Putting The Hex On Rx

How online pharmacies are falling victim to Government regulation

Virginia Postrel | May 29, 2000

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Regulatory stings tend to get positive press in part because the public debate idealizes off-line medical practice, i.e., every doctor knows and carefully examines every patient before ever issuing a prescription. In congressional testimony, an American Medical Association representative declared that before prescribing a medication a physician must perform a physical exam and "initiate additional interventions and follow-up care." Reality is a lot more varied. Even Sanders of the Illinois Department of Professional Regulation, for instance, volunteers that his doctor--who has known him for 10 years--often gives him antibiotics for sinus infections without a checkup. By contrast, Filice, whose online prescribing so offended Illinois regulators, told a reporter he'd never issue a prescription for an antibiotic without a physical exam.

Reasonable care is a subtle concept; there isn't one best way of dealing with each and every patient. Defending Filice was difficult, says Chicago attorney Gerald Goldberg, because no doctor would step up and testify to what everyone knows: that conscientious physicians can and do sometimes issue prescriptions based solely on the sort of information that online questionnaires provide.

"It's going to take some credible people to come forward and start small and show the regulators that in some things it's OK," says Goldberg. That's a tough order, since regulators can put such dissidents out of business with heavy fines and license revocation.

Some online pharmacies are trying safety in numbers, banding together in a trade association. The Online Pharmaceutical Providers Association (OPPA) seeks to defend the industry against legal attacks and to develop and enforce a code of conduct and standardized forms for member sites. But OPPA wouldn't tell me its members' names, even off the record. For online pharmacies, going public is "like Chechen rebels sticking their heads out in Grozny--they are going to get blown away by the Russians," says Dr. William Feinstein, the New York City pharmaceutical consultant organizing the group. It's hard to plead your case if you're in hiding.

Which brings us back to the down-home pharmacy in San Antonio. ThePillBox.com no longer uses Web questionnaires, because the Texas Board of Medical Examiners banned the practice for Texas doctors in December. But Stallknecht is still fighting. Despite his mild-mannered appearance, he is indeed a radical--a Libertarian Party activist who until recently tried to keep his business and politics separate. Stallknecht strives to adhere to the letter of the law, but he pushes it as far as he can in the direction of consumer freedom. He doesn't even believe in legally enforced prescriptions.

"Tagamet, Pepcid, Zantac, Coricidin, Afrin--all of these were prescription drugs," he says. "Then they went over-the-counter, and all they had on [the package] was a sheet that told you the dangers. So why did they become safe one day, when they were dangerous the day before? And why were you stupid one day, to have to have somebody lead you through this, and all you have to do the next day is read the paper?" He believes the drugs he offers with Web questionnaires will eventually be sold without prescriptions anyway. In the meantime, the online questionnaires offer patients a more convenient, less intrusive way of providing the necessary information to a physician.

Stallknecht has filed suit in federal court to overturn Missouri's requirement that out-of-state pharmacists get Missouri licenses before they can ship prescriptions there. It's a long-shot constitutional challenge, but simply by fighting back in public, Stallknecht is changing the regulatory dynamic.

The Internet may enable new ways of doing business, but technology alone cannot protect online enterprises from police raids and court orders--at least not without destroying the aboveboard practices and information that protect consumers from truly sleazy operators. Internet freedom requires not only technological innovators but stubborn, unapologetic activists. Time will tell whether Stallknecht has the sophistication or the resources to counter the attacks on this new industry. But he certainly has the conviction.