This bill has been amended

Bill S5036A-2011

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

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

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  • May 26, 2011: PRINT NUMBER 5036A
  • May 26, 2011: AMEND AND RECOMMIT TO CONSUMER PROTECTION
  • May 2, 2011: REFERRED TO CONSUMER PROTECTION

Memo

BILL NUMBER:S5036A

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.


Text

STATE OF NEW YORK ________________________________________________________________________ 5036--A 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 -- 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
(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.
(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 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. 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. 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.

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