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Aaron Moore, ASPL board member, appeared on The Pharmacy Podcast in September, 2016. The Pharmacy Podcast has nearly 60,000 subscribers around the world and focuses on the business of pharmacy.
November 28, 2016
Eight Circuit: a person may be found guilty of misdemeanor violations of the FDCA without evidence of knowledge of violation or intent
A review in the FDLI Update for November-December 2016 discusses at length the 8th Circuit's decision upholding a conviction of Joseph Gellerman, a clerk in a store, the Last Place on Earth, that sells synthetic drugs. The jury found him guilty on 2 misdemeanor charges of violations of the FDCA by delivery of misbranded drugs without intent to defraud. Although Gellerman argued that he was neither an owner or manager of the shop, and his only involvement in selling the synthetic cannabinoids in question was in his limited role as the clerk who handled the sale, the jury was instructed that assisting in the delivery of a misbranded drug was sufficient to find guilt under 21 USC § 331. The trial court rejected Gellerman's objections to the instructions, citing 8th Circuit jurisprudence in US v. Hiland, for the proposition that "neither knowledge nor intent is required for a misdemeanor violation of §331."
In his substantive review of the case, author Norman G. Tabler, Jr., notes that the 8th Circuit probably reached a correct resolution to Gillerman's case, since there was evidence he was aware that his boss was distributing synthetic cannabinoids. As Tabler notes, "Gellerman's arguments were narrow - even carping. The appeals court could have disposed of them with equally narrow language. But the court in effect chose to shoot down Gellerman's arguments with a shotgun rather than a rifle. In relying on Hiland, the court borrowed a legal principle that was clearly meant for corporate officers at the highest level and applied it to a clerk at the lowest level." [Tabler NG Jr, FDCA conviction without evidence of knowledge or intent? FDLI Update 2016 Nov/Dec; http://bit.ly/2gzm84L]
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