S5036B-2011 Actions

• Mar 30, 2012: RECOMMIT, ENACTING CLAUSE STRICKEN
• Jan 4, 2012: REFERRED TO CONSUMER PROTECTION
• Jun 9, 2011: PRINT NUMBER 5036C
• Jun 9, 2011: AMEND AND RECOMMIT TO CONSUMER PROTECTION
• Jun 7, 2011: PRINT NUMBER 5036B
• Jun 7, 2011: AMEND AND RECOMMIT TO CONSUMER PROTECTION
• May 26, 2011: PRINT NUMBER 5036A
• May 26, 2011: AMEND AND RECOMMIT TO CONSUMER PROTECTION
• May 2, 2011: REFERRED TO CONSUMER PROTECTION

S5036B-2011 Memo

BILL NUMBER:S5036B

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 391-00,
including but not limited to, the following provisions:

- limits the over the counter sale to packages containing not more
than 3.6 grams of one or more methamphetamine precursor drugs, not to
exceed 9 grams within a 30 day period
- 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 valid, government issued, photo
identification
- requires the buyer to sign a written logbook to be
retained by the seller, which the seller shall maintain for at least
three years and be open to inspection by law enforcement
- Beginning January 1, 2012, a retailer shall, before completing a sale,
electronically submit the required information to the National
Precursor Log Exchange (NPLEx) administered by the National
Association of Drug Diversion Investigators (NADDI), except that such
requirement does not apply to any purchase by an individual of a
single sales package if that package contains not more than 60
milligrams of pseudoephedrine.
-retailers are only required to participate as long as the system is
provided by the NADDI free of charge
-provides immunity for retailers
that violate this section without negligence, wantonness,
recklessness, or deliberate misconduct
-the NPLEx system is capable
of generating a stop sale alert, which is a notification that
completion of the sale would result in the retailer or purchaser
violating the quantity limits set forth in this section. The retailer
shall not complete the sale if the system generates a stop sale
alert, unless threatened by imminent bodily harm.
-prohibits the sale of methamphetamine precursor drugs to anyone under
the age of 18
-The state board of pharmacy may grant a 180 day
exemption to any retailer selling a methamphetamine precursor drug if
the retailer shows good cause. If an exemption is granted, the
retailer must maintain a paper logbook as required by federal law.
- provides a total exemption for retailers who appeal to the state
board of pharmacy if the retailer has not sold more than twenty
methamphetamine precursor drug products in any seven day period


during the sixty day period preceding the date the written request is
transmitted.

- exempts wholesale drug distributors licensed and regulated by the
state board of pharmacy and the united States drug enforcement
administration and methamphetamine precursor drugs obtained pursuant
to a valid prescription.

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 precursors 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, in an effort to thwart the "spider-web" process
that occurs when methamphetamine manufacturers send multiple people
out to purchase precursors on their behalf. Furthermore,
participation in the NLPEx system has already been implemented by 16
states and will likely reach 25 by the end of this year. 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. Any and all expenses related to implementation of the National
Precursor Log Exchange is paid for by the National Association of
Drug Diversion Investigators.

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.

S5036B-2011 Text

                      S T A T E   O F   N E W   Y O R K
  ________________________________________________________________________

                                   5036--B

                         2011-2012 Regular Sessions

                              I N  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  --
    committee  discharged,  bill amended, ordered reprinted as amended and
    recommitted to said committee -- committee discharged,  bill  amended,
    ordered reprinted as amended and recommitted to said committee

  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 3.6 GRAMS PER DAY OR MORE THAN NINE GRAMS PER THIRTY
  DAY PERIOD OF EPHEDRINE OR PSEUDOEPHEDRINE BASE, OR THEIR  SALTS,  ISOM-
  ERS,  OR SALTS OF ISOMERS. THE LIMITS SHALL APPLY TO THE TOTAL AMOUNT OF
  BASE EPHEDRINE AND PSEUDOEPHEDRINE CONTAINED IN THE  PRODUCTS,  AND  NOT
  THE OVERALL WEIGHT OF THE PRODUCTS.
    3.  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 OR IN A LOCKED
  CASE WHERE THE PUBLIC IS NOT PERMITTED. SUCH PERSON, FIRM,  CORPORATION,
  PARTNERSHIP,  ASSOCIATION,  LIMITED  LIABILITY  COMPANY, OR OTHER ENTITY
  SHALL:


   EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                        [ ] is old law to be omitted.
                                                             LBD11064-06-1

 S. 5036--B                          2

    (A) ENSURE THAT THE PERSON MAKING  THE  SALE  REQUIRES  THE  BUYER  TO
  PROVIDE  VALID GOVERNMENT ISSUED PHOTOGRAPHIC IDENTIFICATION SHOWING THE
  BUYER'S DATE OF BIRTH; AND
    (B) RECORD THE NAME AND ADDRESS OF THE PURCHASER; NAME AND QUANTITY OF
  PRODUCT PURCHASED; DATE AND TIME PURCHASED; AND PURCHASER IDENTIFICATION
  TYPE  AND  NUMBER,  SUCH AS DRIVER LICENSE STATE AND NUMBER, AND REQUIRE
  THE BUYER'S SIGNATURE IN A LOGBOOK, EXCEPT THAT  SUCH  REQUIREMENT  DOES
  NOT  APPLY TO ANY PURCHASE BY AN INDIVIDUAL OF A SINGLE SALES PACKAGE IF
  THAT PACKAGE CONTAINS NOT MORE THAN SIXTY MILLIGRAMS OF PSEUDOEPHEDRINE.
    4. A DOCUMENT DESCRIBED UNDER PARAGRAPHS (A) AND  (B)  OF  SUBDIVISION
  THREE  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.
    5. PROVIDED THAT THE SYSTEM IS AVAILABLE WITHOUT A CHARGE FOR  ACCESS-
  ING  IT, BEGINNING JANUARY FIRST, TWO THOUSAND TWELVE, A RETAILER SHALL,
  BEFORE COMPLETING A SALE UNDER THIS SECTION, ELECTRONICALLY  SUBMIT  THE
  REQUIRED  INFORMATION  TO  THE  NATIONAL  PRECURSOR LOG EXCHANGE (NPLEX)
  ADMINISTERED BY THE NATIONAL ASSOCIATION OF DRUG DIVERSION INVESTIGATORS
  (NADDI), EXCEPT THAT SUCH REQUIREMENT DOES NOT APPLY TO ANY PURCHASE  BY
  AN  INDIVIDUAL  OF  A  SINGLE SALES PACKAGE IF THAT PACKAGE CONTAINS NOT
  MORE  THAN  SIXTY  MILLIGRAMS  OF  PSEUDOEPHEDRINE.  ABSENT  NEGLIGENCE,
  WANTONNESS, RECKLESSNESS, OR DELIBERATE MISCONDUCT, ANY RETAILER UTILIZ-
  ING  THE ELECTRONIC SALES TRACKING SYSTEM IN ACCORDANCE WITH THIS SUBDI-
  VISION SHALL NOT BE CIVILLY LIABLE AS A RESULT OF ANY ACT OR OMISSION IN
  CARRYING OUT THE DUTIES REQUIRED BY THIS SUBDIVISION AND SHALL BE IMMUNE
  FROM LIABILITY TO ANY THIRD PARTY UNLESS THE RETAILER HAS  VIOLATED  ANY
  PROVISION  OF  THIS  SUBDIVISION IN RELATION TO A CLAIM BROUGHT FOR SUCH
  VIOLATION.
    (A) IF A RETAILER SELLING A NONPRESCRIPTION PRODUCT  CONTAINING  PSEU-
  DOEPHEDRINE OR EPHEDRINE EXPERIENCES MECHANICAL OR ELECTRONIC FAILURE OF
  THE  ELECTRONIC  SALES  TRACKING SYSTEM AND IS UNABLE TO COMPLY WITH THE
  ELECTRONIC SALES TRACKING REQUIREMENT, THE  RETAILER  SHALL  MAINTAIN  A
  WRITTEN  LOG  OR AN ALTERNATIVE ELECTRONIC RECORDKEEPING MECHANISM UNTIL
  SUCH TIME AS THE RETAILER IS ABLE TO COMPLY WITH  THE  ELECTRONIC  SALES
  TRACKING REQUIREMENT.
    (B)  NADDI  SHALL  FORWARD  STATE  TRANSACTION RECORDS IN NPLEX TO THE
  APPROPRIATE STATE AGENCY WEEKLY, AND PROVIDE REAL-TIME ACCESS  TO  NPLEX
  INFORMATION  THROUGH  THE  NPLEX ONLINE PORTAL TO LAW ENFORCEMENT IN THE
  STATE AS AUTHORIZED BY THE AGENCY.
    (C) THIS SYSTEM SHALL BE CAPABLE OF  GENERATING  A  STOP  SALE  ALERT,
  WHICH  SHALL  BE A NOTIFICATION THAT COMPLETION OF THE SALE WOULD RESULT
  IN THE RETAILER OR PURCHASER VIOLATING THE QUANTITY LIMITS SET FORTH  IN
  THIS  SECTION.  THE  RETAILER  SHALL NOT COMPLETE THE SALE IF THE SYSTEM
  GENERATES A STOP SALE ALERT. THE SYSTEM SHALL CONTAIN AN OVERRIDE  FUNC-
  TION THAT MAY BE USED BY A DISPENSER OF EPHEDRINE OR PSEUDOEPHEDRINE WHO
  HAS  A REASONABLE FEAR OF IMMINENT BODILY HARM IF THEY DO NOT COMPLETE A
  SALE.  EACH INSTANCE IN WHICH THE OVERRIDE FUNCTION IS UTILIZED SHALL BE
  LOGGED BY THE SYSTEM.
    (D) A RETAILER SELLING A METHAMPHETAMINE PRECURSOR DRUG  MAY  SEEK  AN
  EXEMPTION  FROM  SUBMITTING TRANSACTIONS TO THE SYSTEM IN WRITING TO THE
  STATE BOARD OF PHARMACY STATING THE  REASONS  THEREFORE.  THE  BOARD  OF
  PHARMACY  MAY  GRANT  AN EXEMPTION FOR GOOD CAUSE SHOWN, BUT IN NO EVENT
  SHALL SUCH EXEMPTION EXCEED ONE HUNDRED EIGHTY DAYS. ANY  RETAILER  THAT
  RECEIVES  AN  EXEMPTION SHALL MAINTAIN A HARDCOPY LOGBOOK AND MUST STILL
  REQUIRE THE PURCHASER TO PROVIDE THE  INFORMATION  REQUIRED  UNDER  THIS

 S. 5036--B                          3

  SECTION  BEFORE  COMPLETION OF ANY SALE. THE LOGBOOK SHALL BE MAINTAINED
  AS A RECORD OF EACH SALE FOR INSPECTION BY ANY LAW  ENFORCEMENT  OFFICER
  OR INSPECTOR OF THE BOARD OF PHARMACY DURING NORMAL BUSINESS HOURS.
    (E)  A  RETAILER IS EXEMPT FROM THE REQUIREMENT THAT IT TRANSMIT ELEC-
  TRONIC TRANSACTION RECORDS AS DESCRIBED UNDER THIS  SUBDIVISION  IF  THE
  RETAILER  SUBMITS  A  REQUEST  TO  THE  BOARD  OF  PHARMACY  FOR SUCH AN
  EXEMPTION AND THE RETAILER HAS NOT SOLD MORE THAN TWENTY METHAMPHETAMINE
  PRECURSOR DRUG PRODUCTS IN ANY SEVEN DAY PERIOD  DURING  THE  SIXTY  DAY
  PERIOD PRECEDING THE DATE THE WRITTEN REQUEST IS TRANSMITTED.
    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 3.6
  GRAMS PER DAY OR MORE THAN NINE GRAMS PER THIRTY DAY PERIOD OF EPHEDRINE
  OR PSEUDOEPHEDRINE BASE, OR THEIR SALTS, ISOMERS, OR SALTS  OF  ISOMERS.
  THE  LIMITS  SHALL APPLY TO THE TOTAL AMOUNT OF BASE EPHEDRINE AND PSEU-
  DOEPHEDRINE CONTAINED IN THE PRODUCTS, AND NOT THE OVERALL WEIGHT OF THE
  PRODUCTS.
    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,
  SEVEN  OR  EIGHT OF THIS SECTION SHALL, FOR THE FIRST SUCH VIOLATION, BE
  SUBJECT TO A CIVIL PENALTY OF NOT LESS THAN  FIVE  HUNDRED  DOLLARS  NOR
  MORE  THAN  ONE  THOUSAND  DOLLARS,  AND  FOR  A  SECOND  OR  SUBSEQUENT
  VIOLATION, BE GUILTY OF A CRIMINAL VIOLATION AND MAY BE SENTENCED  TO  A
  TERM  OF IMPRISONMENT OF NOT MORE THAN THIRTY DAYS, OR SUBJECT TO A FINE
  OF NOT LESS THAN  FIVE  HUNDRED  DOLLARS  NOR  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
  CIVIL PENALTIES OR CRIMINAL PENALTIES FOR VIOLATING ANY OF SUCH SUBDIVI-
  SIONS 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) 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; OR
    (B) METHAMPHETAMINE PRECURSOR  DRUGS  OBTAINED  PURSUANT  TO  A  VALID
  PRESCRIPTION.

 S. 5036--B                          4

    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 PRODUCTS  CONTAINING  EPHED-
  RINE  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.