Regulates the sale of 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 implement an electronic tracking system on the sale of products containing pseudoephedrine, or ephedrine. This system will communicate in real time, across state lines and produce a stop sale notification to the seller of the product.
SUMMARY OF SPECIFIC PROVISIONS: Creates a new section in the general business law, Section 391-oo, 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;
-requires presentation of valid, government issued, photo identification;
-requires the buyer to sign a written or electronic 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;
-requires a retailer, before completing a sale, to electronically submit the required information to the real-time, stop-sale system administered by the division of state police;
-retailers are only required to participate as long as the system is provided free of charge;
-imposes civil penalties on those who sell methamphetamine precursor drugs in violation of this law;
-provides immunity for retailers that violate this section without negligence, wantonness, recklessness, or deliberate misconduct;
-the real-time, stop-sale 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.
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 an electronic tracking system has already been implemented by 26 states. 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: S.6866-B of 2012
FISCAL IMPLICATIONS: None. The real-time, stop-sale system shall be free of charge to the retailer.
This system is fully funded by the Consumer Healthcare Products Association (CEPA), which is a member-based organization of manufacturers and distributors of non-prescription, over-the-counter medicines and supplements.
EFFECTIVE: This act shall take effect one the one hundred eightieth 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 ________________________________________________________________________ 4652--A 2013-2014 Regular Sessions IN SENATE April 17, 2013 ___________Introduced by Sens. VALESKY, DeFRANCISCO, GRIFFO, LIBOUS, O'MARA, YOUNG -- read twice and ordered printed, and when printed to be committed to the Committee on Consumer Protection -- recommitted to the Committee on Consumer Protection in accordance with Senate Rule 6, sec. 8 -- 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: (A) "METHAMPHETAMINE PRECURSOR DRUG" SHALL MEAN ANY COMPOUND, MIXTURE, OR PREPARATION CONTAINING EPHEDRINE OR PSEUDOEPHEDRINE AS ITS SOLE ACTIVE INGREDIENT OR AS ONE OF ITS ACTIVE INGREDIENTS; AND (B) "REAL-TIME STOP SALE SYSTEM" MEANS A SYSTEM INTENDED TO BE USED BY LAW ENFORCEMENT AGENCIES AND PHARMACIES OR OTHER BUSINESS ESTABLISHMENTS THAT: (A) IS INSTALLED, OPERATED, AND MAINTAINED FREE OF ANY ONE-TIME OR RECURRING CHARGE TO THE BUSINESS ESTABLISHMENT OR TO THE STATE; (B) IS ABLE TO COMMUNICATE IN REAL TIME WITH SIMILAR SYSTEMS OPERATED IN OTHER STATES AND SIMILAR SYSTEMS CONTAINING INFORMATION SUBMITTED BY MORE THAN ONE STATE; (C) COMPLIES WITH THE SECURITY POLICY OF THE CRIMINAL JUSTICE INFORMA- TION SERVICES DIVISION OF THE FEDERAL BUREAU OF INVESTIGATION; (D) COMPLIES WITH INFORMATION EXCHANGE STANDARDS ADOPTED BY THE NATIONAL INFORMATION EXCHANGE MODEL; (E) USES A MECHANISM TO PREVENT THE COMPLETION OF A SALE OF A PRODUCT CONTAINING EPHEDRINE, PSEUDOEPHEDRINE, OR NON-PSEUDOEPHEDRINE THAT WOULDEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD08144-02-4 S. 4652--A 2
VIOLATE STATE OR FEDERAL LAW REGARDING THE PURCHASE OF A PRODUCT CONTAINING THOSE SUBSTANCES; AND (F) IS EQUIPPED WITH AN OVERRIDE OF THE MECHANISM THAT: (I) MAY BE ACTIVATED BY AN EMPLOYEE OF A BUSINESS ESTABLISHMENT; AND (II) CREATES A RECORD OF EACH ACTIVATION OF THE OVERRIDE. 2. NO PERSON, FIRM, CORPORATION, PARTNERSHIP, ASSOCIATION, LIMITED LIABILITY COMPANY, OR OTHER ENTITY SHALL SELL TO THE SAME PERSON, AND A PERSON SHALL NOT PURCHASE, PRODUCTS CONTAINING MORE THAN THREE AND SIX TENTHS GRAMS PER DAY OR MORE THAN NINE GRAMS PER THIRTY DAY PERIOD OF EPHEDRINE OR PSEUDOEPHEDRINE BASE, OR THEIR ISOMERS. THE LIMITS SHALL APPLY TO THE TOTAL AMOUNT OF 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) REQUIRE ANY PERSON PURCHASING A NONPRESCRIPTION PRODUCT THAT CONTAINS PSEUDOEPHEDRINE OR EPHEDRINE TO PRESENT VALID GOVERNMENT ISSUED PHOTO IDENTIFICATION AT THE POINT OF SALE. (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 PURCHASER'S SIGNATURE IN A ELECTRONIC OR PAPER LOGBOOK. 4. A PERSON, FIRM, CORPORATION, PARTNERSHIP, ASSOCIATION, LIMITED LIABILITY COMPANY, OR OTHER ENTITY SHALL, BEFORE COMPLETING A SALE UNDER THIS SECTION, ELECTRONICALLY SUBMIT THE REQUIRED INFORMATION TO THE REAL-TIME STOP SALE SYSTEM ADMINISTERED BY THE DIVISION OF STATE POLICE; PROVIDED THAT THE SYSTEM IS AVAILABLE WITHOUT A CHARGE TO RETAILERS FOR ACCESS. ABSENT NEGLIGENCE, WANTONNESS, RECKLESSNESS, OR DELIBERATE MISCONDUCT, ANY RETAILER UTILIZING THE ELECTRONIC SALES TRACKING SYSTEM IN ACCORDANCE WITH THIS SUBDIVISION SHALL NOT BE CIVILLY LIABLE AS A RESULT OF ANY ACT OR OMISSION IN CARRYING OUT THE DUTIES REQUIRED BY THIS SECTION AND SHALL BE IMMUNE FROM LIABILITY TO ANY THIRD PARTY UNLESS THE RETAILER HAS VIOLATED ANY PROVISION OF THIS SECTION IN RELATION TO A CLAIM BROUGHT FOR SUCH VIOLATION. (A) IF A PERSON, FIRM, CORPORATION, PARTNERSHIP, ASSOCIATION, LIMITED LIABILITY COMPANY, OR OTHER ENTITY SELLING A NONPRESCRIPTION PRODUCT CONTAINING PSEUDOEPHEDRINE OR EPHEDRINE EXPERIENCES MECHANICAL OR ELEC- TRONIC 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) THE REAL-TIME STOP SALE SYSTEM SHALL FORWARD STATE TRANSACTION RECORDS IN THE REAL-TIME STOP SALE SYSTEM TO THE APPROPRIATE STATE AGEN- CY WEEKLY, AND PROVIDE REAL-TIME ACCESS TO THE REAL-TIME STOP SALE SYSTEM INFORMATION THROUGH THE SYSTEM'S 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 SELLER OR PURCHASER VIOLATING THE QUANTITY LIMITS SET FORTH IN THIS SECTION. THE SELLER SHALL NOT COMPLETE THE SALE IF THE SYSTEM GENERATES A STOP SALE ALERT. THE SYSTEM SHALL CONTAIN AN OVERRIDE FUNC-S. 4652--A 3
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. 5. A VIOLATION OF ANY PROVISION OF THIS SECTION IS A CLASS A MISDEMEA- NOR, PUNISHABLE BY FINE ONLY. (A) THIS SECTION DOES NOT APPLY TO A PERSON WHO OBTAINS THE PRODUCT PURSUANT TO A VALID PRESCRIPTION. (B) NOTHING IN THIS SECTION REQUIRES THE BUYER TO OBTAIN A PRESCRIPTION FOR THE PURCHASE OF ANY METHAMPHETAMINE PRECURSOR DRUG. 6. 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 TWO HUNDRED FIFTY DOLLARS NOR MORE THAN ONE THOUSAND DOLLARS PER VIOLATION, RECOVER- ABLE IN AN ACTION BY ANY ENFORCEMENT AUTHORITY DESIGNATED BY ANY MUNICI- PALITY OR POLITICAL SUBDIVISION. 7. 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. 8. 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. 9. THE STATE BOARD OF PHARMACY, IN CONSULTATION WITH THE DIVISION OF STATE POLICE, SHALL CERTIFY METHAMPHETAMINE PRECURSOR DRUGS THAT MEET THE REQUIREMENTS OF PARAGRAPH (A) OF SUBDIVISION EIGHT OF THIS SECTION AND PUBLISH AN ANNUAL LISTING OF SUCH DRUGS. 10. 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 eightieth 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.