Are FedEx and UPS breaking the law when they (unknowingly) transport illegal anabolic steroids on behalf of their customers? If a domestic steroid source uses FedEx, has FedEx “aided and abetted” the distribution of steroids? How about when steroids are shipped by compounding pharmacies and/or TRT clinics that may be operating illegally? Or when illegal synthetic steroids are sold as dietary supplements by online supplement shops? If the U.S. Drug Enforcement Administration (DEA) has its way, the answer may be ‘yes.’
The DEA is clearly upping the ante in its war on drugs by attempting to hold private courier companies responsible for monitoring the contents of packages that they deliver. The government’s investigation into FedEx and the United Parcel Service (UPS) has been going on for at least four years.
The investigation is part of a crackdown on illegal drug sales from online pharmacies. While the focus appears to be on prescription painkiller drugs like Oxycontin, it could be a precedent-setting case applied to a broader range of prescription drugs, such as anabolic steroids and performance-enhancing drugs (PEDs), and even illegal dietary supplements, such as synthetic steroids and clones of synthetic steroids.
FedEx and UPS were subpoenaed to testify before a grand jury in Northern District of California investigating the “transportation of packages on behalf of online pharmacies that may have operated illegally” in 2007 and 2008.
Patrick Fitzgerald, the vice president for corporate communications for FedEx, has characterized the investigation as “absurd and deeply disturbing.” The company does not feel it should be held responsible for knowing the contents of the packages they deliver. FedEx is a transportation company and not a law enforcement agency according to Fitzgerald. Fitzgerald made the case for the company to the Wall Street Journal:
FedEx’s Mr. Fitzgerald said the shipments in question involved legal drugs with a valid prescription from online pharmacies licensed by the DEA. He said the shipper had no way of knowing whether deliveries of those medications were illegal. “We are a transportation company,” said Mr. Fitzgerald. “We are not law enforcement, we are not doctors and we are not pharmacists.”
He said the DEA could easily stop such deliveries by sharing a list of suspect pharmacies. He said DEA had repeatedly refused FedEx’s request for the list.
FedEx turned over internal emails that suggest that some employees may have noticed unusual jumps in shipments from certain online pharmacies. The DEA alleges the emails suggest that FedEx knew some businesses might be shipping illegally, said Mr. Fitzgerald. But he said it isn’t unusual for an employee to notice spikes in business with a customer, and observing such a change doesn’t indicate knowledge of illicit activity, he said.
The Department of Justice has informed FedEx of its intent to file criminal charges against the company. FedEx has maintained its innocence and plans to vigorously defend itself against the charges.
UPS, on the other hand, has fully cooperated with the DEA investigation, explored the possibility of accommodating the government’s demands and considered paying a fine to settle the case according to their most recent 10-Q quarterly report filed with the U.S. Securities and Exchange Commission (SEC).
In May and December 2007 and August 2008 we received and responded to grand jury subpoenas from the DOJ in the Northern District of California in connection with an investigation by the Drug Enforcement Administration. We also have responded to informal requests for information in connection with this investigation, which relates to transportation of packages on behalf of on-line pharmacies that may have operated illegally. We have been cooperating with this investigation and are exploring the possibility of resolving this matter, which could include our undertaking further enhancements to our compliance program and/or a payment. Such a payment may exceed the amounts previously accrued with respect to this matter, but we do not expect that the amount of such additional loss would have a material adverse effect on our financial condition, results of operations or liquidity.
The United States Attorney’s Office in Northern California is handling both cases according to the Wall Street Journal.
We applaud FedEx for taking a stand against the disturbing new direction taken by the government in its ‘War on Drugs’.