S5036C-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

S5036C-2011 Memo

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.

S5036C-2011 Text

 S T A T E   O F   N E W   Y O R K
 
 5036--C
 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 -
 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:

 (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
 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
 [ ] is old law to be omitted.
 LBD11064-09-1
 
       S. 5036--C                          2
 (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
 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.
 
       S. 5036--C                          3
 (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. ANY PERSON, FIRM, CORPORATION,  PARTNERSHIP,  ASSOCIATION,  LIMITED
 LIABILITY  COMPANY,  OR  OTHER ENTITY WHO KNOWINGLY VIOLATES SUBDIVISION
 TWO, THREE, FOUR OR FIVE 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 PER VIOLATION, RECOVERABLE IN
 AN ACTION BY ANY ENFORCEMENT AUTHORITY DESIGNATED BY ANY MUNICIPALITY OR
 POLITICAL SUBDIVISION.
 8. 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  OR  FIVE  OF THIS SECTION IS NOT SUBJECT TO THE CIVIL PENALTIES OR
 CRIMINAL PENALTIES FOR VIOLATING ANY OF SUCH SUBDIVISIONS 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.
 9.  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.
 10. 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.
 11. 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  TEN  OF  THIS
 SECTION AND PUBLISH AN ANNUAL LISTING OF SUCH DRUGS.
 12.  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.
 13.  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.

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