Criminal Justice Forum

Did CVS Buy Its Way Out of a Meth Indictment?

special to Drug War Chronicle by Clarence Walker

[Editor’s Note: Clarence Walker is a veteran Houston-based
journalist who writes on criminal justice issues and who dearly wishes
this piece was called "CVS in the Hood." He wishes all readers a Happy
New Year! Walker can be reached at [email protected].]

Drug agents across the land pursue their endless war against
methamphetamine with relentless vigor, busting tweakers daily and
breathlessly trumpeting the seizure of yet another "meth lab," which
these days often consists of no more than a couple of soda pop bottles
and a few chemicals available from your general store. Yet in the
relentless campaign against meth and its manufacturers, it seems some
are more equal than others.

CVS, the largest operator of pharmacies in the United States, confessed back in October
that it knowingly allowed crystal meth manufacturers to illegally buy
large amounts of pseudoephedrine (PSE), an active ingredient used in the
manufacture of methamphetamine. To avoid criminal prosecution, CVS
officials agreed to pay the federal government a $75 million fine for
narcotics violations, the largest cash money penalty in the 40-year
history of the Controlled Substances Act.

Although pseudoephedrine is a common ingredient in over the counter cold
medications and is legal to purchase from drug stores in Canada and the
US, because it can also be used to make methamphetamine, it is illegal
for pharmacies to sell a person more than 3 1/2 grams of PSE per day.
But DEA and state narcotic officers eventually learned that meth cooks
were able to get around the law by employing "smurfs" — people working
with meth cooks who make repeated legal purchases of PSE at numerous
different pharmacies.

As early as 2007, dealers targeted CVS, and according to the DEA, the
top CVS officials were warned by employees of the illegal violations.
DEA reported that the pharmacy’s head honchos ignored the warnings and
demanded the workers continue selling the large amounts of PSE in
California and Nevada.

Authorities say CVS in effect assisted meth cookers by failing to
provide adequate safeguards to monitor the legal amount of PSE that
customers could buy. DEA said the violations occurred not only in
California and Nevada, but in Arizona, Georgia, South Carolina and 23
other states currently under investigation. Between September 2007 and
November 2008, CVS’s illegal practice of overselling PSE products caused
the DEA to tag them as the largest suppliers of pseudoephedrine to meth
traffickers in Southern California.

US Assistant Attorney Shana Mintz said, "Rather than choosing to
over-comply with the law like their competitors did, they knowingly
under-complied with the law."

Federal agents began investigating CVS in 2008 after pseudoephedrine
seized at Southern California meth labs was traced back to the pharmacy
chain. News media stories reported that CVS installed an automated
system called Meth Tracker to track individual sales but that the
mechanism didn’t stop multiple same-day purchases.

Around Los Angeles, smurfs would hit CVS locations and raid the shelves
of PSE products and cough and cold medicine tablets. Prosecutors said
that in LA County alone over a 10-month period in 2008, sales of
pseudoephedrine products such as Contac, Sudafed, Dimetapp and
Chlor-Trimeton increased more than 150% over the same period in 2007.

"CVS knew it had a duty to prevent methamphetamine trafficking, but
failed to take steps to control the sale of a regulated drug used by
meth traffickers as an essential ingredient for their poisonous stew,"
said US Attorney Andre Birotte in a statement after
the settlement. "This case shows what happens when companies fail to
follow their ethical and legal responsibilities," he added.

"This historic settlement underscores DEA’s commitment to protect the
public’s health and safety against the scourge of methamphetamine," said
Michele Leonhart, the acting administrator of the DEA, in a statement.  "CVS’s flagrant violation of the law resulted in the company becoming a direct link in the meth suppy chain."

While the feds were busy patting themselves on the back, CVS was busy absolving itself. In a statement,
CVS Chairman and CEO Thomas Ryan said, "We have resolved this issue
which resulted from a breakdown in CVS/pharmacy’s normally high
management and oversight standards."  The lapse, Ryan said, "was an
unacceptable breach of the company’s policies and was totally
inconsistent with our values."

Small-time meth cooks are routinely sent to prison for years for "drug
manufacturing," and people who help them out by buying small amounts of
PSE go up the river for conspiracy, but not corporate criminals like
CVS. Did the millions CVS paid the government keep company leaders from
being indicted on drug charges?

During the DEA investigation of the CVS pharmacies, over 50 people were
charged with possession with intent to manufacture methamphetamine for
purchasing the PSE products they bought illegally from CVS stores. Each
defendant faces prison time, while CVS officials who knowingly allowed
the illegal purchase of the drugs get off scot free by paying millions
that eventually will be recouped.

The arrest of the CVS smurfs sparked a heated debate about equal justice
and disparities in the treatment of small-time smurfs and big-time
corporate entities. "It doesn’t seem fair to let those like CVS that
ignored the law and sold massive amounts of an ingredient to make that
poison get away with just a fine. Yes, it’s a hefty one, but they’ll
probably just raise prices to offset it," said Dean Becker, the
Houston-based host of KPFT radio.

"As always, the powers that be are utilizing fear and loathing to
continue their eternal war. CVS and all the corporations that are
subject to the oversight of the DEA are pawns in the game of fear," said
Becker. "Why are people using CVS to make speed?"

"If this was any other drug case, CVS would be the ‘source’ of the drugs
the government would be most interested in prosecuting, and CVS would
receive the longest sentence," she told the Chronicle. "Here, CVS paid a
fine of $75 million and walked away without facing criminal prosecution
while the small players like my client who are meth addicts trying to
earn a few bucks to buy their drugs are facing excessively long prison
sentences. This isn’t fair. It’s outrageous!" Bass said.

"In my client’s case, she needed the money to buy her medication for her
illness. She’s on SSI and had no money to pay for her medicine," the
defense attorney explained. "These are certainly not the people that
Congress intended to punish when it promulgated the PSE sentencing
guidelines. I believe they intended to punish those who actually
manufactured methamphetamine — those whom my client sold the PSE cold
medicine to."

Bass complained the disparity in treatment in this case is so unfair she
will fight tooth-and-nail for her client to show how corporations break
the law an only pay a fine, while the small fry goes to prison.

While corporate behemoths like CVS can buy their way out of trouble,
that’s not necessarily the case for Ma-and-Pa operations, like that of
Oklahoma pharmacist Haskell Lee Evans Jr., 68, a member of the State
Board of Health, who was recently indicted for "recklessly" selling pseudoephedrine to make crystal meth — the same act committed by CVS.

Evans, the owner of Haskell’s Prescription Shop in Lawton, Oklahoma,
allegedly sold pseudoephedrine to undercover agents with valid licenses
who had not exceeded the limit of purchase. The PSE sales were
considered "reckless" on one count because the agents arrived in the
same vehicle to do a purchase. Oklahoma Attorney General Drew Edmonson
is aiming to convict Evans on all accounts and ask a judge to dump him
in prison for up to 43 years. Supporters of Haskell Evans are urging
pharmacists to join a Facebook page called Pharmacists and Citizens in support of Haskell Evans.

Meanwhile, in the midst of the year-end holiday season, attorney Diane
Bass reflected on the year ahead as she prepared to battle the federal
government. She intends to ask the court to lessen her client’s penalty
due to the improper dispensing of the PSE drugs by CVS to the defendant.

"The federal sentencing guidelines in my client’s case calls for a
sentence around 188 months due to the fact she and her co-defendants
purchased several thousand milligrams of pseudoephedrine from CVS," she
said. "I have requested that the US attorney recommend a variance or
departure based on the fact except for CVS’ illegal sales to customers
of more than 3.6 grams per day or 9 grams per month, my client never
would have been able to purchase the amount she purchased. I believe she
should only be sentenced as if she had purchased 9 grams per month
which would result in a 60 month variance. Hopefully, since my client
suffers from serious medical conditions and has had a tragic life, the
court will grant a further down departure in sentencing."

A poor, sick, drug addicted woman’s lawyer fights to get her sentence reduced to only
10 years for buying too much of a legal, over-the-counter medicinal
product, while CVS gets off the hook by paying millions and has the
opportunity to make millions more by staying in business. Disparate
justice isn’t just about race in America, it’s also about class.