Relates to the sale of over-the-counter methamphetamine precursor drugs.
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.
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 LICENSEDEXPLANATION--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.