H. B. 4486

(By Delegates Ellington and Miller)

              [Introduced February 12, 2014; referred to the

Committee on Health and Human Resources then the Judiciary.]

A BILL to amend and reenact §60A-10-4, §60A-10-6 and §60A-10-7 of the Code of West Virginia, 1931, as amended, all relating to circumstances requiring a prescription to dispense drug products that contain ephedrine, pseudoephedrine, phenylpropanolamine and other precursors of methamphetamine as an active ingredient; 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-10-4, §60A-10-6 and §60A-10-7 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:

ARTICLE 10. METHAMPHETAMINE LABORATORY ERADICATION ACT.

§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) A pharmacy may not sell, transfer or dispense to the same person, and a person may not purchase more than three and six-tenths grams per day, more than seven and two-tenths grams in a thirty-day period or more than forty-eight grams annually of ephedrine, pseudoephedrine or phenylpropanolamine without a prescription. The limits shall apply to the total amount of ephedrine, pseudoephedrine and phenylpropanolamine contained in the products, and not the overall weight of the products.

    (1) Any person who or knowingly purchases, receives or otherwise possesses more than seven and two-tenths grams in a thirty-day period of ephedrine, pseudoephedrine or phenylpropanolamine in any form without a prescription is 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 fined and confined. within any thirty-day period knowingly purchases, receives or otherwise possesses more than three packages of a drug product containing as its single 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.

    (2) Any person who knowingly purchases, receives or otherwise possesses ephedrine, pseudoephedrine or phenylpropanolamine in any form with the intent to transfer the substance to someone that the person knows or should know will use the substance to manufacture methamphetamine is 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 fined and confined.

    (3) A person is required to obtain a valid prescription prior to obtaining products containing ephedrine, pseudoephedrine or phenylpropanolamine if that person has been:

    (A) Convicted of an offense which includes the use, possession or distribution of a drug as an element of the offense;

    (B) Convicted of a violation of this section, or an equivalent statute in another jurisdiction; or

    (C) Uses a drug product containing ephedrine, pseudoephedrine or phenylpropanolamine as an active ingredient for two hundred seventy or more days per year.

    (4) Any pharmacy, wholesaler or other entity operating the retail establishment which sells, transfers or dispenses a product in violation of this section is guilty of a misdemeanor and, upon conviction, shall be fined not more than $1,000 for the first offense, or more than $10,000 for each subsequent offense.

    (5) Beginning on January 1, 2015, the electronic transmission of the information required to be reported in this subsection of this section on persons who have been convicted of an offense which includes the use, possession or distribution of a drug as an element of the offense; or convicted of a violation of this section, or an equivalent statute in another jurisdiction, shall be reported to the Multi-State Real-Time Tracking System described in section six of article ten of chapter sixty of this code, and shall be made in real time at the time of the transaction.

    (b) Notwithstanding the provisions of subdivision (a)(1) subsection (a) of this section, any person convicted of a second or subsequent violation of the provisions of said subdivision or a statute or ordinance of the United States or another state which contains the same essential elements is guilty of a felony and, upon conviction, shall be imprisoned in a state correctional facility for not less than one nor more than five years, fined not more than $25,000, or both imprisoned and fined.

    (c) The provisions of subsection (a) of this section shall not apply to:

    (1) Products dispensed pursuant to a valid prescription;

    (2) Drug products which are for pediatric use primarily intended for administration to children under the age of twelve;

    (3) Drug products containing ephedrine, pseudoephedrine or phenylpropanolamine, their salts or optical isomers or salts of optical isomers or other designated precursor which have been determined by the Board of Pharmacy to be in a form which is not feasible for being used for the manufacture of methamphetamine; or

    (4) Persons lawfully possessing drug products in their capacities as distributors, wholesalers, manufacturers, pharmacists, pharmacy interns, pharmacy technicians, or health care professionals.

    (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 any person who knowingly compensates, hires or provides other incentives for another person to purchase, obtain or transfer 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 is guilty of a felony and, upon conviction, shall be imprisoned in a state correctional facility for not less than two nor more than ten years, fined not more than $25,000, or both imprisoned and fined.

    (e) (1) Any pharmacy, wholesaler, manufacturer or distributor of drug products containing 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.

    (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 propose 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 with the Superintendent of the State Police in identifying drug products which are a designated precursor, in addition to those that contain 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 has demonstrated by empirical evidence are commonly used in the manufacture of methamphetamine shall be added to a supplemental list and shall be subject to all of the restrictions of this article. These Rules established pursuant to this section shall include:

    (1) A process whereby pharmacies are made aware of all drug products that contain as an active ingredient, ephedrine, pseudoephedrine and phenylpropanolamine that will be listed as a Schedule V substance; and must be sold, transferred or dispensed from behind a pharmacy counter;

    (2) A process whereby pharmacies and retail establishments are made aware of additional drug products added to Schedule V that are required to be placed behind the pharmacy counter for sale, transfer or distribution can be periodically reviewed and updated. 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, ephedrine, or phenylpropanolamine.

    (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. A process whereby pharmacies are made aware of all drug products that are less than eleven percent of the product can be used to manufacture methamphetamine that contain ephedrine, pseudoephedrine or phenylpropanolamine, and may be sold, transferred or dispensed over the counter.

    NOTE: The purpose of this bill is to amend code sections relating to pseudoephedrine so as to require a prescription to dispense drug products that contain ephedrine, pseudoephedrine or phenylpropanolamine as an active ingredient. It exempts 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 that contain ephedrine, pseudoephedrine or phenylpropanolamine, and adds affirmative defenses and penalties.

    Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.