H. B. 4647

(By Mr. Speaker, (Mr. Kiss))
[Introduced February 20, 2006 ; referred to the

Committee on Health and Human Resources then the Judiciary.]

A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §30-5A-1, §30-5A-2, §30-5A-3 , §30-5A-4 , §30-5A-5 , §30-5A-6 and §30-5A-7, all relating to illegal Internet pharmacies; and providing for criminal penalties and fines.

Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §30-5A-1, §30-5A-2 , §30-5A-3 , §30-5A-4 , §30-5A-5 , §30-5A-6 and §30-5A-7, all to read as follows:
ARTICLE 5A. ILLEGAL INTERNET PHARMACIES.
§30-5A-1. Definitions.
As used in this article, the following words and terms have the following meanings, unless the context clearly indicates otherwise:
(a) "Illegal Internet pharmacy" means a person located within or outside this state who is not licensed and certified by the board of pharmacy pursuant to article five of this chapter to engage in the practice of pharmacy and who knowingly:
(1) Uses or attempts to use the Internet, in whole or in part, to communicate with or obtain information from another person; and
(2) Uses or attempts to use such communication or information, in whole or in part, to:
(A) Fill or refill a prescription for a prescription drug for the other person; or
(B) Deliver or cause, allow or aid in the delivery of a controlled substance, imitation controlled substance, counterfeit substance or prescription drug to the other person.
(3) The term does not include a person who is authorized by the provisions of article five to dispense or distribute, unless the person is acting outside of that authorization.
(b) "Internet" means:
(1) The computer network commonly known as the Internet and any other computer network that is similar to or is a predecessor or successor of the Internet; and
(2) Any identifiable site on the Internet or such other computer network; and
(3) The term includes, without limitation:
(A) A website or other similar site on the world-wide web;
(B) A site that is identifiable through a uniform resource location;
(C) A site on a computer network that is owned, operated, administered or controlled by a provider of Internet service;
(D) An electronic bulletin board;
(E) A list server;
(F) A newsgroup; or
(G) A chat room.
(c) "Prescription drug" means:
(1) A controlled substance or dangerous drug that may be dispensed to an ultimate user only pursuant to a lawful prescription; and
(2) Any other substance or drug substituted for such a controlled substance or dangerous drug.
(d) "Controlled substance" means a drug, substance or immediate precursor in Schedules I through V of article two, chapter sixty-a of this code.
(e) "Counterfeit substance" means a controlled substance which, or the container or labeling of which, without authorization, bears the trademark, trade name or other identifying mark, imprint, number or device, or any likeness thereof, of a manufacturer, distributor or dispenser other than the person who in fact manufactured, distributed or dispensed the substance.
(f) "Imitation controlled substance" means:
(1) A controlled substance which is falsely represented to be a different controlled substance;
(2) A drug or substance which is not a controlled substance but which is falsely represented to be a controlled substance; or
(3) A controlled substance or other drug or substance or a combination thereof which is shaped, sized, colored, marked, imprinted, numbered, labeled, packaged, distributed or priced so as to cause a reasonable person to believe that it is a controlled substance.
§30-5A-2 . Circumstances under which person has "reasonable cause to believe."
For the purposes of this article, a person has "reasonable cause to believe" if, in light of all the surrounding facts and circumstances which are known or which reasonably should be known to the person at the time, a reasonable person would believe, under those facts and circumstances, that an act, transaction, event, situation or condition exists, is occurring or has occurred.
§30-5A-3. Applicability.
(a) The provisions of this article , inclusive, do not apply to a person who is:
(1) A common or contract carrier or warehouseman, or an employee thereof, unless the person is acting outside of the usual course of his or her business or employment and knows or has reasonable cause to believe that the act or transaction is unlawful.
(2) The intended recipient of a substance or drug, unless the intended recipient knows or has reasonable cause to believe that the act or transaction is unlawful.
(b) The provisions of this article do not prohibit a person from filling or refilling a prescription for a prescription drug during the period in which the prescription is valid if the person is otherwise authorized by the provisions of article five of this chapter , inclusive, to dispense or distribute the prescription drug.

§30-5A-4. Unlawful acts relating to filling or refilling prescription or delivering certain substances or drugs; aiding unlawful act prohibited; penalties; multiple punishments authorized.

(a) A person who is located within this state and who owns, operates, controls, profits from or is employed or paid by an illegal Internet pharmacy shall not:
(1) Fill or refill a prescription for a prescription drug for another person located within or outside this state; or
(2) Deliver or cause, allow or aid in the delivery of a controlled substance, imitation controlled substance, counterfeit substance or prescription drug to another person located within or outside this state.
(b) A person who is located outside this state, who owns, operates, controls, profits from or is employed or paid by an illegal Internet pharmacy and who knows or has reasonable cause to believe that another person is located within this state shall not:
(1) Fill or refill a prescription for a prescription drug for the other person; or
(2) Deliver or cause, allow or aid in the delivery of a controlled substance, imitation controlled substance, counterfeit substance or prescription drug to the other person.
(c) A person shall not knowingly aid another person in any act or transaction that violates the provisions of this section.
(d) Except as otherwise provided in subsection (e), a person who violates the provisions of this section is guilty of a felony and shall be punished by imprisonment in a state correctional facility for a minimum term of not less than one year and a maximum term of not more than five years , and may be further punished by a fine of not more than ten thousand dollars.
(e) A person who violates the provisions of this section is guilty of a felony and shall be punished by imprisonment in a state correctional facility for a minimum term of not less than three years and a maximum term of not more than fifteen years, and may be further punished by a fine of not more than one hundred thousand dollars, if the substance or drug involved:
(1) Is classified in Schedule I of article two, chapter sixty-a of this code ; or
(2) Proximately causes substantial bodily harm to or the death of the intended recipient of the substance or drug or any other person.
(f) A person may be prosecuted, convicted and punished for a violation of this section whether or not the person is prosecuted, convicted or punished for a violation of any other statute based upon the same act or transaction.

§30-5A-5. Unlawful acts relating to filling or refilling prescription via Internet; aiding unlawful act prohibited; penalties; multiple punishments authorized.

(a) A person who is located within or outside this state shall not, via the Internet, fill or refill a prescription drug if:
(1) The person has reasonable cause to believe that the prescription is being filled or refilled for a person in this state; and
(2) The prescription was not delivered to the person in accordance with all applicable state and federal laws, regulations and standards.
(c) A person shall not knowingly aid another person in any act or transaction that violates any provision of this section .
(d) Except as otherwise provided in subsection(e), a person who violates the provisions of this section is guilty of a felony and shall be punished by imprisonment in a state correctional facility for a minimum term of not less than one year and a maximum term of not more than five years , and may be further punished by a fine of not more than ten thousand dollars.
(e) A person who violates any provision of this section is guilty of a category B felony and shall be punished by imprisonment in a state correctional facility for a minimum term of not less than three years and a maximum term of not more than fifteen years, and may be further punished by a fine of not more than one hundred thousand dollars, if the substance or drug involved:
(1) Is classified in Schedule I of article two, chapter sixty-a of this code ; or
(2) Proximately causes substantial bodily harm to or the death of the intended recipient of the substance or drug or any other person.
(f) A person may be prosecuted, convicted and punished for a violation of this section whether or not the person is prosecuted, convicted or punished for violating any other specific statute based upon the same act or transaction.

§30-5A-6. Unlawful acts relating to issuance of prescription; circumstances under which practitioner or person licensed by another jurisdiction is prohibited from prescribing prescription drug; aiding unlawful act prohibited; penalties; multiple punishments authorized.

(a) A practitioner who is located within this state shall not prescribe a prescription drug for another person located within or outside this state if:
(1) The practitioner has not physically examined the other person within the six months immediately preceding the date on which the prescription is issued; and
(2) The practitioner knows or has reasonable cause to believe that an illegal Internet pharmacy will fill the prescription or otherwise use the prescription to deliver or cause, allow or aid in the delivery of the prescription drug to the other person.
(b) A practitioner who is located outside this state and who knows or has reasonable cause to believe that another person is located within this state shall not prescribe a prescription drug for the other person if:
(1) The practitioner has not physically examined the other person within the six months immediately preceding the date on which the prescription is issued; and
(2) The practitioner knows or has reasonable cause to believe that an illegal Internet pharmacy will fill the prescription or otherwise use the prescription to deliver or cause, allow or aid in the delivery of the prescription drug to the other person.
(c) A person who is located outside this state, who is licensed by another jurisdiction to prescribe prescription drugs and who knows or has reasonable cause to believe that another person is located within this state shall not prescribe a prescription drug for the other person if:
(1) The person has not physically examined the other person within the six months immediately preceding the date on which the prescription is issued; and
(2) The person knows or has reasonable cause to believe that an illegal Internet pharmacy will fill the prescription or otherwise use the prescription to deliver or cause, allow or aid in the delivery of the prescription drug to the other person.
(d) A person shall not knowingly aid another person in any act or transaction that violates the provisions of this section.
(e) Except as otherwise provided in subsection (f), a person who violates the provisions of this section is guilty of a felony and shall be punished by imprisonment in a state correctional facility for a minimum term of not less than one year and a maximum term of not more than five years , and may be further punished by a fine of not more than ten thousand dollars .
(f) A practitioner or any other person who violates the provisions of this section is guilty of a felony and shall be punished by imprisonment in a state correctional facility for a minimum term of not less than three years and a maximum term of not more than fifteen years, and may be further punished by a fine of not more than one hundred thousand dollars, if the substance or drug involved:
(1) Is classified in Schedule I of article two, chapter sixty-a of this code ; or
(2) Proximately causes substantial bodily harm to or the death of the intended recipient of the substance or drug or any other person.
(g) A practitioner or any other person may be prosecuted, convicted and punished for a violation of this section whether or not the practitioner or person is prosecuted, convicted or punished for violating any other specific statute based upon the same act or transaction.

§30-5A-7. Concurrent jurisdiction of Attorney General and district attorneys to prosecute violations.

(a) The Attorney General has concurrent jurisdiction with the district attorneys of this state for the enforcement of the provisions of this article .
(b) The Attorney General may investigate and prosecute a practitioner or any other person who violates the provisions of: (1) This article; and
(2) Any other statute if the violation is committed by the practitioner or person in the course of committing a violation described in this article.
(c) When acting pursuant to this section, the Attorney General may commence his or her investigation and file a criminal action without leave of court, and the Attorney General has exclusive charge of the conduct of the prosecution.



NOTE: The purpose of this bill is to combat the dangerous epidemic of illicit drug dispersal through illegal Internet pharmacies; to provide for criminal penalties and fines.

This article is new; therefore, strike-throughs and underscoring have been omitted.