Going Once, Going Twice, Sold with a Click:
Drugs and the Online Auction House

By Melanie R. Margolis

A new twist in the complex area of regulating online drug sales developed when 4 teenagers recently became ill after taking a drug allegedly purchased on eBay, the well-known, online auction site. It seems the four teenagers, all juniors at a New Jersey boarding school, took dextromethorphan hydrbromide (DXM), which caused them to vomit and become disoriented. All were hospitalized overnight on May 23, 2000 and released.

DXM is legally sold over-the-counter (without a doctor's prescription) in some cough medicines. According to the FDA, cough suppressants are divided into two groups: some alter the consistency or production of phlegm; and the others suppress the coughing reflex, including codeine, antihistamines, isoproterenol, and DXM.

The FDA ensures that over-the-counter drugs work correctly and that the health benefits outweigh known risks. Over-the-counter drugs are considered safe if consumers can easily follow the directions and warnings on the label. DXM has been approved only for use in cough suppressants. In its pure form, DXM's health benefits, if any, have not been determined to outweigh known risks. DXM is not rendered safe based on the consumers' ease in following the directions and warnings on the label -- in all likelihood, it would not be labeled at all.

According to MedlinePlus, symptoms of DXM overdose include: blurred vision; confusion; difficulty in urination; drowsiness or dizziness; nausea or vomiting (severe); shakiness and unsteady walk; slowed breathing; unusual excitement, nervousness, restlessness, or irritability (severe). Also, it has on rare occasion become habit-forming (causing mental or physical dependence) in some persons who used too much for a long time.

EBay literally has millions of items listed for sale at any given time. According to eBay, its members add more than 375,000 items for sale to the site daily. EBay does not review or approve items before they are posted for sale. Instead, eBay relies on its users to police the site. In its rules, eBay states that:

[a]s an eBay user, you are ultimately responsible for making sure that buying or selling your item(s) is legal in the eyes of the law….If you think you've spotted an item on eBay that isn't allowed, report it to the Community Watch department. The Community Watch team will check the suspicious item and when appropriate, end auctions or warn sellers.
EBay also publishes a list of items that are prohibited from listing on eBay. The list of prohibited items includes "Prescription Drugs and Materials" and "Drugs and Drug Paraphernalia." The issue raised by sale to the students of DXM is who is liable for the illegal sale of drugs on an auction Web site? Clearly, the eBay user who sold an illegal drug would be legally liable. EBay is cooperating with the investigating authorities by turning over the names of the handful of sellers and buyers of DXM on its site and shutting down other offers for sale of DXM that were listed on the site.

Should eBay be held responsible for a user's sale of an illegal drug? EBay argues that, like the telephone company or postal service, it should not be liable for illegal actions taken by its users; one would not expect a telephone company or the U.S. postal service to be liable for illegal deals made via the telephone wires or through the U.S. mail.  EBay differs from these examples, however, because it takes a percentage of the sales price when an auction item is sold. Liability of operators of auction Web sites in these situations has not yet been determined.

The federal government has been accused of not taking adequate steps against drug sales on the Internet in general. At a congressional hearing held on May 25, 2000 by the House Commerce Committee's Subcommittee on Oversight and Investigations, Committee Chairman Tom Blilely stated that the federal government has done nothing substantive to combat illegal online prescription drug sales. The Justice Department has only filed a handful of cases involving Internet drug sales, which have resulted to date in a couple of convictions and a few additional indictments. The FDA has not taken any significant action on the illegal sale of prescription drugs or drug sales by overseas pharmacies over the Internet, much less the newer issue of drug sales through auction sites.