H. B. 2485
(By Delegates Border and Perdue)
[Introduced February 16, 2009; referred to the
Committee on Health and Human Resources then the Judiciary.]
A BILL to amend and reenact §60A-10-3, §60A-10-4, §60A-10-5 and
60A-10-8 of the Code of West Virginia, 1931, as amended, all
relating to persons who may sell pseudoephedrine and other
chemical precursors of methamphetamine.
Be it enacted by the Legislature of West Virginia:
That §60A-10-3, §60A-10-4, §60A-10-5 and §60A-10-8 of the Code
of West Virginia, 1931, as amended, be amended and reenacted, all
to read as follows:
ARTICLE 10. METHAMPHETAMINE LABORATORY ERADICATION ACT.
In this article:
(a) "Board of pharmacy" or "board" means the West Virginia
Board of Pharmacy established by the provisions of article five,
chapter thirty of this code.
(b) "Designated precursor" means any drug product made subject
to the requirements of this article by the provisions of section seven of this article.
(c) "Distributor" means any person within this state or
another state, other than a manufacturer or wholesaler, who sells,
delivers, transfers or in any manner furnishes a drug product to
any person who is not the ultimate user or consumer of the product;
(d) "Drug product" means a pharmaceutical product that
contains as its single active ingredient ephedrine, pseudoephedrine
or phenylpropanolamine or a substance identified on the
supplemental list provided for in section seven of this article
which may be sold without a prescription and which is labeled for
use by a consumer in accordance with the requirements of the laws
and rules of this state and the federal government.
(e) "Ephedrine " means ephedrine, its salts or optical isomers
or salts of optical isomers.
(f) "Manufacturer" means any person within this state who
produces, compounds, packages or in any manner initially prepares
for sale or use any drug product or any such person in another
state if they cause the products to be compounded, packaged or
transported into this state.
(g) "Phenylpropanolamine" means phenylpropanolamine, its
salts, optical isomers and salts of optical isomers.
(h) "Pseudoephedrine" means pseudoephedrine, its salts,
optical isomers and salts of optical isomers.
(i) "Precursor" means any substance which may be used along with other substances as a component in the production and
distribution of illegal methamphetamine.
(j) "Pharmacist" means an individual currently licensed by
this state to engage in the practice of pharmacy and pharmaceutical
care as defined in subsection (t), section one-b, article fifty,
chapter thirty of this code.
(k) "Pharmacy intern" has the same meaning as the term
"intern" as set forth in section one-b, article five, chapter
thirty of this code.
"Pharmacy" means any drugstore, apothecary or place
within this state where drugs are dispensed and sold at retail or
display for sale at retail and pharmaceutical care is provided
outside of this state where drugs are dispensed and pharmaceutical
care is provided to residents of this state.
"Pharmacy counter" means an area in the pharmacy
restricted to the public where controlled substances are stored and
housed and where controlled substances may only be sold,
transferred or dispensed by a pharmacist or pharmacy technician.
"Pharmacy technician" means a registered technician
who meets the requirements for registration as set forth in article
five, chapter thirty of this code.
"Retail establishment" means any entity or person
within this state who sells, transfers or distributes goods,
including over-the-counter drug products, to an ultimate consumer.
"Schedule V" means the schedule of controlled
substances set out in section two hundred twelve, section two of
"Single active ingredient" means those ingredients
listed on a drug product package as the only active ingredient in
over-the-counter medication or identified on the Schedule
maintained by the Board of Pharmacy as being primarily used in the
illegal production and distribution of methamphetamine.
"Superintendent of the State Police" or
"Superintendent" means the superintendent of the West Virginia
State Police as set forth in section five, article two, chapter
fifteen of this code.
"Wholesaler" means any person within this state or
another state, other than a manufacturer, who sells, transfers or
in any manner furnishes a drug product to any other person in this
state for the purpose of being resold.
§60A-10-4. Purchase, receipt, acquisition and possession of
substances to be used as precursor to manufacture
of methamphetamine or another controlled substance;
offenses; exceptions; penalties.
(a) Any person who within any thirty-day period knowingly
purchases, receives or otherwise possesses more than three packages
of a drug product containing as its single active ingredient
ephedrine, pseudoephedrine or phenylpropanolamine or more than nine grams of ephedrine, pseudoephedrine or phenylpropanolamine in any
form shall be guilty of a misdemeanor and, upon conviction, shall
be confined in a jail for not more than one year, fined not more
than $1,000, or both.
(b) Notwithstanding the provisions of subsection (a) of this
section, any person convicted of a second or subsequent violation
of the provisions of said subsection or a statute or ordinance of
the United States or another state which contains the same
essential elements shall be guilty of a felony and, upon
conviction, shall be confined in a state correctional facility for
not less than one nor more than five years, fined not more than
$25,000, or both.
(c) The provisions of subsection (a) of this section shall not
(1) Drug products which are for pediatric use primarily
intended for administration to children under the age of twelve;
(2) Drug products which have been determined by the Board of
Pharmacy to be in a form which is unamenable to being used for the
manufacture of methamphetamine;
(3) Persons lawfully possessing drug products in their
capacities as distributors, wholesalers, manufacturers,
pharmacists, pharmacy interns,
pharmacy technicians, health care
professionals or persons possessing such drug products pursuant to
a valid prescription.
(d) Notwithstanding any provision of this code to the
contrary, any person who knowingly possesses any amount of
ephedrine, pseudoephedrine, phenylpropanolamine or other designated
precursor with the intent to use it in the manufacture of
methamphetamine or who knowingly possesses a substance containing
ephedrine, pseudoephedrine or phenylpropanolamine or their salts,
optical isomers or salts of optical isomers in a state or form
which is, or has been altered or converted from the state or form
in which these chemicals are, or were, commercially distributed
shall be guilty of a felony and, upon conviction, shall be confined
in a state correctional facility for not less than two nor more
than ten years, fined not more than $25,000, or both.
(e) (1) Any pharmacy, wholesaler, manufacturer or distributor
of drug products containing as their single active ingredient
ephedrine, pseudoephedrine, phenylpropanolamine, their salts or
optical isomers or salts of optical isomers or other designated
precursor shall obtain a registration annually from the State Board
of Pharmacy as described in section six of this article. Any such
pharmacy, wholesaler, manufacturer or distributor shall keep
complete records of all sales and transactions as provided in
section eight of this article. The records shall be gathered and
maintained pursuant to legislative rule promulgated by the Board of
(2) Any drug products possessed without a registration as provided in this section are subject to forfeiture upon conviction
for a violation of this section.
(3) In addition to any administrative penalties provided by
law, any violation of this subsection is a misdemeanor, punishable
upon conviction by a fine in an amount not more than $10,000.
§60A-10-5. Restrictions on the sale, transfer or delivery of
certain drug products; penalties.
(a) No pharmacy or individual may display, offer for sale or
place a drug product containing as its single active ingredient
ephedrine, pseudoephedrine or phenylpropanolamine or other
designated precursor where the public may freely access the drug
product. All such drug products or designated precursors shall be
placed behind a pharmacy counter where access is restricted to a
pharmacist, a pharmacy intern,
a pharmacy technician or other
(b) All storage of drug products regulated by the provisions
of this section shall be in a controlled and locked access location
that is not accessible by the general public and shall maintain
strict inventory control standards and complete records of quantity
of the product maintained in bulk form.
(c) No pharmacy shall sell, deliver or provide any drug
product regulated by the provisions of this section to any person
who is under the age of eighteen.
(d) If a drug product regulated by the provisions of this section is transferred, sold or delivered, the individual, pharmacy
or retail establishment transferring, selling or delivering the
drug product shall require the person purchasing, receiving or
otherwise acquiring the drug product to: (1) Produce a government-
issued photo identification showing his or her date of birth; and
(2) Sign a form containing the information set forth in subsection
(b), section eight of this article and attesting to the validity of
such information. Any person who knowingly makes a false
representation or statement pursuant to the requirements of this
section shall be guilty of a misdemeanor and, upon conviction, be
confined in a jail for not more than six months, fined not more
than $5,000, or both.
(e) This section does not apply to drug products that are
dispensed pursuant to a prescription, are pediatric products
primarily intended for administration, according to label
instructions, to children under twelve years of age.
(f) Any violation of this section is a misdemeanor, punishable
upon conviction by a fine in an amount not more than $10,000.
§60A-10-8. Reporting requirements; confidentiality.
(a) Whenever there is a sale, retail, transfer or distribution
of any drug product referred to in section seven of this article or
another designated precursor, the pharmacist, pharmacy intern,
pharmacy technician making the sale, transfer or distribution shall
report the following information for inclusion in a central repository established and maintained by the Board of Pharmacy:
(1) The date of the transaction;
(2) The name, address and driver's license or state-issued
identification number of the person; and
(3) The name, quantity of packages and total gram weight of
the product or products purchased, received or otherwise acquired.
(b) The information required to be reported by this section
shall be reported by paper log maintained at the point of sale:
That, beginning on January 1, 2007, reporting shall be by
electronic transmission to the Board of Pharmacy no more frequently
than once a week.
(c) The information required by this section shall be the
property of the state and a pharmacy shall have no duty to retain
a copy of the information in any format once the information has
been reported to the Board of Pharmacy as required by this section.
NOTE: The purpose of this bill is add language to West
Virginia Code §60A-10-3, §60A-10-4, §60A-10-5 and §60A-10-8 to add
language specifically allowing pharmacy interns to vend
pseudoephedrine and other chemical precursors of methamphetamine.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would