Letter Alleges Georgia Violated Controlled Substances Act by Importing Death Penalty Drug

March 1, 2011

By Susan J. Matthees –  

In an interesting twist in a developing story on the importation of thiopental, a drug used to administer the death penalty by lethal injection, the attorney for Georgia death row inmate Andrew Grant DeYoung sent Attorney General Eric Holder a letter alleging that the Georgia Department of Corrections (“GDC”) appears to have violated the Controlled Substances Act (“CSA”) by failing to register as an importer of thiopental and file a declaration to import the drug.  As we previously reported, six inmates on death row are suing FDA over the importation by three states of allegedly adulterated and misbranded thiopental.  Mr. DeYoung, the Georgia inmate on death row, is not one of the plaintiffs in the suit against FDA.

Thiopental (sodium pentothal) is a Schedule III nonnarcotic controlled substance.  Under the CSA, a nonnarcotic controlled substance cannot be imported unless it “is imported for medical, scientific, or other legitimate uses, and is imported pursuant to such notification, or declaration, or . . . as the Attorney General may by regulation prescribe.”  21 U.S.C. § 952(b).  The Drug Enforcement Administration (“DEA”), as delegated by the Attorney General, has promulgated regulations requiring importers of such substances to be registered and file an import declaration. 

The letter alleges that Dream Pharma Ltd., a distributor in London, England, sold and shipped thiopental to the GDC in July 2010, but that the GDC is not authorized to posses thiopental because it is not registered with DEA.  When questioned, the GDC allegedly produced a DEA-issued registration to possess Schedule III narcotics, but not Schedule III nonnarcotic substances, such as thiopental.  Further, the letter alleges that GDC failed to declare its importation of thiopental as required by 21 U.S.C. § 954(2). 

Federal law and regulations provide some exceptions to registration requirements for the Department of Defense and federal Bureau of Prisons in the case of prescribing, dispensing, or administering controlled substances, but not to procure or purchase.  21 C.F.R. § 1301.22(a).  There is also an exemption for state officials engaged in enforcing state or local laws relating to controlled substances.  Id. § 1301.24(a)(2).  It does not appear that these exemptions would apply to this situation. 

The letter asks Attorney General Holder to direct DEA and/or other appropriate agencies to investigate the GDC’s actions.