S T A T E O F N E W Y O R K
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7354
I N S E N A T E
January 9, 2018
___________
Introduced by Sens. HANNON, O'MARA -- read twice and ordered printed,
and when printed to be committed to the Committee on Health
AN ACT to amend the public health law, in relation to enacting the drug
take back act
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. This act shall be known and may be cited as the "drug take
back act."
§ 2. The public health law is amended by adding a new article 2-B to
read as follows:
ARTICLE 2-B
DRUG TAKE BACK
SECTION 290. DEFINITIONS.
291. DRUG TAKE BACK.
292. COLLECTION.
293. VIOLATIONS.
294. JURISDICTION.
§ 290. DEFINITIONS. AS USED IN THIS ARTICLE, UNLESS THE CONTEXT CLEAR-
LY REQUIRES OTHERWISE:
1. "AUTHORIZED COLLECTOR" MEANS: (A) A PERSON, COMPANY, CORPORATION OR
OTHER ENTITY THAT IS REGISTERED WITH THE UNITED STATES DRUG ENFORCEMENT
ADMINISTRATION TO COLLECT CONTROLLED SUBSTANCES FOR THE PURPOSES OF SAFE
DISPOSAL AND DESTRUCTION; (B) A LAW ENFORCEMENT AGENCY; (C) A MUNICI-
PALITY; OR (D) A PERSON, COMPANY, CORPORATION OR OTHER ENTITY AUTHORIZED
BY THE DEPARTMENT TO PROVIDE ALTERNATIVE COLLECTION METHODS FOR COVERED
DRUGS THAT ARE NOT CONTROLLED SUBSTANCES.
2. "COVERED DRUG" MEANS ANY SUBSTANCE RECOGNIZED AS A DRUG UNDER 21
USC § 321(G)(1), AS AMENDED, THAT IS SOLD, OFFERED FOR SALE OR DISPENSED
IN THE STATE, WHETHER DIRECTLY OR THROUGH A WHOLESALER, IN ANY FORM
INCLUDING PRESCRIPTION AND NONPRESCRIPTION DRUGS, DRUGS IN MEDICAL
DEVICES AND COMBINATION PRODUCTS, BRAND AND GENERIC DRUGS AND DRUGS FOR
VETERINARY USE; PROVIDED HOWEVER, COVERED DRUG SHALL NOT INCLUDE: (A)
VITAMINS OR SUPPLEMENTS; (B) HERBAL-BASED REMEDIES AND HOMEOPATHIC
DRUGS, PRODUCTS OR REMEDIES; (C) COSMETICS, SOAP (WITH OR WITHOUT GERMI-
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD14168-02-8
S. 7354 2
CIDAL AGENTS), LAUNDRY DETERGENT, BLEACH, HOUSEHOLD CLEANING PRODUCTS,
SHAMPOOS, SUNSCREENS, TOOTHPASTE, LIP BALM, ANTIPERSPIRANTS OR OTHER
PERSONAL CARE PRODUCTS THAT ARE REGULATED AS BOTH COSMETICS AND NONPRES-
CRIPTION DRUGS UNDER THE FEDERAL FOOD, DRUG, AND COSMETIC ACT; (D) PET
PESTICIDE PRODUCTS CONTAINED IN PET COLLARS, POWDERS, SHAMPOOS, TOPICAL
APPLICATIONS, OR OTHER FORMS; (E) DRUGS THAT ARE BIOLOGICAL PRODUCTS AS
DEFINED IN SUBDIVISION TWENTY-SEVEN OF SECTION SIXTY-EIGHT HUNDRED TWO
OF THE EDUCATION LAW IF THE MANUFACTURER ALREADY PROVIDES A TAKE BACK
PROGRAM; (F) DRUGS FOR WHICH A MANUFACTURER PROVIDES A TAKE BACK PROGRAM
AS PART OF A FEDERAL FOOD AND DRUG ADMINISTRATION MANAGED RISK EVALU-
ATION AND MITIGATION STRATEGY; (G) MEDICAL DEVICES OR THE COMPONENT PART
OF SUCH DEVICES OR ACCESSORIES IF SUCH DEVICE OR COMPONENT PART CONTAINS
NO COVERED DRUG; AND (H) DRUGS THAT ARE USED SOLELY IN A CLINICAL
SETTING.
3. "MANUFACTURER" MEANS A PERSON, COMPANY, CORPORATION OR OTHER ENTITY
ENGAGED IN THE MANUFACTURE OF DRUGS SOLD IN THE STATE.
4. "PHARMACIES" MEANS ALL PHARMACIES REGISTERED UNDER SECTION SIXTY-
EIGHT HUNDRED EIGHT OF THE EDUCATION LAW THAT ARE PART OF A GROUP OF TEN
OR MORE ESTABLISHMENTS THAT CONDUCT BUSINESS UNDER THE SAME NAME, OR
OPERATE UNDER A COMMON OWNERSHIP OR MANAGEMENT, OR PURSUANT TO A FRAN-
CHISE AGREEMENT WITH THE SAME FRANCHISOR, AND ALL NONRESIDENT PHARMACIES
REGISTERED PURSUANT TO SECTION SIXTY-EIGHT HUNDRED EIGHT-B OF THE EDUCA-
TION LAW THAT PROVIDE COVERED DRUGS TO STATE RESIDENTS BY MAIL.
5. "DRUG TAKE BACK ORGANIZATION" MEANS AN ORGANIZATION DESIGNATED BY A
MANUFACTURER OR A GROUP OF MANUFACTURERS TO ACT AS AN AGENT ON BEHALF OF
THE MANUFACTURER OR GROUP OF MANUFACTURERS TO OPERATE AND IMPLEMENT A
DRUG TAKE BACK PROGRAM AS AUTHORIZED BY THIS ARTICLE.
6. "WHOLESALER" MEANS ANY PERSON, COMPANY, CORPORATION OR OTHER ENTITY
THAT SELLS OR DISTRIBUTES DRUGS AND COVERED DRUGS FOR RESALE TO AN ENTI-
TY IN THE STATE OTHER THAN A CONSUMER.
§ 291. DRUG TAKE BACK. 1. ANY MANUFACTURER OF A COVERED DRUG SHALL:
(A) OPERATE A DRUG TAKE BACK PROGRAM APPROVED BY THE DEPARTMENT INDI-
VIDUALLY OR JOINTLY WITH OTHER MANUFACTURERS;
(B) ENTER INTO AN AGREEMENT WITH A DRUG TAKE BACK ORGANIZATION WHICH
SHALL OPERATE A DRUG TAKE BACK PROGRAM APPROVED BY THE DEPARTMENT; OR
(C) ENTER INTO AN AGREEMENT WITH THE DEPARTMENT TO OPERATE A DRUG TAKE
BACK PROGRAM ON ITS BEHALF.
2. ANY MANUFACTURER OF A COVERED DRUG, INDIVIDUALLY OR JOINTLY, OR A
DRUG TAKE BACK ORGANIZATION CONTRACTED BY A MANUFACTURER OF A COVERED
DRUG SHALL WITHIN ONE HUNDRED EIGHTY DAYS FROM THE EFFECTIVE DATE OF
THIS SECTION SUBMIT TO THE DEPARTMENT, IN A MANNER AND FORM DETERMINED
BY THE DEPARTMENT, A PROPOSED DRUG TAKE BACK PROGRAM THAT MEETS, AT A
MINIMUM, THE FOLLOWING REQUIREMENTS:
(A) CERTIFIES THE DRUG TAKE BACK PROGRAM WILL ACCEPT ALL COVERED DRUGS
REGARDLESS OF WHO PRODUCED THEM;
(B) PROVIDES CONTACT INFORMATION FOR THE PERSON SUBMITTING THE PLANNED
DRUG TAKE BACK PROGRAM WITH WHOM THE DEPARTMENT SHALL DIRECT ALL
INQUIRIES;
(C) DETAILS A PHARMACY COLLECTION SYSTEM TO PROVIDE CONVENIENT, ONGO-
ING COLLECTION SERVICES TO ALL PERSONS SEEKING TO DISPOSE OF COVERED
DRUGS PURSUANT TO SECTION TWO HUNDRED NINETY-TWO OF THIS ARTICLE;
(D) DESCRIBES OTHER COLLECTION METHODS BY WHICH COVERED DRUGS WILL BE
COLLECTED BY AUTHORIZED COLLECTORS;
(E) EXPLAINS HOW COVERED DRUGS WILL BE SAFELY AND SECURELY TRACKED AND
HANDLED FROM COLLECTION THROUGH FINAL DISPOSAL AND DESTRUCTION, POLICIES
TO ENSURE SECURITY AND COMPLIANCE WITH ALL APPLICABLE LAWS AND REGU-
S. 7354 3
LATIONS INCLUDING DISPOSAL AND DESTRUCTION AT A PERMITTED HAZARDOUS
WASTE DISPOSAL FACILITY MEETING FEDERAL REQUIREMENTS;
(F) DESCRIBES THE PUBLIC EDUCATION AND OUTREACH ACTIVITIES THAT WILL
BE UNDERTAKEN WHICH SHALL INCLUDE ADVERTISING OF COLLECTION LOCATIONS ON
A WEBSITE AND THROUGH USE OF SIGNAGE AND OTHER WRITTEN MATERIALS, AND
HOW EFFECTIVENESS WILL BE EVALUATED;
(G) DETAILS HOW THE COSTS OF PHARMACY COLLECTION AND OTHER AUTHORIZED
COLLECTORS WILL BE REIMBURSED WHICH SHALL INCLUDE COSTS RETROACTIVE TO
THE EFFECTIVE DATE OF THIS ARTICLE, AND WHERE MORE THAN ONE MANUFACTURER
WILL BE INVOLVED IN THE PLANNED DRUG TAKE BACK PROGRAM, A PLAN FOR THE
FAIR AND REASONABLE MANNER OF ALLOCATED COSTS AMONG THE PARTICIPANTS IN
SUCH PROGRAM SUCH THAT THE COSTS PAID BY EACH MANUFACTURER IS REASONABLY
RELATED TO THE NUMBER OR VALUE OF COVERED DRUGS SOLD IN THE STATE; AND
(H) PROVIDES ANY FURTHER INFORMATION DEEMED APPROPRIATE BY THE DEPART-
MENT.
3. WITHIN THIRTY DAYS OF THE EFFECTIVE DATE OF THIS SECTION, EACH
WHOLESALER THAT SELLS COVERED DRUGS IN OR INTO THE STATE SHALL PROVIDE
THE DEPARTMENT WITH A LIST OF MANUFACTURERS THAT PRODUCE COVERED DRUGS.
THE DEPARTMENT MAY REQUEST UPDATED LISTS AT ITS DISCRETION.
4. A MANUFACTURER, INDIVIDUALLY OR JOINTLY, MUST PAY ALL ADMINISTRA-
TIVE AND OPERATIONAL FEES ASSOCIATED WITH THE DRUG TAKE BACK PROGRAM,
INCLUDING THE COST OF COLLECTING, TRANSPORTING AND DISPOSING OF COVERED
DRUGS FROM PHARMACIES AND OTHER AUTHORIZED COLLECTORS AND THE RECYCLING
OR DISPOSAL, OR BOTH, OF PACKING COLLECTED WITH THE COVERED DRUG.
MANUFACTURERS SHALL ALSO PAY COSTS INCURRED BY THE STATE IN THE ADMINIS-
TRATION AND ENFORCEMENT OF THE DRUG TAKE BACK PROGRAM. EXCLUSIVE OF
FINES AND PENALTIES, THE STATE SHALL ONLY RECOVER ITS ACTUAL COST OF
ADMINISTRATION AND ENFORCEMENT. IN INSTANCES WHERE MANUFACTURERS JOINTLY
CONDUCT A DRUG TAKE BACK PROGRAM, THE COSTS OF ADMINISTRATION AND
ENFORCEMENT SHALL BE FAIRLY AND REASONABLY ALLOCATED SUCH THAT THE
PORTION OF COSTS IS REASONABLY RELATED TO THE NUMBER OR VALUE OF COVERED
DRUGS THE MANUFACTURERS SELL IN THE STATE. NO MANUFACTURER MAY CHARGE A
POINT-OF-SALE OR OTHER FEE TO CONSUMERS, OR A FEE THAT COULD BE PASSED
ON TO CONSUMERS, TO RECOUP THE COST OF THEIR DRUG TAKE BACK PROGRAM.
5. WITHIN SIXTY DAYS OF RECEIPT OF A PROPOSED DRUG TAKE BACK PROGRAM,
THE DEPARTMENT, IN CONSULTATION WITH THE DEPARTMENT OF ENVIRONMENTAL
CONSERVATION, SHALL DETERMINE WHETHER SUCH PROPOSED DRUG TAKE BACK
PROGRAM COMPLIES WITH THE REQUIREMENTS OF THIS ARTICLE AND NOTIFY THE
APPLICANT. THE DEPARTMENT MAY CONDUCT A NOTICED PUBLIC HEARING PRIOR TO
APPROVAL. IF THE DRUG TAKE BACK PROGRAM IS APPROVED, THE DEPARTMENT
SHALL NOTIFY THE APPLICANT IN WRITING. IF THE DRUG TAKE BACK PROGRAM IS
NOT APPROVED, THE DEPARTMENT SHALL NOTIFY THE APPLICANT IN WRITING AND
THE APPLICANT SHALL SUBMIT A REVISED DRUG TAKE BACK PROGRAM PROPOSAL
WITHIN THIRTY DAYS. IF THE DEPARTMENT REJECTS THE SUBSEQUENT PROPOSAL,
THE MANUFACTURER OR MANUFACTURERS AT ISSUE SHALL BE OUT OF COMPLIANCE
WITH THIS ARTICLE AND SUBJECT TO THE ENFORCEMENT PROVISIONS PURSUANT TO
SECTION TWO HUNDRED NINETY-FOUR OF THIS ARTICLE. THE DEPARTMENT SHALL
PROVIDE, AND UPDATE ANNUALLY, ON ITS WEBSITE A LIST OF ALL MANUFACTURERS
PARTICIPATING IN A DRUG TAKE BACK PROGRAM APPROVED BY THE DEPARTMENT.
6. AT LEAST EVERY THREE YEARS, A MANUFACTURER, JOINTLY OR INDIVIDUAL-
LY, OR A DRUG TAKE BACK ORGANIZATION SHALL UPDATE ITS DRUG TAKE BACK
PROGRAM AND SUBMIT AN UPDATED PROPOSAL TO THE DEPARTMENT. A MANUFACTURER
WHO BEGINS TO OFFER A COVERED DRUG IN THE STATE AFTER THE EFFECTIVE DATE
OF THIS ARTICLE, SHALL PROVIDE EVIDENCE OF JOINING AN EXISTING APPROVED
DRUG TAKE BACK PROGRAM OR SUBMIT A PROPOSAL FOR A DRUG TAKE BACK PROGRAM
WITHIN NINETY DAYS FOLLOWING THE INITIAL OFFER FOR SALE OF A COVERED
S. 7354 4
DRUG. ANY PROPOSED CHANGE TO A DRUG TAKE BACK PROGRAM SHALL BE SUBMITTED
IN WRITING AND APPROVED BY THE DEPARTMENT PRIOR TO ANY CHANGE.
7. EACH APPROVED DRUG TAKE BACK PROGRAM SHALL REPORT TO THE DEPARTMENT
AT A DATE AND MANNER SET BY THE DEPARTMENT. THE DEPARTMENT SHALL SUBMIT
AN ANNUAL REPORT TO THE GOVERNOR, SPEAKER OF THE ASSEMBLY AND TEMPORARY
PRESIDENT OF THE SENATE BY JANUARY FIRST DETAILING ALL PROGRAM ACTIV-
ITIES, THE VOLUME COLLECTED BY EACH PROGRAM, A DESCRIPTION OF COLLECTION
ACTIVITIES, THE NAME AND LOCATION OF ALL COLLECTION SITES, PUBLIC EDUCA-
TION AND OUTREACH ACTIVITIES, AND ANY MANUFACTURER OUT OF COMPLIANCE OR
SUBJECT TO PENALTIES PURSUANT TO SECTION TWO HUNDRED NINETY-FOUR OF THIS
ARTICLE.
§ 292. COLLECTION. 1. ALL PHARMACIES SHALL PROVIDE FOR THE SAFE
COLLECTION OF DRUGS, WHICH SHALL INCLUDE:
(A) OFFERING DRUG COLLECTION BY:
(I) ON-SITE COLLECTION RECEPTACLES MEETING FEDERAL STANDARDS;
(II) MAIL-BACK COLLECTION BY PREPAID ENVELOPES AS AUTHORIZED BY FEDER-
AL LAW AND REGULATION; OR
(III) OTHER FEDERAL DRUG ENFORCEMENT AGENCY APPROVED METHODS OF
COLLECTION.
(B) SIGNAGE PROMINENTLY DISPLAYED ADVERTISING SUCH DRUG COLLECTION TO
CONSUMERS.
2. ALL DRUG TAKE BACK PROGRAM OPERATORS SHALL NOTIFY OTHER POTENTIAL
AUTHORIZED COLLECTORS OF THE OPPORTUNITY TO SERVE AS AN AUTHORIZED
COLLECTOR FOR THE DRUG TAKE BACK PROGRAM. PARTICIPATION OF AUTHORIZED
COLLECTORS BESIDES PHARMACIES SHALL BE VOLUNTARY.
3. ALL COSTS OF PHARMACIES AND OTHER AUTHORIZED COLLECTORS SHALL BE
PAID OR REIMBURSED BY THE MANUFACTURER, JOINTLY OR INDIVIDUALLY, AS PART
OF THE DRUG TAKE BACK PROGRAMS REQUIRED BY THIS ARTICLE.
§ 293. VIOLATIONS. VIOLATION OF THIS ARTICLE SHALL BE SUBJECT TO FINES
PURSUANT TO SECTION TWELVE OF THIS CHAPTER. EACH DAY IN WHICH THE
VIOLATION CONTINUES SHALL CONSTITUTE A SEPARATE VIOLATION.
§ 294. JURISDICTION. JURISDICTION OF ALL MATTERS PERTAINING TO DRUG
DISPOSAL BY THIS ARTICLE IS VESTED EXCLUSIVELY IN THE STATE. ANY
PROVISION OF ANY LOCAL LAW OR ORDINANCE, OR ANY RULE OR REGULATION
PROMULGATED PRIOR TO, OR UPON THE EFFECTIVE DATE OF THIS SECTION, SHALL
BE PREEMPTED.
§ 3. Section 3343-b of the public health law, as amended by chapter
379 of the laws of 2015, is amended to read as follows:
§ 3343-b. Safe disposal of unused controlled substances. 1. The
department shall oversee a program for the safe disposal of unused
controlled substances by consumers in accordance with federal law AND
ARTICLE TWO-B OF THIS CHAPTER. Individual members of the public shall
be authorized to voluntarily surrender controlled substances listed on
schedule II, III, IV or V of section thirty-three hundred six of this
article in a secure manner, without identifying themselves. Safe
disposal methods shall be publicized consistent with the prescription
pain medication awareness program established pursuant to section thir-
ty-three hundred nine-a of this article AND ARTICLE TWO-B OF THIS CHAP-
TER.
2. The surrender of a controlled substance pursuant to this section
AND ARTICLE TWO-B OF THIS CHAPTER shall not constitute the possession,
transfer or sale of such controlled substance for purposes of this arti-
cle or the penal law.
[3. Disposal sites shall be operated by law enforcement agencies,
pharmacies and other Federal Drug Enforcement Administration authorized
collectors on a voluntary basis. Nothing in this section shall require
S. 7354 5
any political subdivision of the state to participate in the program
established in this section.]
§ 4. The department of health may adopt regulations as necessary to
implement and enforce the provisions of this title.
§ 5. This act shall take effect immediately; provided, however, that
the amendments to subdivision 1 of section 292 of the public health law,
as added by section two of this act, shall take effect on the one
hundred eightieth day after it shall have become a law.
