BUKR HV
58
mi.
192
Revoking Pro-Mimeograph, Pro. No. 316,
Dated May 21, 1923, and Outlining Treat-
ment of Narcotic-Drug Addiction Permissible
Under the Harrison Narcotic Law
Narcotic Pamphlet,
N-No. 56.
TREASURY DEPARTMENT,
BUREAU OF PROHIBITION,
NARCOTIC UNIT,
Washington, June 23, 1928.
To Narcotic Agents in Charge and Others Concerned:
Pro-Mimeograph, Pro. No. 316, dated May 21, 1923,
is hereby revoked, and the following outline of proce-
dure to be followed in prescribing and dispensing nar-
cotic drugs-is issued for the guidance of narcotic
agents in charge, and others concerned.
This pam-
phlet is intended to be advisory only and to anticipate
and answer questions arising in the minds of practi-
tioners in regard to the law and regulations governing
the prescribing and dispensing of narcotic drugs as
interpreted by the courts.
The regulations governing this subject are contained
in article 85, Regulations 5, and read as follows:

prescrip
Purpose of issue.-A prescription, in order to be
effective in legalizing the possession of unstamped
narcotic drugs and eliminating the necessity for
use of order forms, must be issued for legitimate
al purpose
order purporting to be a
u addict or habitual user
of narcotics, not in the
treatment, but for the purpose of providing the
e of professional
user with narcotic sufficient to keep him comfort-
able by maintaining his customary use, is not a
prescription within the meaning and intent of the
act; and the persons filling and receiving drugs
under such an order, as well as the person issuing
it, may be regarded as guilty of violation of the
law.
Exceptions.-Exceptions to this rule may be
properly recognized (1) in the treatment of incur-
able disease, such as cancer, advanced tubercu-
1988°-28


2
losis, and other diseases well recognized as coming
within this class, where the physician directly in
charge of a bona fide patient suffering from such
disease prescribes for such patient, in the course
of his professional practice and strictly for legiti-
mate medical purposes, and in so prescribing, in-
dorses upon the prescription that the drug is
dispensed in the treatment of an incurable disease;
or if he prefers he may indorse upon the prescrip-
tion "Exception (1), article 85"; (2) a physician
may prescribe for an aged and infirm addict whose
collapse would result from the withdrawal of the
drug, provided he indorses upon the prescription
that the patient is aged and infirm, giving age; or
if he prefers he may indorse upon the prescription
Exception (2), article 85.”

((
General
It is impossible to state an inflexible rule which will
cover all cases, and this outline must, therefore, be
general in nature and subject to modification through
further interpretation of the law by the courts. The
bureau is not charged with the duty of laying down
any fixed rule as to the furnishing of drugs or the fre-
quency of the prescriptions in any particular case.¹
This responsibility rests upon the physician in charge
of the case.2 While the primary responsibility rests
1 In a prosecution against a physician for violating Harrison narcotic
law by dispensing narcotics to habitual users of the drugs, the exsd to a
of a letter from the Commissioner of Internal Revenj narcotics held
query by defendant physician
O liga 196.)
proper. (Thompson v. United States. S
2 (a) Indictman' which arged that defendant, a practicing physi-
cian, did felously, etc., sell, exchange, barter, and give away a
ciled quantity of morphine sulphate to a person named, not pur-
suant to an order on a form issued by the Commissioner of Internal
Revenue by issuing and dispensing a prescription to such person, not a
patient of the physician, which morphine was dispensed and distributed
by the physician, not in the course of his professional practice only, was
sufficient. (Jin Fuey Moy v. United States, 254 U. S. 189.)
(b) Violation of Harrison Act held sufficiently charged by indictment
against registered physician for dispensing opium derivatives in bad
faith.
Indictment against registered physician for selling in bad faith opium
derivatives without any written order held to sufficiently charge viola-
tion of Harrison Act,
**
N.S. Vort
gize
12-31-1928
3
upon the physician in charge, a corresponding liability
also rests upon the druggist who knowingly fills an
improper prescription or order whereby an addict is
supplied with narcotics merely for the purpose of satis-
fying his addiction. Caution
Caution should be exercised to
avoid being imposed upon by unscrupulous persons,
and too much credence should not be given to the
unsupported statements of the addict himself, because
the confirmed addict will go far beyond the truth in an
attempt to secure an ample supply of narcotic drugs
with which to satisfy his cravings.
Question of good faith in opium sales, in which accused physician
participated by issuing prescriptions, held for jury.
Constitutionality of Harrison Act is settled.
(Boehm v. United States, C. C. A. 8th Circuit, 21 Fed. (2) 283.)
(c) Physician prescribing narcotics for other than bona fide patient,
and not in course of professional treatment, is not protected by statutory
exemption. (Harrison Act, section 2.) (Bush v. United States, C. C.
A. 5th Circuit 16 Fed. (2) 709.)
(d) That physician required his patients to produce a certificate that
they were afflicted with incurable diseases, as required by Acts Tenn.,
1919, C., 105, and regulations thereunder, held not to constitute excul-
patory good faith, within Harrison Act, as State law conflicts with
Federal act. (Simmons v. United States, C. C. A. 6th Circuit, 300
Fed. 321.)
3 (a) The acts of the principal become the acts of the accessory or aider,
and he may be charged as having done the act himself, and be indicted
and punished accordingly, under Penal Code, section 332, making the
accessory a principal. (Di Preta v. United States, 270 Fed. 73.)
(b) A person dealing in drugs is required to ascertain at his peril whether
that which he sells comes within the statute, so that an indictment for
violation of that section need not allege that defendant knew the char-
acter of the drug sold. (United States v. Balint, 66 L. Ed. 352, 42 S. C. R.
301.)
(c) Notwithstanding Harrison Narcotic Act, section 2, exception (b),
excepting sales of the prohibited drugs on the written prescription of a
registered physician, a zale by a druggist, who knows that the pre-
scription was issued to gratify the holder's appetite and not to cure
disease or alleviate suffering, violates the law, and the physician issuing
the prescription, knowing it is to be filled by a druggist having such
knowledge, aids and abets the violation.
Knowledge by a druggist that a prescription under the Harrison
narcotic law was issued to gratify the holder's appetite, and not to cure
disease or alleviate suffering, is essential to guilt, and negligent failure
to inquire will not take the place of knowledge.
On a trial for aiding and abetting violation of the Harrison narcotic
law, exceptions to the charge on the ground that there was no evidence
of the facts hypothesized by the court in its instruction respecting knowl-
edge, and that knowledge was immaterial when the sale was made on
the prescription of a registered physician, did not raise the point, pre-
sented on appeal, that the charge authorized conviction, though the
druggist had no actual knowledge if he negligently failed to make inquiry.
(Doremus v. United States, 262 Fed. 843.)



The good faith of the physician and the bona fides
of his treatment in a given case will be established by
the facts and circumstances of the case and the con-
sensus of medical opinion with regard thereto, based
on the experience of the medical profession in cases of
similar nature. Physicians will be charged with vio-
lation of the law if, through carelessness or lack of
sufficient personal attention, the patient secures more
narcotic drugs than are necessary for medical treat-
ment and devotes part of his supply to satisfy addic-
tion."
Use of Narcotics in the Treatment of Disease without
Reference to the Question of Addiction
Without reference to the question of addiction, a
physician acting in accordance with proper medical
practice may prescribe or dispense narcotics for the re-
lief of acute pain or for any acute condition, such as
influenza, pneumonia, renal calculi, broken limbs, etc.
Use of Narcotics in the Treatment of Incurable Disease
A reputable physician directly in charge of bona fide
patients suffering from diseases known to be incurable,
such as cancer, advanced tuberculosis, and other dis-
eases well recognized as coming within this class, may
in the course of his professional practice, and strictly
for legitimate medical purposes, dispense or prescribe
(a) Expert testimony as to proper method of treating addicts admis-
sible. (Reeves v. United States, 263 Fed. 690.)
(b) In a prosecution under IIarrison Narcotic Act, section 2, against.
a physician who sold large quantities of narcotics to habitus' users of
the drug, medical testimony as to recognized metais among physicians
for treating persons addicted to the use of narcotic drugs was admissible
for the purpose shig that the accused physician did not come
within the saception as to physicians dispensing drugs in the course of
noir practice, for, while the act is in the guise of a revenue measure, It
was intended to accomplish a moral purpose. (Thompson v. United
States, 258 Fed. 196.)
5 An order issued by a practicing and registered physician for mor-
phine to an habitual user thereof, the order not being issued by him in
the course of professional treatment in the attempted cure of the habit,
but being issued for the purpose of providing the user with morphine
sufficient to keep him comfortable by maintaining his customary use,
is not a physician's prescription within exception (b) of section 2 of the
Harrison Narcotic Act. (Webb & Goldbaum v. United States, 249
U. S. 96.)
1



5
narcotic drugs for such diseases, provided the patients
are personally attended by the physician who regu-
lates the dosage, and prescribes no quantity greater
than that ordinarily recognized by members of his pro-
fession to be sufficient for the proper treatment of the
given case.® The danger of supplying persons suffer-
ing from incurable diseases with a supply of narcotics
must be borne in mind, because such persons may use
the narcotics wrongfully, either by taking excessive
quantities or by disposing of a portion of the drugs in
their possession to other addicts or persons not law-
fully entitled thereto." The physician should indorse
(a) In prosecution of physicians for having violated and conspired to
violate the Harrison Narcotic Act, the trial court in his general charge
properly submitted an issue as to the good faith of defendants in issuing
their prescriptions to supposed patients, since the defendants could only
protect themselves if the prescriptions were issued legitimately in their
practice. (Melanson v. United States, 266 Fed. 783.)
(b) In a prosecution for violation of Harrison Narcotic Act, section 2,
by selling narcotic drugs, not in pursuance of written orders on the pre-
scribed forms, evidence that defendant, although a physician registered
under the act, did not dispense the drugs in good faith in the course of
his professional practice, which would bring him within exception (a) of
the statute, but sold the same to gratify the appetite of the purchasers,
was competent and relevant, and such issue was properly submitted to
the jury. (Oakshette v. United States, 260 Fed. 830.)
7(a) A careful review of the decisions as they exist at the present time
makes clear the fact that when a physician is charged with unlawfully
selling or prescribing drugs under the Harrison Act, the case turns largely
upon his good faith in prescribing drugs to his regular patients for maladies
requiring the administration of the drug or whether he prescribed for
persons seeking his professional aid merely to procure the drug. In the
latter case the physician night, perhaps, in a single instance afford tem-
porary relief for one whose condition demanded immediate treatment.
To go further than this would enable every doctor to do just what the
defondant ul hore-furnish drugs to addicts or afford opportunity to
them to procure alf' he narcotics they desired as unrestrained they
would go from one physicians another, and thus quickly destroy the
whole purpose of the act in question. (Lotus Darbot v. United States,
273 Fed. 919.)
(b) The purpose of antinarcotic act is to confine the stribution of
narcotics to the regular and lawful course of professional practico,
not every order therefor written by a duly registered physician in the
form of a prescription is necessarily a prescription within the exception.
If the offense is a statutory one, and intent or knowledge is not made an
element of it, the indictment need not charge such intent or knowledge.
An indictment charging that defendant, a duly registered physician,
by means of three prescriptions sold to one whom he knew to be a drug
addict, at one time heroin, morphine, and cocaine equivalent to more
than 3,000 ordinary doses, without directions or restrictions as to the use
thereof by the addict, shows the sale was not within the exception to
antinarcotic act. (United States v. Behrman, 66 L. Ed. 345; 42 S. C. R.
303.)



6
upon the prescription that the drug is dispensed in the
treatment of an incurable disease, or if he prefers he
may indorse upon the prescription "Exception 1, article
85."8
Use of Narcotics in the Treatment of Addiction Only
Mere addiction alone is not recognized as an incur-
able disease. It seems necessary, however, to divide
the addicts not suffering from an incurable disease
into two classes: (a) Those suffering from senility or
the infirmities attendant upon old age, who are con-
firmed addicts of years standing, and who, in the
opinion of a reputable physician in charge, require a
minimum amount of narcotics in order to sustain life;
and (b) those whose addiction is not complicated by
incurable disease or by the infirmities attendant upon
old age.
:
(a) Aged and infirm addict.-Addicts suffering from
senility or the infirmities attendant upon old age and
who are confirmed addicts of years standing may be,
for the purpose of enforcing the law, treated as addicts
suffering from incurable diseases. In uch cases,
where narcotic drugs are necessary in order to sustain
life, a reputable physician may prescribe or dispense
the minimum amount necessary to meet the absolute
needs of the patient. In this class of cases the physi-
cian issuing the prescription should make a statement
on the prescription to the effect that the patient is
aged and infirm, giving age, and certifying that the
drug is necessary to sustain life, or, if he prefers, 'ne
may indorse upon the prescription "Exception 2,
article 85."
(b) The ordinary addict. It is well established that
the ordinar case of addiction yields to proper treat-
(c) A physician held chargeable with the offense of selling opium in
violation of Harrison Act, section 2, where for a consideration he issued
an order or prescription for opium not in the regular course of his prac-
tice, but to an addict, for a prohibited use, although the prescription
was filled by a dealer who acted in good faith and without knowledge that
it was wrongfully used. (United States v. Emil II. Keidans, 270 Fed.
585.)
8 A physician who writes prescriptions for unusual quantities of drugs
or a dealer who fills such a prescription is guilty of an offense unless the
prescription indicatos the necessity for such an unusual quantity.
(United States v. Curtis, 229 Fed. 288.)

7
ment, and that addicts will remain permanently cured
when drug taking is stopped and they are otherwise
physically restored to health and strengthened in will
power. A physician may, in the course of his pro-
fessional practice only and in accordance with the
consensus of medical opinion, afford temporary relief
to an ordinary addict whose condition demands im-
mediate attention by prescribing or dispensing the
minimum quantity necessary to prevent his collapse
and enable him to reach a hospital, institution, or
place where treatment under proper restraint. is to be
undertaken. Such cases should be cautiously handled
and the physician in charge should satisfy himself that
the narcotics thus furnished are not to be diverted for
an unlawful purpose, that steps looking toward such
treatment actually have been or promptly will be
taken, and that the conditions are such (usually indi-
cated by the presence of a responsible accompanying
--nurse or attendant) that the addict can not augment his
supply of drug by securing additional amounts from
another source. This bureau has never sanctioned or
approved the so-called reductive ambulatory treat-
ment of addiction for the reason that where the addict
controls the dosage he will not be benefited or cured.
Medical authorities agree that the treatment of addic-
tion, with a view to effecting a cure, which makes no
provision for confinement while the drug is being
withdrawn, is a failure, except in a relatively small
number of cases where he addict is possessed of a
much greater degree of wall Dower than that of the
ordinary addict."
Special advice to cover en s not falling within these
instructions will, upon request, bo fished by this
office.
J. M. DORAN,
Commissioner.
9 The issuing by a physician of frequent prescriptions for morphine to
a known addict, who is not under restraint, is not within the exception
of Harrison Act, section 2, but is a violation of the act. (Hobart v.
United States, C. C. A., 6th Circuit, 299 Fed. 784.)
U.S. GOVERNMENT PRINTING OFFICE: 1928


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