State and Local Narcotic Control

2015

Early local and state narcotic controls in the United States grew out of the danger perceived by those American communities that were directly affected. Pennsylvania, the home of leading morphine manufacturers, enacted an antimorphine law as early as 1860. Two decades later Ohio passed a law against smoking opium, and in 1897, twelve years after the way had been prepared by pharmaceutical research for massive production of the compound, Illinois enacted a law against cocaine. (Laws of Pennsylvania of the Session of 1860, Act no. 374, Title I, Section 70, “Selling Poisons,” p. 401; Ohio Laws: 1885-1887, vol. 82, p. 49, passed 6 Feb. 1885. The Illinois law against cocaine was approved 11 June 1897 (Laws of Illinois [1897], p. 138). It allowed cocaine sale only on a physician’s or dentist’s prescription and refilling was prohibited.) Soon thereafter, as the activity of the American Pharmaceutical Association between 1901 and 1903 suggests, efforts within the states to control opiates and cocaine rapidly reached across the nation. Cocaine’s euphoric and stimulant qualities, as well as its association with crime and with a feared and repressed minority put it at the top of any list of outlawed substances. These characteristics of cocaine are similar to the description in the mid-1930s of marihuana’s effects.

Local laws varied in their severity. Some were so complicated or all-inclusive that it was practically impossible to fulfill their requirements. Others were expressions of concern over narcotics, but with loopholes to protect the sale of patent medicines and other domestic remedies that contained narcotics. (Martin I. Wilbert and Murray Gait Motter, Digest of Laws and Regulations in Force in the United States Relating to the Possession, Use, Sale, and Manufacture of Poisons and Habit-forming Drugs, Public Health Bulletin no. 56, Nov. 1912 (GPO, 1912).) The sale of drugs and patent medicines across state lines was affected little, if at all, by local measures. A typical law would provide for the sale of narcotized proprietaries without restriction, but would confine provision of pure drugs to pharmacists and physicians, requiring a prescription that would be retained by the pharmacist for inspection for a period of time, perhaps two or three years. Naturally, there were many ways around this modest regulation. A physician might dispense narcotics directly to his patients or to anyone coming to his office. Inspection of pharmacists’ prescriptions was notoriously rare; in some drugstores one could simply purchase a dime or a quarter’s worth of cocaine or morphine.

Some laws prohibited refilling of narcotic prescriptions in the attempt to cut off an unlimited supply of narcotics to anyone who had a tattered prescription. These laws generated arguments which became wearyingly familiar as the antinarcotic crusade progressed. On the one hand the wholesale and retail drug trades expressed concern for the poor who would be forced to visit a doctor every time a prescription for morphine or heroin had to be refilled. It was on behalf of unfortunates in the cities and in isolated rural communities that prescription refilling at the patient’s request was sought. Complaints that a prescription which could be indefinitely refilled was in effect a dangerous and uncontrollable opportunity to obtain habit-forming drugs was met with avowals that no self-respecting druggist would lower himself to be a mere purveyor of such substances.

Physicians, on the other hand, could accept the wisdom of such prohibitions; they did not plan to overcharge just because the patient had to return for prescription renewal. The effect of prohibiting prescription refills was to create steady customers who came back daily or weekly for brief visits to some physicians to get new prescriptions. A small percentage of physicians devoted themselves to this “specialty.” Their encounters with their numerous “patients” were short — some saw hundreds daily — but the fact that there was an encounter at all gave the public the satisfaction of knowing that addicts were “under the care of a physician.”

Let’s not confuse the nefarious with the respectable, the maintaining physicians argued, and treat patients with chronic diseases like addiction, dropsy, liver cirrhosis, and constipation as if they were criminals. (The belief in two classes of addicts, one bad and one either good or morally neutral, is a common conclusion of writers on narcotic use. Dr. George Wood (1868) describes the benevolent effects of opium on the healthy, but its baneful effects on the weak-willed. In this century in the U.S., the “underworld” user of narcotics was to be dealt with severely, but the “average” addicted person was to be pitied. Similarly in the Treasury Committee Report of 1919 the two classes of addicts were distinguished (Special Committee of Investigation Appointed March 25 1918, by the Secretary of the Treasury: Traffic in Narcotic Drugs, GPO, 1919))

Other physicians, the vast majority even according to advocates of addiction disease, shied away from treating, maintaining, or encouraging addicts. These doctors shared an attitude common in America: patient habitues were troublesome and untrustworthy. The rare physician who before 1919 publicly favored maintenance of addicts pleaded with his colleagues to cooperate, but the practitioners’ interest in doing so, either initially or as antinarcotic legislation gained ground, appeared to be rather small. (When addiction maintenance became specifically legalized in New York State (July 1917) the Medical Economist began a series of articles enumerating reasons for a physician to use opiates, partly as an inducement to the mass of physicians to assume some of the supply to addicts which had previously been borne by peddlers and other sources. “Opium  — The Obligation of the Physician to Use It” appeared monthly from July through December 1917. The journal’s attitude is characterized by a statement appearing in the August installment (5 : 143): “the law has deliberately said that [the physician] alone can use it and thus this wonderful medicine is wholly in our hands for use in the healing and mediating art of medicine.” Most physicians, to judge from the tone of the series, were not inclined to treat addicts, even if such care was legal.)

The health professions occupied a prominent position in the anti-narcotic crusade. No one questioned the medical need of opiates in some medical situations, and so initially the profession had a generally free hand. Lawmakers relied on professional ethics to control use of narcotics, but in the day-to-day practice of medicine, legal definitions could not easily distinguish between well-meaning overuse, use in error, and indiscriminate dispensing that led to addiction. Legally, restriction of narcotic transactions to licensed health practitioners was fairly simple, and the thought that this regulatory approach would fail because of the professionals’ own culpability was painful to contemplate, for the result would be an enforcement nightmare.

In the Harrison Act an attempt was made to distinguish legitimate from illegitimate prescription of narcotics by physicians. The Treasury and Justice Departments would argue in 1915 that supply of drugs for mere comfort or maintenance of addiction was illegitimate, but this interpretation was not supported by the Supreme Court until 1919. One can conceive the difficulty of framing legal rules for the practice of medicine, and it was this difficulty which earlier legislators believed could be avoided by trusting doctors to police themselves. When fear of narcotics grew, the health professions were high on the list of culprits.

Loopholes in various state narcotic laws also received criticism when alarm over addiction did not decline after legislation had been enacted. The patent-medicine makers, however, had some unusual weapons that protected their commercial well-being. Beyond the usual art of lobbying, proprietary manufacturers had clever contracts with newspapers that provided for cancellation of their large advertising contracts should any state law be enacted restricting the sales, labeling, or claims that the medicine makers chose to employ. This provision generally resulted in silencing the news media with regard to restrictions on patent medicines and revelations of their dangers. But by 1905 the criticism of narcotized proprietaries became so outspoken that the Proprietary Association of America, comprised of the leading manufacturers, favored strict limits on the amount of narcotics in across-the-counter remedies.

Furthermore, until labeling requirements were mandated by the federal Pure Food and Drug Act (1906), not only did manufacturers not list the narcotic or alcohol contents, they often positively denied its presence when it was plentiful in the substance. Apparently the remoteness of mail-order houses clouded their special role. By default, then, the health professions had a prominence greater than they deserved.

If the fear of drug abuse had diminished in the new century, the health professions would have had no worry. Fear accelerated, however, in spite of a leveling off in per capita narcotic importation. Record-keeping regulations made it possible for jurisdictions to examine the prescribing and dispensing habits of physicians and druggists. It was discovered, particularly after the Harrison Act made national narcotic record-keeping uniform, that a small percentage of the profession was simply selling narcotics, having received, as it were, a license from the state to do just that. Yet when the doctors were questioned or brought into court, they claimed they were merely practicing medicine and that they had every right to prescribe as they thought wise. Pharmacists were similarly brought under legal scrutiny. The law as applied to the health professions was difficult to enforce but could be made more stringent if the public so demanded. Professionals could be made to conform to law much more effectively than unlicensed peddlers or pushers. One cannot but wonder what would have been the public’s response if it knew how many preparations handled by the health professions were completely inert or ineffective.

Reformers attacked the patent medicine problem in several ways. Some labeling requirements were achieved in 1906, and an unexpected loophole in labeling claims was corrected by the Sherley amendment in 1912. (This amendment declared a label or package misbranded if any “statement, design, or device regarding the curative or therapeutic effect of such article or any of the ingredients or substances contained therein … is false and fraudulent.” The amendment was approved 23 Aug. 1912 (ch. 352, 37 Stat. L., 416). See J. H. Young, Medical Messiahs (Princeton Univ. Press, 1961), pp. 49-51) Pressure mounted in state legislatures to force disclosure of all active ingredients in patent medicines. Surveys made by the American Pharmaceutical Association in 1915 and 1916 monitored the decline in narcotized patent medicines. In 1915, the first year the Harrison Act was in effect, 92 of the 1,108 packaged remedies available in retail stores contained opiates, cannabis, or chloral hydrate. Significantly, none contained cocaine. By 1916, only 61 of 1,078 remedies had any opiate, cannabis, or chloral hydrate. Of the five with cannabis, three were remedies for corns and two were cough preparations. Of the four with chloral hydrate one was a hair tonic, one an antiseptic lotion, one a toothache remedy, and one an ointment for eczema.

As the number of narcotic proprietaries diminished, so did the narcotic content in many that remained. Pe-ru-na, a cheerful standby for generations, decreased its alcoholic content (required, the makers said, simply to retard spoilage) from 28 percent at the turn of the century to 17 percent, and by 1918 to nothing. Similarly, the morphine content of Mrs. Winslow’s Soothing Syrup decreased from 0.4 grain in an ounce in 1908 to 0.16 grain in 1911, and then to no morphine by 1915. These changes were apparently undertaken because disclosure of narcotics or alcohol content decreased the popularity of proprietary remedies.

The great furor over narcotic proprietaries represented the public’s awareness of insidious drugging by unscrupulous interests. Relief that this menace was receding under the impact of hard-won federal legislation left the self-regulated health professions in an even more exposed position. They were becoming the last legitimate enterprises that could be legally constrained from endangering society with narcotics.

The peddler had been present from an early day; he was not considered an extremely difficult enforcement problem until the most restrictive legislation and court interpretation cracked down on licensed purveyors of narcotics. Once maximum legislative control was applied to the peddler or pusher, it became evident that narcotics would remain available in the largest American cities. Before the peddlers’ durability became evident, though, the legal channels of narcotic traffic would have to be attacked.

The Usphs And Martin Wilbert

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State Control: The Tennessee Narcotic Act Of 1913

New York State Antinarcotic Legislation