Wednesday, December 21, 2005
Today the Office of the Attorney General posted a new opinion that may be of interest to members of the Health Law Section:
Opinion No. GA-0384
Go to: http://www.oag.state.tx.us/opinions/op50abbott/ga-0384.htm
Re: Whether federal law preempts a portion of Senate Bill 410, enacted during the regular session of the Seventy-ninth Legislature, that purports to authorize the importation of Canadian pharmaceuticals into Texas, and to require the State Board of Pharmacy to assist in such importation (RQ-0355-GA) http://www.oag.state.tx.us/opinions/requests_ga/RQ0355GA.pdf
Summary: Sections 36 through 43 of Senate Bill 410, enacted during the Seventy-ninth regular session of the Texas Legislature, directly conflict with federal law, namely the Federal Food, Drug, and Cosmetic Act, chapter 9 of title 21 of the United States Code (the "FFDCA"), and specifically sections 381 and 384 thereof. The FFDCA makes it an offense not only to import, but to "cause" the importation of prohibited medications. See 21 U.S.C. § 331 (2000 & Supp. 2003). By "designating" certain Canadian pharmacies, promoting them on its website, and expressly permitting Texas consumers to import prescription drugs that cannot be imported under federal law, the Texas State Board of Pharmacy would violate the Federal Food, Drug, and Cosmetic Act, as will Texas consumers and those Texas pharmacies that take part in such transactions.
 Note: 21 USC § 331 has been amended five times since the publication of the 2000 United States Code:
(i) Pub. L. No. 108-136, § 1603(c)
(ii) Pub. L. No. 108-173, § 1121(b)(1)
(ii) Pub. L. No. 108-214, § 2(b)(2)(A)
(iii) Pub. L. No. 108-282, § 102(b)(5)(C) & (D)
(iv) Pub. L. No. 109-59, § 7202(d) & (e).