This Act as re-enacted in the Internal Revenue Code requires registration with the Director of Internal Revenue and the payment of a graduated occupational tax by all persons who import, manufacture, produce, compound, sell, deal in, dispense, or give away, narcotic drugs. The special tax for importers, manufacturers, producers or compounders is $24 per annum; for wholesale dealers $12 per annum; for retail dealers $3 per annum; and physicians, dentists, veterinary surgeons and other practitioners, as well as persons engaged in research, instruction or analysis are required to pay $1 per annum.

A commodity tax at the rate of 10 per ounce or fraction thereof is imposed upon narcotic drugs produced in or imported into the United States and sold, or removed for consumption or sale. This tax, it might be added, is in addition to any import duty imposed on the drugs. Exempted from certain restrictions of this Act is the manufacture, sale, distribution, giving away, dispensing or possession of preparations and remedies not containing more than 2 grains of opium, more than 1/4 of a grain of morphine, or more than 1/8 of a grain of heroin, or more than 1 grain of codeine or any salt or derivative of any of them in 1 fluid ounce or, if a solid or semi-solid preparation, in 1 avoirdupois ounce, or to

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liniments, ointments or other preparations which are prepared for external use only, provided however that there is no intent to use these remedies for the purposes of evading the Act and provided further that a record of their use is kept for two years and is readily accessible to inspection by an officer, agent or an employee of the Treasury Department.

Sales or transfers of narcotic drugs are limited generally to those made pursuant to official order forms obtainable, in blank, by registrants, from the Director of Internal Revenue. Exception from the order form requirement is made in favor of dispensing to a patient by a qualified practitioner in the course of his professional practice only, provided however, that such physician, dentist, or veterinary surgeon shall keep a record of all such drugs dispensed or distributed. The record must include the amount dispensed, the date, the name and address of the patient to whom the drugs are dispensed except in cases where the drugs are dispensed by the physician in the course of personal attendance. Another important exception from the requirement of the Act is found in the case of a sale by a druggist to or for a patient, pursuant to a lawful written prescription issued by a qualified physician, dentist, or veterinary surgeon. Penalties are provided for violation of the Act and the Secretary of the Treasury is given the power to make, prescribe, and publish all the needed rules and regulations for carrying the provisions of this Act into effect. This Act is designed to direct the manufacture and distribution of narcotic drugs through medical channels to consumption use for medical or scientific purposes only.

In enacting this Act Congress bad definite goals in mind; first of all, to make it extremely difficult for marihuana to be acquired by persons who might desire to use it illicitly, and secondly, to develop an adequate means of publicizing dealings in marihuana in order to tax and control the traffic effectively. In accordance with these avowed purposes the Act requires registration with the Director of Internal Revenue in the district wherein the business is situated and the payment of a graduated occupational

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tax up to $24 upon all persons who import, manufacture, produce, compound, sell, deal in, dispense, prescribe, administer or give away marihuana. No commodity tax is imposed on this drug. A tax is imposed, however, upon all transfers of this drug at the rate of $1 per ounce or fraction thereof, if the transfer is made to a tax-payer who has previously paid the special tax and is registered under the Act, or, at the rate of $100 per ounce if the transfer is made to a person who has not paid the special tax and registered under the Act. Transfers also are limited generally to those made pursuant to official order forms obtainable from the Director of Internal Revenue. Furthermore, if a transfer is made without an official order form and without payment of the tax by the transferee, the transferor is liable for such tax as may be due. Exception from the order form and transfer tax requirement is made in favor of dispensing to a patient by a qualified practitioner in the course of his professional practice only, and in favor of a sale by a druggist to or for a patient, pursuant to a lawful written prescription issued by a qualified practitioner. In view of the fact that marihuana has been deleted from most pharmacopoeias the last exception is today academic.

In upholding the constitutionality of the Act the United States Supreme Court, in the case of U.S. v. Sanchez [340 U.S. 42] pointed out that its regulatory effect and its close resemblance to a penalty were not sufficient to invalidate the Act; that a tax is not invalid because it regulates, discourages, or even definitely deters the activities taxed, even though the revenue obtained is obviously negligible, or the revenue purpose of the tax is secondary, since an Act purporting to be an exercise of tax power is not any the less so because it tends to restrict or suppress the thing taxed. Additionally, said the court, it is not invalid because it touches on activities on which Congress might not otherwise legislate.

NARCOTIC DRUGS IMPORT AND EXPORT ACT

This Act authorizes the importation only of such quantities of opium and coca leaves as the Commissioner of Narcotics shall find to be necessary to provide for medical and scientific needs

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under such regulations as the Commissioner shall prescribe. importation of any form of narcotic drugs except such limited quantities of crude opium and coca leaves for medical and scientific uses is prohibited. The importation of smoking opium or of opium prepared for smoking is specifically prohibited, and possession of such opium is made prima facie evidence of an offense. The aim of this latter section is to stamp out the use of narcotics in this country except for legitimate medical purposes. While numerous attacks have been made on the validity of this section, the courts have held that under the power accorded it by the Constitution Congress had the power to regulate foreign commerce to create the presumption contained therein. The act also permits exportation of manufactured drugs and preparations under a rigid system of control, designed to assure their use for medical needs only in the country of destination.

The three principal Federal statutes controlling these dangerous substances have been supplemented by other legislative measures designed to control further possible sources of supply and to facilitate the task of enforcement.

By an Act of Congress approved January 17, 1914, a tax of $300.00 per pound was levied upon all opium manufactured in the United States for smoking purposes, and certain stringent conditions were imposed with respect to such manufacture. The purpose, of course, was to make such manufacture prohibitive, and the Act was held constitutional though the tax was so high as to be prohibitive of the traffic. Since, as previously indicated, no opium can lawfully be imported for the purpose of manufacturing smoking opium, and the product can not be lawfully sold, it is legally impracticable for one to seek to operate as a manufacturer under this Act, even if undeterred by the prohibitive conditions explained. The Act affords an additional prosecutive basis, however, where clandestine manufacture of smoking opium can be established by evidence.

Under an Act of Congress approved August 9, 1939, as amended August 9, 1950, it was made unlawful to transport,

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carry, or convey any contraband narcotic drug in, upon or by means of any vessel, vehicle or aircraft; to conceal or possess any such drug in or upon such vessel, vehicle or aircraft or upon the person of any one in or upon such vessel, vehicle or aircraft to facilitate the transportation, carriage, conveyance, concealment, receipt, possession, purchase, sale, barter, exchange or giving away of any contraband narcotic drug. The definition of the term contraband article as it relates to narcotic drugs (including for the purposes of this Act marihuana) is extensively stated in the statutes, but it may be briefly, if necessarily not wholly accurately, summarized as any narcotic drug which has been or is possessed with intent to sell in violation of law or which has been acquired or is possessed, sold,* transferred or transported in violation of law. Any vessel, vehicle or aircraft so unlawfully used may be seized and forfeited. An appreciable number of vehicles are seized under the Act by the Bureau of Narcotics, and forfeited to the United States. After forfeiture some of these vehicles, as authorized by law, are used in enforcement work in the investigation, detection and arrest of other violators. Thus an important facility for illicit narcotic peddling is taken from the violator and becomes a facility on the side of law enforcement for detecting and eliminating other violators.

By a special Statute approved July 3, 1930, the Commissioner of Narcotics is authorized and empowered to pay to any person from funds appropriated for the enforcement of the Federal narcotic laws of the United States, for information concerning a violation of any narcotic law resulting in a seizure of contraband narcotics, such sum as he may deem appropriate.

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for treatment. The original Act provided, and a superseding Statute still provides, that the Surgeon General (of the Public Health Service) shall cooperate with the States for the purpose of aiding them to solve their narcotic drug problems and shall give authorized representatives of the States the benefit of his experience in the care, treatment and rehabilitation of narcotic addicts to the end that each State may be encouraged to provide adequate facilities and methods for the care and treatment of its narcotic addicts. It is important to note that any of those men or women who have become addicted to narcotic drugs as defined by Federal law are eligible for admission. According to the Federal statute an addict is a person who uses narcotic habit-forming drugs to the point that he has become dependent upon them. This dependence may jeopardize his general health and welfare, and the individual has lost his self control as far as the drug is concerned. The habit-forming narcotic drugs are opium and its derivatives; isonipecaine and its derivatives, compounds, and preparations; the opiates; cocaine; and marihuana. It is important to note that persons addicted to the barbiturates or alcohol are not eligible for treatment at the hospital unless they are also habitual users of one of the drugs cited above.

A physician who intends to practice medicine and to administer or dispense narcotic drugs in the course of such practice must apply for registration under the Harrison Law with the Director of Internal Revenue of the district in which he proposes to practice, and must pay the appropriate occupational tax for the fiscal year applicable. Before being entitled to such registration, however, he must be lawfully entitled under the laws of the State or Territory or district wherein he intends to practice, to distribute, dispense, give away, or administer narcotic drugs to patients upon whom he, in the course of his professional practice is in attendance [26 U.S.C. 3220]. In the case of a medical practitioner, this requirement usually means that the applicant is a physician who holds an unrevoked and unrestricted license to practice medicine in the particular State, Territory, or district.

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To be entitled to registration, however, in the case of any type of practitioner of the healing art, it must appear that he is entitled under the State laws to distribute, administer, or dispense narcotic drugs to patients whom he is professionally attending.

The right to register and pay tax under the Federal statute depends on the right to dispense under the State laws.*

The provisions of the law are substantially the same for a druggist. A druggist who intends to sell and deal in narcotic drugs must apply for registration under the Harrison Act with the Director of Internal Revenue of the district wherein his business is located, and must pay the required occupational tax. Furthermore, be must be licensed under the State laws in order to register and pay tax under the Federal statute.

INVENTORY

Every person making application for registry or re-registry as a physician or druggist shall, as of December 31 preceding the date of his application, or any date between December 31 and the date of applying for such registry or re-registry, prepare in duplicate an inventory of all narcotic drugs and preparations on hand at the time of making such inventory. The inventory shall be prepared on the reverse side of Form 678, copies of which may be obtained from Directors of Internal Revenue upon request. The original inventory shall be forwarded to the Director with the application for registration, and the duplicate shall be kept on file by the maker for a period of two years.

Upon approval of the application for registration the Director of Internal Revenue will assign a registry number to the applicant and will issue him a special tax stamp in Class IV as a practitioner, or in Class III as a druggist. This special tax stamp must be kept posted conspicuously on the premises covered by the registration, i.e. the physician's office or the drug store.

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CHANGE OF ADDRESS

A physician registrant who changes the location of his office shall, within 30 days, execute a new return on Form 678, marking it "Revised Registry." The return shall set forth the date of change and the new address. The return shall be forwarded with the special tax stamp to the Director who issued the stamp for recording the change. If the removal is to another State, Territory or district, the physician must, of course, be qualified in the new location to administer, dispense or distribute narcotic drugs to patients, which usually means that be must also be licensed to practice medicine in the new location.

A physician may obtain narcotic drugs for direct dispensing or administration to patients only on official order forms. He may not obtain narcotic drugs on a prescription for general office use. Official order forms in triplicate are obtainable from the Director of Internal Revenue in a book of ten for ten cents. The form is to be prepared in triplicate and signed by the physician, the original and triplicate copy being forwarded to a qualified manufacturer or wholesaler, and the duplicate retained by the physician for a period of two years subject to inspection by a duly authorized Federal or State narcotic officer. The order form may be prepared in typewriting, ink or indelible pencil, but not by the use of an ordinary lead pencil.

A prescription for narcotic drugs may be issued only by a duly registered physician for a bona-fide patient for medical purposes only, which prescription may be filled by a qualified druggist.

A prescription, in order to be effective in legalizing the possession of unstamped narcotic drugs and eliminating the necessity for use of order forms, must be issued for legitimate medical purposes. The responsibility for the proper prescribing and dispensing

of narcotic drugs is upon the practitioner, but a corresponding liability rests with the druggist who fills the prescription. An order purporting to be a prescription issued to an addict or habitual user of narcotics, not in the course of professional treatment but for the purpose of providing the user with narcotics sufficient to keep him comfortable by maintaining his customary use, is not a prescription within the meaning and intent of the act; and the person filling such an order, as well as the person issuing it, may be, charged with violation of the law.

A prescription for narcotic drugs shall be dated as of and signed on the date when issued and shall bear the full name and address of the patient and the name, address and registry number of the practitioner. A physician may sign a prescription in the same manner as be would sign a check or legal document, as, for instance, John H. Smith, J. H. Smith, or John Henry Smith. Prescriptions should be written with ink or indelible pencil or typewriter; if typewritten, they shall be signed by the practitioner. The refilling of a prescription for taxable narcotic drugs is prohibited. The practitioner is responsible in case the prescription does not conform in all essential respects to the law, and regulations. However, a corresponding liability rests upon the druggist who fills a prescription not prepared in the form required by law.

When the names of fictitious patients are discovered on narcotic drug prescriptions filed with a druggist it is usually a clear indication of wilful catering to drug addiction, whether or not the so-called prescriptions are also discovered to be forged. Sometimes the physician will insert a fictitious patient's name, however, because be wishes to conceal from the druggist the fact that the real patient is consuming drugs, notwithstanding that the real patient is claimed to have a bona fide medical need therefor. The law does not permit the use of a fictitious name upon a prescription.

The furnishing of narcotic drugs pursuant to telephone advice of practitioners is prohibited, whether prescriptions covering such orders are subsequently received or not, except that in an

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emergency a druggist may deliver narcotic drugs through his employee or responsible agent pursuant to a telephone order, provided the employee or agent is supplied with a properly prepared prescription before delivery is made, which prescription shall be turned over to the druggist and filed by him as required by law.

A physician's prescription blanks should be most carefully safeguarded and never left where persons who may be drug addicts will have opportunity to take them, and to prepare and have filled forged narcotic prescriptions. A physician's official order forms should be likewise safeguarded, and great care should be exercised by the physician in keeping his stock of narcotic drugs secure from robbery or pilfering. The medicine case containing narcotic drugs should never be left in an unattended automobile.

The Uniform State Narcotic Law differs from the Federal Law in some respects-for instance, it requires manufacturers of and wholesale dealers in narcotic drugs to obtain a license from the appropriate State agencies and prescribes certain qualifications for these licensees and it directly and specifically penalizes the forgery or alteration of a narcotic prescription. In so far as the professional use of narcotic drugs is concerned, however, the statutory standard is practically the same as that provided by the Federal Narcotic Law. Whereas Section 2554 of the Internal Revenue Code requires no record to be kept where the doctor is in personal attendance, Section 9 of the Uniform Narcotic Drug Act requires no record where the narcotic drugs are administered, dispensed or professionally used in the treatment of any one patient when the amount administered does not exceed 1/2 of a grain in forty-eight consecutive hours 4 grains of opium or 1/2 of morphine, or any of its salts, or 2 grains of codeine, or any of its salts, or a quantity of any other narcotic drug, or any combination of narcotic drugs that does not exceed in pharmacologic potency any one of the drugs named in the quantity stated.

It is important to note, however, that some States, such as New Jersey, North Carolina, Iowa, and the District of Columbia, and others require a record to be kept of all drugs administered and

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dispensed, regardless of amount. Thus under the Uniform Act a physician in good faith and in the course of his professional practice only is permitted to prescribe and administer narcotic drugs, or may cause the same to be administered by a nurse or interne under his direction and supervision. Under the same Act a druggist in good faith may sell and dispense narcotic drugs to any person upon a written prescription of a physician.

It is also important to note that under the Harrison Act preparations containing not more than 2 grains of opium, or more than 9 of a grain of morphine, or more than 1/8 of a grain of heroin, or more than 1 grain of codeine, or any salt or derivative of any of them in 1 fluid ounce, or if a solid or semi-solid preparation in 1 avoirdupois ounce, are exempt preparations. The original Uniform Narcotic Drug Act made these same preparations exempt, but the States of Colorado, Vermont, Wisconsin, Kentucky, Louisiana, New Jersey, North Dakota, Oregon, Montana, Iowa, South Dakota, Minnesota, and the Territory of Alaska have changed these exemptions to apply only to preparations that contain in 1 fluid ounce, or if a solid or semi-solid preparation in 1 avoirdupois ounce, not more than 1 grain of codeine or any of its salts. The main effect of this change in the law was to put paregoric under prescription.

There is no limitation on the quantity of narcotics externally used preparations may contain, provided such preparations contain other ingredients rendering them unfit for internal use. Preparations containing cocaine or pantopon in any quantity, whether for internal or external administration, are never exempt, nor are preparations containing any of the synthetic narcotic drugs.

A recent State civil suit in Massachusetts* against a physician for malpractice arising out of the improper prescribing of narcotic drugs disclosed that the plaintiff was suffering from nausea, but without pain, and that the defendant doctor without any physical examination or without any complaint of pain by her or questions as to her medical history, gave her increasing hypodermic injections of morphine. These injections continued with

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* King v. Solomon 81 N.E. 2d 838.

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increasing frequency until ultimately she was receiving them three or more times a day. The doctor was discharged from the case and the plaintiff experienced a complete black-out and was admitted to the hospital suffering from morphine addiction "one-quarter of the way along to confirmed addiction." Subsequently plaintiff was found to be suffering from gall bladder trouble and had her gall bladder removed and after the operation the nausea ceased. Medical testimony at the trial disclosed that the nausea was caused by the gall bladder trouble; that it was possible to have gall bladder trouble with nausea and without pain; that gall stones do not arrive suddenly; that it was improper medical practice to administer morphine to a patient who complained of nausea but not of pain, or over a period of time where there was no pain involved; and that it was not proper to continue giving morphine in the absence of a diagnosis of a condition that could not be cured. The jury found in favor of the plaintiff. One of the defenses by the defendant physician was the section of the Massachusetts law which says

A physician may personally administer any narcotic drug at such time and under such circumstances as be, in good faith and in the legitimate practice of medicine, believes to be necessary for the alleviation of pain and suffering and for the treatment and relief of pain.

The Court, however, held that this section was intended, when complied with by the physician, to exempt him from the penal provisions pertaining to the sale and distribution of narcotic drugs and that it was not intended to relieve him from civil liabilities applicable generally to physicians. Said the Court,

The decision rests upon evidence of improper and non-professional conduct on the parts of the defendant leading to addiction in the plaintiff, Eva King. Nothing contained herein need cause anxiety to an honest physician who administers narcotics to a patient in accordance with the prevailing standards of practice.

It is important to note in the facts that the defendant physician prescribed narcotics without any physical examination or questions as to medical history. Recent investigations have disclosed that many physicians have prescribed narcotics to patients with

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out any physical examination and mainly on the representations of the patient. It would thus unquestionably follow that the lack of a physical examination would have a strong bearing on the question of the good faith of the physician.

There has not been too extensive litigation on this question of a physician's civil liability with regard to the administration of narcotic drugs. However, one thing does seem clear and that is that a physician who prescribes narcotics solely on a representation of a patient and without any attempt to secure the facts of the past history or examine the patient is certainly exposing himself within the scope of the aforementioned decision, depending, of course, on the facts of the case. From an evidential angle, unless a serious illness requiring narcotic drugs could be proven, prescriptions issued with increasing frequency by a doctor might certainly tend to inculpate the doctor in a violation of the penal provisions of the law or a possible civil liability, based on malpractice, or both. At any rate, it would certainly be wise for all physicians to treat this subject of administering or prescribing narcotic drugs with unusual care. As an example of the types of violations which have been found and which are fairly common are the following:

In the instruction* to a series of articles printed in The Journal of the American Medical Association in 1931 on the Indispensable Use of Narcotic Drugs, Dr. Morris Fishbein has presented to the medical profession some excellent suggestions dealing with the general professional use of narcotic drugs. If all physicians would accept and conscientiously follow these suggestions,

*Various authors; "The Indispensable Use of Narcotic Drugs," 96:856, 1931.

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which are quoted below, irregularities in prescribing and dispensing of narcotic drugs by physicians would be reduced to a minimum.

The problem of narcotic addiction merits the attention of physicians for many reasons. . . . the medical profession must do everything possible to minimize the prescribing of narcotics in order to make unnecessary further restrictive measures. Physicians should give more serious consideration to the materia medica, pharmacology, and therapeutics of narcotics.

Physicians may, by the exercise of more thought in practicing, do much to avoid censure in relation to narcotic addiction. They may substitute, whenever possible, non-habit-forming drugs in the place of morphine or other opium alkaloids. When narcotics are indispensable, however, as shown in this series of articles, no more should be administered than is necessary to achieve the desired end. Patients requiring daily administration should be seen often by the doctor and the amount of drugs ordered or supplied should not exceed that required by the patient until seen again. Independence of administration on the part of nurses should be strictly limited to prescription and any change in treatment should be in writing.

In conclusion, a physician could avoid the pitfalls attendant to criminal and civil liability if the following fundamental rules were observed: