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BILL NUMBER:S5036

TITLE OF BILL: An act to amend the general business law, in relation to the sale of over-the-counter methamphetamine precursor drugs

PURPOSE OR GENERAL IDEA OF BILL: To limit the sale of cold medicine containing pseudoephedrine to behind the counter, limit the amount of pseudoephedrine that an individual can purchase each month, and require that an individual present photo identification to purchase products containing pseudoephedrine.

SUMMARY OF SPECIFIC PROVISIONS: Creates a new section in the general business law, Section 391-oo:

- defines methamphetamine precursor drug - limits the sale of methamphetamine precursor drugs to 2 packages, not to exceed 9 grams within a 30 day period - limits the over the counter sale to packages containing not more than 3.6 grams of one or more methamphetamine precursor drugs - limits sale of non-liquid products to blister packs containing not more than 2 dosage units, or in unit dose packets or pouches if blister packs are not feasible - mandates that all packages of drugs be displayed behind a checkout counter and only be sold by a licensed pharmacist, registered pharmacy technician, or pharmacy clerk - requires presentation of photo identification showing the buyer's date of birth - requires that the buyer sign a written electronic document to be retained by the seller, which the seller shall maintain for at least three years and be open to inspection by law enforcement - limits the sale of methamphetamine precursor drug to individuals 18 or over anyone who violates of this section is guilty of a misdemeanors, with an affirmative defense in place to protect sellers who prove by preponderance of evidence that the defendant relied on government issued identification in good faith - any person who reports information about a suspicious transaction is immune from civil liability relating to the report - exempts certain methamphetamine precursor drugs, such as pediatric products - exempts wholesale drug distributors licensed and regulated by the state board of pharmacy and the united States drug enforcement administration

JUSTIFICATION: In 2005, the federal government enacted the Combat Methamphetamine Epidemic Act of 2005 (CMEA), which regulates retail over-the-counter sales of ephedrine, pseudoephedrine, and phenylpropanolamine products because of their use in the manufacture of illegal drugs, specifically methamphetamine. They are also common ingredients used to make cough, cold, and allergy products. Retail provisions of the

 CMEA include daily sales limits and 30-day purchase limits, placement of product out of direct customer access, sales logbooks, customer ID verification, employee training, and self-certification of regulated sellers. Such legislation is necessary because it is common for persons manufacturing methamphetamine to recruit other people to purchase these precursors. While the CMEA has been helpful to law enforcement when investigating persons suspected of manufacturing methamphetamine, because no such provisions exist in state law, local law enforcement and district attorney's offices cannot pursue violations of purchase limits.

States have led the effort to address the rapid growth of clandestine methamphetamine labs and methamphetamine abuse, by passing laws similar to the CMEA regulating the sale of drugs containing methamphetamine precursors. In fact, nearly all states have passed laws regulating the sale of precursors to methamphetamine. New York's laws regarding methamphetamine are found in the penal code, but such provisions are limited to possession of precurors and manufacturing materials and actual methamphetamine production. As almost every other state has done, this bill codifies many of the same standards found in the CMEA, so that local law enforcement and district attorneys may have jurisdiction to prosecute violations of purchase limits, in an effort to thwart the "spider-web" process that occurs when methamphetamine manufacturers send multiple people out to purchase precursors on their behalf. The U.S. Department of Justice claims that states that have enacted similar or more restrictive retail regulations have seen a dramatic drop in small clandestine labs.

PRIOR LEGISLATIVE HISTORY: This is a new Bill.

FISCAL IMPLICATIONS: None.

EFFECTIVE DATE: This act shall take effect on the one hundred twentieth day after it shall have become a law. Effective immediately, the addition, amendment, and/or repeal of any rule or regulation necessary for the implementation of this act on its effective date is authorized to be made on or before such date.

Text

STATE OF NEW YORK
________________________________________________________________________

5036

2011-2012 Regular Sessions

IN SENATE

May 2, 2011
___________

Introduced  by  Sen. VALESKY -- read twice and ordered printed, and when
  printed to be committed to the Committee on Consumer Protection

AN ACT to amend the general business law, in relation  to  the  sale  of
  over-the-counter methamphetamine precursor drugs

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1.   The general business law  is  amended  by  adding  a  new
section 391-oo to read as follows:
  S 391-OO. SALE OF METHAMPHETAMINE PRECURSOR DRUGS. 1. FOR THE PURPOSES
OF   THIS  SECTION  "METHAMPHETAMINE  PRECURSOR  DRUG"  SHALL  MEAN  ANY
COMPOUND, MIXTURE, OR PREPARATION CONTAINING EPHEDRINE  OR  PSEUDOEPHED-
RINE AS ITS SOLE ACTIVE INGREDIENT OR AS ONE OF ITS ACTIVE INGREDIENTS.
  2.  NO  PERSON,  FIRM,  CORPORATION, PARTNERSHIP, ASSOCIATION, LIMITED
LIABILITY COMPANY, OR OTHER ENTITY SHALL SELL IN A SINGLE OVER-THE-COUN-
TER SALE MORE THAN TWO PACKAGES OF ANY METHAMPHETAMINE PRECURSOR DRUG OR
A COMBINATION OF METHAMPHETAMINE PRECURSOR DRUGS OR ANY  COMBINATION  OF
PACKAGES EXCEEDING A TOTAL WEIGHT OF NINE GRAMS, CALCULATED AS THE BASE.
  3.  OVER-THE-COUNTER  SALES  OF  METHAMPHETAMINE  PRECURSOR  DRUGS ARE
LIMITED TO:
  (A) PACKAGES CONTAINING NOT MORE THAN A TOTAL OF 3.6 GRAMS OF  ONE  OR
MORE  METHAMPHEAMINE  PRECURSOR  DRUGS, CALCULATED IN TERMS OF EPHEDRINE
BASE OR PSEUDOEPHEDRINE BASE; OR
  (B) FOR NONLIQUID PRODUCTS INCLUDING GEL CAPSULES,  SALES  IN  BLISTER
PACKS,  WHERE  EACH BLISTER CONTAINS NOT MORE THAN TWO DOSAGE UNITS, OR,
IF THE USE OF BLISTER PACKS IS NOT TECHNICALLY FEASIBLE, SALES  IN  UNIT
DOSE PACKETS OR POUCHES.
  4.  ANY  PERSON,  FIRM, CORPORATION, PARTNERSHIP, ASSOCIATION, LIMITED
LIABILITY COMPANY, OR OTHER ENTITY THAT OFFERS FOR SALE  METHAMPHETAMINE
PRECURSOR  DRUGS IN AN OVER-THE COUNTER SALE SHALL ENSURE THAT ALL PACK-
AGES OF THE DRUGS ARE DISPLAYED BEHIND  A  CHECKOUT  COUNTER  WHERE  THE
PUBLIC  IS  NOT  PERMITTED  AND  ARE OFFERED FOR SALE ONLY BY A LICENSED

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11064-03-1
S. 5036                             2

PHARMACIST, A REGISTERED PHARMACY TECHNICIAN, OR A PHARMACY CLERK.  SUCH
PERSON,  FIRM,  CORPORATION, PARTNERSHIP, ASSOCIATION, LIMITED LIABILITY
COMPANY, OR OTHER ENTITY SHALL ENSURE THAT THE PERSON  MAKING  THE  SALE
REQUIRES THE BUYER:
  (A) TO PROVIDE PHOTOGRAPHIC IDENTIFICATION SHOWING THE BUYER'S DATE OF
BIRTH; AND
  (B)  TO  SIGN  A WRITTEN ELECTRONIC DOCUMENT DETAILING THE DATE OF THE
SALE, THE NAME OF THE BUYER, AND THE AMOUNT OF THE DRUG SOLD.
  5. A DOCUMENT DESCRIBED UNDER PARAGRAPH (B)  OF  SUBDIVISION  FOUR  OF
THIS SECTION SHALL BE RETAINED BY THE SELLING PERSON, FIRM, CORPORATION,
PARTNERSHIP, ASSOCIATION, LIMITED LIABILITY COMPANY, OR OTHER ENTITY FOR
AT  LEAST  THREE  YEARS  AND MUST AT ALL REASONABLE TIMES BE OPEN TO THE
INSPECTION OF ANY LAW ENFORCEMENT AGENCY.
  6. NOTHING IN THIS SECTION REQUIRES THE BUYER TO OBTAIN A PRESCRIPTION
FOR THE PURCHASE OF ANY METHAMPHETAMINE PRECURSOR DRUG.
  7. NO PERSON MAY ACQUIRE THROUGH OVER-THE-COUNTER SALES MORE THAN NINE
GRAMS OF METHAMPHETAMINE PRECURSOR DRUGS, CALCULATED AS THE BASE, WITHIN
A THIRTY DAY PERIOD.
  8. NO PERSON MAY SELL IN AN OVER-THE-COUNTER  SALE  A  METHAMPHETAMINE
PRECURSOR  DRUG  TO  A  PERSON UNDER THE AGE OF EIGHTEEN YEARS. IT IS AN
AFFIRMATIVE DEFENSE TO A CHARGE UNDER  THIS  SECTION  IF  THE  DEFENDANT
PROVES  BY A PREPONDERANCE OF THE EVIDENCE THAT THE DEFENDANT REASONABLY
AND IN GOOD FAITH RELIED ON A  GOVERNMENT  ISSUED  IDENTIFICATION  CARD,
INCLUDING BUT NOT LIMITED TO A DRIVER'S LICENSE.
  9. A PERSON WHO KNOWINGLY VIOLATES SUBDIVISION TWO, THREE, FOUR, FIVE,
SIX,  SEVEN  OR EIGHT OF THIS SECTION IS GUILTY OF A MISDEMEANOR AND MAY
BE SENTENCED TO IMPRISONMENT FOR  NOT  MORE  THAN  NINETY  DAYS,  OR  TO
PAYMENT OF A FINE OF NOT MORE THAN ONE THOUSAND DOLLARS, OR BOTH.
  10.  AN OWNER, OPERATOR, SUPERVISOR, OR MANAGER OF ANY BUSINESS ENTITY
THAT OFFERS FOR SALE METHAMPHETAMINE PRECURSOR DRUGS WHOSE  EMPLOYEE  OR
AGENT  IS CONVICTED OF OR CHARGED WITH VIOLATING SUBDIVISION TWO, THREE,
FOUR, FIVE, SIX, SEVEN OR EIGHT OF THIS SECTION IS NOT  SUBJECT  TO  THE
CRIMINAL PENALTIES FOR VIOLATING ANY OF SUCH SUBDIVISION IF THE PERSON:
  (A)  DID  NOT  HAVE  PRIOR KNOWLEDGE OF, PARTICIPATE IN, OR DIRECT THE
EMPLOYEE OR AGENT TO COMMIT THE VIOLATION; AND
  (B) DOCUMENTS THAT AN  EMPLOYEE  TRAINING  PROGRAM  WAS  IN  PLACE  TO
PROVIDE  THE EMPLOYEE OR AGENT WITH INFORMATION ON THE STATE AND FEDERAL
LAWS AND REGULATIONS REGARDING METHAMPHETAMINE PRECURSOR DRUGS.
  11. ANY PERSON EMPLOYED BY ANY BUSINESS ENTITY THAT  OFFERS  FOR  SALE
METHAMPHETAMINE PRECURSOR DRUGS WHO SELLS SUCH A DRUG TO ANY PERSON IN A
SUSPICIOUS TRANSACTION SHALL REPORT THE TRANSACTION TO THE OWNER, SUPER-
VISOR,  OR MANAGER OF SUCH ENTITY. THE OWNER, SUPERVISOR, OR MANAGER MAY
REPORT THE TRANSACTION TO LOCAL LAW ENFORCEMENT. A  PERSON  WHO  REPORTS
INFORMATION  UNDER  THIS  SUBDIVISION IN GOOD FAITH IS IMMUNE FROM CIVIL
LIABILITY RELATING TO THE REPORT.
  12. THIS SECTION DOES NOT APPLY TO:
  (A) PEDIATRIC PRODUCTS LABELED PURSUANT TO FEDERAL REGULATION PRIMARI-
LY INTENDED FOR ADMINISTRATION TO CHILDREN UNDER  TWELVE  YEARS  OF  AGE
ACCORDING TO LABEL INSTRUCTIONS;
  (B)  METHAMPHETAMINE  PRECURSOR  DRUGS CERTIFIED BY THE STATE BOARD OF
PHARMACY AS BEING MANUFACTURED IN A MANNER THAT PREVENTS THE  DRUG  FROM
BEING USED TO MANUFACTURE METHAMPHETAMINE;
  (C) METHAMPHETAMINE PRECURSOR DRUGS IN LIQUID FORM; OR
  (D)  COMPOUNDS,  MIXTURES,  OR PREPARATIONS IN POWDER FORM WHERE PSEU-
DOEPHEDRINE CONSTITUTES LESS THAN ONE PERCENT OF ITS TOTAL WEIGHT AND IS
NOT ITS SOLE ACTIVE INGREDIENT.
S. 5036                             3

  13. THE STATE BOARD OF PHARMACY, IN CONSULTATION WITH  THE  DEPARTMENT
OF  PUBLIC  SAFETY,  SHALL  CERTIFY METHAMPHETAMINE PRECURSOR DRUGS THAT
MEET THE REQUIREMENTS OF PARAGRAPH (B) OF  SUBDIVISION  TWELVE  OF  THIS
SECTION AND PUBLISH AN ANNUAL LISTING OF SUCH DRUGS.
  14.  WHOLESALE  DRUG  DISTRIBUTORS LICENSED AND REGULATED BY THE STATE
BOARD OF PHARMACY AND REGISTERED WITH AND REGULATED BY THE UNITED STATES
DRUG ENFORCEMENT ADMINISTRATION  ARE  EXEMPT  FROM  THE  METHAMPHETAMINE
PRECURSOR DRUG STORAGE REQUIREMENTS OF THIS SECTION.
  15.  THIS SECTION PREEMPTS ALL LOCAL ORDINANCES OR REGULATIONS GOVERN-
ING THE SALE BY A BUSINESS ESTABLISHMENT  OF  OVER-THE-COUNTER  PRODUCTS
CONTAINING EPHEDRINE OR PSEUDOEPHEDRINE. ALL ORDINANCES ENACTED PRIOR TO
THE EFFECTIVE DATE OF THIS SECTION ARE VOID.
  S 2. This act shall take effect on the one hundred twentieth day after
it  shall have become a law. Effective immediately, the addition, amend-
ment, and/or repeal of any rule or regulation necessary for  the  imple-
mentation  of this act on its effective date is authorized to be made on
or before such date.