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|The Drug Hang Up, America's Fifty-Year Folly|
The Drug Hang Up, America's Fifty-Year Folly
by Rufus King
Drug Abuse Control, 1965
COMMISSIONER LARRICK did not give up, however. Periodically the Food and Drug Administration put out alarming new estimates, such as 819,060 pounds of barbiturates, worth $40 million, produced in 1959; more deaths from barbiturates than from any other poison, and a 670 per cent increase in such deaths in Los Angeles; 8 billion amphetamine tablets a year with at least 50 per cent going into the illicit market . . . etc. (Statements about production in this period were easy to puff because the two largest U.S. manufacturers of barbiturates and amphetamines refused to release any figures; and there is no doubt that a substantial flow of both these drugs was finding its way into uncontrolled channels via such perfectly legal devices as export to Canada or Mexico, purchase in those countries, and reimportation into the United States.)
Accidents-an airplane crash in which it was learned that the pilot had been taking tranquilizers, two trailer trucks in a multiple-vehicle melee on the New Jersey Turnpike where fourteen benzedrine tablets were found in one of the truck cabs were widely publicized, and an "expert" estimate was launched by planting in the United Nations Bulletin on Narcotics a story to the effect that more than 5 million Americans were abusing barbiturates and other sedatives, stimulants, and tranquilizers. In 1960, domestic barbiturate production was officially reported as 852,000 pounds, which was translated into an estimate of 6 billion one-grain capsules, or thirty-three for every man, woman, and child in the country. In 1961 the story was that Americans had ingested 1.4 million pounds of tranquilizers, and it was claimed that tranquilizers were beginning to rival the barbiturates as suicide drugs.
The FDA early found an ally in Senator Thomas Dodd, whose juvenile Delinquency Subcommittee commenced, in 1958, exploring all forces tending to undermine American youth - pornography, the unregulated sales of guns and other weapons, child abuse, and of course drugs. Dodd soon emerged as an outspoken expert, hammering at the idea that so-called dangerous drugs, unlike opiates and marijuana, were not confined to slum use but were affecting young people in high schools, on college campuses, and in wealthy suburban neighborhoods. He linked barbiturates and amphetamines as `hidden accomplices" with crimes of violence, accidents, and suicides, asserting that they contributed to bizarre sexual behavior among young people. He collected his own horrible cases: two teenagers burned to death in a brush fire that overtook their automobile after they had passed out from an overdose of barbiturates taken as part of a suicide pact; an eighteen-year-old boy who killed a friend at a "goof ball" party while they were joking with one another; three teenage lads who robbed and killed an elderly gentleman in Chicago while they were under the influence of barbiturates -allegedly because he was deaf and did not understand immediately that he was being held up. Apparently in the same case, or at least in the case of a similar old gentleman, a sixteen year-old fired eleven shots into the body, and when asked why was reported to have answered, "The pills made us do it." A seventeen-year-old, his personality totally changed, according to the Dodd Subcommittee, by the use of Seconal, savagely slashed a cab driver to death in Los Angeles. And a young girl, allegedly under the influence of drugs, ran over her mother and dragged the body more than a mile under the car.
In 1961, Senator Dodd sponsored a series of bills to bring barbiturates and amphetamines under strict federal control, and in 1962 his Subcommittee held hearings in California and New York-which incidentally gave Governor Brown and Attorney General Mosk (and Senator Keating, who was on the Subcommittee) an additional platform from which to urge the White House Conference.
But now momentarily the action shifts to another quarter: Senator Kefauver's Antitrust and Monopoly Subcommittee, battling the drug industry over prices and marketing practices, found not only that it was being out-maneuvered and out-muscled by drug-lobbying forces on Capitol Hill, but also that the FDA itself-and Commissioner Larrick-appeared to be aligned with the very interests they were supposed to be policing. In 1960-61 Larrick had named a Drug Subcommittee of his FDA Citizens Advisory Committee to counsel with him on drug matters, and had loaded it with drug-industry apologists. In the summer of 1962 this Committee issued a report, in its quasiofficial status as a policy advisor, urging even more leniency toward the drug industry, to allow the drug interests, in effect, to police and regulate themselves.
So Kefauver turned his guns on the FDA and quickly found a vulnerable target. Dr. Henry Welsh, director of the agency's Division of Antibiotics, was discovered to have been paid nearly $300,000 as "honoraria" for various articles and reports, all from drug companies who were directly affected by decisions which Dr. Welsh controlled in his official capacity. When this broke, in 1962, FDA was badly hurt. Simultaneously, Senator Humphrey's Subcommittee on Reorganization and International Organizations attacked FDA's drug-testing practices, Larrick clumsily offended the Senator, and in the summer of 1962 Secretary Celebrezze began murmuring about pressures on him to accept Larricks retirement. Then right in the midst of these difficulties the story of Dr. Frances Kelsey and thalidomide broke.
One result of the thalidomide scandal was, probably, to save Larricks neck, for public shock at revelations about deformed babies threatened not only the Food and Drug Administration but the image of the New Frontier itself, so the White House stepped in and helped turn Dr. Kelsey into a national heroine to divert attention from the inexcusable derelictions of her division. Another result was passage of the Kefauver-Harris drug amendments of 1962, which substantially strengthened the hand of FDA in controlling drugs in terms of their safety and efficacy. And these interacting forces, plus the tragic death of movie idol Marilyn Monroe from an overdose of barbiturates, gave strong new impetus to FDA's drive to repress abuse of the so-called dangerous drugs. Larrick might come out looking like a public savior after all.
If I seem to be stressing too much the emphasis continually placed on the theme that misuse of amphetamines was causing large numbers of accidents on the highways, and particularly among truckers, bear with me; I am doing so because that theme has a final note which is remarkably revealing. In his message to Congress on consumer protection in 1962 President Kennedy said:
This set the tone of the White House Conference (and if the wording seems vaguely familiar, look back to page 235 where I quoted the President's opening statement to that gathering). The conference, as we have already seen, gave much play to dangerous drugs, and resulted in the report by the President's Advisory Commission (November 1963) calling for new repressive legislation.
Meanwhile, Larrick kept publicizing the heroic efforts of his inspectors against allegedly organized gangs of criminals who specialized in distributing amphetamine tablets to truckers through sinister networks of roadside stops along the nation's highways. The entertainment media commenced featuring episodes portraying a lunch-wagon wagon cook rolling pills across a counter to some burly driver, whereupon the scene fades to a spectacular highway accident, the smoking wreckage of at least one monster truck, ambulances, flares, crowds, police, and trumpet flourishes.
By 1964, the gangbuster aspects of controlling these new categories had received so much emphasis that Senator Dodd revised and reintroduced his bill with new provisions authorizing FDA inspectors to carry guns, make arrests, and seize contraband drugs forthwith. The measure, ambitiously titled Psychotoxic Drug Control Act of 1964, recited as congressional findings "that illicit traffic was resulting in extensive sales of drugs to juveniles, who were thereupon led into delinquency and crime," and "to experiment with narcotic drugs, which experimentation may result in narcotic addiction," and further that the use of such drugs "often endangers safety on the highway." The Dodd bill was a hybrid, in that it imposed a pattern of controls similar to that of the Harrison Act, but did so under the federal interstate commerce powers and left administration and enforcement to the Food and-Drug Administration. The Secretary of Health, Education, and Welfare was authorized to add new drug categories on a finding that they had potential for abuse.
President Johnson, however, displayed little enthusiasm for thus creating a new federal enforcement domain in the province of "dangerous drugs" (where the crime-busting responsibilities of Attorney General Kennedy might be extended and enlarged). So he executed a maneuver often resorted to when the chief executive wants to take a play away from Congress and dampen a legislative proposal: in July 1964, with appropriate fanfare, he called upon all existing agencies in the executive branch to work harder at remedying the situation:
When such a move is made from the White House, spokesmen for the administration thereupon go to Capitol Hill and urge Congress to hold off with legislation on the ground that the matter is being studied and that better coordination of executive efforts may make additional legislation unnecessary. Accordingly, although every concerned agency in the executive branch had already expressed approval of the Dodd bill, official support from that quarter now slackened. The Senate passed the bill anyway, whereupon it was stopped in the House by a lobbying campaign on behalf of the Pharmaceutical Manufacturers Association and the American Medical Association, which was such a show of strength that the measure-now also lacking administration support-would probably have been abandoned altogether without an unexpected miracle.
But the miracle was forthcoming (surrounded by a slight mystery, enduring to this day, as to whether Larrick or someone else in Washington originally promoted it). A CBS newsman named McMullen set up a mail-drop office in New York, printed some letterheads identifying himself as 'McMullen Services,' and succeeded in buying, from a dozen drug manufacturers, over a million barbiturate and amphetamine tablets, valued in retail drug prices at $50,000 and of an estimated worth on the black market of as much as $500,000-at a cost to McMullen Services of $628. When CBS broke this, against the background of juvenile victims and highway crashes, public excitement seethed and members of Congress crowded forward once again to call for tighter controls and a tough new federal law.
However, when the 89th Congress convened in January 1965, there had been another change, as has been remarked: former Attorney General Kennedy was now sitting in the upper house as Senator Kennedy, and this accounted for a shift in strategy by all concerned. One of President Johnson's first messages (January 7, 1965) exhorted the lawmakers to rush through "legislation to bring the production and distribution of barbiturates, amphetamines, and other psychotoxic drugs under more effective control" and at the same time to give federal law-enforcement agencies "authority to seize counterfeit drugs at their source." A bill for this purpose including the counterfeit provisions had already been introduced, as H.R. 2, on January 4, the first day of the session, by Chairman Oren Harris of the House Interstate and Foreign Commerce Committee. Senator Dodd put in his bill again on the Senate side, with eight co-sponsors, including Senator Kennedy, but from the outset the action centered around H.R. 2 and was dominated and controlled by the House proceedings.
H.R. 2 was entitled Drug Abuse Control Amendments of 1965, and differed from the prior Dodd versions in a number of significant respects. It covered all "depressant and stimulant' drugs plus any other substance that the HEW Secretary found to have . a potential for abuse" on account of its depressant, stimulant, or hallucinogenic effects, thus giving the Secretary broadened authority. It commenced with a sweeping declaration of policy, including, of course, a reference to our old friends, the truck drivers:
Although departing from the Harrison Act pattern by relying on Congress' powers over interstate commerce instead of the constitutional power to tax, H.R. 2 imposed a registration, inspection, and record-keeping pattern, covering everyone concerned with the controlled traffic, which closely paralleled the Harrison requirements. Penalties were lighter than for opium, cocaine, and marijuana offenses, and no mandatory minimums were provided, but mere possession without a license or prescription was made a federal crime, and medical practitioners were exempted in the same tricky phrasing that had given so much trouble in all the prior decades, i.e., "while acting in the course of their professional practice."
An effort was made to soften the impact of possession offenses somewhat by placing a special burden on the government to prove that the possession in question was not merely for personal use of the possessor or some other member of his household. The penalty for possession was a maximum of $1,000 or one year's imprisonment, unless the offense was committed "with intent to defraud or mislead" or unless the offender had been convicted previously, in which event the maximums jumped to $10,000 and three years.
The powers of FDA inspectors were increased substantially more under H.R. 2 than in the Dodd version. Besides being authorized to carry firearms, serve warrants, seize contraband drugs and everything related to their production forthwith, and in certain circumstances to arrest without warrants, they were to be brought under the special protections extended by the Federal Criminal Code to U.S. marshals, FBI agents, and other federal officers primarily engaged in criminal-law enforcement activities.
But the most important innovation was the quite new-and more than slightly irrelevant-section inserted into H.R. 2 to deal with counterfeit drugs. One reason this section turned up in the bill is obvious: the Pharmaceutical Manufacturers Association, backed by the AMA, had shown enough power in the House of Representatives the year before to kill Senator Dodd's bill with ease, and it was plain that legislation like H.R. 2 would have little chance of passing if it were not somehow given the blessing of these powerful drug and medical lobbies. The counterfeit provision (first publicly referred to in President Johnson's message of January 7, 1965) was the price of this blessing. But it was also slightly more, which leads us into a diversionary story going all the way back to 1962 and the ill-fated Bay of Pigs expedition.
First, let there be no doubt about how much this provision really gave the drug industry. Marketing proprietary drugs and compounds which sometimes cost only pennies to produce and yet are priced in dollars, the drug houses were (and are) uniquely vulnerable to competitors who produce perfectly pure and wholesome equivalents but usurp their brand names or otherwise break into their monopolies. The drug lobby had fought with desperate energy-and total success-to avoid any semblance of a requirement that manufacturers disclose production costs or pricing practices in connection with the Kefauver-Harris Amendments, but they were still concerned about the competitive challenge of counterfeiters, especially because ordinary trade-infringement litigation would require exposure of their mark-up practices. Obviously if they could make drug counterfeiting a criminal offense and turn policing over to the FDA or the Department of justice, they would have a more satisfying solution to this problem than anything that had ever been accorded to anyone else in the whole history of private enterprise in America.
And that, as it turned out, is what they got. Even luck was on their side: it is unlikely that if the two arch-enemies of the drug monopolists had remained in their Senate seats the counterfeit provision of H.R. 2 would have escaped bitter attack, and it is quite possible that the provision might have been lost; but Senator Humphrey had been moved out of the action by his election as Vice President, and Senator Kefauver had died suddenly in the summer of 1963.
Even then it is not likely that other critics of the drug industry could have been so meekly silenced if the concession had been no more than a sop for passage of the bill. But the pharmaceutical houses had another claim for this great favor from their government as well, and that is where the Bay of Pigs comes into the narrative.
Early in the spring of 1961, 1,200 members of the U.S.-backed assault force that came to such grief in the attempted landing in Cuba were made prisoners by Fidel Castro. The then brand new Kennedy administration was of course painfully embarrassed. And when Castro opened negotiations for their release on payment of a suitable ransom, the administration and Congress were caught together in a position which was politically vulnerable from both sides: they could not heartlessly leave the victims of the action rotting in Cuban prisons if there was any way to secure their release, yet they could not appear to be soft with Castro, or to waste taxpayers' money in paying any such humiliating tribute to him. But after delicate and protracted negotiations the problem was solved by a remarkable compromise in which Castro agreed to accept as ransom some $50 million worth of drugs and medical supplies, which were to be donated gratis by U.S. drug manufacturers.
It has been speculated that because part of the deal was allowing the manufacturers to take credit for the donations as tax-deductible gifts (at wholesale prices, without disclosure of their costs), they may well have made awesome profits out of their patriotism and philanthropy. But be that as it may, by thus getting everyone off the spot they put themselves in a position to ask for a whopping return favor from leaders in both branches of government whose faces they had so neatly saved.
Their price was the counterfeit drug ban.
When H.R. 2 was introduced it contained the following recital:
And the controls it imposed were controls indeed! Nowhere else had criminal sanctions ever been attached directly to mere trade infringements. If, for example, some ambitious manufacturer of film should start putting out his product in a familiar-looking yellow box with a famous word like K-d-k on it, the Eastman Company would have to hire lawyers, commence a civil proceeding, and be content-at most-with an injunction plus whatever damages could be shown to have been caused directly by the infringement of its rights (at the end of which proceedings the infringer might risk wrist-tap punishment if he defied the injunction).
But if the same eager manufacturer decided instead to Put out some perfectly pure and efficacious aspirin with a word like B-y-r impressed on the tablets, by the terms of H.R. 2 as it became law he has committed a federal crime for which he can be fined (if he intended to defraud or mislead) $10,000 and imprisoned three years; the gun-toting drug inspectors will go out and seize all his product wherever they can find it; and even the plant and the equipment he has used for the manufacture of the aspirin may be condemned and forfeited to the United States. Small wonder, then, that the drug lobbyists turned up this time working right along with the proponents of H.R. 2-though even so, an unsuccessful attempt was made to tie the Secretary's hands by an amendment which would have required him to rely on an industry advisory committee, endowed with real powers and following elaborate procedures to facilitate foot-dragging, in the classification of new drugs before they could be added to the dangerous category.
H.R. 2 was rushed to hearings in record time. Supporting testimony reached crescendos of alarm about the new dangers to American youth and the sinister nature of the newly discovered illicit traffic. But I forgo further repetitions of these themes, since they sound strikingly like identical outcries heard at intervals ever since 1918, and also since this is the long awaited point where the death-on-the-highway catechism had, momentarily at least, its tragicomic comeuppance.
When the hearings were well along, a spokesman for the American Trucking Association asked to testify, and after carefully disclaiming that his industry had any intention of questioning the bill as such, he explained somewhat diffidently: "We have a problem . . . the use of amphetamines by truck drivers. In our experience we have found it to be a health problem far more than a safety problem." Then he gave the Committee same interesting `hard data:
The Commission Chairman replied that they had seven years' records and that of the 7 years' records, with approximately 25,000 truck accident reports being filed every year, they felt that they had 13 provable accidents involving amphetamines, and 40 in which amphetamines were indicated to be involved.
So it was, in effect, 13 out of 25,000 a year over a 7-year period. They had 13 in which they felt there were provable connections between amphetamines and the accident. This is the only statistic we have been able to arrive at.
Moreover, when pressed on the point, this witness put into the record summaries of the reports on each of the thirteen alleged drug cases (actually fourteen), and it turned out that in nine the record only showed some kind of pill to have been found in the possession of a driver involved in an accident. So the net number in which actual drug intoxication was so much as observed faded away to five in that seven-year period (and among official reports of 175,000 accidents).
This glimpse of reality had little effect, however. Chairman Harris and his Committee challenged the witness before he left the stand:
On the same day that this testimony was given, the Interstate Commerce Commission performed an agile kowtow by getting out an open letter to the Harris Committee (holding the H.R. 2 hearings, but which happened also to have primary Congressional jurisdiction over the ICC):
And the stream of testimony by members anxious to have their full share of headline credit continued:
Irrepressible Chairman Harris had the last word: "We had testimony last week from both the Commission and a representative of the American Trucking Association that such occurrences were rather rampant all over the country."
The House Committee rushed out a favorable report on H.R. 2, the House passed it in record time (402 to 0) with little debate, and the Senate followed precipitously. No further hearings were held in the upper chamber, the reporting committee offering generalities about drug abuse and juvenile delinquency, drug abuse and the rising crime rate, and of course drug abuse which "has contributed to the rising accidents on the highways." The Senate enacted in June 1965 without dissent, in a final flurry of oratory:
Signing the bill, on July 15, 1965, President Johnson said: "We know all too well that racketeers in this field are malting easy victims of many of our finest young people. The Congress hopes, and I hope, that this Act will put a stop to such vicious business."
There were those who thought when this law first took effect that it might be a step in the right direction at least to the extent that nominally & Food and Drug Administration in the Department of Health, Education, and Welfare was a science oriented agency, not as narrowly devoted to law-enforcement as Anslinger's Narcotics Bureau (then being run along the same lines by his successor Commissioner Giordano). But it soon became apparent that this was not to be the new direction. Commissioner Larrick began recruiting gun-slinging agents, including a substantial number pirated from Giordano, and tough regulations were promulgated, with emphasis on the new order of things in which everyone who did not carefully toe the line risked prison. FDA district directors went about warning audiences of affected persons:
Steps were soon taken to add sixteen drugs other than amphetamines and barbiturates to the controlled category, including not only LSD and several chemically produced synthetics, but also mescaline and peyote, 'except when used in bona fide religious ceremonies of the Native American Church."
Some of the FDA medical people, directed to beat the drums for the new Act, hedged a little. Consider, for instance, this from an FDA doctor to a group of student personnel administrators:
But the agency itself was not troubled by faintheartedness. In a widely circulated 1965 Fact Sheet it trumpeted its claims:
FDA speech bits, prepared for use by its inspectors before school and civic groups and anyone else who would listen, spread the alarming word:
In the bootstrap pattern we saw half a century earlier when the Prohibition Unit launched its war on drug users, Commissioner Larrick soon began claiming that the effectiveness of his agents was raising the black-market prices of dangerous drugs so much that the illicit traffic was obviously attracting more predatory peddlers. Result? Why, FDA would need larger appropriations, more manpower to make more arrests, and tough enforcement policies to deal with "big-time criminals."
But Larrick was personally riding for a fall. His resignation was accepted at the end of 1965, and he passed into retirement just before the new Drug Abuse Amendments took effect.