senate Bill S5036A

Amended

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

download pdf

Sponsor

Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
view actions

actions

  • 02 / May / 2011
    • REFERRED TO CONSUMER PROTECTION
  • 26 / May / 2011
    • AMEND AND RECOMMIT TO CONSUMER PROTECTION
  • 26 / May / 2011
    • PRINT NUMBER 5036A
  • 07 / Jun / 2011
    • AMEND AND RECOMMIT TO CONSUMER PROTECTION
  • 07 / Jun / 2011
    • PRINT NUMBER 5036B
  • 09 / Jun / 2011
    • AMEND AND RECOMMIT TO CONSUMER PROTECTION
  • 09 / Jun / 2011
    • PRINT NUMBER 5036C
  • 04 / Jan / 2012
    • REFERRED TO CONSUMER PROTECTION
  • 30 / Mar / 2012
    • RECOMMIT, ENACTING CLAUSE STRICKEN

Summary

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

do you support this bill?

Bill Details

Versions:
S5036
S5036A
S5036B
S5036C
Legislative Cycle:
2011-2012
Current Committee:
Senate Consumer Protection
Law Section:
General Business Law
Laws Affected:
Add ยง391-oo, Gen Bus L

Sponsor 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.

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

                                 5036--A

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                               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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11064-04-1

S. 5036--A                          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--A                          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. 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.

S. 5036--A                          4

  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.

Comments

Open Legislation comments facilitate discussion of New York State legislation. All comments are subject to moderation. Comments deemed off-topic, commercial, campaign-related, self-promotional; or that contain profanity or hate speech; or that link to sites outside of the nysenate.gov domain are not permitted, and will not be published. Comment moderation is generally performed Monday through Friday.

By contributing or voting you agree to the Terms of Participation and verify you are over 13.