Bill Text: WV HB4190 | 2014 | Regular Session | Introduced


Bill Title: Relating to controlling methamphetamine

Sponsorship: Bipartisan Bill

Status: (Introduced - Dead) 2014-01-15 - To House Health and Human Resources [HB4190 Detail]

Download: West_Virginia-2014-HB4190-Introduced.html

1                        H. B. 4190

2

3      (By Delegates Perdue, Fleischauer, Guthrie,

4       Kinsey, Marshall, Moore, Anderson, Azinger,

5                Border, Ellem and Hamilton)

6      [Introduced January 15, 2014; referred to the

7      Committee on Health and Human Resources then the

8 Judiciary.]

9

10 A BILL to repeal §60A-10-5, §60A-10-6, §60A-10-8 and §60A-10-11 of

11 the Code of West Virginia, 1931, as amended; to amend and

12 reenact §60A-2-210 and §60A-2-212 of said code; and to amend

13 and reenact §60A-10-2, §60A-10-3, §60A-10-4 and §60A-10-7; all

14 relating to controlling methamphetamine; requiring certain

15 drug products be obtained by prescription only; moving certain

16 drug products from schedule V to schedule IV; providing an

17 exception for drug products that cannot be feasibly converted

18 into methamphetamine; defining terms; prohibiting pharmacies

19 from selling certain drugs that can be used in the production

20 of methamphetamine without a prescription; creating a criminal

21 offense for possession of certain substances without a

22 prescription with intent to transfer to another to make

23 methamphetamine; permitting the sale of certain drugs without

24 a prescription; removing the requirements of the Multi-State

25 Real-Time Tracking System; removing outdated language; and

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1 providing rule-making authority to the Board of Pharmacy.

2 Be it enacted by the Legislature of West Virginia:

3 That §60A-10-5, §60A-10-6, §60A-10-8 and §60A-10-11 of the

4 Code of West Virginia, 1931, as amended, be repealed; that §60A-2-

5 210 and §60A-2-212 of said code be amended and reenacted; that

6 §60A-10-2, §60A-10-3, §60A-10-4 and §60A-10-7 of said code be

7 amended and reenacted, all to read as follows:

8 ARTICLE 2. STANDARDS AND SCHEDULES.

9 §60A-2-210. Schedule IV.

10     (a) Schedule IV shall consist of the drugs and other

11 substances, by whatever official name, common or usual name,

12 chemical name, or brand name designated, listed in this section.

13     (b) Narcotic drugs. Unless specifically excepted or unless

14 listed in another schedule, any material, compound, mixture, or

15 preparation containing any of the following narcotic drugs, or

16 their salts calculated as the free anhydrous base or alkaloid, in

17 limited quantities as set forth below:

18     (1) Not more than 1 milligram of difenoxin and not less than

19 25 micrograms of atropine sulfate per dosage unit;

20     (2) Dextropropoxyphene (alpha-( )-4-dimethylamino-1,2-

21 diphenyl-3-methyl-2-propionoxybutane).

22     (c) Depressants. Unless specifically excepted or unless

23 listed in another schedule, any material, compound, mixture or

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1 preparation which contains any quantity of the following

2 substances, including its salts, isomers and salts of isomers

3 whenever the existence of such salts, isomers and salts of isomers

4 is possible within the specific chemical designation:

5 (1) Alprazolam;

6 (2) Barbital;

7 (3) Bromazepam;

8 (4) Camazepam;

9 (5) Carisoprodol;

10     (6) Chloral betaine;

11     (7) Chloral hydrate;

12     (8) Chlordiazepoxide;

13     (9) Clobazam;

14     (10) Clonazepam;

15     (11) Clorazepate;

16     (12) Clotiazepam;

17     (13) Cloxazolam;

18     (14) Delorazepam;

19     (15) Diazepam;

20     (16) Estazolam;

21     (17) Ethchlorvynol;

22     (18) Ethinamate;

23     (19) Ethyl loflazepate;

24     (20) Fludiazepam;

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1 (21) Flunitrazepam;

2 (22) Flurazepam;

3 (23) Halazepam;

4 (24) Haloxazolam;

5 (25) Ketazolam;

6 (26) Loprazolam;

7 (27) Lorazepam;

8 (28) Lormetazepam;

9 (29) Mebutamate;

10     (30) Medazepam;

11     (31) Meprobamate;

12     (32) Methohexital;

13     (33) Methylphenobarbital (mephobarbital);

14     (34) Midazolam;

15     (35) Nimetazepam;

16     (36) Nitrazepam;

17     (37) Nordiazepam;

18     (38) Oxazepam;

19     (39) Oxazolam;

20     (40) Paraldehyde;

21     (41) Petrichloral;

22     (42) Phenobarbital;

23     (43) Pinazepam;

24     (44) Prazepam;

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1 (45) Quazepam;

2 (46) Temazepam;

3 (47) Tetrazepam;

4 (48) Triazolam;

5 (49) Zolpidem.

6 (d) Fenfluramine. Any material, compound, mixture or

7 preparation which contains any quantity of the following substance,

8 including its salts, isomers (whether optical, position or

9 geometric) and salts of such isomers whenever the existence of such

10 salts, isomers and salts of isomers is possible: Fenfluramine.

11     (e) Stimulants. Unless specifically excepted or unless listed

12 in another schedule, any material, compound, mixture or preparation

13 which contains any quantity of the following substances having a

14 stimulant effect on the central nervous system, including its

15 salts, isomers and salts of isomers:

16     (1) Cathine (( )-norpseudoephedrine);

17     (2) Diethylpropion;

18     (3) Fencamfamin;

19     (4) Fenproporex;

20     (5) Mazindol;

21     (6) Mefenorex;

22     (7) Pemoline (including organometallic complexes and chelates

23 thereof);

24     (8) Phentermine;

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1 (9) Pipradrol;

2 (10) SPA ((-)-1-dimethylamino-1,2-diphenylethane).

3 (f) Ephedrine, pseudoephedrine or phenylpropanolamine. -- Any

4 compound, mixture or preparation containing ephedrine,

5 pseudoephedrine or phenylpropanolamine, their salts or optical

6 isomers, or salts of optical isomers except products which are for

7 pediatric use primarily intended for administration to children

8 under the age of twelve and products which less than eleven percent

9 of the product can be used to manufacture methamphetamine as

10 determined by the board, as set forth in article ten of this

11 chapter: Provided, That neither the offenses set forth in section

12 four hundred one, article four of this chapter, nor the penalties

13 therein, are applicable to ephedrine, pseudoephedrine or

14 phenylpropanolamine, which is subject to the provisions of article

15 ten of this chapter.

16     (f) (g)Other substances. -- Unless specifically excepted or

17 unless listed in another schedule, any material, compound, mixture

18 or preparation which contains any quantity of the following

19 substances, including its salts:

20     (1) Pentazocine;

21     (2) Butorphanol.

22     Amyl nitrite, butyl nitrite, isobutyl nitrite and the other

23 organic nitrites are controlled substances and no product

24 containing these compounds as a significant component shall be

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1 possessed, bought or sold other than pursuant to a bona fide

2 prescription or for industrial or manufacturing purposes.

3 §60A-2-212. Schedule V.

4 (a) Schedule V shall consist of the drugs and other

5 substances, by whatever official name, common or usual name,

6 chemical name, or brand name designated, listed in this section.

7 (b) Narcotic drugs. -- Unless specifically excepted or unless

8 listed in another schedule, any material, compound, mixture or

9 preparation containing any of the following narcotic drugs and

10 their salts, as set forth below:

11     (1) Buprenorphine.

12     (c) Narcotic drugs containing nonnarcotic active medicinal

13 ingredients. Any compound, mixture or preparation containing any

14 of the following narcotic drugs or their salts calculated as the

15 free anhydrous base or alkaloid in limited quantities as set forth

16 below, which shall include one or more nonnarcotic active medicinal

17 ingredients in sufficient proportion to confer upon the compound,

18 mixture or preparation valuable medicinal qualities other than

19 those possessed by the narcotic drug alone:

20     (1) Not more than 200 milligrams of codeine per 100

21 milliliters or per 100 grams;

22     (2) Not more than 100 milligrams of dihydrocodeine per 100

23 milliliters or per 100 grams;

24     (3) Not more than 100 milligrams of ethylmorphine per 100

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1 milliliters or per 100 grams;

2 (4) Not more than 2.5 milligrams of diphenoxylate and not less

3 than 25 micrograms of atropine sulfate per dosage unit;

4 (5) Not more than 100 milligrams of opium per 100 milliliters

5 or per 100 grams;

6 (6) Not more than 0.5 milligrams of difenoxin and not less

7 than 25 micrograms of atropine sulfate per dosage unit.

8 (d) Stimulants. -- Unless specifically exempted or excluded or

9 unless listed in another schedule, any material, compound, mixture

10 or preparation which contains any quantity of the following

11 substances having a stimulant effect on the central nervous system,

12 including its salts, isomers and salts of isomers:

13     (1) Pyrovalerone.

14     (e) Any compound, mixture or preparation containing as its

15 single active ingredient ephedrine, pseudoephedrine or

16 phenylpropanolamine, their salts or optical isomers, or salts of

17 optical isomers except products which are for pediatric use

18 primarily intended for administration to children under the age of

19 twelve: Provided, That neither the offenses set forth in section

20 four hundred one, article four of this chapter, nor the penalties

21 therein, shall be applicable to ephedrine, pseudoephedrine or

22 phenylpropanolamine which shall be subject to the provisions of

23 article ten of this chapter.

24 ARTICLE 10. METHAMPHETAMINE LABORATORY ERADICATION ACT.

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1 §60A-10-2. Purpose; findings.

2 The Legislature finds:

3 (a) That the illegal production and distribution of

4 methamphetamine is an increasing problem nationwide and

5 particularly prevalent in rural states such as West Virginia.

6 (b) That methamphetamine is a highly addictive drug that can

7 be manufactured in small and portable laboratories. These

8 laboratories are operated by individuals who manufacture the drug

9 in a clandestine and unsafe manner, often resulting in explosions

10 and fires that can injure not only the individuals involved, but

11 their families, neighbors, law-enforcement officers and firemen.

12     (c) That use of methamphetamine can result in fatal kidney and

13 lung disorders, brain damage, liver damage, blood clots, chronic

14 depression, hallucinations, violent and aggressive behavior,

15 malnutrition, disturbed personality development, deficient immune

16 system and psychosis. Children born to mothers who are abusers of

17 methamphetamine can be born addicted and suffer birth defects, low

18 birth weight, tremors, excessive crying, attention deficit disorder

19 and behavior disorders.

20     (d) That in addition to the physical consequences to an

21 individual who uses methamphetamine, usage of the drug also

22 produces an increase in automobile accidents, explosions and fires,

23 increased criminal activity, increased medical costs due to

24 emergency room visits, increases in domestic violence, increased

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1 spread of infectious diseases and a loss in worker productivity.

2 (e) That environmental damage is another consequence of the

3 methamphetamine epidemic. Each pound of methamphetamine produced

4 leaves behind five to six pounds of toxic waste. Chemicals and

5 byproducts that result from the manufacture of methamphetamine are

6 often poured into plumbing systems, storm drains or directly onto

7 the ground. Clean up of methamphetamine laboratories is extremely

8 resource-intensive, with an average remediation cost of $5,000.

9 (f) That it is in the best interest of every West Virginian to

10 develop a viable solution to address the growing methamphetamine

11 problem in the State of West Virginia.

12     (g) That conversion-proof pseudoephedrine hydrocloride can

13 provide an over-the-counter option that cannot be used in the

14 manufacture of methamphetamine.

15  (f) (h) The Legislature finds That restricting access to over-

16 the-counter requiring a prescription for drugs used that can be

17 converted to facilitate production of methamphetamine is necessary

18 to protect the public safety of all West Virginians.

19     (g) (i) That it is further in the best interests of every West

20 Virginian to create impediments to the manufacture of

21 methamphetamine by requiring persons purchasing chemicals necessary

22 to the process to provide identification.

23 §60A-10-3. Definitions.

24     In this article:

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1 (a) "Board of Pharmacy" or "board" means the West Virginia

2 Board of Pharmacy established by the provisions of article five,

3 chapter thirty of this code.

4 (b) "Designated precursor" means any drug product made subject

5 to the requirements of this article by the provisions of section

6 ten of this article.

7 (c) "Distributor" means any person within this state or

8 another state, other than a manufacturer or wholesaler, who sells,

9 delivers, transfers or in any manner furnishes a drug product to

10 any person who is not the ultimate user or consumer of the product.

11     (d) "Drug product" means a pharmaceutical product that

12 contains ephedrine, pseudoephedrine or phenylpropanolamine or a

13 substance identified on the supplemental list provided in section

14 seven of this article which may be sold without a prescription and

15 which is labeled for use by a consumer in accordance with the

16 requirements of the laws and rules of this state and the federal

17 government.

18     (e) "Ephedrine " means ephedrine, its salts or optical isomers

19 or salts of optical isomers.

20     (f) "Manufacturer" means any person within this state who

21 produces, compounds, packages or in any manner initially prepares

22 for sale or use any drug product or any such person in another

23 state if they cause the products to be compounded, packaged or

24 transported into this state.

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1 (g) “National Association of Drug Diversion Investigators” or

2 “NADDI” means the nonprofit 501(c)(3) organization established in

3 1989, made up of members who are responsible for investigating and

4 prosecuting pharmaceutical drug diversion, and that facilitates

5 cooperation between law enforcement, health care professionals,

6 state regulatory agencies and pharmaceutical manufacturers in the

7 investigation and prevention of prescription drug abuse and

8 diversion.

9 (h) “Multi-State Real-Time Tracking System” or “MSRTTS” means

10 the real-time electronic logging system provided by NADDI at no

11 cost to states that have legislation requiring real-time electronic

12 monitoring of precursor purchases, and agree to use the system.

13 MSRTTS is used by pharmacies and law enforcement to track sales of

14 over-the-counter (OTC) cold and allergy medications containing

15 precursors to the illegal drug, methamphetamine.

16     (i) (g) "Phenylpropanolamine" means phenylpropanolamine, its

17 salts, optical isomers and salts of optical isomers.

18     (j) (h) "Pseudoephedrine" means pseudoephedrine, its salts,

19 optical isomers and salts of optical isomers.

20     (k) (i) "Precursor" means any substance which may be used

21 along with other substances as a component in the production and

22 distribution of illegal methamphetamine.

23     (l) (j) "Pharmacist" means an individual currently licensed by

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1 this state to engage in the practice of pharmacist care has the

2 same meaning as defined in article five, chapter thirty of this

3 code.

4 (m) (k) "Pharmacy intern" has the same meaning as the term

5 "intern" as set forth in section one-b, article five, chapter

6 thirty of this code.

7 (n) (l) "Pharmacy" means any drugstore, apothecary or place

8 within this state where drugs are dispensed and sold at retail or

9 display for sale at retail and pharmacist care is provided outside

10 of this state where drugs are dispensed and pharmacist care is

11 provided to residents of this state has the same meaning as set

12 forth in article five, chapter thirty of this code.

13     (o) (m) "Pharmacy counter" means an area in the pharmacy

14 restricted to the public where controlled substances are stored and

15 housed and where controlled substances may only be sold,

16 transferred or dispensed by a pharmacist, pharmacy intern or

17 pharmacy technician.

18     (p) (n) "Pharmacy technician" means a registered technician

19 who meets the requirements for registration has the same meaning as

20 set forth in article five, chapter thirty of this code.

21     (q) (o) "Retail establishment" means any entity or person

22 within this state who sells, transfers or distributes goods,

23 including over-the-counter drug products, to an ultimate consumer.

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1 (r) (p) "Schedule V" means the schedule of controlled

2 substances set out in section two hundred twelve, section article

3 two of this chapter.

4 (s) (q) "Superintendent of the State Police" or

5 "Superintendent" means the superintendent of the West Virginia

6 State Police as set forth in section five, article two, chapter

7 fifteen of this code.

8 (t) (r) "Wholesaler" means any person within this state or

9 another state, other than a manufacturer, who sells, transfers or

10 in any manner furnishes a drug product to any other person in this

11 state for the purpose of being resold.

12 §60A-10-4. Purchase, receipt, acquisition and possession of

13 substances to be used as precursor to manufacture

14 of methamphetamine or another controlled

15 substance; offenses; exceptions; penalties.

16     (a) A pharmacy may not sell, transfer or dispense to the same

17 person, and a person may not purchase more than three and six-

18 tenths grams per day, more than seven and two-tenths grams in a

19 thirty-day period or more than forty-eight grams annually of

20 ephedrine, pseudoephedrine or phenylpropanolamine without a

21 prescription unless less than eleven percent of the product can be

22 used to manufacture methamphetamine as determined by the board.

23 The limits shall apply to the total amount of ephedrine,

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1 pseudoephedrine and phenylpropanolamine contained in the products,

2 and not the overall weight of the products.

3 (1) Any person who or knowingly purchases, receives or

4 otherwise possesses more than seven and two-tenths grams in a

5 thirty-day period of ephedrine, pseudoephedrine or

6 phenylpropanolamine in any form without a prescription is guilty of

7 a misdemeanor and, upon conviction, shall be confined in a jail for

8 not more than one year, fined not more than $1,000, or both fined

9 and confined.

10     (2) Any person who knowingly purchases, receives or otherwise

11 possesses ephedrine, pseudoephedrine or phenylpropanolamine in any

12 form with the intent to transfer the substance to someone that the

13 person knows or should know will use the substance to manufacture

14 methamphetamine is guilty of a misdemeanor and, upon conviction,

15 shall be confined in a jail for not more than one year, fined not

16 more than $1,000, or both fined and confined.

17     (2) (3) Any pharmacy, wholesaler or other entity operating the

18 retail establishment which sells, transfers or dispenses a product

19 in violation of this section is guilty of a misdemeanor and, upon

20 conviction, shall be fined not more than $1,000 for the first

21 offense, or more than $10,000 for each subsequent offense.

22     (b) Notwithstanding the provisions of subdivision (a)(1)

23 subdivisions (1) and (2) of subsection (a) of this section, any

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1 person convicted of a second or subsequent violation of the

2 provisions of said subdivision or a statute or ordinance of the

3 United States or another state which contains the same essential

4 elements is guilty of a felony and, upon conviction, shall be

5 imprisoned in a state correctional facility for not less than one

6 nor more than five years, fined not more than $25,000, or both

7 imprisoned and fined.

8 (c) The provisions of Subsection (a) of this section shall

9 does not apply to:

10     (1) Products dispensed pursuant to a valid prescription;

11     (2) (1) Drug products which are for pediatric use primarily

12 intended for administration to children under the age of twelve;

13     (3) Drug products containing ephedrine, pseudoephedrine or

14 phenylpropanolamine, their salts or optical isomers or salts of

15 optical isomers or other designated precursor which have been

16 determined by the Board of Pharmacy to be in a form which is not

17 feasible for being used for the manufacture of methamphetamine; or

18     (4) (2) Persons lawfully possessing drug products in their

19 capacities as distributors, wholesalers, manufacturers,

20 pharmacists, pharmacy interns, pharmacy technicians, or health care

21 professionals.

22     (d) Notwithstanding any provision of this code to the

23 contrary, any person, who knowingly possesses any amount of

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1 ephedrine, pseudoephedrine, phenylpropanolamine or other designated

2 precursor with the intent to use it in the manufacture of

3 methamphetamine, who knowingly compensates, hires or provides other

4 incentives for another person to purchase, obtain or transfer any

5 amount of ephedrine, pseudoephedrine, phenylpropanolamine or other

6 designated precursor with the intent to use it in the manufacture

7 of methamphetamine or who knowingly possesses a substance

8 containing ephedrine, pseudoephedrine or phenylpropanolamine or

9 their salts, optical isomers or salts of optical isomers in a state

10 or form which is, or has been altered or converted from the state

11 or form in which these chemicals are, or were, commercially

12 distributed is guilty of a felony and, upon conviction, shall be

13 imprisoned in a state correctional facility for not less than two

14 nor more than ten years, fined not more than $25,000, or both

15 imprisoned and fined.

16     (e) (1) Any pharmacy, wholesaler, manufacturer or distributor

17 of drug products containing ephedrine, pseudoephedrine,

18 phenylpropanolamine, their salts or optical isomers or salts of

19 optical isomers or other designated precursor shall obtain a

20 registration annually from the State Board of Pharmacy as described

21 in section six of this article. Any such pharmacy, wholesaler,

22 manufacturer or distributor shall keep complete records of all

23 sales and transactions as provided in section eight of this

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1 article. The records shall be gathered and maintained pursuant to

2 legislative rule promulgated by the Board of Pharmacy.

3 (2) Any drug products possessed without a registration as

4 provided in this section are subject to forfeiture upon conviction

5 for a violation of this section.

6 (3) In addition to any administrative penalties provided by

7 law, any violation of this subsection is a misdemeanor, punishable

8 upon conviction by a fine in an amount not more than $10,000.

9 §60A-10-7. Restricted products; rule-making authority.

10     (a) On or before July 1, 2005, The board of Pharmacy shall

11 promulgate emergency and legislative rules at any time in 2014

12 pursuant to the provision of article three, chapter twenty-nine-a

13 of this code to implement a continue the program wherein the board

14 of Pharmacy shall consults with the superintendent of the State

15 Police in identifying drug products which are a designated

16 precursor, in addition to those that contain ephedrine,

17 pseudoephedrine or phenylpropanolamine, that are commonly being

18 used in the production and distribution of methamphetamine. Those

19 drug products which the superintendent of the State Police have

20 demonstrated by empirical evidence are commonly used in the

21 manufacture of methamphetamine shall be added to a supplemental

22 list and shall be subject to all of the restrictions of this

23 article. These The rules established pursuant to this section

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1 shall include:

2 (1) A process whereby pharmacies are made aware of all drug

3 products that contain ephedrine, pseudoephedrine and

4 phenylpropanolamine that will be listed as a Schedule V IV

5 substance and must shall be sold, transferred or dispensed from

6 behind a pharmacy counter;

7 (2) A process whereby pharmacies and retail establishments are

8 made aware of additional drug products added to Schedule V that are

9 required to be placed behind the pharmacy counter for sale,

10 transfer or distribution can be periodically reviewed and updated.

11     (3) A process whereby pharmacies are made aware of all drug

12 products that less than eleven percent of the product can be used

13 to manufacture methamphetamine that contain ephedrine,

14 pseudoephedrine or phenylpropanolamine, and may be sold,

15 transferred or dispensed over the counter.

16     (b) At any time after July 1, 2005, the Board of Pharmacy,

17 upon the recommendation of the superintendent of the State Police,

18 shall promulgate emergency and legislative rules pursuant to the

19 provision of article three, chapter twenty-nine-a of this code to

20 implement an updated supplemental list of products containing the

21 controlled substances ephedrine, pseudoephedrine or

22 phenylpropanolamine as an active ingredient or any other drug used

23 as a precursor in the manufacture of methamphetamine, which the

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1 superintendent of the State Police has demonstrated by empirical

2 evidence is being used in the manufacture of methamphetamine. This

3 listing process shall comport with the requirements of subsection

4 (a) of this section.

5

6 NOTE: The purpose of this bill is to require a prescription

7 to dispense drug products that contain as an active ingredient

8 ephedrine, pseudoephedrine, phenylpropanolamine and other

9 precursors of methamphetamine. The bill exempts certain products

10 from this requirement.

11

12     Strike-throughs indicate language that would be stricken from

13 the present law, and underscoring indicates new language that would

14 be added.


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