Texas Attorney General Opinion: DM-472 Page: 5 of 7
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The Honorable Hugo Berlanga - Page 5 (DM-472)
Oliver R. Smith, Jr., D.C.
The chiropractic board's second question concerns the use by chiropractors of "dangerous
drugs." V.T.C.S. article 4512b, section 13a(a)(2), excludes from the scope of the practice of
chiropractic "the prescribing of controlled substances or dangerous drugs or any drug that requires
a prescription."8 The Health and Safety Code defines a "dangerous drug" as:
a device or a drug that is unsafe for self-medication and that is not
included in Schedules I through V or Penalty Groups I through 4 of Chapter
481 (Texas Controlled Substances Act). The term includes a device or a drug
that bears or is required to bear the legend:
(A) Caution: federal law prohibits dispensing without prescription; or
(B) Caution: federal law restricts this drug to use by or on the order of
a licensed veterinarian.
Health & Safety Code 483.001(2); see Gov't Code 311.011(b) (Code Construction Act) ("Words
and phrases that have acquired a technical or particular meaning, whether by legislative definition
or otherwise, shall be construed accordingly."). Thus Texas law considers a substance to be a
"dangerous drug" when the federal Food and Drug Administration ("FDA") requires the substance
to bear a prescription legend. The board tells us that in some instances, although the FDA requires
a legend, some manufacturers do not include the legend in their packaging and promotion. We
understand you to ask, therefore, whether a chiropractor may be found to be in violation of V.T.C.S.
article 4512b if he or she prescribes a dangerous drug that does not carry the FDA-required legend.'
We conclude that a chiropractor may be found to be in violation in such a case.
The statute defines a dangerous drug to include a drug that bears or is required to bear a
prescription legend. Health & Safety Code 483.001(2). Thus a drug that is required to bear a
prescription legend is a dangerous drug even if it does not actually bear the legend. We believe it
is the duty of a responsible health care provider to determine whether a drug not bearing a legend
is nevertheless required to bear a legend. Furthermore, the critical factor in determining whether a
drug is a dangerous drug is not whether it carries an FDA-required legend, but rather whether it is
"unsafe for self-medication." A drug that is "unsafe for self-medication" falls within the definition
8A violation of article 4512b is punishable by the revocation or suspension of a chiropractor's license, or the
probation or reprimand of a licensee. V.T.C.S. art. 45 12b, 14(a). The board may impose an administrative penalty
in an amount not to exceed $1,000 for each day the violation occurs or continues, and the violator is also liable to the
state for a civil penalty of $1,000 per day. Id. 14a(a), 19a(a), (b). The Health and Safety Code also provides for
criminal penalties for the possession or delivery of a dangerous drug. See Health and Safety Code ch. 483, subch. C.
9You ask about a chiropractor's "use" of dangerous drugs in his or her practice, while the statute speaks withrespect to the "prescrib[ing]" of dangerous drugs. For purposes of this opinion, we assume that prescribing and using
are synonymous.p. 2669
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Texas. Attorney-General's Office. Texas Attorney General Opinion: DM-472, text, March 30, 1998; (https://texashistory.unt.edu/ark:/67531/metapth274281/m1/5/: accessed July 17, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu.; crediting UNT Libraries Government Documents Department.