H. B. 4591

         (By Delegates Espinosa, Arvon, R. Smith,

                   Border, D. Evans)

(By request of the Attorney General)

         [Introduced February 17, 2014; referred to the

Committee on Health and Human Resources then the Judiciary.]

A BILL to amend and reenact §60A-10-4 of the Code of West Virginia, 1931, as amended, relating to the purchase, receipt, acquisition and possession for illicit purposes of substances containing ephedrine, pseudoephedrine and phenylpropanolamine; reducing the maximum amount of ephedrine, pseudoephedrine and phenylpropanolamine a person may purchase in a year; and creating criminal offenses for the illegal transfer of ephedrine, pseudoephedrine and phenylpropanolamine.

Be it enacted by the Legislature of West Virginia:

    That §60A-10-4 of the Code of West Virginia, 1931, as amended, be amended and reenacted 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 twenty-four grams annually of ephedrine, pseudoephedrine or phenylpropanolamine without a prescription, unless the product has been determined by the Board of Pharmacy to be in a form which is not feasible for being used to manufacture methamphetamine. 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.

    (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 who the transferor knows or should know will use the substance to manufacture methamphetamine is guilty of a misdemeanor and, upon conviction, shall be confined in jail for not more than one year, fined not more than $1,000, or both fined and confined.

    (2) 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.

    (b) Notwithstanding the provisions of subdivision (a)(1) subdivisions (1) and (2) of 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; 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.

    NOTE: The purpose of this bill is to reduce the annual amount of ephedrine, pseudoephedrine and phenylpropanolamine that can be sold without a prescription. The bill also creates criminal offenses for individuals engaged in the practice of “smurfing,” which involves the transfer of those products with the intent to manufacture methamphetamine.

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