BILL ANALYSIS
AB 1853
Page 1
Date of Hearing: April 21, 2004
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Judy Chu, Chair
AB 1853 (Simitian) - As Amended: March 31, 2004
Policy Committee: HealthVote:11-4
Urgency: No State Mandated Local Program:
Yes Reimbursable: No
SUMMARY
This bill prohibits the sale, without a prescription, of a
nonprescription drug containing dextromethorphan (a cough
suppressant in some over-the-counter cough medicines) to a
minor. Specifically, this bill:
1)Makes it an infraction, punishable by a fine of up to $250,
for any person, in an over-the-counter sale, to willfully and
knowingly deliver to a person under the age of 18 years a
drug, material, compound, mixture, preparation, or substance
containing any quantity of dextromethorphan unless the person
has a prescription.
2)Requires it be prima facie evidence of a violation of #1)
above if the person making the sale does not require and
obtain proof of age (as defined) from the purchaser, unless
from the purchaser's outward appearance the person making the
sale would reasonably presume the purchaser to be 25 years of
age or older.
3)Requires there be an affirmative defense to a violation of #1)
above if the defendant proves, by a preponderance of the
evidence, all of the following:
a) The person making the sale required and obtained proof
of age from the purchaser;
b) The purchaser falsely represented his or her age by the
use of a false, forged, or altered document;
c) The appearance of the purchaser would lead an ordinary
and prudent person to believe that the purchaser was at
least 18 years of age; and
d) The sale was made in good faith and in reliance upon the
AB 1853
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appearance and representation of proof of age of the
purchaser.
4)Prohibits a retail clerk who fails to request identification
from being guilty of an infraction, subject to any civil
penalties, or subject to any disciplinary action or discharge
by his or her employer, unless the retail clerk is a willful
and knowing participant in an criminal conspiracy to violate
the provisions of this bill.
FISCAL EFFECT
1)Unknown minor local costs for increased local prosecutions,
offset by minor fine revenue.
2)Unknown sales tax revenue loss, likely offset in whole or part
by reduced health care costs paid for by publicly-funded
health care programs. There is no data on the prevalence of
individuals under age 18 purchasing OTC products containing
dextromethorphan or the publicly funded health care costs
incurred in treating such individuals.
COMMENTS
1)Purpose . According to the author, minors purchase and consume
large quantities of these products (which are also referred to
as the street names DXM, robo, skittles, Vitamin D, ex, and
tussin) to produce intoxication, hallucinations and overall
disturbances in thinking, senses, and memory. When used in
the doses recommended on cough syrup and tablet packaging,
dextromethorphan is a very effective cough suppressant. When
taken at much higher doses, however, it acts as a
disassociative anesthetic, similar to PCP and ketamine. At
high doses, dextromethorphan is also a central nervous system
depressant. Although ingesting too much cold medicine can be
just as hazardous as drinking too much alcohol, it is legal
for young people to obtain. The author asserts that easy
access to these products for kids should be restricted.
2)Background . According to the National Library of Medicine,
dextromethorphan is found in close to 200 brand name
over-the-counter products, such as Coricidin HBP, Alka-Selzer
Plus, Children's Tylenol, DayQuil, Vicks 44, Robitussin,
Sucrets, Hold DM, and St. Joseph Cough Suppressant and is
typically used to relieve a nonproductive cough caused by a
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cold, the flu, or other conditions. Sales to minors of
products containing dextromethorphan are not tracked by the
Board of Equalization, so estimates of sales tax revenue loss
from reduced sales are unknown.
Statistics from the California Poison Control System (CPCS) data
collection system indicate telephone consultations provided
for patients aged 6-17 with an exposure attributed to abuse of
a dextromethorphan product increased from 24 in 1999 to 284 in
2003, an increase of 1083%. CPCS receives approximately
325,000 calls annually.
3)Opposition . The California Retailer Association asserts that
the majority of young persons making purchases of these
products for legitimate, legal use in alleviating symptoms
will be penalized for the poor decisions of a small number of
young people, and the prohibition of sales to minors will open
up a whole new area for private attorneys to sue and/or
extract settlements.
The Consumer Healthcare Products Association contends that
dextromethorphan is the most widely used nonprescription cough
suppressant, and this bill limits a consumer's ability to
purchase many common and cold remedies. Finally, the
California Grocers Association argues that the recent
amendments removing responsibility from the retail clerk make
it nearly impossible to uphold this law.
Analysis Prepared by : Scott Bain / APPR. / (916) 319-2081