Maine becomes one of the first states to nullify the federal prescription drug import ban to provide their residents with the option of ordering direct mail affordable prescriptions from licensed pharmacies in Canada, the United Kingdom of Great Britain and Northern Ireland, the Commonwealth of Australia and New Zealand.
Be it enacted by the People of the State of Maine as follows:
Sec. 1. 32 MRSA §13731, sub-§1, as enacted by PL 1987, c. 710, §5, is amended to read:
1. Applicability. It is unlawful for any person to engage in the practice of pharmacy unless licensed to practice under this Act except that:
A. Physicians, dentists, veterinarians or other practitioners of the healing arts who are licensed under the laws of this State may dispense and administer prescription drugs to their patients in the practice of their respective professions where specifically authorized to do so by law;
B. A licensed retail pharmacy that is located in Canada, the United Kingdom of Great Britain and Northern Ireland, the Commonwealth of Australia or New Zealand that meets its country’s statutory and regulatory requirements may export prescription drugs by mail or carrier to a resident of this State for that resident’s personal use. A licensed retail pharmacy described in this paragraph is exempt from licensure under this Act; and
C. An entity that contracts to provide or facilitate the exportation of prescription drugs from a licensed retail pharmacy described in paragraph B may provide or facilitate the provision of prescription drugs from that pharmacy by mail or carrier to a resident of this State for that resident’s personal use. An entity that provides or facilitates the provision of prescription drugs pursuant to this paragraph is exempt from licensure under this Act.
§13799. Consumer choice preserved
Nothing in this chapter may be construed to prohibit:
1. Ordering or receiving prescription drugs.
An individual who is a resident of the State from ordering or receiving prescription drugs for that individual’s personal use from outside the United States by mail or carrier from a licensed retail pharmacy described in section 13731, subsection 1, paragraph B or an entity described in section 13731, subsection 1, paragraph C; or
2. Dispensing or providing prescription drugs.
A licensed retail pharmacy described in section 13731, subsection 1, paragraph B or an entity described in section 13731, subsection 1, paragraph C from dispensing, providing or facilitating the provision of prescription drugs from outside the United States by mail or carrier to a resident of the State for that resident’s personal use.
Even before the law went into effect, it was hit with a formal Compliant and Motion for Preliminary Injunction by the Pharmaceutical Research and Manufacturers of America (comprised of 50+ major pharmaceutical companies,) along with several other trade groups including the Maine Pharmacy Association, Maine Society of Health-System Pharmacists, and Retail Association of Maine and two pharmacists.
The State of Maine says the group doesn’t have standing to bring on a lawsuit to begin with and that it should be dismissed, citing that the plaintiffs are not directly affected by this amendment.
While some would make the case that the feds have the constitutional authority to create this import ban that Maine is now blocking, James Madison had some advice for us. Here’s what he had to say in Federalist #46:
“Should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps, refusal to co-operate with the officers of the Union; the frowns of the executive magistracy of the State; the embarrassments created by legislative devices, which would often be added on such occasions, would oppose, in any State, difficulties not to be despised; would form, in a large State, very serious impediments; and where the sentiments of several adjoining States happened to be in unison, would present obstructions which the federal government would hardly be willing to encounter.” (More on Madison & Federalist #46 here.) [Emphasis added}
In short Madison tells us, that even if something the federal government does is constitutional, if it’s unpopular, it’s appropriate for the States to use its legislative devices to push back and refuse to co-operate. And this is exactly what the State of Maine is doing for it’s residents. Kudos to the State of Maine and Governor Paul LePage for using it’s legislative devices.