On appeal from State Board of Medical Examiners.
Allcorn, Morgan and Francis. The opinion of the court was delivered by Morgan, J.A.D.
At issue in this appeal is the validity of a regulation adopted by the Board of Medical Examiners (hereinafter "Board") which, in explicit terms, proscribes physician use of amphetamines or amphetamine-type drugs, classified as Schedule II controlled dangerous substances, in the treatment of exogenous obesity.
N.J.A.C. 13:35-6.16 provides:
Uses of amphetamines and sympathomimetic amine drugs
(a) No physician shall prescribe, order, dispense, administer, sell or transfer any amphetamine or sympathomimetic amine drug or compound designated as a Schedule II Controlled Dangerous Substance pursuant to the laws of New Jersey, to or for any person except:
iii. Drug induced brain dysfunction;
v. Depression shown to be refractory to other therapeutic modalities; or
2. For the differential diagnostic psychiatric evaluation of depression. or
3. For the clinical investigation of the effects of such drugs or compounds in which case, in addition to other requirements of applicable laws, prior application therefor shall have been made to the Board of Medical Examiners and approval granted before any such investigation is begun.
(b) In addition of the prohibitions set forth in subsection (a) hereinabove, no physician shall prescribe, order, dispense, administer, sell or transfer any amphetamine or sympathomimetic amine drug or compound designated as a Schedule II Controlled Dangerous Substance pursuant to the laws of New Jersey, for use in weight management, dieting or any other anorectic purpose, or for the treatment of fatigue.
(c) Violation of any of the foregoing may be deemed to constitute one or more of the following:
1. Distribution or dispensing of a controlled dangerous substance in an indiscriminate manner, not in good faith, or without good ...