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THE HISTORY OF LEGISLATIVE CONTROL OVER OPIUM, COCAINE, AND THEIR DERIVATIVES

by

David F. Musto, MD


Legislative control over dangerous drugs may be dated from attempts in the nineteenth century to prevent acute poisoning by certain substances that might be purchased in ignorance of their lethal potential or might be too easily available to would-be suicides. Opium was being sold in a crude form containing about 10 percent morphine, as well as in concoctions derived from crude opium: paregoric, laudanum, and a solution in acetic acid known as "black drop." Morphine had been isolated from opium in 1805 by the German pharmacist, F. W. Serturner, but production of the powerful active ingredient of opium on a large scale was delayed until the 1830s.1 From that time onward, in factories in Germany, Great Britain, and the United States, morphine was produced in great quantities. Thus when in 1868, Great Britain came to enact pharmacy laws to control dangerous substances, "opium and all preparations of opium or of poppies" was listed alongside such substances as oxalic acid as commodities that could not be sold without being labeled "poison."'

The Pharmacy Act of 1868 is an important symbol of legislative control in a Western country. The act was not the most strict among nations; perhaps the Prussian regulations were stricter and more comprehensive, but establishment by the British of some limitation on the availability of dangerous drugs-drugs that would eventually become more serious a problem for society as addictive agents than as tools for suicide-was a policy also followed by other European nations. It had an apparently discouraging effect on the per capita consumption of opium, opiates, and cocaine in the late nineteenth century and contributed to the low level of British consumption (at least compared to the American) right up to the 1960s.3

The experience of the United States stands in contrast to Britain's. The Pharmacy Act of 1868 was regulated in large part by the organized association of pharmacists, the Pharmaceutical Society (established 1841). In order to retail, dispense, or compound "poisons," or to assume the title of chemist, druggist, pharmacist, or dispensing druggist or chemist, the individual had to be registered by the Pharmaceutical Society. As well as being the testing and registering body, the Society was also given the initial responsibility for adding new drugs to the poison list. Thus the law, which ultimately would be enforced in British courts, was monitored by local members of the Pharmaceutical Society as a tool in competition with unregistered druggists, grocers, and anyone else who might attempt to purvey these drugs to the public.

While the act presumably aided the public health by having dangerous drugs sold or dispensed by individuals knowledgeable about their qualities, it was also a convenient aid to the trade of registered pharmacists. Although the drugs could be obtained with no specific restraint on the amount or frequency of sale, the bottles had to be labeled "poison." A stricter category of substances also required that the purchaser be an acquaintance of the pharmacist or someone the pharmacist knew. This list included arsenic and "strychnine and all poisonous alkaloids and their salts." The impact of this modest obstacle to the acquirement of dangerous drugs should not be underestimated. Further, the self-interest that would motivate registered pharmacists to monitor breaches of the law provided an unpaid, but interested, drug enforcement cadre scattered throughout Great Britain. "Patent medicines" were excepted from these controls, and this led to a campaign against them later in the century, but the pure forms of the drugs, e.g., morphine suitable for injection, were restricted in availability from the time of the Pharmacy Act onward.' In the United States, throughout the nineteenth century, both medicine and pharmacy remained essentially unorganized, although there were some physicians and pharmacists attempting to organize their professions. The American Medical Association, which was founded in 1847 and which we now might think of as the dominant medical organization, was a small and nationally unrepresentative group until about World War 1.5 The American Pharmaceutical Association, founded four years later, grew slowly and, like the AMA, lacked the authority to license practitioners. The pharmacy establishment was divided sharply among drug manufacturers, wholesalers, and retailers, whose divergent interests the APhA tried to coordinate, but each segment of the profession came to work through its own organization: the National Wholesale Druggists' Association (1882), the National Association of Retail Druggists (1898), and many other groups.6 There was no national group for the health professions to which government could turn for regulation, even if the American constitutional system had permitted such an arrangement.

Licensing of pharmacists and physicians, which was the central government's responsibility in European nations, was, in the United States, a power reserved to each individual state. In the era of Andrew Jackson, any form of licensing that appeared to give a monopoly to the educated was attacked as a contradiction of American democratic ideals. State after state repealed the medical licensing laws adopted in earlier days. Practical concerns also supported repeal: Legislators preferred to leave it to the patients to decide which of the many competing theories of medicine was the best. Instead of moving toward a national system of licensing for health professionals, therefore, individual states were deregulating the professions. American medical schools were similarly unregulated, and many flourished-some no better than diploma mills. The states did not begin reestablishment of medical licensing until the 1880s, and even then the movement was spotty, with a wide range of standards.' Pharmacists, also seeking to raise standards and limit competition, likewise fought at the state level for licensing, since the U.S. Constitution placed in the hands of states the regulation of the health professions. Although some requirements for labeling of over-the counter medicines would come with the Pure Food and Drug Act of 1906 as an exercise of the federal right to regulate interstate commerce, in general, the nineteenth and early twentieth century interpretation of the Constitution favored a strict division between state and federal powers.

The status of legislative control of dangerous drugs during the nineteenth century may be summed up as follows: The United States had no practical control over the health professions, no representative national health organizations to aid the government in drafting regulations, and no controls on the labeling, composition, or advertising of compounds that might contain opiates or cocaine. The United States not only proclaimed a free marketplace, it practiced this philosophy with regard to narcotics in a manner unrestrained at every level of preparation and consumption.

Through a slower pace of professional development, the United States also lagged behind Britain and other European countries in establishing broadly based organizations representing the nation's physicians or pharmacists to which the central government could turn for regulation. Second, the form of government adopted in the United States, a federation of partly independent states, was a conscious attempt to prevent establishment of an all-powerful central government characteristic of Europe. In the nineteenth century, this remarkably successful form of government entailed each state making its own regulation if it wished to; the result was an array of controls that varied from one state to another. In fact, states made little attempt to control addictive drugs until quite late in the last century, and those efforts did not prove very effective.

During the first part of the nineteenth century, the amount of opiates used in the United States may have been comparable to that used in Britain, where some areas, notably the fen counties, had a fairly large per capita consumption. Inhabitants there often took a dose of laudanum or some form of opium daily to keep away the fevers associated with the marshlands.8 More generally, parents reputedly purchased one or another form of opium to rub on the gums of teething infants or to spoon-feed a child to induce sleep so that the mother without provision for child care could work in the local factory. These accounts are anecdotal, but recent historical studies do suggest that the taking of some form of opium for pain, sleep, or to ward off illness was not uncommon. The occasional death of an infant from an overdose of opium or the suicide of an adult by means of opium prompted parliamentary interest in the distribution and labeling of the drug. In large measure, the 1868 Pharmacy Act was the result. One should note however, that through the provisions of the act and the designation of the Pharmaceutical Society as the most responsible body, the pharmacists also achieved some control over the profession and a lead on the other health professions. A somewhat similar victory for U.S. pharmacy would be found in the details of the Harrison Narcotic Act in 1914.9

In nineteenth-century America, the unimpeded importation of opium and the free economy in opiates do give an advantage to the historian, for estimates of per capita consumption are more reliable when there are few restrictions on the importation, sale, and consumption of a product. Because the growth of poppies within the country and preparation of opium from them seem to have been a minor contributor to American use, the import statistics, begun in 1840 and continued to the present day, are reliable as a guide to domestic consumption until the Harrison Act of 1914. Certainly the minimum level and the trend can be observed. After the Harrison Act, these statistics grew less reliable, for smuggling becomes a more uncertain variable, but we can say that at least during the nineteenth century the annual per capita consumption rose steadily from about 12 grains in 1840 (an average single dose being one grain) until the mid-1890s, when it reached 52 grains annually per capita. Then statistics show that average individual consumption gradually subsided up to 1914, by which time the per capita rate had fallen back to the level of about 1880." In Great Britain, the per capita consumption declined during the latter half of the nineteenth century." During that same period, opium use in the United States rose dramatically. The peak of opiate addiction in the United States occurred about the turn of the century, when the number probably was close to 250,000 in a population of 76 million, a rate so far never equaled or exceeded. 12 Heroin had been introduced into the pharmacy in 1898 and had contrasting impacts in Britain and the United States. In New York City, the addiction capital of the United States, heroin became the drug of choice for recreational addicts, and the number of addicts was measured in the tens of thousands by 1920. In Britain, the addiction rate for heroin addicts by 1920 was minuscule. 13 Of course, the use of drugs is determined by many factors, but I would like to suggest that the contrast in easy availability of narcotics in America and Britain-created by political and social factors removed from considerations of addiction-underlay the strikingly different rates of addiction each country experienced well into this century. The rise in addiction with which we are more familiar, that of the 1950s and more recently, appears to be associated with additional factors that will be discussed later.

Americans have something to learn from their earlier and extensive consumption of opiates, including heroin, and also massive consumption of cocaine, which occurred before World War I. This era is forgotten. We commonly act as if the heroin "epidemic" of the 1960s or the current cocaine "epidemic" is a new phenomenon in the United States, that the widespread use of a drug implies that legalization or "decriminalization" is the only reasonable response. The history of attempts at legislative control in the United States suggests that other courses may be effective and that these alternatives to legalization appear to have reduced enormous opiate and cocaine consumption in the United States earlier in this century. Therefore, it is worthwhile to consider these early efforts at narcotic limitation if we are to approach contemporary policy issues with an appreciation of the range of policy options that reduce or encourage ingestion of these substances. For in spite of the great difference in addiction rates between the United States and Great Britain in 1920, the United States did reduce its addiction rate to a relatively small number. On the other hand, the low heroin addiction rate in Great Britain prior to the 1950s did not prove a protection against drug problems in that nation, although the level of use in Britain has not reached the proportions to which we are accustomed in the United States. Clearly the social and legal factors affecting drug use are complex, and there is no single influence that determines a particular level of drug use and abuse.


AMERICAN LEGISLATIVE CONTROL OVER OPIUM AND OPIATES TO 1914

The role of opium and its derivatives in the United States can be traced independently from cocaine until 1914, when these substances were linked together as "narcotics" through the Harrison Act. Technically, only the opiates are narcotics, that is, sleep-inducing, and they all have different effects. Nevertheless, most dangerous drugs, including cannabis, were grouped under the rubric "narcotics" from at least the 1920s until the 1960s.

As mentioned above, opium was available in many forms derived from crude opium long before the nineteenth century. In America, the two developments that spurred both consumption and concern about opium were (1) the isolation of morphine and its injection into the body with hypodermic syringes and (2) the introduction of smoking opium, which had been brought to the United States mainly by a feared minority, Chinese laborers imported to help build western railroads. The much greater ease of addiction through use of morphine compared to the more dilute forms employed previously focused attention on the drug, medical practitioners, and modern technology in the form of the hypodermic syringe.

Consumption of opium in the United States rose steadily before and after the Civil War. There had been complaints before the war about "opium drunkards" by such prominent and progressive physicians as Oliver Wendell Holmes, but in the second half of the century, physicians, as well as the general public, widely deplored opium and morphine addiction. To be addicted to morphine was to harbor a shameful secret to be hidden from others at whatever cost, a point illustrated in Eugene O'Neill's moving play about his own family, Long Day's Journey into Night. Written in his later years, it was based on his mother's addiction by a thoughtless physician, and the pain of this memory had remained so great that O'Neill would not permit the play's production during his lifetime. The leading American surgeon and the first professor of surgery at The Johns Hopkins Hospital, William Stewart Halsted, was a morphine addict for the last several decades of his life. His secret was kept hidden carefully until the publication of Sir William Osler's private diary in 1969." Osler had been Halsted's physician while Osler was on the Hopkins faculty. Halsted's addiction did not appear to interfere with his work.

Americans received opium and morphine not only from their physicians for pain; they could receive what they wanted, for whatever reason they chose, over the counter or from mail order catalogues. The American free enterprise system, coupled with the federal system of government, meant that a bottle heavily laced with morphine could be sold across state lines as an "addiction cure" and affirmed on the label to contain no morphine whatsoever, quite within the law. States could pass laws restricting such advertising, but they were not inclined to do so. Patent medicine companies were the leading advertisers in American newspapers. They developed an ingenious protection from prying investigations or public pressure to reveal secret formulas, or from any state requirement to make only valid claims for effectiveness: The proprietary manufacturers included in their lucrative contracts with newspapers a proviso that the advertising agreement would be void if the state in which the newspaper was published enacted any laws affecting the sale or manufacture of the nostrums. 11

In the nation's capital, the manufacturers also fought off requirements that their nostrums be labeled as to contents. Bills to enact such a law under the interstate commerce clause of the Constitution were defeated repeatedly, but in the 1890s a new reforming spirit was evident in the nation. These reforms were extensive, ranging from control over the use of forest land, to government inspection of meat and other comestibles and laws relating to adulterants in foods, and to drugs considered unsafe. Attention to the danger of narcotics using the term broadly-accompanied the peak of per capita consumption in the United States. It is clear that what were regarded as the most negative aspects of drug use led to the passage of the new legislation. The simplest reform, correct labeling, was part of the Pure Food and Drug Act of 1906. Any over-the-counter medicine - commonly these would be "patent medicines"-had to be labeled correctly as to inclusion of any of the following drugs: morphine, cocaine, cannabis, or chloral hydrate. A long-desired reform, it simply informed the purchaser whether any of these drugs were present; it did not prevent purchase or restrict the amount of the drug. 16 Nevertheless, reports at the time indicate that the amount of these substances dropped from a third to a half as a response to public concern.17 Although the newspapers remained quiet, widely read magazines such as Collier's and Ladies Home Journal railed against patent medicines, especially against morphine and cocaine. Even after passage of the truth-in-labeling laws, the magazines continued their exposes unabated until the next major step, which was restriction on the availability of the drugs themselves."

Tracing the movement to restriction, as opposed to labeling accuracy, requires a step back to the mid-nineteenth century. Patent medicines are thought to have created some addiction, but the number of addicts is difficult to estimate. That physicians addicted or assisted in the addiction of patients is more certain. The problem of iatroaddiction initially was approached by limiting renewal of prescriptions for opiates. These legal controls were mostly in the form of additions to the health statutes and depended for their efficacy on the judgments of physicians and pharmacists. These controls would not, of course, affect interstate commerce in narcotics or the familiar patent medicines, which still could be bought over the counter. No consistent police efforts to enforce these laws appear to have been undertaken.18

As the public and leaders of the health professions became more aware of the growing number of those addicted to opiates, chiefly morphine, state laws were amended to be more stringent, and the police occasionally staged crackdowns. As will be recalled, however, the professions were pretty much unorganized and struggling to achieve mandatory licensing; a threat to take away a license could not hold much fear until a license was required to begin with. Legislators also felt, or at least claimed, a helplessness when neighboring states did not enact strict laws-a circumstance more familiar to us with variations in- the legal drinking age between states-with the result that enforcement was weak. This circumstance, combined with a poorly trained medical profession, a lack of professional organization, and an absence of laws controlling either patent medicine or interstate commerce in drugs, left local controls more symbolic than effective.

The nineteenth century's last decade brought the rise of what would come to be called the Progressive Movement, a set of reforms usually taking the form of federal laws affecting the entire nation with the ostensible purpose of improving the nation's morals or resisting the selfish actions of the rich and powerful. Alongside it grew a temperance, soon a prohibition, movement that would eventuate in the Eighteenth Amendment mandating prohibition of alcohol distribution for nonmedical purposes in the United States. In many ways, of course, the antialcohol movement was part of the Progressive Era; its startling success and later dramatic repeal have given the alcohol issue a somewhat separate development in our minds, but the interrelation between the battles against alcohol and against narcotics is an important one. The antialcohol crusade helped establish the attitude that there could be no compromise with the forces of evil, that "moderation" was a false concept when applied to alcohol: Prohibition was the only logical or moral policy when dealing with this great national problem. By the nineteenth century a new wave of state prohibition laws was enacted. These were tempered by the contemporary constitutional understanding that a state prohibition law did not prevent purchase of liquor from a "wet" state, for that would be a form of interstate commerce and not subject to the states' powers. This assumption helped placate some doubters about prohibition, but the staunch fighters against alcohol also sought to remove that loophole. This they did through the Webb-Kenyon Act of 1913. Without going into the details of the broad and involved movement that led to national prohibition, we should note that the significance for the control of narcotics is that another dangerous substance, over which there was even more dispute as to the means of control, progressed inexorably toward a policy of "no maintenance" and no compromise. The moral question of how to deal with a dangerous substance was being fought out over alcohol, but the case would be stronger even with narcotics when that issue was brought to national deliberation.

The means by which the narcotics issue arose at the federal level was accidental. Certainly it would have come to the attention of Congress and the president eventually as a corollary to the alcohol prohibition movement or as a way of controlling addiction, which was becoming a target of journalist reformers and physicians. It was acquisition of the Philippines through the Spanish-American War that occasioned action by the federal government.

Again, in order to understand how the Philippines forced the central government to take action on opium, it is necessary to appreciate the divisions between federal and state powers that were so marked until the last half-century. The Philippines, unlike a state, came directly and wholly under the control of the federal government. At last, Congress could not avoid making decisions on such matters as the local availability of opium. Opium had been provided to Chinese on the Philippine Islands through a Spanish government monopoly. Civil Governor William Howard Taft considered whether the monopoly should be reinstituted. It was his judgment that this would be reasonable and that the profits from the opium monopoly could be used to help educate Filipinos, a task the United States eagerly accepted as it sought to provide a model government for its first colony. 20

It was at the point in 1903, when this reinstitution was passing through the Philippine government under the eye of Civil Governor Taft, that the moral question of compromising with "evil" affected the future of opium's legal availability in that land. Missionaries in Manila and in the United States had learned that "tainted money" from opium sales was to be employed for education, and they besought President Theodore Roosevelt to prevent this moral wrong. He ordered Taft to stop the bill, and that was the end of it. The mood of moral leaders in the United States was sufficient during the first few years of this century to prevent any such "maintenance" program, even if it was restricted, as promised, to the Chinese in the Philippines. This immediate reaction to allowing opium to be used for purely "recreational" purposes, coming even before the Food and Drug Act, gave a signal as to how the federal government would respond to later questions regarding the legal supply of opium to individuals, not for medical reasons but for enjoyment or to satisfy their addiction.

In response to the veto from Washington, Governor Taft appointed an Opium Investigation Committee to consider how other Asian territories handled the opium problem. This committee introduces us to Bishop Charles Henry Brent, the Protestant Episcopal bishop of the Philippines, who had come out with Taft to help in Americanization of this new possession. Bishop Brent later would become world famous for his pioneer efforts to launch the ecumenical movement among Christian churches, but his second claim to fame was as a world leader against nonmedicinal uses of narcotics. He was appointed to the committee, which traveled to Japan, Formosa, Shanghai, Saigon, and Singapore examining how other nations dealt with the opium user. He and the other members of the committee found the Japanese policy in Formosa, a Japanese possession since its seizure from China in 1895, to be the most effective and enlightened. Japan opposed smoking opium but did not try to stop confirmed addicts abruptly from indulging in their habit. Japan, hoped to "mature out" the opium smokers and leave an opium-free colony. In Japan, itself, opium use was controlled stringently by the government, rare even among Chinese aliens, and strongly deprecated by Japanese society.

The Philippine Opium Investigation Committee recommended that (1) male opium smokers over 21 should be registered in order to receive opium from a reinstituted government monopoly and (2) after a three-year period, the amount provided the smokers be reduced gradually until the smokers had been completely weaned from the drug. 1 But Congress reacted more sternly. Congress decreed immediate opium prohibition, except for medicinal purposes, for all native Filipinos; non-Filipinos-mostly Chinese-were allowed a three-year period of use. Over 12,000 non-Filipino opium users were registered, and their usual dosage was maintained for two-and-onehalf years. During the final six months of the three-year leniency period ending March 1908, the opium provided was gradually reduced to zero. For official purposes, opium smoking had stopped in the Philippine Islands. One additional point: The opium dispensing stations established under these laws were the first American narcotic clinics, although their goal was not long-term maintenance but rather registration and detoxification.

The Philippine situation forced the federal government to take a stand on opium use for nonmedicinal purposes, and the decision was to prohibit. To Congress, once the question was posed, compromise with narcotics was not a politically practical alternative. The Philippines also gave the United States leadership of the international control of narcotics, a role it still holds. It was apparent to the Opium Investigating Committee that the solution to the Philippine opium problem lay in the control of international trafficking in opium, as well as in the curtailment of opium production in the original producing states, such as India, China, Burma, Persia, and Turkey, to name some of the most prominent sites for the cultivation of the opium poppy.

At the time that the Philippines were perceived to be a victim of external sources of opium, the United States was having increasing problems with the Chinese Empire. Owing to maltreatment of Chinese in the United States, merchants in China planned a voluntary embargo on American goods. This worried American industrialists, wholesalers, exporters, and the federal government. China had also embarked on a vigorous effort to rid itself of opium use and, employing draconian methods, was having some success. As a means to indicate good will to China, to aid the Philippine opium problem, and to take an international leadership position on a moral issue of the times, the United States proposed, following Bishop Brent's suggestion to President Roosevelt, to convene an international meeting at Shanghai to consider the opium traffic among nations and to suggest ways in which China's antiopium campaign might be aided.

Thus, the Shanghai Opium Commission came into being. It would meet during February 1909, with Bishop Brent as its elected president. The group was designated a "commission" because the United States was unable to gain approval for a more powerful convocation, a "conference," which under international law could draft a treaty that would, if ratified, bind the signatory states. A "commission," on the other hand, could make findings of only fact or opinion. In addition to the United States and China, those who accepted invitations to Shanghai were Great Britain, France, the Netherlands, Persia, Japan, Italy, Austria-Hungary, Germany, Portugal, Siam, and Russia. Turkey accepted but did not send a representative. Persia was represented by a local merchant.

The resolutions adopted by the commission were merely recommendations and, even as such, had a comfortable vagueness that allowed a latitude of interpretations. For example, Resolution Three, taking cognizance of the near unanimous agreement that opium for nonmedicinal uses should be prohibited or "carefully regulated," called upon nations to "reexamine" their laws. This could hardly be considered a clarion call for prohibition of nonmedical uses, but it was Brent's goal to achieve a series of resolutions that at least pointed in the direction of action to con