Delaware Code Title 16 Sec. 4744 – Prohibited practices; penalties
(a) (1) An internet pharmacy shall not sell, dispense, distribute or deliver or offer to sell, dispense, distribute or deliver or participate in the sale, distribution, dispensing or delivery of any prescription drug to a Delaware patient unless the practitioner issuing the prescription drug order to be filled or dispensed by the internet pharmacy is a licensed practitioner who has a patient-practitioner relationship with the Delaware patient; and
(2) An internet pharmacy or any owner or operator thereof who knowingly violates this subsection is guilty of a class D felony and shall be fined not less than $2,500 nor more than $25,000 for each offense; provided, however, that if an internet pharmacy or any owner or operator thereof knowingly violates this subsection and the substance or prescription drug dispensed causes death or serious physical injury to a Delaware patient, the internet pharmacy or any owner or operator thereof is guilty of a class B felony and shall be fined not less than $25,000 nor more than $100,000 for each offense.
Attorney's Note
Under the Delaware Code, punishments for crimes depend on the classification. In the case of this section:| Class | Prison | Fine |
|---|---|---|
| Class B felony | between 2 and 25 years | |
| Class D felony | up to 8 years | |
| Class F felony | up to 3 years | |
| Class A misdemeanor | up to 1 year | up to $2,300 |
Terms Used In Delaware Code Title 16 Sec. 4744
- delivery: means the actual, constructive or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship. See Delaware Code Title 16 Sec. 4701
- 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 for a legitimate medical purpose by an individual practitioner in the usual course of the practitioner's professional practice, administering, packaging, labeling or compounding necessary to prepare the substance for that delivery. See Delaware Code Title 16 Sec. 4701
- Distribute: means to deliver other than by administering or dispensing a controlled substance. See Delaware Code Title 16 Sec. 4701
- Drug: means (i) substances recognized as drugs in the official United States Pharmacopoeia, official Homeopathic Pharmacopoeia of the United States or official National Formulary or any supplement to any of them; (ii) substances intended for use in the diagnosis, cure, mitigation, treatment or prevention of disease in man or animals; (iii) substances (other than food) intended to affect the structure or any function of the body of man or animals; and (iv) substances intended for use as a component of any article specified in clause (i), (ii) or (iii) of this paragraph. See Delaware Code Title 16 Sec. 4701
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Knowingly: means a person acts knowingly with respect to any delivery, possession, use or consumption within the meaning of this chapter when the person knows or is aware of such delivery, possession, use or consumption. See Delaware Code Title 16 Sec. 4701
- Licensed practitioner: means any individual who is authorized by law to prescribe drugs in the course of professional practice or research in any state. See Delaware Code Title 16 Sec. 4701
- Patient-practitioner relationship: means , with respect to prescribing drugs for a patient, that the practitioner is a licensed practitioner who:
- Person: means individual, corporation, government or governmental subdivision or agency, statutory trust, business trust, estate, trust, partnership or association, or any other legal entity. See Delaware Code Title 16 Sec. 4701
- Practitioner: means :
- Prescription drug: means any drug required by federal or state law or regulation to be dispensed only by or on the prescription of a practitioner licensed to prescribe drugs, or which is restricted to use by practitioners only. See Delaware Code Title 16 Sec. 4701
- Prescription drug order: means any written, verbal, or electronic order of a practitioner for a prescription drug issued in accordance with regulations promulgated under this chapter. See Delaware Code Title 16 Sec. 4701
- State: when applied to a part of the United States, includes any state, district, commonwealth, territory, insular possession thereof and any area subject to the legal authority of the United States of America. See Delaware Code Title 16 Sec. 4701
(b) (1) An internet pharmacy or any owner or operator thereof shall not advertise or represent by advertisement, sales presentation or direct communication with any person within this State, including by telephone, facsimile, electronic mail or otherwise, that a prescription drug may be obtained by a Delaware patient based on an internet consultation, questionnaire or medical history form submitted to the internet pharmacy through an internet site. This subsection shall not apply to any internet pharmacy or internet site which advises in a clear and visible manner on each page of its internet site, or by link to a separate page, that it will not deliver or ship prescription drugs to a location within this State.
(2) An internet pharmacy or any owner or operator thereof who knowingly violates this subsection is guilty of a class D felony and shall be fined not less than $2,500 nor more than $25,000 for each offense.
(c) (1) A practitioner or any person acting as a practitioner within or outside of this State shall not issue a prescription drug order, by e-mail or otherwise, to or on behalf of a Delaware patient through an internet pharmacy unless the person is a licensed practitioner who has a patient-practitioner relationship with the Delaware patient.
(2) A practitioner or any person acting as a practitioner who knowingly violates this subsection is guilty of a class D felony and shall be fined not less than $2,500 nor more than $25,000 for each offense; provided, however that if a practitioner or any person acting as a practitioner knowingly violates this subsection and the substance or prescription drug dispensed causes death or serious physical injury to a Delaware patient, then the practitioner or person acting as a practitioner is guilty of a class B felony and shall be fined not less than $25,000 nor more than $100,000 for each offense.
(3) The provisions of this subsection shall not apply to a licensed practitioner who inadvertently allows that licensed practitioner’s own respective license or permit to lapse for a period of less than 60 days.
(d) (1) A licensed Delaware pharmacist practicing within or outside of this State shall not dispense or authorize the dispensing of a prescription drug order, by e-mail or otherwise, to or on behalf of a Delaware patient through an internet pharmacy if:
a. The licensed Delaware pharmacist knows that the prescription order was issued solely on the basis of an internet consultation or questionnaire or medical history form submitted to an internet pharmacy through an internet site; or
b. The licensed Delaware pharmacist knows that the prescription order was issued by a practitioner who is not a licensed practitioner or by a licensed practitioner who does not have a patient-practitioner relationship with the Delaware patient.
(2) Any licensed Delaware pharmacist who violates this subsection is guilty of a class F felony and shall be fined not less than $1,000 nor more than $10,000 for each offense.
(e) (1) No person within or outside of this State shall purchase, attempt to purchase, offer to purchase or submit an order to purchase, by e-mail or otherwise, any prescription drug from an internet pharmacy to be delivered to a location within this State unless the person has been issued a valid prescription drug order from licensed practitioner with whom the person has a patient-practitioner relationship.
(2) A person who knowingly violates this subsection shall be guilty of a class A misdemeanor and shall be fined not less than $100 nor more than $1,000 for each offense.
(f) The Superior Court shall have exclusive jurisdiction over any offense defined in this subchapter. In any prosecution for an offense prohibited by this subchapter, the delivery of a prescription drug to a location within this State shall constitute a result occurring within this State for purposes of establishing jurisdiction under § 204 of Title 11.
(g) In any prosecution for an offense defined in this subchapter it shall not be a defense that a Delaware patient or any recipient or intended recipient of a prescription drug order is not prosecuted, convicted or punished based upon the same act or transaction.
(h) Nothing in this section shall be construed to limit or prevent the Attorney General or applicable professional board from taking any civil or administrative action permitted by law against an internet pharmacy, practitioner, pharmacist or other person violating the provisions of this subchapter.