State v. Rasmussen, 2--56203

• Decision Date: 19 December 1973
• Docket Number: No. 2--56203,2--56203
• Court: Iowa Supreme Court
• Parties: STATE of Iowa, Appellant, v. Roland RASMUSSEN and Federal Prescription Service, Inc., Appellees.

Page 661

213 N.W.2d 661

STATE of Iowa, Appellant, v. Roland RASMUSSEN and Federal Prescription Service, Inc., Appellees.

No. 2--56203.

Supreme Court of Iowa.

Dec. 19, 1973.

Richard C. Turner, Atty. Gen., and Fred M. Haskins, Asst. Atty. Gen., Des Moines, for appellant.

H. M. Coggeshall, Des Moines, and Geo. S. Leonard, Washington, D.C., for appellees.

Heard by MOORE, C.J., and MASON, RAWLINGS, REES and McCORMICK, JJ.

REES, Justice.

This matter has its genesis in the district court of Boone County, and arose by the filing by the Attorney General of the State of Iowa at the behest of the Iowa Board of Pharmacy Examiners of a petition seeking a permanent injunction against seeking a permanent injunction filling prescriptions written by nonresident physicians not licensed by the Iowa authorities to prescribe controlled substances. Plaintiff moved for an adjudication of points of law raised by defendants, and after hearing trial court held the Iowa Uniform Controlled Substances Act was intended to regulate only intrastate transactions of controlled substances, and that registration under the Federal Comprehensive Drug Abuse Prevention and Control Act of 1970, constituted compliance with the Iowa Act. From such ruling, plaintiff has appealed. We affirm the trial court.

Defendant, Federal Prescription Service, Inc., is a pharmacy located at Madrid, and is registered under both federal and Iowa law to dispense controlled substances. Defendant Rasmussen is the manager of the pharmacy. Defendant pharmacy receives prescriptions by mail, fills them and returns them by mail to the person to whom the prescription was issued. Some of such prescriptions received by mail are written by nonresident physicians who are not registered to prescribe controlled substances by the Iowa issuing authority, the Iowa Board of Pharmacy Examiners. The central question in this case is whether the Iowa Uniform Controlled Substances Act (Chapter 204, The Code, 1973) should be construed so as to prohibit the filling by Iowa pharmacists of prescriptions written by nonresident physicians who are not registered by the Iowa authorities to prescribe controlled substances.

The parties are in agreement that the Iowa Act prohibits the filling by Iowa pharmacists of prescriptions written by physicians resident in Iowa who are not registered by the Iowa authorities to prescribe controlled substances.

We are asked to determine whether registration of a nonresident physician under the federal Act pertaining to drugs is sufficient to permit a resident pharmacist to fill a prescription of such nonresident physician, and whether the Iowa Uniform Controlled Substances Act is intended to regulate only intrastate transactions.

1. Section 204.308, The Code, 1973, provides in pertinent part:

'I. Except when dispensed directly by a practitioner, other than a pharmacy to an ultimate user, no controlled substance in schedule II may be dispensed without the written prescription of a practitioner.

'2. In emergency situations, as defined by rule of the board, schedule II drugs may be dispensed upon oral prescription of a practitioner, reduced promptly to writing and filled by the pharmacy. Prescriptions shall be retained in conformity with the requirements of section 204.306. No prescription for a schedule II substance may be refilled.

'3. Except when dispensed directly by a practitioner, other than a pharmacy, to an ultimate user, a controlled substance included in schedule III or IV, which is a prescription drug as determined under section 155.3, subsections 9 and 10, shall not be dispensed without a written or oral prescription of a practitioner. The prescription may not be filled or refilled more than six months after the date thereof or be refilled more than five times, unless renewed by the practitioner.'

All of the controlled substances involved in the matter before us are defined in schedules II, III and IV of the Act.

"Dispense' means to deliver a controlled substance to an ultimate user or research subject by or pursuant to the lawful order of a practitioner, including the prescribing, administering, packaging, labeling, or compounding necessary to prepare the substance for that delivery.' Section 204.101(9), The Code, 1973.

"Practitioner' means either:

'a. A physician, dentist, veterinarian, scientific investigator, or other person licensed, registered or otherwise permitted to distribute, dispense, conduct research with respect to or to administer a controlled substance in the course of professional practice or research in this state.

'b. A pharmacy, hospital or other institution licensed, registered, or otherwise permitted to distribute, dispense, conduct research with respect to or to administer a controlled substance in the course of professional practice or research in this state.' Section 204.101(22), The Code, 1973.

The above definition of 'practitioner' incorporated in the Iowa statute is the same definition for 'practitioner' as that adopted by the National Conference of Commissioners on Uniform State Laws for the Official Draft of the Uniform Controlled Substances Act. See also definition of 'practitioner' in 21 U.S.C.A. § 802(20).

II. Trial court found that the term 'controlled substances', insofar as the term applies to the Iowa Controlled Substances Act, covers the same substances as are referred to in the United States Comprehensive Drug Abuse and Control Act of 1970. The trial court further found the Iowa Act permits Iowa pharmacists to dispense drugs only on prescription issued by Iowa licensed practitioners, whereas the federal Act permits Iowa pharmacists to dispense drugs on prescriptions issued by any practitioner licensed by the jurisdiction in which he practices. The court further found that the filling of prescriptions in Iowa of practitioners licensed in other states constitutes interstate commerce.

In its legal conclusions the trial court determined that the requiring of all of the physicians in the United States and its territories to register in Iowa before they could prescribe drugs to Iowa residents and have their prescriptions filled by Iowa pharmacists would be unrealistic and an unreasonable burden on interstate commerce; that the State of Iowa has the right to regulate medical licensing within its borders, but does not have the right or jurisdiction to require a nonresident physician to register in Iowa; that the word 'registered' as it appears in section 204.101, The Code, 1973, refers to physicians registered under the United States Comprehensive Drug Abuse and Control Act, and that there is no conflict between the Iowa Act and the federal Act, as the Iowa Act is intended to regulate intrastate commerce only. The trial court, accordingly, ordered and adjudged that the Iowa Controlled Substances Act is intended to regulate intrastate transactions and the registration required by the United States Comprehensive Drug Abuse and Control Act of 1970 constitutes sufficient compliance by a nonresident practitioner to come within the purview, intent and purposes of the Iowa Act.

III. The Uniform Controlled Substances Act was promulgated by the National Conference of Commissioners on Uniform State Laws at its annual conference at St. Louis in August of 1970. The following is excerpted from the prefatory note to the Uniform Act then drafted by the Conference:

'This Uniform Act was drafted to achieve uniformity between the laws of the several States and those of the Federal government. It has been designed to complement the new Federal narcotic and dangerous drug legislation and provide an interlocking trellis of Federal and State law to enable government at all levels to control more effectively the drug abuse problem.

'Much of this major increase in drug use and abuse is attributable to the increased mobility of our citizens and their affluence. As modern American society becomes increasingly mobile, drugs clandestinely manufactured or illegally diverted from legitimate channels in one part of a State are easily transported for sale to another part of that State or even to another State. Nowhere is this mobility manifested with greater impact than in the legitimate pharmaceutical industry. The lines of distribution of the products of this major national industry cross in and out of a State innumerable times during the manufacturing or distribution processes. To assure the continued free movement of controlled substances between States, while at the same time securing such States against drug diversion from legitimate sources, it becomes critical to approach not only the control of illicit and legitimate traffic in these substances at the national and international levels, but also to approach this problem at the State and local level on a uniform basis.

'Another objective of this Act is to establish a closed regulatory system for the legitimate handlers of controlled drugs in order better to prevent illicit drug diversion. This system will require that these individuals register with a designated State agency, maintain records, and make biennial inventories of all controlled drug stocks.'

We must presume the Iowa legislature, in adopting the Uniform Controlled Substances Act, intended to come within the scheme of complementary federal-state control of the distribution of drugs and to create an 'interlocking trellis' to assure effectiveness of the Act. We deem it entirely reasonable with such purpose that the Iowa legislature intended the Iowa Act to apply only to those resident practitioners conducting a business of filling prescriptions within this state, with control of the filling of prescriptions of out-of-state practitioners within the purview and contemplation of the federal Act. Such an interpretation of the Iowa Act would insure 'the continued free movement of controlled substances between States, while at the same time securing such States against drug diversion from legitimate sources . . ..'

Plaint...