September 11th forever changed the landscape of the United States. Many Americans no longer feel secure in their homes or at work. Part of this insecurity stemmed from the threat of biological terrorism such as Anthrax. That fear was realized in late 2001 when the United States Capitol had to be shut down because traces of Anthrax were found. In response to the scare, Americans scrambled to purchase the primary antibiotic used to combat Anthrax called Cipro even though none of them had been infected or exposed to Anthrax. Due to the widespread demand for the drug, many Americans decided to purchase Cipro online legally and illegally. Americans proceeded to consume the drug seeking to prevent any infection while others stockpiled it just in case.
During the months following the tragedy of September 11th, the widespread use of the internet to secure antibiotics may have posed a more serious threat than that of terrorists with biological weapons and warrants reexamining an emerging legal issue: online pharmaceutical sales. Without a pharmacist on site to advise patients about the extensive side effects of Cipro, many don't realize that the risk of adverse reactions to the drug is considerably higher than the chances of anthrax exposure. Compared to the (insert anthrax stats I sent you here), adverse reactions "probably or possibly related to drug therapy" are found in 16.5% of patients taking Cipro. These reactions usually manifest as nausea, diarrhea, vomiting, and abdominal pain, but Cipro can also affect the cardiovascular and nervous systems and cause a variety of other problems in virtually every organ system. Additionally, preventative antibiotic use when an infection is not present targets healthy bacteria that aid in digestion and help the body fight off infection, by taking up space so harmful bacteria cannot proliferate. The more antibiotics are used, the more likely bacteria are to acquire resistance, rendering future antibiotic use futile.
Despite the serious consequences of taking antibiotics needlessly they are still readily available online without a true doctor consultation (http://www.online-mexican-pharmacy.com/).
In his article Is There A Doctor In The House?, Chester Chuang suggests that we employ tort law to combat the safety issues connected with online sales of pharmaceuticals. Chuang, Chester. Is There A Doctor in the House? Using Failure-to-Warn Liability to Enhance the Safety of Online Prescribing, 75 N.Y.U. L. rev. 1452. Chuang argues that the learned intermediary doctrine should be eliminated (places the duty of care on pharmacists to inform patients of the harms of a drug) and the burden to inform consumers of side effects and interaction precautions should be moved to the drug companies (is this sentence passive?). Id. at 1480. To support this argument Chuang points out that the government will never be able to shut down illegal sites that prescribe drugs illegally because they are constantly moving. Id. at 1483. Thus, the common factor among the sale of the pharmaceuticals is the drug companies.
Chuang raises an interesting argument, but the Anthrax scare and ensuing mass consumption of Cipro demonstrate inherent flaws in simply repealing the learned intermediary doctrine as a means of dealing with online sales of prescription drugs. As noted above, drugs like Cipro do not have a powerful negative effect on the individual taking the drug, but instead make bacteria more resistant and negatively impact society as a whole. Drug companies, making millions of dollars from such antibiotics, are unlikely to use the utmost level of care in informing consumers of the negative overall affects of widespread use of their product. Companies will not use sufficient care because they know it is unlikely that courts would find them liable for the evolution of a resistant strain of bacteria that it reduces the probability of liability in Hand's formula to such a small number that it is inefficient for them to protect against such a possibility. In addition, an even stronger argument against Chuang's proposal is that frenzied Americans, hypochondriacs, or addicts will ignore companies' risk assessments. Therefore, the population's dangerous behavior is unlikely to be deterred by an increased level of participation by the drug companies.
In conclusion, it is clear that there is a problem with the increased level of accessability and sales of restricted pharmaceuticals over the internet. Tort liability may be an effective avenue for solving such problems, however, simply repealing the learned intermediary doctrine is not the answer. Criminal charges or tort damages against consumers of drugs obtained outside of the proper channels for breaching their duty of care to society at large could work together with Chuang's proposal to more effectively address this growing concern.
