COMMITTEE SUBSTITUTE
FOR
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 147
(By Senators Tomblin, Mr. President, and Sprouse,
By Request of the Executive)
____________
[Originating in the Committee on the Judiciary;
reported March 16, 2005.]
____________
A BILL to amend and reenact §60A-1-101 of the Code of West
Virginia, 1931, as amended; to amend and reenact §60A-2-212 of
said code; to amend and reenact §60A-3-308 of said code; to
amend and reenact §60A-9-4 and §60A-9-5 of said code; and to
amend said code by adding thereto a new article designated
§60A-10-1, §60A-10-2, §60A-10-3, §60A-10-4, §60A-10-5, §60A-
10-6, §60A-10-7, §60A-10-8, §60A-10-9, §60A-10-10, §60A-10-11,
§60A-10-12, §60A-10-13 and §60A-10-14, all relating to
limiting the purchase of substances used in the production of
methamphetamine; providing that certain substances containing
ephedrine, pseudoephedrine or phenylpropanolamine, their salts
or optical isomers, or salts of optical isomers are Schedule
V substances; providing legislative findings; defining terms;
limiting access to such substances; providing procedures for
purchasing such substances from pharmacists or licensed
pharmacy technicians; providing for the registration of every wholesaler, manufacturer or distributor of certain drug
products containing such substances; providing for a
supplemental list of drug products used in methamphetamine
production; adding ephedrine, pseudoephedrine and
phenylopropanolamine to controlled substances subject to
controlled substances monitoring; requiring medical and dental
professionals to report methamphetamine-related injuries;
criminalizing exposure of children to methamphetamine
production; creating offense of improper storage of anhydrous
ammonia; allowing the State Police to leverage grant funds;
requiring reporting by the State Police to the Legislative
Oversight Commission on Health and Human Resources; and
providing penalties.
Be it enacted by the Legislature of West Virginia:
That §60A-1-101 of the Code of West Virginia, 1931, as
amended, be amended and reenacted; that §60A-2-212 of said code be
amended and reenacted; that §60A-3-308 of said code be amended and
reenacted; that §60A-9-4 and §60A-9-5 be amended and reenacted; and
that said code be amended by adding thereto a new article,
designated §60A-10-1, §60A-10-2, §60A-10-3, §60A-10-4, §60A-10-5,
§60A-10-6, §60A-10-7, §60A-10-8, §60A-10-9, §60A-10-10, §60A-10-11,
§60A-10-12, §60A-10-13 and §60A-10-14, all to read as follows:
ARTICLE 1. DEFINITIONS.
§60A-1-101. Definitions.
As used in this act:
(a) "Administer" means the direct application of a controlled
substance whether by injection, inhalation, ingestion or any other
means to the body of a patient or research subject by:
(1) A practitioner (or, in his presence, by his authorized
agent); or
(2) The patient or research subject at the direction and in
the presence of the practitioner.
(b) "Agent" means an authorized person who acts on behalf of
or at the direction of a manufacturer, distributor or dispenser.
It does not include a common or contract carrier, public
warehouseman or employee of the carrier or warehouseman.
(c) "Bureau" means the "Bureau of Narcotics and Dangerous
Drugs, United States Department of Justice" or its successor
agency.
(d) "Controlled substance" means a drug, substance or
immediate precursor in Schedules I through V of article two.
(e) "Counterfeit substance" means a controlled substance
which, or the container or labeling of which, without
authorization, bears the trademark, trade name or other identifying
mark, imprint, number or device, or any likeness thereof, of a
manufacturer, distributor or dispenser other than the person who in
fact manufactured, distributed or dispensed the substance.
(f) "Imitation controlled substance" means: (1) A controlled
substance which is falsely represented to be a different controlled
substance; (2) a drug or substance which is not a controlled
substance but which is falsely represented to be a controlled
substance; or (3) a controlled substance or other drug or substance
or a combination thereof which is shaped, sized, colored, marked,
imprinted, numbered, labeled, packaged, distributed or priced so as
to cause a reasonable person to believe that it is a controlled
substance.
(g) "Deliver" or "delivery" means the actual, constructive or
attempted transfer from one person to another of: (1) A controlled
substance, whether or not there is an agency relationship; (2) a
counterfeit substance; or (3) an imitation controlled substance.
(h) "Dispense" means to deliver a controlled substance to an
ultimate user or research subject by or pursuant to the lawful
order of a practitioner, including the prescribing, administering,
packaging, labeling or compounding necessary to prepare the
substance for that delivery.
(i) "Dispenser" means a practitioner who dispenses.
(j) "Distribute" means to deliver, other than by administering
or dispensing, a controlled substance, a counterfeit substance or
an imitation controlled substance.
(k) "Distributor" means a person who distributes.
(l) "Drug" means: (1) Substances recognized as drugs in the
official "United States Pharmacopoeia, official Homeopathic
Pharmacopoeia of the United States or official National Formulary",
or any supplement to any of them; (2) substances intended for use
in the diagnosis, cure, mitigation, treatment or prevention of
disease in man or animals; (3) substances (other than food)
intended to affect the structure or any function of the body of man
or animals; and (4) substances intended for use as a component of
any article specified in clause (1), (2) or (3) of this
subdivision. It does not include devices or their components, parts
or accessories.
(m) "Immediate precursor" means a substance which the "West
Virginia Board of Pharmacy" (hereinafter in this act referred to as
the State Board of Pharmacy) has found to be and by rule designates as being the principal compound commonly used or produced primarily
for use and which is an immediate chemical intermediary used or
likely to be used in the manufacture of a controlled substance, the
control of which is necessary to prevent, curtail or limit
manufacture.
(n) "Manufacture" means the production, preparation,
propagation, compounding, conversion or processing of a controlled
substance, either directly or indirectly or by extraction from
substances of natural origin, or independently by means of chemical
synthesis, or by a combination of extraction and chemical
synthesis, and includes any packaging or repackaging of the
substance or labeling or relabeling of its container, except that
this term does not include the preparation or compounding of a
controlled substance by an individual for his own use or the
preparation, compounding, packaging or labeling of a controlled
substance:
(1) By a practitioner as an incident to his administering or
dispensing of a controlled substance in the course of his
professional practice; or
(2) By a practitioner, or by his authorized agent under his
supervision, for the purpose of, or as an incident to, research,
teaching or chemical analysis and not for sale.
(o) "Marihuana" means all parts of the plant "Cannabis sativa
L.", whether growing or not; the seeds thereof; the resin extracted
from any part of the plant; and every compound, manufacture, salt,
derivative, mixture or preparation of the plant, its seeds or
resin. It does not include the mature stalks of the plant, fiber
produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture
or preparation of the mature stalks (except the resin extracted
therefrom), fiber, oil or cake, or the sterilized seed of the plant
which is incapable of germination.
(p) "Narcotic drug" means any of the following, whether
produced directly or indirectly by extraction from substances of
vegetable origin or independently by means of chemical synthesis,
or by a combination of extraction and chemical synthesis:
(1) Opium and opiate and any salt, compound, derivative or
preparation of opium or opiate.
(2) Any salt, compound, isomer, derivative or preparation
thereof which is chemically equivalent or identical with any of the
substances referred to in paragraph (1) of this subdivision, but
not including the isoquinoline alkaloids of opium.
(3) Opium poppy and poppy straw.
(4) Coca leaves and any salt, compound, derivative or
preparation of coca leaves and any salt, compound, isomer,
derivative or preparation thereof which is chemically equivalent or
identical with any of these substances, but not including
decocainized coca leaves or extractions of coca leaves which do not
contain cocaine or ecgonine.
(q) "Opiate" means any substance having an addiction-forming
or addiction-sustaining liability similar to morphine or being
capable of conversion into a drug having addiction-forming or
addiction-sustaining liability. It does not include, unless
specifically designated as controlled under section two hundred
one, article two of this chapter, the dextrorotatory isomer of 3-
methoxy-n-methylmorphinan and its salts (dextromethorphan). It does not include its racemic and levorotatory forms.
(r) "Opium poppy" means the plant of the species "Papaver
somniferum L.", except its seeds.
(s) "Person" means individual, corporation, government or
governmental subdivision or agency, business trust, estate, trust,
partnership or association, or any other legal entity.
(t) "Placebo" means an inert medicament or preparation
administered or dispensed for its psychological effect, to satisfy
a patient or research subject or to act as a control in
experimental series.
(u) "Poppy straw" means all parts, except the seeds, of the
opium poppy after mowing.
(v) "Practitioner" means:
(1) A physician, dentist, veterinarian, scientific
investigator or other person licensed, registered or otherwise
permitted to distribute, dispense, conduct research with respect
to, or to administer a controlled substance in the course of
professional practice or research in this state.
(2) A pharmacy, hospital or other institution licensed,
registered or otherwise permitted to distribute, dispense, conduct
research with respect to, or to administer a controlled substance
in the course of professional practice or research in this state.
(w) "Production" includes the manufacture, planting,
cultivation, growing or harvesting of a controlled substance.
(x) "State", when applied to a part of the United States,
includes any state, district, commonwealth, territory, insular
possession thereof and any area subject to the legal authority of
the United States of America.
(y) "Ultimate user" means a person who lawfully possesses a
controlled substance for his own use or for the use of a member of
his household or for administering to an animal owned by him or by
a member of his household.
ARTICLE 2. STANDARDS AND SCHEDULES.
§60A-2-212. Schedule V.
(a) Schedule V shall consist of the drugs and other
substances, by whatever official name, common or usual name,
chemical name, or brand name designated, listed in this section.
(b) Narcotic drugs. Unless specifically excepted or unless
listed in another schedule, any material, compound, mixture or
preparation containing any of the following narcotic drugs and
their salts, as set forth below:
(1) Buprenorphine.
(c) Narcotic drugs containing nonnarcotic active medicinal
ingredients. Any compound, mixture or preparation containing any
of the following narcotic drugs or their salts calculated as the
free anhydrous base or alkaloid in limited quantities as set forth
below, which shall include one or more nonnarcotic active medicinal
ingredients in sufficient proportion to confer upon the compound,
mixture or preparation valuable medicinal qualities other than
those possessed by the narcotic drug alone:
(1) Not more than 200 milligrams of codeine per 100
milliliters or per 100 grams;
(2) Not more than 100 milligrams of dihydrocodeine per 100
milliliters or per 100 grams;
(3) Not more than 100 milligrams of ethylmorphine per 100
milliliters or per 100 grams;
(4) Not more than 2.5 milligrams of diphenoxylate and not less
than 25 micrograms of atropine sulfate per dosage unit;
(5) Not more than 100 milligrams of opium per 100 milliliters
or per 100 grams;
(6) Not more than 0.5 milligrams of difenoxin and not less
than 25 micrograms of atropine sulfate per dosage unit.
(d) Stimulants. Unless specifically exempted or excluded or
unless listed in another schedule, any material, compound, mixture
or preparation which contains any quantity of the following
substances having a stimulant effect on the central nervous system,
including its salts, isomers and salts of isomers:
(1) Pyrovalerone.
(e) Any compound, mixture or preparation containing as its
single active ingredient ephedrine, pseudoephedrine or
phenylpropanolamine, their salts or optical isomers, or salts of
optical isomers except products which are for pediatric use
primarily intended for administration to children under the age of
twelve.
ARTICLE 3. REGULATION OF MANUFACTURE, DISTRIBUTION AND DISPENSING
OF CONTROLLED SUBSTANCES.
§60A-3-308. Prescriptions.
(a) Except when dispensed directly by a practitioner, other
than a pharmacy, to an ultimate user, no controlled substance in
Schedule II may be dispensed without the written prescription of a
practitioner.
(b) In emergency situations, as defined by rule of the said
appropriate department, board or agency, Schedule II drugs may be
dispensed upon oral prescription of a practitioner, reduced promptly to writing and filed by the pharmacy. Prescription shall
be retained in conformity with the requirements of section three
hundred six of this article. No prescription for a Schedule II
substance may be refilled.
(c) Except when dispensed directly by a practitioner, other
than a pharmacy, to an ultimate user, a controlled substance
included in Schedule III or IV, which is a prescription drug as
determined under appropriate state or federal statute, shall not be
dispensed without a written or oral prescription of a practitioner.
The prescription shall not be filled or refilled more than six
months after the date thereof or be refilled more than five times,
unless renewed by the practitioner.
(d) (1) A controlled substance included in Schedule V shall
not be distributed or dispensed other than for a medicinal purpose:
Provided, That buprenorphine shall be dispensed only by
prescription pursuant to subsections (a), (b) and (c) of this
section: Provided, however, That the controlled substances
included in subsection (e), section two hundred twelve, article two
of this chapter shall be dispensed, sold or distributed only by a
physician or in a pharmacy by a pharmacists or licensed pharmacy
technician.
(2) If the substance described in subsection (e), section two
hundred twelve, article two of this chapter is dispensed, sold or
distributed in a pharmacy:
(A) The substance shall be dispensed, sold or distributed only
by a pharmacists or a licensed pharmacy technician; and
(B) Any person purchasing, receiving or otherwise acquiring
any such substance shall:
(i) Produce a photo identification issued by a state or
federal governmental entity showing his or her date of birth; and
(ii) Sign a form as prescribed by the provisions of section
eight of this article.
ARTICLE 9. CONTROLLED SUBSTANCES MONITORING.
§60A-9-4. Required information.
(a) Whenever a medical services provider dispenses a
controlled substance listed in the provisions of section two
hundred six, article two of this chapter or whenever a prescription
for the controlled substance is filled by: (i) A pharmacist or
pharmacy in this state; (ii) a hospital, or other health care
facility, for out-patient use; or (iii) a pharmacy or pharmacist
licensed by the Board of Pharmacy, but situated outside this state
for delivery to a person residing in this state, the medical
services provider, health care facility, pharmacist or pharmacy
shall, in a manner prescribed by rules promulgated by the Board of
Pharmacy under this article, report the following information, as
applicable:
(1) The name, address, pharmacy prescription number and Drug
Enforcement Administration controlled substance registration number
of the dispensing pharmacy;
(2) The name, address and birth date of the person for whom
the prescription is written;
(3) The name, address and Drug Enforcement Administration
controlled substances registration number of the practitioner
writing the prescription;
(4) The name and national drug code number of the Schedule II,
III and IV controlled substance dispensed;
(5) The quantity and dosage of the Schedule II, III and IV
controlled substance dispensed;
(6) The date the prescription was filled; and
(7) The number of refills, if any, authorized by the
prescription.
(b) The Board of Pharmacy may prescribe by rule promulgated
under this article the form to be used in prescribing a Schedule
II, III and IV substance if, in the determination of the Board, the
administration of the requirements of this section would be
facilitated.
(c) Products regulated by the provisions of article ten of
this chapter shall be subject to reporting pursuant to the
provisions of this article to the extent set forth in article ten
of this chapter.
(c) (d) Reporting required by this section is not required for
a drug administered directly to a patient or a drug dispensed by a
practitioner at a facility licensed by the state: Provided, That
the quantity dispensed is limited to an amount adequate to treat
the patient for a maximum of seventy-two hours with no greater than
two 72-hour cycles in any fifteen-day period of time.
§60A-9-5. Confidentiality; limited access to records; period of
retention; no civil liability for required reporting.
The information required by this article to be kept by the
State Board of Pharmacy is confidential and is open to inspection
only by inspectors and agents of the State Board of Pharmacy,
members of the West Virginia State Police expressly authorized by
the Superintendent of the West Virginia State Police to have access
to the information, authorized agents of local law-enforcement agencies as a member of a drug task force, authorized agents of the
federal Drug Enforcement Administration, duly authorized agents of
the Bureau for Medical Services and the Workers' Compensation
Commission, duly authorized agents of licensing boards of
practitioners in this state and other states authorized to
prescribe Schedules II, III and IV controlled substances,
prescribing practitioners and pharmacists and persons with an
enforceable court order or regulatory agency administrative
subpoena: Provided, That all information released by the State
Board of Pharmacy must be related to a specific patient or a
specific individual or entity under investigation by any of the
above parties except that practitioners who prescribe controlled
substances may request specific data related to their Drug
Enforcement Administration controlled substance registration number
or for the purpose of providing treatment to a patient. The Board
shall maintain the information required by this article for a
period of not less than five years. Notwithstanding any other
provisions of this code to the contrary, data obtained under the
provisions of this article may be used for compilation of
educational, scholarly or statistical purposes as long as the
identities of persons or entities remain confidential. No
individual or entity required to report under section four of this
article may be subject to a claim for civil damages or other civil
relief for the reporting of information to the Board of Pharmacy as
required under and in accordance with the provisions of this
article.
ARTICLE 10. METHAMPHETAMINE LABORATORY ERADICATION ACT.
§60A-10-1. Short title.
The provisions of this article shall be known and referred to
as the Methamphetamine Laboratory Eradication Act.
§60A-10-2. Purpose; findings.
The Legislature finds:
(a) That the illegal production and distribution of
methamphetamine is an increasing problem nationwide and
particularly prevalent in rural states such as West Virginia.
(b) That methamphetamine is a highly addictive drug that can
be manufactured in small and portable laboratories. These
laboratories are operated by individuals who manufacture the drug
in a clandestine and unsafe manner, often resulting in explosions
and fires that can injure not only the individuals involved but
their families, neighbors, law-enforcement officers and firemen.
(c) That use of methamphetamine can result in fatal kidney and
lung disorders, brain damage, liver damage, blood clots, chronic
depression, hallucinations, violent and aggressive behavior,
malnutrition, disturbed personality development, deficient immune
system and psychosis. Children born to mothers who are abusers of
methamphetamine can be born addicted and suffer birth defects, low
birth weight, tremors, excessive crying, attention deficit disorder
and behavior disorders.
(d) That in addition to the physical consequences to an
individual who uses methamphetamine, usage of the drug also
produces an increase in automobile accidents, explosions and fires,
increased criminal activity, increased medical costs due to
emergency room visits, increases in domestic violence, increased
spread of infectious diseases and a loss in worker productivity.
(e) That environmental damage is another consequence of the methamphetamine epidemic. Each pound of methamphetamine produced
leaves behind five to six pounds of toxic waste. Chemicals and
byproducts that result from the manufacture of methamphetamine are
often poured into plumbing systems, storm drains or directly onto
the ground. Cleanup of methamphetamine laboratories is extremely
resource-intensive, with an average remediation cost of five
thousand dollars.
(f) That it is in the best interest of every West Virginian to
develop a viable solution to address the growing methamphetamine
problem in the State of West Virginia. The Legislature finds that
restricting access to over-the-counter drugs used to facilitate
production of methamphetamine is necessary to protect the public
safety of all West Virginians.
(g) That it is further in the best interests of every West
Virginian to create impediments to the manufacture of
methamphetamine by requiring persons purchasing chemicals necessary
to the process to provide identification.
§60A-10-3. Definitions.
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 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" 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.
(l) "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 pharmacists or pharmacy technician.
(m) "Pharmacy technician" means a registered technician who
meets the requirements for registration as set forth in article
five, chapter thirty of this code.
(n) "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.
(o) "Schedule V" means the schedule of controlled substances
set out in section two hundred twelve, section two of this chapter.
(p) "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.
(q) "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.
(r) "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 phenylpropenolamine or more than nine
grams of ephedrine, pseudoephedrine or phenylpropenolamine in any
form shall be guilty of a misdemeanor and, upon conviction, shall
be confined in a regional jail for not more than one year, fined
not more than one thousand dollars, 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 correctional facility for not
less than one nor more than five years, fined not more than twenty-
five thousand dollars, or both.
(c) The provisions of subsection (a) of this section shall not
apply to:
(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, licensed 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 correctional facility for not less than two nor more than ten
years, fined not more than twenty-five thousand dollars, or both.
(e) (1) Any pharmacy, wholesaler, manufacturer or distributor
of drug products containing as their single active ingredient
ephedrine, pseudoephedrine, phenlypropanolamine, 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
Pharmacy.
(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 ten thousand
dollars.
§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 phenlypropanolamine
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 technician or other pharmacy employee.
(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 regional jail for not more than six months, fined
not more than five thousand dollars, 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 ten thousand
dollars.
§60A-10-6. Registration to sale, manufacture or distribute
products
; rule-making authority.
The State Board of Pharmacy shall propose rules for
legislative approval in accordance with the provisions of article
three, chapter twenty-nine-a of this code to require that every
pharmacy, wholesaler, manufacturer or distributor of any drug
product containing as their single active ingredient ephedrine or
pseudoephedrine
or a substance identified on the supplemental list
provided for in section seven of this article
shall obtain a
registration and permit issued by the State Board of Pharmacy
to
sale, distribute or transfer the product containing as their single
active ingredient ephedrine, pseudoephedrine or
phenlypropanolamine
.
§60A-10-7. Restricted products; rule-making authority.
On or before the first day of July, two thousand five, the
Board of Pharmacy shall promulgate emergency and legislative rules
pursuant to the provision of article three, chapter twenty-nine-a
of this code to implement a program wherein the Board of Pharmacy
shall consult with the Superintendent of the State Police in
identifying drug products which are designated precursor, in
addition to those that contain as their single active ingredient
ephedrine, pseudoephedrine or phenlypropanolamine,
that are
commonly being used in the production and distribution of
methamphetamine.
Those drug products which the State Police have
demonstrated by empirical evidence are commonly used in the
manufacture of methamphetamine may be added to a supplemental list
of controlled substances listed in subsection (e), section two
hundred twelve, article two of this chapter and shall be subject to
all of the restrictions of this article. These rules established
pursuant to this section shall include:
(1) A process whereby pharmacies are made aware of all drug
products that contain as their single active ingredient ephedrine,
pseudoephedrine and phenlypropanolamine
that will be listed as a
Schedule V substance and must be sold, transferred or dispensed
from behind a pharmacy counter;
(2) A process whereby pharmacies and retail establishments are
made aware
additional drug products added to Schedule V that are
required to be placed behind the pharmacy counter for sale,
transfer or distribution can be periodically reviewed and updated.
§60A-10-8. Reporting requirements; confidentiality.
(a)
Whenever there is a sale, retail, transfer or distribution of any drug product referred to in subsection (e), section two-
hundred twelve, article two of this chapter
or another designated
precursor
, the pharmacists or pharmacy technician making the sale,
transfer or distribution shall report the following information for
inclusion in the central repository established pursuant to article
nine of this chapter:
(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, the quantity of packages and total gram weight
of the product or products purchased, received or otherwise
acquired.
(b) 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.
§60A-10-9. Persons mandated to report suspected injuries related
to methamphetamine production; failure to report; penalty.
(a) When any medical, dental or mental health professional,
Christian Science practitioner, religious healer or emergency
medical services personnel has reason to believe that an injury is
the direct result of exposure to the production of methamphetamine
such person shall immediately, and not more than forty-eight hours
after such suspicion arises, report the circumstances or cause a
report to be made to a state, county or local law-enforcement
agency.
(b) Any person required by this section to report a suspected
methamphetamine-related injury who knowingly and intentionally fails to do so or knowingly and intentionally prevents another
person acting reasonably from doing so shall be guilty of a
misdemeanor and, upon conviction thereof, shall be fined not more
than one hundred dollars or imprisoned in the regional jail not
more than ten days, or both fined and imprisoned.
§60A-10-10. Authority of the Superintendent of the State Police to
leverage grant funds.
The Superintendent of the State Police is encouraged to
leverage available grant funds from individuals, foundations,
corporations, the federal government, governmental agencies and
other organizations or institutions, make and sign any agreement to
and perform any act that may be necessary to effectuate these
grants. Said grant funds shall be dedicated toward a drug court,
to provide training programs to state and local prosecutors and
law-enforcement agents for the investigation and prosecution of
methamphetamine offenses and to enhance funding available to local
and regional jails.
§60A-10-11. Reporting to the Legislative Oversight Commission on
Health and Human Resources Accountability.
On or before the first day of December, two thousand five, the
Superintendent of the West Virginia State Police shall submit a
report including findings, conclusions and recommendations,
together with drafts of any legislation necessary, to improve the
effectiveness of a reduction in illegal methamphetamine production
and distribution to the Legislative Oversight Commission on Health
and Human Resources Accountability for consideration.
§60A-10-12. Exposure of children to methamphetamine manufacturing;
penalties.
(a) Any person eighteen years of age or older who knowingly
causes or permits a minor to be present in a location where
methamphetamine is manufactured or attempted to be manufactured is
guilty of a felony and, upon conviction, shall be confined in a
correctional facility for not less than one nor more than five
years, fined not more than ten thousand dollars, or both.
(b) Notwithstanding the provisions of subsection (a) of this
section, the penalty for a violation of said subsection when the
child suffers serious bodily injury as such is defined in the
provisions of section one, chapter eight-b of this code shall be
confined in a correctional facility for not less than three nor
more than fifteen years, fined not more than twenty-five thousand
dollars, or both.
§60A-10-13. Illegal storage of anhydrous ammonia; exceptions.
(a) Any person who stores or conveys anhydrous ammonia in a
container that:
(1) Is not approved by the United States Department of
Transportation to hold anhydrous ammonia; or
(2) Was not constructed to meet state and federal industrial
health and safety standards for holding anhydrous ammonia is guilty
of a felony and, upon conviction, shall be confined in a
correctional facility for a determinate period not to exceed five
years, fined not more than ten thousand dollars, or both.
(b) The provisions of this section shall not apply to persons
authorized by federal or state law or regulation to handle and
dispose of hazardous waste or toxic substances while engaged in
such conduct.
(c) Any damages arising out of the unlawful possession of, storage of or tampering with anhydrous ammonia equipment shall be
the sole responsibility of the person or persons unlawfully
possessing, storing or tampering with anhydrous ammonia. In no
case shall liability for damages arising out of the unlawful
possession of, storage of or tampering with anhydrous ammonia or
anhydrous ammonia equipment extend to the lawful owner, installer,
maintainer, designer, manufacturer, possessor or seller of the
anhydrous ammonia or anhydrous ammonia equipment, unless such
damages arise out of the acts or omissions of the owner, installer,
maintainer, designer, manufacturer, possessor or seller that
constitute negligent misconduct to abide by the laws regarding
anhydrous ammonia possession and storage.
§60A-10-14. Iodine solution greater than 1.5 percent; prescription
or permit required; offenses; penalties.
(a) A person may offer to sell, sell or distribute an iodine
matrix only:
(1) As a prescription drug, pursuant to a prescription issued
by a veterinarian or physician licensed within the state; or
(2) To a person who is actively engaged in the legal practice
of animal husbandry of livestock, as defined in section eight,
article one, chapter four of this code.
(b) Prescriptions issued under this section:
(1) Shall provide for a specified number of refills;
(2) May be issued by any means authorized by the Board of
Pharmacy; and
(3) May be filled by a person other than the veterinarian or
physician issuing the prescription.
(c) A person offering iodine matrix for sale:
(1) Shall store the iodine matrix so that the public does not
have access to the iodine matrix without the direct assistance or
intervention of a retail employee;
(2) Shall keep a record, which may consist of sales receipts
of each person purchasing iodine matrix; and
(3) Shall, if necessary to ascertain the identity of the
purchaser, ask for proof of identification from the purchaser.
(d) A person engaging in a regulated transaction pursuant to
the provisions of subsection (a) of this section is guilty of a
misdemeanor if he or she offers to sell, sells or distributes an
iodine matrix to a person who:
(1) Does not present a prescription or is not engaged in
animal husbandry, as required under subsection (a) of this section;
or
(2) Is not excepted under subsection (g) of this section.
(e) A person is guilty of a misdemeanor who:
(1) Possesses an iodine matrix without proof of obtaining the
solution in compliance with subsection (a) of this section; or
(2) Offers to sell, sells or distributes an iodine matrix in
violation of said subsection;
(f) The provisions of subdivision (1), subsection (e) of this
section do not apply to:
(1) A chemistry or chemistry-related laboratory maintained by:
(A) A public or private regularly established secondary
school; or
(B) A public or private institution of higher education that
is accredited by a regional or national accrediting agency
recognized by the United States Department of Education:
(2) A veterinarian licensed to practice pursuant to the
provisions of article ten, chapter thirty of this code;
(3) A health care facility; or
(4) A veterinarian, physician, pharmacist, retail distributor,
wholesaler, manufacturer, warehouseman or common carrier, or an
agent of any of these persons who possesses an iodine matrix in the
regular course of lawful business activities.
(g) As used in this section, "iodine matrix" means iodine at
a concentration greater than 1.5 percent, by weight, in a matrix or
solution.
__________
(NOTE: The purpose of this bill is to limit access to certain
chemicals used in the production of methamphetamines.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§60A-10-1, §60A-10-2, §60A-10-3, §60A-10-4, §60A-10-5, §60A-
10-6, §60A-10-7, §60A-10-8, §60A-10-9, §60A-10-10, §60A-10-11,
§60A-10-12, §60A-10-13 and §60A-10-14 are new; therefore,
strike-throughs and underscoring have been omitted.)
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