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25 Real-Time Tracking System; removing outdated language; and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4 Code of West Virginia, 1931, as amended, be repealed; that §60A-2-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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