The medical regulation of opiates in the United States

2015

In the United States, opium was supplied in three separate ‘domains’ in the 19th century. There were qualified physicians who prescribed opiates — and later morphine — for their patients. (And just as in Europe, it was primarily the welltodo who could afford to consult a physician). Secondly there was the market of patent (or secret) remedies such as Scotch Oats, which were for sale everywhere outside the control of medical practitioners or pharmacists: they were obtainable from general stores and itinerant quacks. These were used primarily by the lower classes of white immigrants. Thirdly, there was the supply of smoking opium for Chinese immigrants. It is particularly the first two of these domains which are of importance in the present context.

The rivalry between American doctors and pharmacists was little different from that in the two European countries that have been considered. Their common commercial interests too were abundantly clear. Nevertheless, it took much longer in the United States for any comprehensive federal legislation to be introduced that would regulate the state supervision of medical facilities.

Some states and local communities, however, formalized the medical regulation of opiates in regional laws. But legislation of this kind, given its limited scope, was relatively ineffective [According to Musto these laws were introduced primarily in states and communities in which the production of opiates was a topical issue].

In the United States, then, the formal medical regulation of opiates, in the form of federal legislation, took far longer than in Britain or the Netherlands. And although there is no attempt to explain this in the literature — comparative research in this field is scarce — I am inclined to ascribe it once again (see the chapter on taxation) to the American process of — national — state formation, which was a fairly late development, and to the federal nature of the United States. Another contributory factor, perhaps, is the fact that medical practitioners and pharmacists did not enjoy the same status in the United States of the late 19th century as in Europe [But because this status derived in part from formal recognition by a public authority, this additional reason was intimately bound up with the characteristic process of (national) state formation in the US]. Although it is true that the professional association of physicians, the American Medical Association, was founded as early as 1846 (and that of pharmacists, the American Pharmaceutical Association, in 1852) — which was scarcely later than in Britain or the Netherlands — the federal bodies from which these associations derived their raison d’être and authority were still relatively powerless at that time. In comparison with Britain and the Netherlands, the federal authorities in the United States had considerably less scope to intervene in domestic affairs of this kind. This reduced the scope of professional associations to take successful action — i.e. culminating in federal legislation — to protect themselves from potential competition and to claim a monopoly for certain services.

In his study of the professionalization of the medical occupations in the United States, Paul Starr summarizes the social position of these groups in the 19th century as follows: ‘In the nineteenth century, the medical profession was generally weak, divided, insecure in its status and its income, unable to control entry into practice or to raise the standards of medical education.’ This would not change dramatically until the 20th century. Physicians and related professions would eventually grow to become influential people who enjoyed exceptionally high social status [This is apparent, for instance, from the membership of the American Medical Association, which rose from 8,500 in 1900 to 36,000 in 1913 and 44,000 in 1920].

The 19thcentury consumption of opiates in the United States, while displaying certain similarities with Britain, also differed from it in several essential respects. For instance, after 1850 there was a clearly denned Chinese population group that consumed smoking opium for recreational purposes — a phenomenon virtually unknown in Britain and the Netherlands. Another important difference was that in the United States opiates were used far less frequently to pacify small children. A plausible explanation has been advanced for this in the literature. During the early industrial period in Britain the women from the lower classes had flocked to the factories. These mothers relied on child minders, who were overgenerous with the bottle of laudanum (or whatever other opiumobtaining solution was available) to pacify the children entrusted to their care. American mothers, on the other hand, generally took in work to do at home during the 19th century, so that they had no need to leave their children elsewhere, and were less likely to be compelled to rely on opium-containing and sleep-inducing preparations. As a result, the abuse of opiates — that is to say their consumption without the medical stamp of approval — did not rank high on the political agenda during the debate on public health and the lifestyle of the lower classes. Americans were far more worried about alcohol abuse. And this may well partly explain why legislation on opiates took longer to arrive in the United States than in Britain.

All in all, it was not until 1906 that federal legislation was passed in the United States that went some way towards restricting the free sale of opiates. The Pure Food and Drug Act compelled manufacturers of opium obtaining patent remedies to specify the contents of their product on the outside of the packaging. By then, opiates and morphine in particular had already acquired a bad name among the general public, so that sales of patent remedies containing them immediately slumped. Another new restriction was the designation of pharmacists as the only persons licensed by law to retail opiates.

In 1914 — in other words, less than 10 years after the passing of the Pure Food and Drug Act, with the Smoking Opium Exclusion Act as an intermediary stage (1909) — the provision of the Pure Food and Drug Act that dealt with opiates and a number of other intoxicants was tightened up in the federal Harrison Act. Under this Act, pharmacists, who had been the lawful retailers of opiates since 1906, were henceforth required to register their trade in opiates and certain other goods. Physicians were restricted by the Harrison Act as well as pharmacists; they lost their power to decide freely whether to prescribe opiates. This only became truly apparent in 1919, however, when the U.S. Supreme Court interpreted the Harrison Act to mean that physicians were no longer permitted to prescribe daily maintenance doses of opiates to addicts, these being mainly morphine addicts. Medical professionals thus lost the power to dispose freely of opiates, a monopoly they had only secured a short while ago, with the introduction of the Pure Food and Drug Act. From this time on, the centre of gravity of the formal regulatory regime for opiates shifted towards the more repressive instruments in the hands of the federal state apparatus: the police and justice systems [In 1916 there were 1,900 convictions under the Harrison Act. In 1920 the number rose to 3,900 and in 1925 there were 10,300].

Medical practitioners understandably looked askance at the move to impose more repressive federal intervention in their affairs. That the Harrison Act was nevertheless passed had everything to do with the American crusade against the colonial opium trade [Given its pioneering position in relation to the International Opium Conferences and its advocacy of strict international rules for the trade in and consumption of opiates, the United States could not afford to pursue a slack policy at home].