Bill Text: GA HB437 | 2011-2012 | Regular Session | Introduced

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Bill Title: Controlled substances; possession of and sale of pseudoephedrine drugs; change provisions

Spectrum: Slight Partisan Bill (Republican 3-1)

Status: (Introduced - Dead) 2011-03-03 - House Second Readers [HB437 Detail]

Download: Georgia-2011-HB437-Introduced.html

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11 LC 29 4643ER

House Bill 437

By: Representatives Neal of the 1st, Williams of the 4th, Maxwell of the 17th, and Gardner of the 57th

A BILL TO BE ENTITLED
AN ACT

To amend Article 2 of Chapter 13 of Title 16 of the Official Code of Georgia Annotated, relating to regulation of controlled substances, so as to change provisions relating to possession of substances containing ephedrine, pseudoephedrine, and phenylpropanolamine and restrictions on sales of products containing pseudoephedrine; to provide for real-time tracking of sales of products containing ephedrine, pseudoephedrine, and phenylpropanolamine; to provide for definitions; to change provisions relating to exceptions; to provide for related matters; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1.

Article 2 of Chapter 13 of Title 16 of the Official Code of Georgia Annotated, relating to regulation of controlled substances, is amended by revising Code Section 16-13-30.3, relating to possession of substances containing ephedrine, pseudoephedrine, and phenylpropanolamine and restrictions on sales of products containing pseudoephedrine, as follows:

"16-13-30.3.

(a) As used in this Code section, the term:

(1) 'Ephedrine,' 'pseudoephedrine,' or 'phenylpropanolamine' means any drug product containing ephedrine, pseudoephedrine, or phenylpropanolamine base, or any of their salts, isomers, or salts of isomers, alone or in a mixture.

(2) 'Georgia Meth Watch' means the program entitled 'Georgia Meth Watch' or similar program which has been promulgated, approved, and distributed by the Georgia Council on Substance Abuse.

(3) 'NADDI' means the National Association of Drug Diversion Investigators.

(4) 'NPLEx' means the National Precursor Log Exchange which is administered by NADDI.

(5) 'NPLEx system' means an electronic system which can track required information and generate a stop sale alert to notify a retail distributor that a purchase of ephedrine, pseudoephedrine, or phenylpropanolamine which exceeds the quantity limits set forth in this Code section is being attempted. Such system shall contain an override function that will allow a retail distributor to complete a sale in violation of this Code section when the person making the sale is in reasonable fear of imminent bodily harm if he or she does not complete the sale and will track the override sales made.

(2) 'Personal use' means the sale in a single transaction to an individual customer for a legitimate medical use of a product containing ephedrine, pseudoephedrine, or phenylpropanolamine in quantities at or below that specified in subsection (b) of this Code section, and includes the sale of those products to employers to be dispensed to employees from first-aid kits or medicine chests.

(6) 'Required information' means the full name and address of the purchaser; the type of government issued photographic identification presented, including the issuer and identification number; a description of the nonprescription product purchased which contains ephedrine, pseudoephedrine, or phenylpropanolamine base, including the number of grams of pseudoephedrine in the product; and the date and time of the purchase.

(3)(7) 'Retail distributor' means a grocery store, general merchandise store, drugstore, convenience store, or other related entity, the activities of which involve the distribution of products containing ephedrine, pseudoephedrine, or phenylpropanolamine products.

(b)(1) It is shall be unlawful for any person, other than a person or entity described in paragraph (28), (29), or (33) of Code Section 26-4-5 or a retail distributor, to knowingly possess any product that contains ephedrine, pseudoephedrine, or phenylpropanolamine base in an amount which exceeds 300 pills, tablets, gelcaps, capsules, or other individual units or more than 9 grams of ephedrine, pseudoephedrine, or phenylpropanolamine base, their salts, isomers, or salts of isomers, or a combination of any of these substances, whichever is smaller.

(2) It shall be unlawful for any person to possess any amount of a substance set forth in this Code section product containing ephedrine, pseudoephedrine, or phenylpropanolamine base with the intent to manufacture amphetamine or methamphetamine.

(3) Any person who violates the provisions of this Code section shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one year nor more than ten 15 years.

(b.1)(c)(1) Products whose sole active ingredient is pseudoephedrine may be offered for retail sale only if sold in blister packaging. Such products may not be offered for retail sale by self-service but only from behind a counter or other barrier so that such products are not directly accessible by the public but only by a retail store an employee or agent of a retail distributor.

(2) Retail distributors shall require every retail purchaser of a product containing pseudoephedrine to furnish valid government issued photographic identification of the purchaser. The retail distributor shall maintain a record of required information for each sale of a nonprescription product which contains ephedrine, pseudoephedrine, or phenylpropanolamine base. Retail distributors shall require that every purchaser sign a written or electronic log attesting to the validity of the required information.

(3) Retail distributors shall maintain a record of required information for a period of two years from the date of each transaction. Except as authorized by paragraph (6) of this subsection, the records maintained by a retail distributor pursuant to this Code section shall not be disclosed. Retail distributors may destroy the required information collected pursuant to this subsection after two years from the date of the transaction.

(4)(A) On and after January 1, 2012, retail distributors shall, before completing a sale of a nonprescription product which contains ephedrine, pseudoephedrine, or phenylpropanolamine base, electronically track all such sales and submit the required information to NPLEx, provided that the NPLEx system is available to retail distributors without an access charge. A retail distributor shall not complete the sale of a nonprescription product which contains ephedrine, pseudoephedrine, or phenylpropanolamine base if the NPLEx system generates a stop sale alert.

(B) Absent negligence, wantonness, recklessness, or deliberate misconduct, any retail distributor utilizing the NPLEx system in accordance with this paragraph shall not be civilly liable as a result of any act or omission in carrying out the duties required by this paragraph and shall be immune from liability to any third party unless the retail distributor has violated any provision of this paragraph in relation to a claim brought for such violation.

(5) If a retail distributor selling a nonprescription product which contains ephedrine, pseudoephedrine, or phenylpropanolamine base experiences mechanical or electronic failure of the NPLEx system and is unable to comply with the electronic sales tracking requirement, the retail distributor shall maintain a written log or an alternative electronic recording mechanism until such time as the retail distributor is able to comply with the electronic sales tracking requirement.

(6) NADDI shall forward Georgia transaction records in NPLEx to the Georgia Bureau of Investigation weekly and provide real-time access to NPLEx information through the NPLEx online portal to law enforcement agencies in this state as authorized by the Georgia Bureau of Investigation, provided that the Georgia Bureau of Investigation executes a memorandum of understanding with NADDI governing access to such information.

(2)(7) No person shall deliver in any single over the counter sale more than three packages of any product containing pseudoephedrine as the sole active ingredient or in combination with other active ingredients or any number of packages that contain a combined total of more than nine grams of pseudoephedrine or its base, salts, optical isomers, or salts of its optical isomers distribute or purchase any nonprescription product containing more than 3.6 grams of ephedrine, pseudoephedrine, or phenylpropanolamine base per day in dosage form or more than 9 grams of ephedrine, pseudoephedrine, or phenylpropanolamine base per 30 day period in dosage form of any product. The limits set forth in this paragraph shall apply to the total amount of ephedrine, pseudoephedrine, or phenylpropanolamine base contained in the product and not the overall weight of such product.

(3)(8) It shall be unlawful for a retail distributor to purchase any product containing whose sole active ingredient is pseudoephedrine from any person or entity other than a manufacturer or a wholesale distributor licensed by the Georgia State Board of Pharmacy.

(4) This subsection shall not apply to:

(A) Pediatric products labeled pursuant to federal regulation as primarily intended for administration to children under 12 years of age according to label instructions; and

(B) Products that the Georgia State Board of Pharmacy, upon application of a manufacturer, exempts because the product is formulated in such a way as to effectively prevent the conversion of the active ingredient into methamphetamine or its salts or precursors.

(5)(9) This subsection shall preempt all local ordinances or regulations governing the retail sale of over the counter products containing whose sole active ingredient is pseudoephedrine by a retail business distributor except such local ordinances or regulations that existed on or before December 31, 2004. Effective January 1, 2006, this subsection shall preempt all local ordinances.

(6)(10)(A) Except as otherwise provided herein in subsections (b) and (e) of this Code section, it shall be unlawful for any person knowingly to violate any prohibition contained in paragraph (1), (2), or (3), (4), (7), or (8) of this subsection.

(B) Any person convicted of a violation of paragraph (1), or (2), (4), or (7) of this subsection shall be guilty of a misdemeanor which, upon the first conviction, shall be punished by a fine of not more than $500.00 and, upon the second or subsequent conviction, shall be punished by not more than six months' imprisonment or a fine of not more than $1,000.00, or both.

(C) Any person convicted of a violation of paragraph (3) (8) of this subsection shall, upon the first conviction, be guilty of a misdemeanor and, upon the second or subsequent conviction, be guilty of a misdemeanor of a high and aggravated nature.

(D) It shall be a defense to a prosecution of a retail business or owner or operator thereof distributor for violation of paragraph (1), or (2), (4), (7), or (8) of this subsection that, at the time of the alleged violation, all of the employees of the retail business distributor had completed training under Georgia Meth Watch, the retail business distributor was in compliance with Georgia Meth Watch, and the defendant did not knowingly, willfully, or intentionally violate paragraph (1), or (2), (4), (7), or (8) of this subsection. For purposes of this subsection only, the term 'Georgia Meth Watch' shall mean that program entitled 'Georgia Meth Watch' or similar program which has been promulgated, approved, and distributed by the Georgia Council on Substance Abuse.

(7) Except as otherwise provided in this subsection, the Georgia State Board of Pharmacy may adopt reasonable rules and regulations to effectuate the provisions of this subsection. The board is further authorized to charge reasonable fees to defray expenses incurred in maintaining any records or forms necessitated by this subsection or otherwise administering any other provisions of this subsection.

(c)(d) This Code section shall not apply to:

(1) Pediatric products primarily intended for administration to children under 12 years of age, according to label instructions, either:

(A) In solid dosage form whose recommended dosage, according to label instructions, does not exceed 15 milligrams of ephedrine, pseudoephedrine, or phenylpropanolamine per individual dosage unit; or

(B) In liquid form whose recommended dosage, according to label instructions, does not exceed 15 milligrams of ephedrine, pseudoephedrine, or phenylpropanolamine per five milliliters of liquid product;

(2) Pediatric liquid products primarily intended for administration to children under two years of age for which the recommended dosage does not exceed two milliliters and the total package content does not exceed one fluid ounce; or

(3) Products products that the Georgia State Board of Pharmacy, upon application of a manufacturer, exempts by rule from this Code section because the product has been formulated in such a way as to prevent effectively the conversion of the active ingredient into methamphetamine or its salts or precursors.

(d)(e) Except as authorized by this article, it is unlawful for any person to possess, have under his or her control, manufacture, deliver, distribute, dispense, administer, purchase, sell, or possess with intent to distribute any substance product containing any amounts of ephedrine, pseudoephedrine, or phenylpropanolamine base, or any of their salts, optical isomers, or salts of optical isomers which have been altered from their original condition so as to be powdered, liquefied, or crushed. This subsection shall not apply to any of the substances identified within this subsection which are possessed or altered for a legitimate medical purpose. Any person who violates this subsection shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one year nor more than ten 15 years."

SECTION 2.

All laws and parts of laws in conflict with this Act are repealed.