Despite the fact that the Controlled Substances Act contains an exemption that protects common contract carriers like FedEx from being prosecuted for someone else’s attempt to sneak drugs through the mail, the Department of Justice has indicted the popular shipping company on 15 criminal counts for servicing orders for illegal online pharmacies. However, online pharmacies are a legal type of government-regulated business, and FedEx has repeatedly asked authorities to provide a list of pharmacies that engage in illegal practices like filling orders without prescriptions.
FedEx, through its lawyers, argued that it has a policy to not open packages and does not have the resources to perform law enforcement duties on behalf of the Drug Enforcement Administration. According to Yahoo! News, FedEx’s Senior Vice President of Marketing and Communications Patrick Fitzgerald said in a statement, “We want to be clear what’s at stake here: the government is suggesting that FedEx assume criminal responsibility for the legality of the contents of the millions of packages that we pick up and deliver every day. We are a transportation company – we are not law enforcement. We have no interest in violating the privacy of our customers. We continue to stand ready and willing to support and assist law enforcement. We cannot, however, do the job of law enforcement ourselves.” US District Judge Charles Breyer indicated that the case will hinge on a determination as to what the company’s duties are in terms of verifying the potential criminality of online pharmacies that use shipping services.
The Department of Justice, which has been investigating the company for nine years, claims that FedEx knew it was servicing illegal online pharmacies. Yahoo! News pulled the following quote from the DOJ’s indictment, “FedEx’s couriers in Kentucky, Tennessee, and Virginia expressed safety concerns that were circulated to FedEx Senior management, including that FedEx trucks were stopped on the road by online pharmacy customers demanding packages of pills, that the delivery address was a parking lot, school, or vacant home where several car loads of people were waiting for the FedEx driver to arrive with their drugs, that customers were jumping on the FedEx trucks and demanding online pharmacy packages, and that FedEx drivers were threatened if they insisted on delivering packages to the addresses instead of giving the packages to customers who demanded them.” In response to these issues, FedEx crafted a policy requiring packages from certain shippers to be held for pick up rather than delivered to an address. The DOJ believes this to be an admission that the company knew it was dealing with illegal online pharmacies. However, legal pharmacies sell addictive drugs, so the fact that recipients were demonstrating symptoms of drug addiction does not necessarily conclusively indicate that the seller is an illegal provider.
The DOJ is also alleging that FedEx carried shipments for pharmacies that had connections, such as matching shipping addresses, to known illegal providers. However, this presumes that FedEx has a responsibility and the capability to tie together these types of connections, considering the enormous volume of shipments it deals in each day.
FedEx was indicted on July 17 by a federal grand jury, and plead not guilty to the 15 criminal counts at a July 29 hearing. The case is due back in court on August 28. If convicted, FedEx could face up to $1.6 billion in fines. According to Bloomberg, FedEx attorney Chris Arguedas said, “The company has cooperated with the Department of Justice throughout its multiyear investigation. FedEx will continue to defend its conduct and its people.”
The Wall Street Journal pointed out the fact that UPS previously settled this same issue with the DOJ, which offered the carrier a non-prosecution agreement in exchange for paying $40 million in fines and assisting the government in catching illegal online pharmacies. It is possible that the prosecution of FedEx is an effort to get the company to assist the DEA in enforcing drug laws.