Online pharmacy law is still in its infancy. While there have been significant legal developments in the past few years with respect to internet pharmacies selling controlled substances, including but not limited to the passing of the Ryan Haight Act, the law with respect to noncontrolled substance internet pharmacies remains undeveloped and incredibly ambiguous. The Federal Food, Drug & Cosmetic Act regulates prescriptions of noncontrolled substances and, while it was written without internet pharmacies in mind, its misbranding provisions are utilized by federal prosecutors in the investigation and prosecution of online pharmacies selling noncontrolled substances.

However, the misbranding provisions of the Federal Food, Drug & Cosmetic Act are incredibly ambiguous. The misbranding provisions only outlaw the dispensation of a noncontrolled substance prescription medication without a prescription. The question remains what constitutes a prescription under the Federal Food, Drug & Cosmetic Act. Interestingly, while the FFDCA utilizes the phrases “valid prescription” in some provisions, it does not utilize the phrase in the misbranding provisions.

Unlike the misbranding and adulteration provisions of the Federal Food, Drug & Cosmetic Act, the Ryan Haight Act, which regulates the dispensation of controlled substances without a “valid prescription,” actually defines valid prescription. Specifically, among other things, a valid prescription requires a face to face, in person medical examination from the prescribing physician under the Ryan Haight Act.