This past month, Congress passed a flurry of bills dedicated to stopping the devastation of the opioid crisis. One focus is on stopping illegal opioid imports from coming in though the U.S. mail. The Synthetics Trafficking and Overdose Prevention Act, which passed in the House, is one such bill. But as I wrote in the The Hill last year, the STOP Act could also enable the FDA to more easily prevent Americans from importing lower-cost, safe and effective medicines from Canada and other countries.
The FDA is also fighting the opioid crisis by scrutinizing the Internet as a channel of illegal sales. That, too, could lead to the curtailment of access to lower-cost, imported medicines from pharmacies, ones which don’t sell opioids or controlled drugs at all, but do help people afford medicines.
Ideally, people who use a search engine, such as Google, find information based on an objective search algorithm. With tens of millions of Americans not filling prescriptions due to high prices here at home, many are Googling to find and order cheaper medication from international online pharmacies. According to the Kaiser Family Foundation, despite federal prohibitions, around 20 million Americans say they have imported prescription medication. It’s clear that, amid stagnant proposed solutions to lower their drug prices, going online is helping patients now. Contrast that with people who are looking online to illegally obtain opioid drugs without a prescription. Close to 100 people die each day from overdosing, so stopping illegal opioid sales, including online is also of great public health importance. The U.S. Food and Drug Administration has called a meeting of Internet company giants to talk about how to stop them. However, there are reasons to believe that the FDA’s interest may veer from putting an end to illegal opioid sales to targeting all international online pharmacies.
In 2010, Google, under federal investigation for allowing online ads for sellers of addictive prescription drugs without a prescription, barred rogue online pharmacies from advertising. Under pressure from the FDA, it also banned all non-U.S. pharmacies from advertising to U.S. patients. This included Canadian pharmacies that require valid prescriptions and do not sell addictive drugs into the U.S. That investigation led to a 2011 non-prosecution agreement in which Google forfeited $500 million to avoid charges relating to its actions. In that case, the forfeiture was based on paid ads on Google for controlled drugs sold without a prescription, not organic search results.
I was subpoenaed by the U.S. attorney responsible for that case, which is one reason I see where this most recent FDA initiative could be heading. For full disclosure, my company, PharmacyChecker.com, verifies international online pharmacies and compares their prices. Google used our verifications from 2006 through 2009 to aid in vetting qualified online pharmacy advertisers. According to the non-prosecution agreement, Google was not following its internal protocols for stopping unverified sites, ones that our company had not evaluated, from advertising.
That case had to do with paid advertising, not organic search results, which are supposed to be based on the most relevant content not who pays Google the most. A new deal between Google and the FDA made public by free speech law professor Eugene Volokh on Reason.com’s The Volokh Conspiracy, is framed so that Google will remove websites from organic search results based on “administrative agency findings that [websites] illegally distribute material that risks physical harm to consumers.” Upon close examination, this is a deeply troubling departure for Google, which, with exceedingly limited exceptions, has held that it would not remove content from its organic search results except through court order. According to Volokh, the only agency making such requests is the FDA.
That language indicates that it may soon be impossible for an American using Google to find a reputable Canadian or other international pharmacy. An FDA administrative decision could target the safest Canadian pharmacies. For example, if a website is selling medication that is dispensed and mailed from a pharmacy in Canada to a patient in the U.S., then it could be delisted. From an objective public health standard, “material” from such pharmacies does not risk “physical harm to consumers” but the FDA may be willing to say otherwise. As I wrote in the New York Times in 2014, the agency too often wrongly conflates imported medications with counterfeit drugs.
Not surprisingly, delisting all Canadian and other international pharmacies from Google’s U.S. search was a goal of the industry. In 2014, at a congressional hearing, Bruce Longbottom of Eli Lilly recommended the following:
“If a website selling medicines did not sell only FDA-approved drugs or did not provide those services using a state-licensed pharmacist, after delisting you would not find that website in the search results. The online pharmacy would still be available on the Internet, no doubt hosted in another country, but it would not be found by the patient in the U.S. who is doing an Internet search for his or her medication.”
There are thousands of rogue pharmacy sites that consumers need to avoid. Many are fly-by-night entities that infiltrate the Internet like weeds. They go down one day and then reappear a week later. In contrast, the safest international online pharmacies have been in business for many years. If they are removed from organic search, it may put them out of business. That would represent a victory for the drug companies, but a sad day not just for patients but for those who care about keeping the Internet free from overzealous government censorship.
Google does not have to succumb to this self-censorship, letting the FDA dictate which content is permissible in its organic search results, but they are. When Sheryl Sandberg, current Chief Operating Officer of Facebook, was an executive with Google, she testified before Congress in 2003 on the issue of prescription drug importation:
“As a provider of Internet-based information tools, Google has no position on the broader merits of the drug importation debate, or on the optimal mechanisms for regulation of online pharmacies; rather, our interest is to preserve the ability of Internet users to find useful and relevant information, including information about licensed pharmacies.”
What patients need is the ability to search the Internet to find useful and relevant material, including information about licensed international pharmacies from which they can afford medication. By searching Google, Americans find real pharmacies in Canada and other countries, ones that require a valid prescription and safely sell medication (and do not sell opioid drugs); just as they can find rogue “pharmacy” websites that can harm them. Censoring the former to protect patients from the latter is a blow to patients and a free Internet.Tagged with: Enforcement, Google, U.S. Food and Drug Administration, Volokh Conspiracy