescribe morphine in such a way that would tend to “cure” or “break the addiction.”[xxviii] Mr. Goldbaum regularly filled the prescriptions and ultimately filled “thirty times as much morphine” as was bought by the average pharmacy in Memphis.[xxix] With little fanfare, the Supreme Court declared that to consider such an order a “prescription would be so plain a perversion of meaning that no discussion of the subject is required.”[xxx] Six years later in Linder v. United States[xxxi] the Supreme Court appeared to claw back some of the power provided to Congress in its previous Harrison Act decisions. Justice McReynolds, joined by eight colleagues, writes, “[o]bviously, direct control of medical practice in the States is beyond the power of the Federal Government. Incidental regulation of such practice by Congress through a taxing act cannot extend to matters plainly inappropriate and unnecessary to reasonable enforcement of a revenue measure.”[xxxii] The court noted that the Act says nothing of “addicts” and does not undertake to prescribe methods for medical treatment. Furthermore, the unanimous opinion stated that the court cannot conclude that a physician acted inappropriately simply for prescribing to an “addict.”[xxxiii] Interpreting the Act to mean that a physician may “never give an addict moderate amounts of drugs for self-administration in order to relieve conditions incident to addiction would certainly “encounter grave constitutional difficulties.”[xxxiv] Leaving no question that the Supreme Court does not want Congress meddling in the proper bounds of the practice of medicine, the court left us with the following: The unfortunate condition of the recipient certainly created no reasonable probability that she would sell or otherwise dispose of the few tablets entrusted to her; and we cannot say that by so dispensing them the doctor necessarily transcended the limits of that profession, conduct with which Congress never intended to interfere.[xxxv] As the Nixon administration was attempting to reign in the rampant drug use left over from the 1960’s and the effects of the Vietnam war, the Nixon administration unveiled its “War on Drugs” initiative.[xxxvi] President Nixon’s major platform initiative during the 1970’s was to stem drug abuse and drug crime in the United States. The President’s anti-drug rhetoric was effective; Richard Nixon and Congress received a powerful mandate from the electorate, as President Nixon won every state but Massachusetts in the 1972 election.[xxxvii] The Controlled Substances Act was passed in 1970 as the Comprehensive Drug Abuse Prevention and Control Act of 1970 and received strong bi-partisan support with only six votes against passage.[xxxviii] It would not be long u [i] T.M. Quinn & G.T. McLaughlin, The Evolution of Federal Drug Control Legislation, 22:3 Catholic University L. Rev. (1973).

[ii] See Tariff Act of 1832, Ch. 227, § 3, 4 Stat. 590 (1832).

[iii] Ch. 270 § 8, 5 Stat. 548 at 558 (1842).

[iv] Ch. 163, § 5, 12 Stat. 543 at 548 (1862).

[v] See source cited supra note 21, p. 591.

[vi] Id.

[vii] Ch. 3915, 34 Stat. 768 (1906).

[viii] Ch. 100, 35 Stat. 614 (1909); International Opium Convention, The Hague (Jan. 23, 1912), 38 Stat. 1912 (1915).

[ix] Ch. 1, 38 Stat. 785 (1914).

[x] Ch. 1, § 6, 38 Stat. 785 (1914).

[xi] Id.

[xii] Ch. 1, § 3, 38 Stat. 785 (1914).

[xiii] Id.

[xiv] United States v. Jin Fuey Moy, 241 U.S. 394, 399 (1916).

[xv] The combination of substances found in Oxycontin. Id.

[xvi] Id.

[xvii] Id.

[xviii] Neither the government nor the court addressed the presumption that supplying medication to Mr. Martin for the purpose of satisfying his addiction was for a “non-medical” purpose. The court would not do so until Linder v. United States in 1925. Linder v. United States, 268 U.S. 5 (1925).

[xix] Id. at 400.

[xx] Id.

[xxi] United States v. Doremus, 249 U.S. 86 (1919).

[xxii] Id. at 90.

[xxiii] Id. at 94.

[xxiv] Id.

[xxv] Christopher Bryant, The Third Death of Federalism, 17 Cornell J. L. & Pub. Pol’y 101, 109.

[xxvi] Webb v. United States, 249 U.S. 96 (1919).

[xxvii] Id. at 97.

[xxviii] Likely a form of “weaning” as is commonly done with Suboxone and other opiate addiction treatment regimes.

[xxix] Id. at 99.

[xxx] Id.

[xxxi] Linder v. United States, 268 U.S. 5 (1925)

[xxxii] Id. at 18.

[xxxiii] Id.

[xxxiv] Id. at 22.

[xxxv] Id. at 22-23.

[xxxvi] Richard Nixon, 28 - Statement on Establishing the Office for Drug Abuse Law Enforcement, The American Presidency Project (Jan. 28, 1972), http://www.presidency.ucsb.edu/ws/?pid=3552.

[xxxvii] Election of 1972, The American Presidency Project, http://www.presidency.ucsb.edu/showelection.php?year=1972 (last visited May 20, 2018).

[xxxviii] House Vote #355 in 1970 (91st Congress), Govetrackhttps://www.govtrack.us/congress/votes/91-1970/h355 (last visited Jun. 6, 2018).

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