Bill Text: CA SB514 | 2011-2012 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Dextromethorphan: sale to minors prohibited.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Passed) 2011-08-31 - Chaptered by Secretary of State. Chapter 199, Statutes of 2011. [SB514 Detail]

Download: California-2011-SB514-Amended.html

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BILL NUMBER: SB 514	AMENDED
	BILL TEXT

	AMENDED IN SENATE  APRIL 25, 2011

INTRODUCED BY   Senator Simitian

                        FEBRUARY 17, 2011

   An act to add  Section 11110   Sections 11110
and 11111  to the Health and Safety Code, relating to
nonprescription drugs.



	LEGISLATIVE COUNSEL'S DIGEST


   SB 514, as amended, Simitian. Dextromethorphan: sale to minors
prohibited.
   Existing law prohibits a manufacturer, wholesaler, retailer, or
other person from selling, transferring, or otherwise furnishing a
specified substance, including ephedrine and pseudoephedrine, to a
person under 18 years of age, except as specified. A first violation
of this provision is a misdemeanor. Existing law further regulates
the sale of nonprescription drugs, as specified.
   This bill would, in addition, make it an infraction for any person
 , corporation, or retail distributer,  in an
over-the-counter sale to, without a prescription,  to
willfully and knowingly  supply,  deliver  ,  
or give possession of a nonprescription drug containing
dextromethorphan  to a person under 18 years of age  a
nonprescription drug containing dextromethorphan  . The 
bill would provide that proof that bona fide evidence of majority
and identity was demanded and shown shall be a defense to any
criminal prosecution. 
    The  bill would further provide that a retail clerk who
fails to require and obtain proof of age from the purchaser shall not
be guilty of an infraction  ,   or 
subject to any civil penalties  , or subject to any
disciplinary action or discharge by his or her employer  ,
unless the retail clerk is a willful participant in an ongoing
criminal conspiracy to violate the provisions prohibiting the sale of
dextromethorphan to minors. By creating new crimes, this bill would
impose a state-mandated local program. 
    The bill would require a person, corporation, or retail
distributor that sells a product containing dextromethorphan to use a
cash register that is equipped with an age-verification feature that
directs the retail clerk to request identification before the
product may be purchased, as provided. 
   The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
   This bill would provide that no reimbursement is required by this
act for a specified reason.
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 11110 is added to the Health and Safety Code,
to read:
   11110.  (a) It shall be an infraction for any person  in
an over-the-counter sale to, without a prescription,   ,
corporation, or retail distributor to  willfully and knowingly
 deliver to a person under 18 years of age  
supply, deliver, or give possession of  a drug, material,
compound, mixture, preparation, or substance containing any quantity
of dextromethorphan (the dextrorotatory isomer of
3-methoxy-N-methylmorphinan, including its salts, but not including
its racemic or levorotatory forms)  to a person under 18 years of
age in an over-the-counter sale without a prescription  .
   (b)  (1)    It shall be prima
facie evidence of a violation of this section if the person  ,
corporation, or retail distributor  making the sale does not
require and obtain  proof of age   bona fide
evidence of   majority and identity  from the
purchaser, unless from the purchaser's outward appearance the person
making the sale would reasonably presume the purchaser to be 25 years
of age or older. 
   (2) For the purposes of this section, "proof of age" means any
document issued by a governmental agency that contains a description
or photograph of the person and gives the person's date of birth,
including a passport, military identification card, or driver's
license.  
   (c) It shall be an affirmative defense to a violation of this
section if the defendant proves, by a preponderance of the evidence,
all of the following:  
   (1) The person making the sale required and obtained proof of age
from the purchaser.  
   (2) The purchaser falsely represented his or her age by the use of
a false, forged, or altered document.  
   (3) The appearance of the purchaser would lead an ordinary and
prudent person to believe that the purchaser was at least 18 years of
age.  
   (4) The sale was made in good faith and in reliance upon the
appearance and representation of proof of age of the purchaser.
 
   (c) Proof that a person, corporation, or retail distributor, or
his or her agent or employee, demanded, was shown, and acted in
reasonable reliance upon, bona fide evidence of majority and identity
shall be a defense to any criminal prosecution under this section.
As used in this section, "bona fide evidence of majority and identity"
means a document issued by a federal, state, county, or municipal
government, or subdivision or agency thereof, including, but not
limited to, a motor vehicle operator's license, California state
identification card, identification card issued to a member of the
Armed Forces, or other form of identification that bears the name,
date of birth, description, and picture of the person. 
   (d) (1) Notwithstanding any other provision of this section, a
retail clerk who fails to require and obtain proof of age from the
purchaser shall not be guilty of an infraction pursuant to
subdivision (a)  ,   or  subject to any
civil penalties  , or subject to any disciplinary action or
discharge by his or her employer  .
   (2) This subdivision shall not apply to a retail clerk who is a
willful participant in an ongoing criminal conspiracy to violate this
section.
   SEC. 2.    Section 11111 is added to the  
Health and Safety Code   , to read:  
   11111.  A person, corporation, or retail distributor that sells or
makes available products containing dextromethorphan, as defined in
subdivision (a) of Section 11110, in an over-the-counter sale without
a prescription shall, if feasible, use a cash register that is
equipped with an age-verification feature to monitor age-restricted
items. The cash register shall be programmed to direct the retail
clerk making the sale to request bona fide evidence of majority and
identity, as described in subdivision (c) of Section 11110, before a
product containing dextromethorphan may be purchased. 
   SEC. 2.   SEC. 3.   No reimbursement is
required by this act pursuant to Section 6 of Article XIII B of the
California Constitution because the only costs that may be incurred
by a local agency or school district will be incurred because this
act creates a new crime or infraction, eliminates a crime or
infraction, or changes the penalty for a crime or infraction, within
the meaning of Section 17556 of the Government Code, or changes the
definition of a crime within the meaning of Section 6 of Article XIII
B of the California Constitution.