New Jersey-2022-S3957-Introduced

An Act concerning harm reduction supplies and amending N.J.S.2C:36-1, P.L.2011, c.183, and P.L.2021, c.396.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. N.J.S.2C:36-1 is amended to read as follows:

2C:36-1. Drug paraphernalia, defined; determination.

a. As used in this act[, "drug] :

"Drug paraphernalia" means all equipment, products and materials of any kind which are used or intended for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, ingesting, inhaling, or otherwise introducing into the human body a controlled dangerous substance, controlled substance analog or toxic chemical, other than marijuana or hashish, in violation of the provisions of chapter 35 of this title. It shall include, but not be limited to:

(1) kits used or intended for use in planting, propagating, cultivating, growing or harvesting of any species of plant, other than the plant Cannabis sativa L., which is a controlled dangerous substance or from which a controlled dangerous substance can be derived;

(2) kits used or intended for use in manufacturing, compounding, converting, producing, processing, or preparing controlled dangerous substances or controlled substance analogs;

(3) isomerization devices used or intended for use in increasing the potency of any species of plant, other than the plant Cannabis sativa L., which is a controlled dangerous substance;

(4) [testing equipment other than fentanyl test strips, used or intended for use identifying, or in analyzing the strength, effectiveness or purity of controlled dangerous substances or controlled substance analogs] (deleted by amendment, P.L. , c. ) (pending before the Legislature as this bill);

(5) scales and balances used or intended for use in weighing or measuring controlled dangerous substances or controlled substance analogs;

(6) [dilutants and adulterants, such as quinine hydrochloride, mannitol, mannite, dextrose and lactose, used or intended for use in cutting controlled dangerous substances or controlled substance analogs] (deleted by amendment, P.L. , c. ) (pending before the Legislature as this bill);

(7) [blenders, bowls, containers, spoons and mixing devices used or intended for use in compounding controlled dangerous substances or controlled substance analogs] (deleted by amendment, P.L. , c. ) (pending before the Legislature as this bill);

(8) capsules, balloons, envelopes and other containers used or intended for use in packaging small quantities of controlled dangerous substances or controlled substance analogs;

(9) containers and other objects used or intended for use in storing or concealing controlled dangerous substances, controlled substance analogs or toxic chemicals;

(10) [objects used or intended for use in ingesting, inhaling, or otherwise introducing cocaine, nitrous oxide or the fumes of a toxic chemical into the human body, such as (a) metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, or punctured metal bowls; (b) water pipes; (c) carburetion tubes and devices; (d) smoking and carburetion masks; (e) roach clips, meaning objects used to hold burning material that has become too small or too short to be held in the hand; (f) miniature cocaine spoons, and cocaine vials; (g) chamber pipes; (h) carburetor pipes; (i) electric pipes; (j) air-driven pipes; (k) chillums; (l) bongs; (m) ice pipes or chillers; (n) compressed gas containers, such as tanks, cartridges or canisters, that contain food grade or pharmaceutical grade nitrous oxide as a principal ingredient; (o) chargers or charging bottles, meaning metal, ceramic or plastic devices that contain an interior pin that may be used to expel compressed gas from a cartridge or canister; and (p) tubes, balloons, bags, fabrics, bottles or other containers used to concentrate or hold in suspension a toxic chemical or the fumes of a toxic chemical] (deleted by amendment, P.L. , c. ) (pending before the Legislature as this bill).

"Harm reduction supplies" means any materials or equipment used or intended for use in preventing, reducing, or mitigating the adverse effects associated with the personal use of controlled dangerous substances, controlled substance analogs, or toxic chemicals, which harmful effects may include, but are not limited to, disease transmission and overdose. "Harm reduction supplies" include, but shall not be limited to: naloxone hydrochloride and other opioid antidotes; test strips and other supplies or equipment designed to identify or analyze the presence, strength, effectiveness, or purity of controlled dangerous substances, controlled substance analogs, toxic chemicals, or other substances used to potentiate or enhance the effects of controlled dangerous substances, controlled substance analogs, or toxic chemicals; and supplies or equipment provided by an entity authorized to provide harm reduction services in accordance with the provisions of P.L.2006, c.99 (C.26:5C-25 et al.).

b. In determining whether or not an object is drug paraphernalia, the trier of fact, in addition to or as part of the proofs, may consider the following factors:

(1) (a) statements by an owner or by anyone in control of the object concerning its use;

(b) the proximity of the object to illegally possessed controlled dangerous substances, controlled substance analogs or toxic chemicals;

(c) the existence of any residue of illegally possessed controlled dangerous substances, controlled substance analogs or toxic chemicals on the object;

(d) direct or circumstantial evidence of the intent of an owner, or of anyone in control of the object, to deliver it to persons whom he knows intend to use the object to facilitate a violation of this act; the innocence of an owner, or of anyone in control of the object, as to a direct violation of this act shall not prevent a finding that the object is intended for use as drug paraphernalia;

(e) instructions, oral or written, provided with the object concerning its use;

(f) descriptive materials accompanying the object which explain or depict its use;

(g) national or local advertising whose purpose the person knows or should know is to promote the sale of objects intended for use as drug paraphernalia;

(h) the manner in which the object is displayed for sale;

(i) the existence and scope of legitimate uses for the object in the community; [and]

(j) expert testimony concerning its use; and

(k) any indicia demonstrating that an object was obtained from or provided by an authorized harm reduction services program in accordance with the provisions of P.L.2006, c.99 (C.26:5C-25 et al.).

(2) If an object appears to be for use, intended for use, or designed for use with cannabis or cannabis items in accordance with the "New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act," P.L.2021, c.16 (C.24:6I-31 et al.), the object is presumed to be a lawful cannabis paraphernalia as defined in section 3 of [that act] P.L.2021, c.16 (C.24:6I-33), and does not alone constitute reasonable articulable suspicion that the object is a drug paraphernalia, notwithstanding that the object could also be used with an illegal controlled substance or controlled substance analog, unless the owner or any other person in proximity to or in control of the object was in possession of an illegal controlled dangerous substance or controlled substance analog, or the object was in proximity of an illegally possessed controlled dangerous substance or controlled substance analog to indicate its use, intended use, or design for use with that controlled dangerous substance or controlled substance analog.

c. Notwithstanding subsection a. of this section, it shall not be unlawful for a person to use, possess, distribute, or possess with the intent to use or distribute, a hypodermic needle or syringe for the personal use of a controlled substance. This provision shall extend to a hypodermic syringe or needle that contains a residual amount of a controlled dangerous substance or controlled substance analog.

(cf: P.L.2021, c.403, s.3)

2. Section 1 of P.L.2011, c.183 (C.2C:36-6.2) is amended to read as follows:

1. a. Notwithstanding any State law, rule, or regulation to the contrary, a licensed pharmacy or pharmacist may sell a hypodermic syringe or needle, or any other instrument adapted for the administration of drugs by injection, to a person over 18 years of age who presents valid photo identification to demonstrate proof of age or who otherwise satisfies the seller that he is over 18 years of age, as follows:

(1) without a prescription if sold in quantities of 10 or fewer; and

(2) pursuant to a prescription issued by a person authorized to prescribe under State law if sold in quantities of more than 10.

b. A licensed pharmacy that provides hypodermic syringes or needles for sale shall also be required to:

(1) maintain its supply of such instruments under or behind the pharmacy sales counter, or in another otherwise-secured place, such that [they] the hypodermic syringes or needles are accessible only to a person standing behind a pharmacy sales counter or who is authorized to access the otherwise-secured place; [and]

(2) make available to each person who purchases any such instrument, at the time of purchase, information to be developed by the Department of Health to the purchaser, about:

(a) the safe disposal of the instrument, including local disposal locations or a telephone number to call for that information; and

(b) [substance abuse] treatment for substance use disorders, including a telephone number to call for assistance in obtaining treatment; and

(3) offer each person who purchases a hypodermic syringe or needle the option of returning the hypodermic syringe or needle to the pharmacy for safe disposal, without charge.

c. In addition to any other provision of law that may apply, a person who purchases a hypodermic syringe or needle pursuant to subsection a. of this section and sells that needle or syringe to another person is guilty of a disorderly persons offense.

d. The Department of Health, in consultation with the Department of Human Services and the New Jersey State Board of Pharmacy, may, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), adopt rules and regulations to effectuate the purposes of subsection b. of this section. The Department of Health shall make the information [that is to be] developed pursuant to subsection b. of this section available to pharmacies, pharmacists, and purchasers of hypodermic syringes or needles through its Internet website.

(cf: P.L.2012, c.17, s.4)

3. Section 1 of P.L.2021, c.396 (C.26:5C-26.1) is amended to read as follows:

1. As used in P.L.2006, c.99 (C.26:5C-25 et al.):

"Authorized harm reduction services" means a suite of harm reduction services, approved by the Department of Health and provided in a manner that is consistent with State and federal law, which services shall include, but shall not be limited to: syringe access, syringe disposal, referrals to health and social services, harm reduction counseling and supplies including, but not limited to, fentanyl test strips, and HIV and hepatitis C testing.

"Eligible entity" means a federally qualified health center, a public health agency, a substance abuse treatment program, an AIDS service organization, or another entity with the capacity to provide harm reduction services as determined by the Department of Health.

"Harm reduction supplies" means any materials or equipment [designed to identify or analyze the presence, strength, effectiveness, or purity of controlled dangerous substances or controlled substance analogs, including, but not limited to, fentanyl test strips; opioid antidotes and associated supplies; and any other materials or equipment that may be used to prevent, reduce or mitigate the harms of disease transmission, overdose, and other harms associated with personal drug use as are designated through] used or intended for use in preventing, reducing, or mitigating the adverse effects associated with the personal use of controlled dangerous substances, controlled substance analogs, or toxic chemicals, which adverse effects may include, but are not limited to, disease transmission and overdose. "Harm reduction supplies" include, but shall not be limited to: naloxone hydrochloride and other opioid antidotes; test strips and other supplies or equipment designed to identify or analyze the presence, strength, effectiveness, or purity of controlled dangerous substances, controlled substance analogs, toxic chemicals, or other substances used to potentiate or enhance the effects of controlled dangerous substances, controlled substance analogs, or toxic chemicals; and supplies or equipment provided by an authorized harm reduction services program in accordance with the provisions of P.L.2006, c.99 (C.26:5C-25 et al.) and any rules [prescribed] promulgated pursuant to P.L.2006, c.99 (C.26:5C-25 et al.) by the [Commissioners] Commissioner of Health [or Human Services].

(cf: P.L.2021, c.396, s.1)

4. This act shall take effect immediately.

STATEMENT

This bill exempts certain harm reduction supplies from State criminal drug paraphernalia laws.

Current law establishes criminal penalties for possessing, manufacturing, distributing, dispensing, or advertising drug paraphernalia, which items used in connection with the production, distribution, and use of illicit drugs. Current law provides certain exceptions from the definition of "drug paraphernalia" for fentanyl test strips and hypodermic needles and syringes that are sold by a pharmacy.

This bill would expand the current exceptions to include any materials or equipment used or intended for use in preventing, reducing, or mitigating the adverse effects associated with personal drug use, including materials and equipment, such as clean syringes and needles, that can prevent disease transmission, as well as materials like opioid antidotes and test strips, that can help prevent and reverse an overdose. The bill expands a provision of current law specifying that it is not unlawful to use, or to possess with the intent to use, a hypodermic needle or syringe, to additionally provide it is not unlawful to distribute hypodermic needles and syringes. The bill additionally revises the definition of "harm reduction supplies" used in the "Bloodborne Disease Harm Reduction Act," which authorizes the establishment of syringe access programs, to align that definition with the one established under the bill in relation to drug paraphernalia.

The bill amends the definition of "drug paraphernalia" used in the criminal code to remove from the definition: dilutants and adulterants used to cut drugs; certain devices that can be used to compound drugs, such as mixing bowls and blenders; and various objects that can be used to ingest drugs, such as pipes, roach clips, and cocaine spoons. The bill additionally removes from the definition a reference to testing equipment, which is obviated by the bill.

Current law authorizes pharmacies to sell up to 10 hypodermic needles and syringes to an individual without a prescription, provided the needles and syringes are maintained under or behind the pharmacy counter. This bill authorizes needles and syringes to be stored in another otherwise-secure place in the pharmacy, and requires pharmacies to offer the option of returning used needles and syringes to the pharmacy for safe disposal.

The bill makes certain technical changes to the current law to update a citation, to update certain obsolete language, and to clarify certain rulemaking authority under the "Bloodborne Disease Harm Reduction Act."

It is the sponsor's belief that making harm reduction supplies
more readily available will help reduce the transmission of bloodborne diseases, such as HIV and hepatitis C, and help reduce overdose deaths caused by the presence of substances like fentanyl and xylazine, which are increasingly present in drugs purchased on the black market.