Today, the court of appeals reversed a defendant’s drug convictions because the indictments identified the controlled substances in question using terms that are widely used to describe the drugs, but that are neither the chemical names listed in the controlled substance schedules nor – according to the court – “trade names” for the drugs. Because more and more drug cases involve pharmaceuticals that have many names, it is worth reviewing the case.
The case is State v. Sullivan. It arose when police used an informant to buy steroids from the defendant.
Trial court proceedings. The defendant was charged with, and convicted of, multiple drug crimes, including selling, delivering, or possessing with the intent to sell or deliver, “Uni-Oxidrol,” “Uni-Oxidrol 50,” and “Sustanon.”
Court of appeals ruling. The court of appeals ruled that the indictments concerning these substances were fatally defective, citing a line of cases requiring drug indictments to “list a controlled substance by its chemical name as it appears in [Chapter 90].” State v. LePage, 204 N.C. App. 37 (2010). Specifically, the court stated, “neither Uni-Oxidrol, Oxidrol 50, nor Sustanon are substances that are included in Schedule III of the North Carolina Controlled Substances Act.”
What are Uni-Oxidrol and Sustanon? As the court noted, there is no reference in Schedule III to “Uni-Oxidrol” or “Sustanon.” So I spent a few minutes on the internet investigating what these substances are.
- “Oxidrol,” also spelled “oxydrol,” is a name commonly used to describe oxymetholone. The name seems to be used by both those who use the drug and companies that make it. Uni-oxidrol seems to be another term used to describe the same substance. Oxymetholone, also known as Anadrol, is a steroid that is listed on Schedule III. S. 90-91(k)(27).
- “Sustanon” is a part of the term “Sustanon 250” that is used by a pharmaceutical company to refer to a blend of testosterone compounds. See this Wikipedia page. The company previously produced a related product called Sustanon 100. Both versions of Sustanon include testosterone propionate, a steroid that is listed on Schedule III. S. 90-91(k)(6).
Why aren’t they “trade names”? Given the information above, why aren’t Uni-Oxidrol and Sustanon “trade names” that adequately identify the steroids that they contain? The court of appeals has approved the use of “trade names” in lieu of chemical names in indictments. State v. Newton, 21 N.C. App. 384 (1974) (ruling that an indictment charging the defendant with the possession of “Desoxyn” was valid because Desoxyn is a “trade name” for methamphetamine hydrochloride, a controlled substance listed in Chapter 90).
As an aside, my impression is that pharmaceutical names are more properly described as trademarks than as trade names. The Small Business Association explains here that a “trade name” is a name by which an entire business enterprise is known, while the Brand Institute discusses the trademarking of drug names here. But “trade name” is the term used in the preamble to each of the controlled substance schedules, which state that the schedules apply to “the controlled substances listed or to be listed by whatever official name, common or usual name, chemical name, or trade name designated.”
In any event, the Sullivan court concluded that Uni-Oxidrol and Sustanon aren’t trade names: “Further, none of these substances are considered trade names for other substances included in Schedule III.” However, the opinion doesn’t explain what makes a name a “trade name,” or why Uni-Oxidrol and Sustanon don’t qualify. On the one hand, each term appears to be widely used and to refer unambiguously to a single substance. On the other hand, Uni-Oxidrol seems to be used less often than Oxydrol, while Sustanon falls a little short of Sustanon 250. If readers have thoughts about how to draw the line between valid “trade name[s]” and other terms used in commerce to describe a substance, please weigh in. It all seems rather murky to me.
Takeaway. Sullivan shows that North Carolina continues to apply strict pleading standards in cases involving drug names. I recommend that the State always try to use a chemical name, taken directly from one of the drug schedules, in every drug indictment. Although the use of “trade name[s]” is permissible under Newton, Sullivan shows that what some may view as a “trade name,” others may view as an imprecise description.