Senate Bill S5036C

2011-2012 Legislative Session

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

download bill text pdf

Archive: Last Bill Status - Stricken

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Mar 30, 2012	recommit, enacting clause stricken
Jan 04, 2012	referred to consumer protection
Jun 09, 2011	print number 5036c
Jun 09, 2011	amend and recommit to consumer protection
Jun 07, 2011	print number 5036b
Jun 07, 2011	amend and recommit to consumer protection
May 26, 2011	print number 5036a
May 26, 2011	amend and recommit to consumer protection
May 02, 2011	referred to consumer protection

Bill Amendments

2011-S5036 - Details

See Assembly Version of this Bill:: A8384
Law Section:: General Business Law
Laws Affected:: Add §391-oo, Gen Bus L
Versions Introduced in Other Legislative Sessions:: 2013-2014: A1359
2015-2016: A468

2011-S5036 - Summary

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

2011-S5036 - Sponsor 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.

2011-S5036 - Bill Text download pdf

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

                                  5036

                       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

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 TWO PACKAGES OF ANY METHAMPHETAMINE PRECURSOR DRUG OR
A COMBINATION OF METHAMPHETAMINE PRECURSOR DRUGS OR ANY  COMBINATION  OF
PACKAGES EXCEEDING A TOTAL WEIGHT OF NINE GRAMS, CALCULATED AS THE BASE.
  3.  OVER-THE-COUNTER  SALES  OF  METHAMPHETAMINE  PRECURSOR  DRUGS ARE
LIMITED TO:
  (A) PACKAGES CONTAINING NOT MORE THAN A TOTAL OF 3.6 GRAMS OF  ONE  OR
MORE  METHAMPHEAMINE  PRECURSOR  DRUGS, CALCULATED IN TERMS OF EPHEDRINE
BASE OR PSEUDOEPHEDRINE BASE; OR
  (B) FOR NONLIQUID PRODUCTS INCLUDING GEL CAPSULES,  SALES  IN  BLISTER
PACKS,  WHERE  EACH BLISTER CONTAINS NOT MORE THAN TWO DOSAGE UNITS, OR,
IF THE USE OF BLISTER PACKS IS NOT TECHNICALLY FEASIBLE, SALES  IN  UNIT
DOSE PACKETS OR POUCHES.
  4.  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  WHERE  THE
PUBLIC  IS  NOT  PERMITTED  AND  ARE OFFERED FOR SALE ONLY BY A LICENSED

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11064-03-1

S. 5036                             2

PHARMACIST, A REGISTERED PHARMACY TECHNICIAN, OR A PHARMACY CLERK.  SUCH
PERSON,  FIRM,  CORPORATION, PARTNERSHIP, ASSOCIATION, LIMITED LIABILITY
COMPANY, OR OTHER ENTITY SHALL ENSURE THAT THE PERSON  MAKING  THE  SALE
REQUIRES THE BUYER:
  (A) TO PROVIDE PHOTOGRAPHIC IDENTIFICATION SHOWING THE BUYER'S DATE OF
BIRTH; AND
  (B)  TO  SIGN  A WRITTEN ELECTRONIC DOCUMENT DETAILING THE DATE OF THE
SALE, THE NAME OF THE BUYER, AND THE AMOUNT OF THE DRUG SOLD.
  5. A DOCUMENT DESCRIBED UNDER PARAGRAPH (B)  OF  SUBDIVISION  FOUR  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.
  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 NINE
GRAMS OF METHAMPHETAMINE PRECURSOR DRUGS, CALCULATED AS THE BASE, WITHIN
A THIRTY DAY PERIOD.
  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,
SIX,  SEVEN  OR EIGHT OF THIS SECTION IS GUILTY OF A MISDEMEANOR AND MAY
BE SENTENCED TO IMPRISONMENT FOR  NOT  MORE  THAN  NINETY  DAYS,  OR  TO
PAYMENT OF A FINE OF NOT 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 SUBDIVISION 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) PEDIATRIC PRODUCTS LABELED PURSUANT TO FEDERAL REGULATION PRIMARI-
LY INTENDED FOR ADMINISTRATION TO CHILDREN UNDER  TWELVE  YEARS  OF  AGE
ACCORDING TO LABEL INSTRUCTIONS;
  (B)  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;
  (C) METHAMPHETAMINE PRECURSOR DRUGS IN LIQUID FORM; OR
  (D)  COMPOUNDS,  MIXTURES,  OR PREPARATIONS IN POWDER FORM WHERE PSEU-
DOEPHEDRINE CONSTITUTES LESS THAN ONE PERCENT OF ITS TOTAL WEIGHT AND IS
NOT ITS SOLE ACTIVE INGREDIENT.

S. 5036                             3

  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  OVER-THE-COUNTER  PRODUCTS
CONTAINING EPHEDRINE 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.

2011-S5036A - Details

See Assembly Version of this Bill:: A8384
Law Section:: General Business Law
Laws Affected:: Add §391-oo, Gen Bus L
Versions Introduced in Other Legislative Sessions:: 2013-2014: A1359
2015-2016: A468

2011-S5036A - Summary

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

2011-S5036A - 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.

2011-S5036A - Bill Text download pdf

                            
                    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.

2011-S5036B - Details

See Assembly Version of this Bill:: A8384
Law Section:: General Business Law
Laws Affected:: Add §391-oo, Gen Bus L
Versions Introduced in Other Legislative Sessions:: 2013-2014: A1359
2015-2016: A468

2011-S5036B - Summary

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

2011-S5036B - Sponsor Memo

                                BILL NUMBER:S5036B

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.

2011-S5036B - Bill Text download pdf

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

                                 5036--B

                       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 -- 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:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11064-06-1

S. 5036--B                          2

  (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

S. 5036--B                          3

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
CIVIL PENALTIES OR CRIMINAL PENALTIES FOR VIOLATING ANY OF SUCH SUBDIVI-
SIONS 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.

S. 5036--B                          4

  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.

2011-S5036C (ACTIVE) - Details

See Assembly Version of this Bill:: A8384
Law Section:: General Business Law
Laws Affected:: Add §391-oo, Gen Bus L
Versions Introduced in Other Legislative Sessions:: 2013-2014: A1359
2015-2016: A468

2011-S5036C (ACTIVE) - Summary

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

2011-S5036C (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S5036C

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 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 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.

-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. The NPLEx system is fully funded by the Consumer Healthcare
Products Association (CHPA), which is a member-based organization of
manufacturers and
distributors of non-prescription, over-the-counter medicine and
supplements.

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.

2011-S5036C (ACTIVE) - Bill Text download pdf

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

                                 5036--C

                       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 -- 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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Sponsored By

David J. Valesky

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