D.E.A's Position on Controlled Substances is Inconsistent (and Unfair)

October 25, 2012 by Carl Lietz

Recently, I read an article in Bloomberg Businessweek entitled: "American Pain: The Largest U.S. Pill Mill's Rise and Fall." Among other things, the article recounts the story of two brothers who were investigated and prosecuted in federal court for operating a number of pain management clinics in Florida, Georgia, and at least one other federal district. Ultimately, both brothers were prosecuted and convicted for a host of federal crimes, inluding RICO violations, fraud offenses, possession with intent to distribute controlled substances, and federal conspiracy charges. Both brothers are serving sentences in federal prison of over 15 years.

These days, investigations and prosecutions of doctors, owners, and others associated with alleged overprescribing in pain management clinics are not surprising. As we have discussed before here, in federal courts in Atlanta, Savannah, and many other jurisdictions, federal agents and federal prosecutors are bringing aggressive prosecutions against all of those associated with the prescribing of controlled substances. For the most part, prosecutors bring charges under the Controlled Substance Act, arguing that the prescriptions at issue were issued outside the usual course of practice, a term of art that must be supported by expert testimony.

One thing I did learn when reading the article, however, is this: Every year, the Drug Enforcement Administration (the same federal agency that prosecutes doctors for over-prescribing) establishes the quota of controlled substances (including opiods) that may be produced in the United States for the following year. For example, for 2012, the DEA set the quota for oxycodone production at 108 tons. Significantly, the article further points out that from 2008 to 2012, the DEA increased the permissible production quota of oxycodone by 40 percent.

To me, the Government's position on oxycodone seems particularly inconsistent. On the one hand, the DEA has increased the production quota of oxycodone by 40 percent in the last four years. In that same time period, however, the DEA has also increased in significant respects federal prosecutions of doctors and others associated with the prescribing of oxycodone and other controlled substances regulated by the DEA. Indeed, as the U.S. Attorney from the Northern District of Georgia announced during a "summit" on prescription drug abuse, federal investigators and prosecutors in the Atlanta area are ramping up investigations and prosecutions of pain management clinics.

There is no question that prescription drug abuse is a serious problem in the United States. However, in many respects, the DEA's apparent answer to this problem seems way off base. The DEA has spearheaded the prosecution of doctor after doctor (and others associated with pain management clinics) in the United States. At the same time, though, the DEA itself has increased in significant respects the flow of oxycodone (and other controlled substances) into the United States.

Given its apparent position that far too many oxycodone pills are being distributed by America's physicians, the DEA needs to try a different approach. Instead of continuing on its current path, the DEA needs to police itself and reduce the number of pills that that it permits drug companies to produce in this country.

The Bloomberg Businessweek article can be found here.