SB6 H JUD AM 3-5 #1, as amended

The Committee on the Judiciary moves to amend the bill on page three, following the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the following language:

“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 twenty-four 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 unless the product has been determined by the Board of Pharmacy to be in an extraction- or conversion-resistant form: Provided, That a pharmacist, pharmacy intern or pharmacy technician may refuse to dispense a product containing ephedrine, pseudoephedrine, or phenylpropanolamine which is not extraction or conversion resistant without a prescription to a person who is not known to the pharmacist, pharmacy intern or pharmacy technician as a regular customer of the pharmacy; or, who has not had at least one prescription filled by the pharmacy within the past 12 months.

For the purposes of this article, “extraction or conversion resistant” means a product containing ephedrine, pseudoephedrine or phenylpropanolamine that because of its compounding, preparation, mixture or ingredients has been found by the Board of Pharmacy to pose a significantly reduced risk of being used in the manufacture of methamphetamine.

(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; or

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

(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 by the respective clerk of the circuit court where the conviction occurred, 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.

(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.

(f) (1) Notwithstanding any provision of this code to the contrary, a county commission may adopt an ordinance to provide that a pharmacy, wholesaler or other entity operating a retail establishment in the county may not sell, transfer or dispense ephedrine, pseudoephedrine or phenylpropanolamine without a prescription, unless the product has been determined by the Board of Pharmacy to be in an extraction- or conversion-resistant form. (2) The ordinance:

(A) Shall provide that the provisions of subdivision (3), subsection (a), section seven, article seven, chapter sixty-one of this code are inapplicable to persons possessing ephedrine, pseudoephedrine or phenylpropanolamine which has been lawfully purchased in the jurisdiction of sale and which is possessed with the intent that it be used in the manner and form intended by the manufacturer;

(B) Shall provide that the ordinance does not apply to drug products containing ephedrine, pseudoephedrine or phenylpropanolamine which are for pediatric use primarily intended for administration to children under the age of twelve; and

(C) May provide that any person in violation of the ordinance is guilty of a misdemeanor and, upon conviction, may be fined not more than $1,000 for the first offense, or more than $10,000 for each subsequent offense.

(3) A county commission may conduct a referendum on the question of the adoption of an ordinance pursuant to this section by entry of an order providing that the ordinance not become effective until it is ratified by a majority of the legal votes cast on the referendum by the qualified voters of the county at any primary, general or special election as the county commission directs.

§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.

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

§60A-10-8. Reporting requirements; confidentiality.

(a) Until January 1, 2013, upon each sale, retail, transfer or distribution of any drug product referred to in section seven of this article or another designated precursor, the pharmacist, pharmacy intern, or pharmacy technician making the sale, transfer or distribution shall report the following information for inclusion in the central repository established and maintained by the Board of Pharmacy:

(1) The date of the transaction;

(2) The name, address and driver's license or state-issued identification number of the person; and

(3) The name, quantity of packages and total gram weight of the product or products purchased, received or otherwise acquired.

(b) The information required to be reported by this section shall be reported by paper log maintained at the point of sale: Provided, That, beginning on January 1, 2007, reporting shall be by electronic transmission to the Board of Pharmacy no more frequently than once a week. Beginning on January 1, 2013, the electronic transmission of the information required to be reported in subsection (a) of this section shall be reported to the MSRTTS, and shall be made in real time at the time of the transaction.

(c) The information required by this section shall be the property of the state. The information shall be disclosed as appropriate to the federal Drug Enforcement Administration and to state and local law-enforcement agencies. The information shall not be accessed, used or shared for any purpose other than to ensure compliance with this article and federal law. NADDI shall forward state transaction records in the MSRTTS to the West Virginia State Police weekly, and provide real-time access to MSRTTS information through the MSRTTS online portal to authorized agents of the federal Drug Enforcement Administration and certified law enforcement in this and other states for use in the detection of violations of this article or of federal laws designed to prevent the illegal use, production or distribution of methamphetamine. Records of clandestine labs found by law enforcement agencies in West Virginia shall be forwarded by the appropriate law enforcement agency as soon as is practicable to the National Clandestine Laboratory Register, as maintained by the United States Department of Justice.