H. B. 2946
(By Delegates Ellem, Border, Perdue, Miley, Ellington,
Hamilton, Reynolds, Kominar and C. Miller)
(Originating in the Committee on the Judiciary)
[February 25, 2011]
A BILL to repeal §60A-10-5 and §60A-10-8 of the code of West Virginia, 1931, as amended; to amend and reenact §60A-10-2, §60A-10-3, §60A-10-4, §60A-10-6, §60A-10-7 and §60A-10-11 of said code, all relating to requiring a prescription to dispense drug products that contain as an active ingredient ephedrine, pseudoephedrine, phenylpropanolamine and other precursors of methamphetamine; making and such drugs a Schedule III drug; repealing certain provisions and definitions that are no longer applicable; adding findings; exempting wholesalers from certain requirements of the United States Drug Enforcement Administration relating to storage, reporting, record keeping or physical security control requirements for controlled substances containing ephedrine, pseudoephedrine or phenylpropanolamine; adding affirmative defenses; and providing penalties.
Be it enacted by the Legislature of West Virginia:
That §60A-10-5 and §60A-10-8 of the Code of West Virginia,1931, as amended, be repealed; that §60A-10-2,§60A-10-3, §60A-10-4, §60A-10-6, §60A-10-7 and §60A-10-11 of said code be amended and reenacted to read as follows:
ARTICLE 10. METHAMPHETAMINE LABORATORY ERADICATION ACT.
§60A-10-2. Purpose; findings.
The Legislature finds:
(a) That the illegal production and distribution of methamphetamine is an increasing problem nationwide and particularly prevalent in rural states such as West Virginia.
(b) That methamphetamine is a highly addictive drug that can be manufactured in small and portable laboratories. These laboratories are operated by individuals who manufacture the drug in a clandestine and unsafe manner, often resulting in explosions and fires that can injure not only the individuals involved, but their families, neighbors, law-enforcement officers and firemen.
(c) That use of methamphetamine can result in fatal kidney and lung disorders, brain damage, liver damage, blood clots, chronic depression, hallucinations, violent and aggressive behavior, malnutrition, disturbed personality development, deficient immune system and psychosis. Children born to mothers who are abusers of methamphetamine can be born addicted and suffer birth defects, low birth weight, tremors, excessive crying, attention deficit disorder and behavior disorders.
(d) That in addition to the physical consequences to an individual who uses methamphetamine, usage of the drug also produces an increase in automobile accidents, explosions and fires, increased criminal activity, increased medical costs due to emergency room visits, increases in domestic violence, increased spread of infectious diseases and a loss in worker productivity.
(e) That environmental damage is another consequence of the methamphetamine epidemic. Each pound of methamphetamine produced leaves behind five to six pounds of toxic waste. Chemicals and byproducts that result from the manufacture of methamphetamine are often poured into plumbing systems, storm drains or directly onto the ground. Clean up of methamphetamine laboratories is extremely resource-intensive, with an average remediation cost of five thousand dollars.
(f) That in other states, which have required a prescription for those drugs that are used to facilitate production of methamphetamine, there has been a significant decrease in the number of methamphetamine laboratories in those states.
(f)(g) That it is in the best interest of every West Virginian to develop a viable solution to address the growing methamphetamine problem in the State of West Virginia. The Legislature finds that restricting access to over-the-counter drugs used to facilitate production of methamphetamine is necessary to protect the public safety of all West Virginians.
(g)(h) That it is further in the best interests of every West Virginian to create impediments to the manufacture of methamphetamine by requiring persons purchasing chemicals necessary to the process to provide identification have a lawful prescription before purchasing.
In this article:
(a) "Board of Pharmacy" or "board" means the West Virginia Board of Pharmacy established by the provisions of article five, chapter thirty of this code.
(b) "Designated precursor" means any drug product made subject to the requirements of this article by the provisions of section seven of this article.
(c) "Distributor" means any person within this state or another state, other than a manufacturer or wholesaler, who sells, delivers, transfers or in any manner furnishes a drug product to any person who is not the ultimate user or consumer of the product;
(d) "Drug product" means a pharmaceutical product that contains as an its single active ingredient ephedrine, pseudoephedrine or phenylpropanolamine or a substance identified on the supplemental list provided for in section seven of this article which may be sold without a prescription and which is labeled for use by a consumer in accordance with the requirements of the laws and rules of this state and the federal government.
(e) "Ephedrine " means ephedrine, its salts or optical isomers or salts of optical isomers.
(f) "Manufacturer" means any person within this state who produces, compounds, packages or in any manner initially prepares for sale or use any drug product or any such person in another state if they cause the products to be compounded, packaged or transported into this state.
(g) "Phenylpropanolamine" means phenylpropanolamine, its salts, optical isomers and salts of optical isomers.
(h) "Pseudoephedrine" means pseudoephedrine, its salts, optical isomers and salts of optical isomers.
(i) "Precursor" means any substance which may be used along with other substances as a component in the production and distribution of illegal methamphetamine.
(j) "Pharmacist" means an individual currently licensed by this state to engage in the practice of pharmacy and pharmaceutical care as defined in subsection (t), section one-b, article fifty, chapter thirty of this code.
(k) “Pharmacy intern” has the same meaning as the term “intern” as set forth in section one-b, article five, chapter thirty of this code.
(l) "Pharmacy" means any drugstore, apothecary or place within this state where drugs are dispensed and sold at retail or display for sale at retail and pharmaceutical care is provided outside of this state where drugs are dispensed and pharmaceutical care is provided to residents of this state.
(m) "Pharmacy counter" means an area in the pharmacy restricted to the public where controlled substances are stored and housed and where controlled substances may only be sold, transferred or dispensed by a pharmacist or pharmacy technician.
(n)(m) "Pharmacy technician" means a registered technician who meets the requirements for registration as set forth in article five, chapter thirty of this code.
(o) "Retail establishment" means any entity or person within this state who sells, transfers or distributes goods, including over-the-counter drug products, to an ultimate consumer. (p)(n) "Schedule VIII" means the schedule of controlled substances set out in section two hundred twelve eight, section two of this chapter.
(q) "Single active ingredient" means those ingredients listed on a drug product package as the only active ingredient in over-the-counter medication or identified on the Schedule maintained by the Board of Pharmacy as being primarily used in the illegal production and distribution of methamphetamine.
(r)(o) "Superintendent of the State Police" or "Superintendent" means the Superintendent of the West Virginia State Police as set forth in section five, article two, chapter fifteen of this code.
(s)(p) "Wholesaler" means any person within this state or another state, other than a manufacturer, who sells, transfers or in any manner furnishes a drug product to any other person in this state for the purpose of being resold.
§60A-10-4. Purchase, receipt, acquisition and possession of substances to be used as precursor to manufacture of methamphetamine or another controlled substance; offenses; exceptions; penalties.
(a) Any person who within any thirty-day period knowingly purchases, receives or otherwise possesses more than three packages of a drug product the amount prescribed in a single prescription containing as its single an active ingredient ephedrine, pseudoephedrine or phenylpropanolamine or more than nine grams of ephedrine, pseudoephedrine or phenylpropanolamine in any form shall be guilty of a misdemeanor and, upon conviction, shall be confined in a jail for not more than one year, fined not more than $1,000, or both, unless the person can provide an order from a person authorized to prescribe controlled substances explaining why the multiple prescriptions are medically necessary.
(b) Notwithstanding the provisions of subsection (a) of this section, any person convicted of a second or subsequent violation of the provisions of said subsection or a statute or ordinance of the United States or another state which contains the same essential elements shall be guilty of a felony and, upon conviction, shall be confined in a state correctional facility for not less than one nor more than five years, fined not more than $25,000, or both.
(c) The provisions of subsection (a) of this section shall not apply to:
(1) Drug products which are for pediatric use primarily intended for administration to children under the age of twelve;
(2) Drug products which have been determined by the Board of Pharmacy to be in a form which is unamenable to being used for the manufacture of methamphetamine;
(3) Persons lawfully possessing drug products in their capacities as distributors, wholesalers, manufacturers, pharmacists, pharmacy interns, pharmacy technicians, health care professionals or persons possessing such drug products pursuant to a valid prescription.
(d) Notwithstanding any provision of this code to the contrary, any person who knowingly possesses any amount of ephedrine, pseudoephedrine, phenylpropanolamine or other designated precursor with the intent to use it in the manufacture of methamphetamine or who knowingly possesses a substance containing ephedrine, pseudoephedrine or phenylpropanolamine or their salts, optical isomers or salts of optical isomers in a state or form which is, or has been altered or converted from the state or form in which these chemicals are, or were, commercially distributed shall be guilty of a felony and, upon conviction, shall be confined in a state correctional facility for not less than two nor more than ten years, fined not more than $25,000, or both.
(e) (1) Any pharmacy, wholesaler, manufacturer or distributor of drug products containing as their single an active ingredient ephedrine, pseudoephedrine, phenylpropanolamine, their salts or optical isomers or salts of optical isomers or other designated precursor shall obtain a registration annually from the State Board of Pharmacy as described in section six of this article. Any such pharmacy, wholesaler, manufacturer or distributor shall keep complete records of all sales and transactions as provided in section eight of this article. The records shall be gathered and maintained pursuant to legislative rule promulgated by the Board of Pharmacy.
(f) It is an affirmative defense to any offense in this section that the person:
(1) Obtained the drug(s) containing ephedrine, pseudoephedrine or phenylpropanolamine lawfully;
(2) Possessed no more than nine grams of ephedrine, pseudoephedrine or phenylpropanolamine in any form; and
(3) Possessed the drug(s) under circumstances that are consistent with typical medicinal or household use, as indicated by factors including but not limited to: storage location, purchase date, or possession of the product in a variety of strengths, brands, types, purposes or expiration dates.
(2) Any drug products possessed without a registration as provided in this section are subject to forfeiture upon conviction for a violation of this section.
(3) In addition to any administrative penalties provided by law, any violation of this subsection is a misdemeanor, punishable upon conviction by a fine in an amount not more than $10,000.
§60A-10-6. Registration to sell, manufacture or distribute
products; rule-making authority.
The State Board of Pharmacy shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code to require that every wholesaler, manufacturer or distributor of any drug product containing as their single an active ingredient ephedrine or pseudoephedrine or a substance identified on the supplemental list provided for in section seven of this article shall obtain a registration and permit issued by the State Board of Pharmacy to sell, distribute or transfer the product containing as their single active ingredient ephedrine, pseudoephedrine or phenylpropanolamine.
§60A-10-7. Restricted products; rule-making authority.
(a) On or before July 1, 2005, The Board of Pharmacy shall promulgate emergency and legislative rules pursuant to the provision of article three, chapter twenty-nine-a of this code to implement a program wherein the Board of Pharmacy shall consult consults with the Superintendent of the State Police in identifying drug products which are a designated precursor, in addition to those that contain as their single an active ingredient ephedrine, pseudoephedrine or phenylpropanolamine, that are commonly being used in the production and distribution of methamphetamine. Those drug products which the Superintendent of the State Police have demonstrated by empirical evidence are commonly used in the manufacture of methamphetamine shall be added to a supplemental list and shall be are subject to all of the restrictions of this article. These The rules established pursuant to this section shall include (1) a process whereby pharmacies are made aware of all drug products that contain as their single an active ingredient ephedrine, pseudoephedrine and phenylpropanolamine that will be listed as a Schedule V III substance. and must be sold, transferred or dispensed from behind a pharmacy counter;
(2) Wholesale drug distributors licensed by the Board of Pharmacy and registered with, and regulated by, the United States Drug Enforcement Administration are exempt from storage, reporting, record keeping or physical security control requirements for controlled substances containing pseudoephedrine. A process whereby pharmacies and retail establishments are made aware of additional drug products added to Schedule VIII that are required to be placed behind the pharmacy counter for sale, transfer or distribution can be periodically reviewed and updated.
(b) At any time after July 1, 2005, the Board of Pharmacy, upon the recommendation of the superintendent of the State Police, shall promulgate emergency and legislative rules pursuant to the provision of article three, chapter twenty-nine-a of this code to implement an updated supplemental list of products containing the controlled substances ephedrine, pseudoephedrine or phenylpropanolamine as an active ingredient or any other drug used as a precursor in the manufacture of methamphetamine, which the superintendent of the State Police has demonstrated by empirical evidence is being used in the manufacture of methamphetamine. This listing process shall comport with the requirements of subsection (a) of this section.
§60A-10-11. Reporting to the Legislative Oversight Commission on Health and Human Resources Accountability.
On or before the first day of December, two thousand five eleven, the Superintendent of the West Virginia State Police shall submit a report including findings, conclusions and recommendations, together with drafts of any legislation necessary, to improve the effectiveness of a reduction in illegal methamphetamine production and distribution to the Legislative Oversight Commission on Health and Human Resources Accountability for consideration.