SB 147 Text

COMMITTEE SUBSTITUTE
FOR

Senate Bill No. 147
(By Senators Tomblin, Mr. President, and Sprouse,
By Request of the Executive)
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[Originating in the Committee on Health and Human Resources;
reported March 9, 2005.]
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A BILL to amend and reenact §60A-2-212 of the Code of West Virginia, 1931, as amended; to amend and reenact §60A-3-308 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 and §60A-10-13, 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; creating a central repository regarding the reporting of information related to such substances; requiring medical and dental professionals to report methamphetamine-related injuries; providing that exposure of children to methamphetamine production is prima facie evidence of child abuse; providing for severability; allowing the State Police to leverage grant funds; requiring reporting by the State Police to the Legislative Oversight Commission on Health and Human Resources Accountability; and providing penalties.

Be it enacted by the Legislature of West Virginia:
That §60A-2-212 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that §60A-3-308 of said code 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 and 60A-10-13, all to read as follows:
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.
§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 306. 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 be a pharmacists or a licensed pharmacists technician; and
(B) Any person purchasing, receiving or otherwise acquiring any such substance shall:
(i) Produce a photo identification showing his or her date of birth; and
(ii) Sign a form as provided in 10-8 of this chapter showing the date of the transaction, the name and age of the person making the purchase, the name and the amount of the substance purchased, received or otherwise acquired.
ARTICLE 10. METHAMPHETAMINE REDUCTION AND SAFE STREETS ACT.
§60A-10-1. Short title
The provisions of this article shall be known and referred to as the Methamphetamine Reduction and Safe Streets Act.
§60A-10-2. Purpose
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. In 2004 the Drug Enforcement Administration shut down over ten thousand illegally operated methamphetamine laboratories. This was an increase of over two thousand from the previous year.
(b) That the substances used to make methamphetamine are easy to obtain and the manner in which to manufacture it is readily accessible on the Internet. An initial investment of a few hundred dollars in over-the-counter cold and asthma medications containing ephedrine or pseudoephedrine and the proper chemicals and supplies can produce a quantity of methamphetamine worth thousands of dollars on the street.
(c) That methamphetamine is a highly addictive drug that can be manufactured in small and portable home-based 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 injury not only the individuals involved but their families, neighbors and law enforcement officers and firemen.
(d) That extended 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.
(e) That in addition to the physical consequences to an individual who abuses methamphetamine, usage of the drug may also produce an increase in automobile accidents, explosions and fires, increased criminal activity, increased medical costs due to emergency room visits, increases in domestic violence, spread of infectious diseases and a loss in worker productivity.
(f) 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.
(g) 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 limiting access to the over-the-counter drugs used to facilitate production of methamphetamine is necessary to protect the public safety of all West Virginians.
§60A-10-3. Definitions
In this article:
(a) "Board of Pharmacy" or "Board" means the West Virginia Board of Pharmacy as set forth in §30-5-2 of this code.
(b) "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;
(c) "Drug product" means a drug 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.
(d) "ephedrine, pseudoephedrine or phenylpropanolamine " means an alkaloid used in over-the-counter drug products to treat hay fever, asthma, cold and nasal congestion and can be used in the illegal manufacture of methamphetamine.
(e) "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;
(f) "precursor" means substance which may be used along with other substances as a component in the production and distribution of illegal methamphetamine.
(g) "Pharmacists" means in individual currently licensed by this state to engage in the practice of pharmacy and pharmaceutical care as defined in §30-50-1b(t) of this code.
(h) "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.
(i) "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.
(j) "pharmacy technician" mean registered supportive personnel who work under the direct supervision of a pharmacists who have passed an approved training program as described in article five of chapter thirty of this code.
(k) "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.
(l) "Schedule V" means the schedule of controlled substances set out in §60A-2-212 of this code.
(m) "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.
(n) "Superintendent of the State Police" or "Superintendent" means the Superintendent of the West Virginia State Police as set forth in §15-2-5 of this code.
(o) "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; presumption; exceptions; penalties.
(a) (1) No person, exclusive of those persons delineated in §60A-10-4(b)(2)(A through F), may, within any thirty (30) day period , purchase, receive or otherwise acquire greater than three (3) packages or up to a maximum of nine (9) grams of any drug product containing as its single active ingredient ephedrine, pseudoephedrine or phenylpropanolamine or their salts or optical isomers. This section does not apply to products that are pediatric products primarily intended for administration, according to label instructions, to children under 12 years of age, are marketed or sold in gel capsule form, liquid form or liquid capsule form.
(2) A violation of this subsection is a misdemeanor offense and is punishable by incarceration in jail for a period not to exceed one year and a fine of not more than twenty five thousand dollars. A person convicted of a second or subsequent offense, under this subsection, is guilty of a felony and, upon conviction, may be imprisoned in a correctional facility of this state for not less than one nor more than five years, or fined not more than ten thousand dollars, or both.
(b) (1) Except as authorized by this article, it shall be unlawful for a person to knowingly possess the following substances:
(A) A substance with its single active ingredient ephedrine, pseudoephedrine or phenlypropanolamine, or a substance identified on the supplemental list provided for in section seven of this article, with intent to use the product as a precursor to manufacture methamphetamine or another controlled substance as defined by §60A-1-101(d);
(B) A substance containing ephedrine, pseudoephedrine or phenylpropanolamine, or their salts, optical isomers or salts of optical isomers in a pure form or a state of form which is, or has been, altered or converted from the state or form in which these chemicals are, or were, commercially distributed.
(2) Except as provided in this subsection, possession of a drug product in a quantity greater than three (3) packages or containing greater than nine (9) grams of a single active ingredient of ephedrine, pseudoephedrine or phenylpropanolamine, or their salts, optical isomers or salts of optical isomers of this article shall constitute a rebuttable presumption of the intent to use the product as a precursor to the manufacture of methamphetamine or another controlled substance. The rebuttable presumption established by this subsection does not apply to the following persons who are lawfully possessing drug products:
(A) A distributor of drug products or wholesaler;
(B) A manufacturer, or its agents, licensed by the Board of Pharmacy;
(C) A pharmacist or licensed pharmacist technician;
(E) A licensed healthcare professional possessing the drug products in the course of carrying out his or her profession; and
(F) A person who possesses the drug product with a prescription from a physician.
(3) Any person who violates this subsection is guilty of a felony and, upon conviction, may be imprisoned in a correctional facility of this state for not less than two (2) nor more than ten (10) years, or fined not more than twenty-five thousand dollars, or both imprisoned or fined.
(c) (1) Any pharmacy, wholesaler, manufacturer, or distributor of drug products containing as their single active ingredient ephedrine, pseudoephedrine or phenlypropanolamine, or their salts or optical isomers, or salts of optical isomers or a substance identified on the supplemental list provided for in section seven of this article 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 shall display, offer for sale or place a drug product containing as their single active ingredient ephedrine, pseudoephedrine or phenlypropanolamine or a substance identified on the supplemental list provided for in section seven of this article on a shelf where the public may freely access the drug product. All drug products containing as their single active ingredient ephedrine, pseudoephedrine or phenlypropanolamine or a substance identified on the supplemental list provided for in section seven of this article shall be placed behind a pharmacy counter where access is restricted to a pharmacists or a pharmacy technician.
(b) All pharmacies and individuals shall maintain bulk storage of drug products containing as their single active ingredient ephedrine, pseudoephedrine or phenlypropanolamine or a substance identified on the supplemental list provided for in section seven of this article 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 or individual shall transfer, sell, deliver or provide any drug product containing as their single active ingredient ephedrine, pseudoephedrine or phenlypropanolamine or a substance identified on the supplemental list provided for in section seven of this article to any person who is under the age of eighteen (18).
(d) If a drug product containing as their single active ingredient ephedrine, pseudoephedrine or phenlypropanolamine or a substance identified on the supplemental list provided for in section seven of this article 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 photo identification showing his or her date of birth; and
(2) Sign a form containing the information described in section(8)(b) of this article and attesting to the validity of such information. Any person who makes a false representation or statement pursuant to the requirements of this section shall be guilty of false swearing as that term is defined by §61-5-2 of this code.
(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 12 years of age, and to products that are marketed or sold in gel capsule form, liquid form or liquid capsule form.
(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, pseudoephedrine or phenlypropanolamine 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.
(a) 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 the code to implement a program wherein the Board of Pharmacy shall consult with the Superintendent of the State Police in identifying drug products, 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 empirical evidence are commonly used in the manufacture of methamphetamine may be added to a supplement list to the controlled substances listed in §60A-2-212(e) of this code 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 and retail establishments are made aware of all drug products that contain as their single active ingredient ephedrine, pseudoephedrine and phenlypropanolamine that will 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; no civil liability for reporting; penalties.
(a) The 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 establish a central repository of information on the sale, transfer and distribution of drug products that contain as their single active ingredient ephedrine, pseudoephedrine and phenlypropanolamine or a substance identified on the supplemental list provided for in section seven of this article as required by this article. The rule shall include the manner in which the information required by subsection (b) of this section will be forwarded to the Board of Pharmacy by a pharmacy.
(b) Whenever there is a sale, transfer or distribution of any drug product referred to in subsection (e), section two-hundred twelve, article two of this chapter or a substance identified on the supplemental list provided for in section seven of this article , the pharmacists or licensed pharmacy technician making the sale, transfer or distribution shall, in a manner prescribed by rules promulgated by the Board of Pharmacy under this section, collect and report the following information for inclusion in the central repository established pursuant to subsection (a) of this section:
(1) The date of the transaction;
(2) The name and driver's license or state issue 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.
(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.
(d) The information required by this section to be kept by the Board of Pharmacy is confidential and open to inspection only by inspectors and agents of the State Board of Pharmacy, members of the West Virginia State Police with express authorization by the Superintendent of the West Virginia State Police to have access to the information, authorized agents of local law-enforcement agencies as members of a drug task force, authorized agents of the Federal Drug Enforcement Agency, and persons with an enforceable court order or administrative subpoena. No individual or entity required to report under subsection (b) of this section may be subject to a claim for civil damages or other civil relief for reporting of information to the Board of Pharmacy as required by the provisions of this section.
(e) Failure to complete the necessary reporting shall constitute a violation of this section and shall be a misdemeanor offense, punishable upon conviction by a fine in an amount not more than ten thousand dollars.
§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 report the circumstances or cause a report to be made to the state or local police.
(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. Prima facie evidence of child abuse.
It shall be prima facie evidence of child abuse for a parent, guardian or custodian of a child to knowingly and intentionally expose a child to methamphetamine production. Such exposure shall constitute bodily harm to the child as that term is defined by section one, article eight-b, chapter sixty-one of this code. A parent, guardian or custodian of a child who knowingly and intentionally exposes a child to methamphetamine production shall be guilty of a felony and, upon conviction, shall be fined not less than one hundred nor more than one thousand dollars, or imprisoned in a correctional facility of this state for not less than one nor more than five years, or both fined and imprisoned.
§60A-10-11. Severability
If any provision of this article or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this article, and to this end the provisions of this article are declared to be severable.
§60-10-12. 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-10-13. Reporting to the legislative oversight commission on health and human resources accountability.
On or before the first day of December, two thousand and 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 for consideration.

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 and 60A-10-13 are new; therefore, strike-throughs and underscoring have been omitted.

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