S T A T E O F N E W Y O R K
________________________________________________________________________
6866--B
Cal. No. 848
I N S E N A T E
March 30, 2012
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Introduced by Sens. VALESKY, LIBOUS, O'MARA, YOUNG -- 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 -- reported
favorably from said committee, ordered to first and second report,
ordered to a third reading, amended and ordered reprinted, retaining
its place in the order of third reading
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:
1 Section 1. The general business law is amended by adding a new
2 section 391-oo to read as follows:
3 S 391-OO. SALE OF METHAMPHETAMINE PRECURSOR DRUGS. 1. FOR THE PURPOSES
4 OF THIS SECTION "METHAMPHETAMINE PRECURSOR DRUG" SHALL MEAN ANY
5 COMPOUND, MIXTURE, OR PREPARATION CONTAINING EPHEDRINE OR PSEUDOEPHED-
6 RINE AS ITS SOLE ACTIVE INGREDIENT OR AS ONE OF ITS ACTIVE INGREDIENTS.
7 2. NO PERSON, FIRM, CORPORATION, PARTNERSHIP, ASSOCIATION, LIMITED
8 LIABILITY COMPANY, OR OTHER ENTITY SHALL SELL IN A SINGLE OVER-THE-COUN-
9 TER SALE MORE THAN 3.6 GRAMS PER DAY OR MORE THAN NINE GRAMS PER THIRTY
10 DAY PERIOD OF EPHEDRINE OR PSEUDOEPHEDRINE BASE, OR THEIR SALTS, ISOM-
11 ERS, OR SALTS OF ISOMERS. THE LIMITS SHALL APPLY TO THE TOTAL AMOUNT OF
12 BASE EPHEDRINE AND PSEUDOEPHEDRINE CONTAINED IN THE PRODUCTS, AND NOT
13 THE OVERALL WEIGHT OF THE PRODUCTS.
14 3. ANY PERSON, FIRM, CORPORATION, PARTNERSHIP, ASSOCIATION, LIMITED
15 LIABILITY COMPANY, OR OTHER ENTITY THAT OFFERS FOR SALE METHAMPHETAMINE
16 PRECURSOR DRUGS IN AN OVER-THE-COUNTER SALE SHALL ENSURE THAT ALL PACK-
17 AGES OF THE DRUGS ARE DISPLAYED BEHIND A CHECKOUT COUNTER OR IN A LOCKED
18 CASE WHERE THE PUBLIC IS NOT PERMITTED. SUCH PERSON, FIRM, CORPORATION,
19 PARTNERSHIP, ASSOCIATION, LIMITED LIABILITY COMPANY, OR OTHER ENTITY
20 SHALL:
21 (A) ENSURE THAT THE PERSON MAKING THE SALE REQUIRES THE BUYER TO
22 PROVIDE VALID GOVERNMENT ISSUED PHOTOGRAPHIC IDENTIFICATION SHOWING THE
23 BUYER'S DATE OF BIRTH; AND
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD11064-25-2
S. 6866--B 2
1 (B) RECORD THE NAME AND ADDRESS OF THE PURCHASER; NAME AND QUANTITY OF
2 PRODUCT PURCHASED; DATE AND TIME PURCHASED; AND PURCHASER IDENTIFICATION
3 TYPE AND NUMBER, SUCH AS DRIVER LICENSE STATE AND NUMBER, AND REQUIRE
4 THE BUYER'S SIGNATURE IN A PAPER OR ELECTRONIC LOGBOOK.
5 4. A DOCUMENT DESCRIBED UNDER PARAGRAPHS (A) AND (B) OF SUBDIVISION
6 THREE OF THIS SECTION SHALL BE RETAINED BY THE SELLING PERSON, FIRM,
7 CORPORATION, PARTNERSHIP, ASSOCIATION, LIMITED LIABILITY COMPANY, OR
8 OTHER ENTITY FOR AT LEAST THREE YEARS AND MUST AT ALL REASONABLE TIMES
9 BE OPEN TO THE INSPECTION OF ANY LAW ENFORCEMENT AGENCY.
10 5. PROVIDED THAT THE SYSTEM IS AVAILABLE WITHOUT A CHARGE FOR ACCESS-
11 ING IT, BEGINNING ON THE ONE HUNDRED TWENTIETH DAY AFTER THIS SECTION
12 SHALL HAVE BECOME A LAW, A RETAILER SHALL, BEFORE COMPLETING A SALE
13 UNDER THIS SECTION, ELECTRONICALLY SUBMIT THE REQUIRED INFORMATION TO
14 THE NATIONAL PRECURSOR LOG EXCHANGE (NPLEX) ADMINISTERED BY THE NATIONAL
15 ASSOCIATION OF DRUG DIVERSION INVESTIGATORS (NADDI). ABSENT NEGLIGENCE,
16 WANTONNESS, RECKLESSNESS, OR DELIBERATE MISCONDUCT, ANY RETAILER UTILIZ-
17 ING THE ELECTRONIC SALES TRACKING SYSTEM IN ACCORDANCE WITH THIS SUBDI-
18 VISION SHALL NOT BE CIVILLY LIABLE AS A RESULT OF ANY ACT OR OMISSION IN
19 CARRYING OUT THE DUTIES REQUIRED BY THIS SUBDIVISION AND SHALL BE IMMUNE
20 FROM LIABILITY TO ANY THIRD PARTY UNLESS THE RETAILER HAS VIOLATED ANY
21 PROVISION OF THIS SUBDIVISION IN RELATION TO A CLAIM BROUGHT FOR SUCH
22 VIOLATION.
23 (A) IF A RETAILER SELLING A NONPRESCRIPTION PRODUCT CONTAINING PSEU-
24 DOEPHEDRINE OR EPHEDRINE EXPERIENCES MECHANICAL OR ELECTRONIC FAILURE OF
25 THE ELECTRONIC SALES TRACKING SYSTEM AND IS UNABLE TO COMPLY WITH THE
26 ELECTRONIC SALES TRACKING REQUIREMENT, THE RETAILER SHALL MAINTAIN A
27 WRITTEN LOG OR AN ALTERNATIVE ELECTRONIC RECORDKEEPING MECHANISM UNTIL
28 SUCH TIME AS THE RETAILER IS ABLE TO COMPLY WITH THE ELECTRONIC SALES
29 TRACKING REQUIREMENT.
30 (B) NADDI SHALL FORWARD STATE TRANSACTION RECORDS IN NPLEX TO THE
31 APPROPRIATE STATE AGENCY WEEKLY, AND PROVIDE REAL-TIME ACCESS TO NPLEX
32 INFORMATION THROUGH THE NPLEX ONLINE PORTAL TO LAW ENFORCEMENT IN THE
33 STATE AS AUTHORIZED BY THE AGENCY.
34 (C) THIS SYSTEM SHALL BE CAPABLE OF GENERATING A STOP SALE ALERT,
35 WHICH SHALL BE A NOTIFICATION THAT COMPLETION OF THE SALE WOULD RESULT
36 IN THE RETAILER OR PURCHASER VIOLATING THE QUANTITY LIMITS SET FORTH IN
37 THIS SECTION. THE RETAILER SHALL NOT COMPLETE THE SALE IF THE SYSTEM
38 GENERATES A STOP SALE ALERT. THE SYSTEM SHALL CONTAIN AN OVERRIDE FUNC-
39 TION THAT MAY BE USED BY A DISPENSER OF EPHEDRINE OR PSEUDOEPHEDRINE WHO
40 HAS A REASONABLE FEAR OF IMMINENT BODILY HARM IF THEY DO NOT COMPLETE A
41 SALE. EACH INSTANCE IN WHICH THE OVERRIDE FUNCTION IS UTILIZED SHALL BE
42 LOGGED BY THE SYSTEM.
43 6. NOTHING IN THIS SECTION REQUIRES THE BUYER TO OBTAIN A PRESCRIPTION
44 FOR THE PURCHASE OF ANY METHAMPHETAMINE PRECURSOR DRUG.
45 7. ANY PERSON, FIRM, CORPORATION, PARTNERSHIP, ASSOCIATION, LIMITED
46 LIABILITY COMPANY, OR OTHER ENTITY WHO KNOWINGLY VIOLATES SUBDIVISION
47 TWO, THREE, FOUR OR FIVE OF THIS SECTION SHALL, FOR THE FIRST SUCH
48 VIOLATION, BE SUBJECT TO A CIVIL PENALTY OF NOT LESS THAN TWO HUNDRED
49 FIFTY DOLLARS NOR MORE THAN ONE THOUSAND DOLLARS PER VIOLATION, RECOVER-
50 ABLE IN AN ACTION BY ANY ENFORCEMENT AUTHORITY DESIGNATED BY ANY MUNICI-
51 PALITY OR POLITICAL SUBDIVISION.
52 8. AN OWNER, OPERATOR, SUPERVISOR, OR MANAGER OF ANY BUSINESS ENTITY
53 THAT OFFERS FOR SALE METHAMPHETAMINE PRECURSOR DRUGS WHOSE EMPLOYEE OR
54 AGENT IS CONVICTED OF OR CHARGED WITH VIOLATING SUBDIVISION TWO, THREE,
55 FOUR OR FIVE OF THIS SECTION IS NOT SUBJECT TO THE CIVIL PENALTIES OR
56 CRIMINAL PENALTIES FOR VIOLATING ANY OF SUCH SUBDIVISIONS IF THE PERSON:
S. 6866--B 3
1 (A) DID NOT HAVE PRIOR KNOWLEDGE OF, PARTICIPATE IN, OR DIRECT THE
2 EMPLOYEE OR AGENT TO COMMIT THE VIOLATION; AND
3 (B) DOCUMENTS THAT AN EMPLOYEE TRAINING PROGRAM WAS IN PLACE TO
4 PROVIDE THE EMPLOYEE OR AGENT WITH INFORMATION ON THE STATE AND FEDERAL
5 LAWS AND REGULATIONS REGARDING METHAMPHETAMINE PRECURSOR DRUGS.
6 9. THIS SECTION DOES NOT APPLY TO:
7 (A) METHAMPHETAMINE PRECURSOR DRUGS CERTIFIED BY THE STATE BOARD OF
8 PHARMACY AS BEING MANUFACTURED IN A MANNER THAT PREVENTS THE DRUG FROM
9 BEING USED TO MANUFACTURE METHAMPHETAMINE; OR
10 (B) METHAMPHETAMINE PRECURSOR DRUGS OBTAINED PURSUANT TO A VALID
11 PRESCRIPTION.
12 10. THE STATE BOARD OF PHARMACY, IN CONSULTATION WITH THE DEPARTMENT
13 OF PUBLIC SAFETY, SHALL CERTIFY METHAMPHETAMINE PRECURSOR DRUGS THAT
14 MEET THE REQUIREMENTS OF PARAGRAPH (B) OF SUBDIVISION NINE OF THIS
15 SECTION AND PUBLISH AN ANNUAL LISTING OF SUCH DRUGS.
16 11. THIS SECTION PREEMPTS ALL LOCAL ORDINANCES OR REGULATIONS GOVERN-
17 ING THE SALE BY A BUSINESS ESTABLISHMENT OF PRODUCTS CONTAINING EPHED-
18 RINE OR PSEUDOEPHEDRINE. ALL ORDINANCES ENACTED PRIOR TO THE EFFECTIVE
19 DATE OF THIS SECTION ARE VOID.
20 S 2. This act shall take effect on the one hundred twentieth day after
21 it shall have become a law. Effective immediately, the addition, amend-
22 ment, and/or repeal of any rule or regulation necessary for the imple-
23 mentation of this act on its effective date is authorized to be made on
24 or before such date.