BILL NUMBER: AB 1280 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MAY 26, 2011
AMENDED IN ASSEMBLY MAY 11, 2011
AMENDED IN ASSEMBLY MARCH 25, 2011
INTRODUCED BY Assembly Member Hill
(Coauthor: Assembly Member Hagman)
FEBRUARY 18, 2011
An act to amend, repeal, and add Section 11100 of, and to add and
repeal Section 11100.02 of, the Health and Safety Code, relating to
controlled substances.
LEGISLATIVE COUNSEL'S DIGEST
AB 1280, as amended, Hill. Ephedrine: retail sale.
(1) Existing law classifies controlled substances into 5
schedules, with the most restrictive limitations placed on controlled
substances classified in Schedule I, and the least restrictive
limitations placed on controlled substances classified in Schedule V.
A controlled substance in any of the schedules may be possessed or
dispensed only upon a lawful prescription, as specified. Existing law
does not classify ephedrine, pseudoephedrine, norpseudoephedrine, or
phenylpropanolamine within any of these 5 schedules, but provides
that it is a crime, punishable as specified, for a person in this
state who engages in specified transactions involving those drugs to
fail to submit a report to the Department of Justice of all of those
transactions, or to fail to submit an application to, and obtain a
permit for the conduct of that business from, the Department of
Justice, as specified. Existing law prohibits the sale of more than 3
packages or 9 grams of a nonprescription product containing
ephedrine or the other drugs, as specified.
This bill would instead provide that it is a misdemeanor,
punishable as specified, for any retail distributor, except pursuant
to a valid prescription from a licensed practitioner with
prescriptive authority, to sell or distribute to a person specified
amounts of nonprescription products containing ephedrine,
pseudoephedrine, norpseudoephedrine, or phenylpropanolamine within
specified time limits, to sell or distribute any of those substances
to a person whose information has generated an alert, or, except
under specified conditions, to sell or distribute to any purchaser a
nonprescription product containing any amount of those substances.
The bill would contain provisions requiring the secure storage and
monitoring of products containing any amount of ephedrine,
pseudoephedrine, norpseudoephedrine, or phenylpropanolamine, as
specified.
The bill would require retail distributors to transmit , on
and after July 1, 2012, sale information to the National
Precursor Log Exchange (NPLEx) for purposes of determining whether
the sale would violate these provisions. The bill would require the
Department of Justice to enter into a memorandum of understanding
with the National Association of Drug Diversion Investigators
regarding the transaction records in NPLEx, as specified. The bill
would provide that the information in the system may not be used for
any purpose other than to meet the requirements of, or comply with,
this act or a certain federal act, as specified. The bill would
specify legislative findings and intent. The bill's provisions would
remain in effect only until January 1, 2018. By creating a new crime,
this bill would impose a state-mandated local program.
(2) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 11100 of the Health and Safety Code is amended
to read:
11100. (a) Any manufacturer, wholesaler, retailer, or other
person or entity in this state that sells, transfers, or otherwise
furnishes any of the following substances to any person or entity in
this state or any other state shall submit a report to the Department
of Justice of all of those transactions:
(1) Phenyl-2-propanone.
(2) Methylamine.
(3) Ethylamine.
(4) D-lysergic acid.
(5) Ergotamine tartrate.
(6) Diethyl malonate.
(7) Malonic acid.
(8) Ethyl malonate.
(9) Barbituric acid.
(10) Piperidine.
(11) N-acetylanthranilic acid.
(12) Pyrrolidine.
(13) Phenylacetic acid.
(14) Anthranilic acid.
(15) Morpholine.
(16) Ephedrine.
(17) Pseudoephedrine.
(18) Norpseudoephedrine.
(19) Phenylpropanolamine.
(20) Propionic anhydride.
(21) Isosafrole.
(22) Safrole.
(23) Piperonal.
(24) Thionylchloride.
(25) Benzyl cyanide.
(26) Ergonovine maleate.
(27) N-methylephedrine.
(28) N-ethylephedrine.
(29) N-methylpseudoephedrine.
(30) N-ethylpseudoephedrine.
(31) Chloroephedrine.
(32) Chloropseudoephedrine.
(33) Hydriodic acid.
(34) Gamma-butyrolactone, including butyrolactone; butyrolactone
gamma; 4-butyrolactone; 2(3H)-furanone dihydro; dihydro-2
(3H)-furanone; tetrahydro-2-furanone; 1,2-butanolide; 1,4-butanolide;
4-butanolide; gamma-hydroxybutyric acid lactone; 3-hydroxybutyric
acid lactone and 4-hydroxybutanoic acid lactone with Chemical
Abstract Service number (96-48-0).
(35) 1,4-butanediol, including butanediol; butane-1,4-diol;
1,4-butylene glycol; butylene glycol; 1,4-dihydroxybutane;
1,4-tetramethylene glycol; tetramethylene glycol; tetramethylene
1,4-diol with Chemical Abstract Service number (110-63-4).
(36) Red phosphorus, including white phosphorus, hypophosphorous
acid and its salts, ammonium hypophosphite, calcium hypophosphite,
iron hypophosphite, potassium hypophosphite, manganese hypophosphite,
magnesium hypophosphite, sodium hypophosphite, and phosphorous acid
and its salts.
(37) Iodine or tincture of iodine.
(38) Any of the substances listed by the Department of Justice in
regulations promulgated pursuant to subdivision (b).
(b) The Department of Justice may adopt rules and regulations in
accordance with Chapter 3.5 (commencing with Section 11340) of Part 1
of Division 3 of Title 2 of the Government Code that add substances
to subdivision (a) if the substance is a precursor to a controlled
substance and delete substances from subdivision (a). However, no
regulation adding or deleting a substance shall have any effect
beyond March 1 of the year following the calendar year during which
the regulation was adopted.
(c) (1) (A) Any manufacturer, wholesaler, retailer, or other
person or entity in this state, prior to selling, transferring, or
otherwise furnishing any substance specified in subdivision (a) to
any person or business entity in this state or any other state, shall
require (i) a letter of authorization from that person or business
entity that includes the currently valid business license number or
federal Drug Enforcement Administration (DEA) registration number,
the address of the business, and a full description of how the
substance is to be used, and (ii) proper identification from the
purchaser. The manufacturer, wholesaler, retailer, or other person or
entity in this state shall retain this information in a readily
available manner for three years. The requirement for a full
description of how the substance is to be used does not require the
person or business entity to reveal their chemical processes that are
typically considered trade secrets and proprietary information.
(B) For the purposes of this paragraph, "proper identification"
for in-state or out-of-state purchasers includes two or more of the
following: federal tax identification number; seller's permit
identification number; city or county business license number;
license issued by the State Department of Public Health; registration
number issued by the federal Drug Enforcement Administration;
precursor business permit number issued by the Bureau of Narcotic
Enforcement of the Department of Justice; driver's license; or other
identification issued by a state.
(2) (A) Any manufacturer, wholesaler, retailer, or other person or
entity in this state that exports a substance specified in
subdivision (a) to any person or business entity located in a foreign
country shall, on or before the date of exportation, submit to the
Department of Justice a notification of that transaction, which
notification shall include the name and quantity of the substance to
be exported and the name, address, and, if assigned by the foreign
country or subdivision thereof, business identification number of the
person or business entity located in a foreign country importing the
substance.
(B) The department may authorize the submission of the
notification on a monthly basis with respect to repeated, regular
transactions between an exporter and an importer involving a
substance specified in subdivision (a), if the department determines
that a pattern of regular supply of the substance exists between the
exporter and importer and that the importer has established a record
of utilization of the substance for lawful purposes.
(d) (1) Any manufacturer, wholesaler, retailer, or other person or
entity in this state that sells, transfers, or otherwise furnishes a
substance specified in subdivision (a) to a person or business
entity in this state or any other state shall, not less than 21 days
prior to delivery of the substance, submit a report of the
transaction, which includes the identification information specified
in subdivision (c), to the Department of Justice. The Department of
Justice may authorize the submission of the reports on a monthly
basis with respect to repeated, regular transactions between the
furnisher and the recipient involving the substance or substances if
the Department of Justice determines that a pattern of regular supply
of the substance or substances exists between the manufacturer,
wholesaler, retailer, or other person or entity that sells,
transfers, or otherwise furnishes the substance or substances and the
recipient of the substance or substances, and the recipient has
established a record of utilization of the substance or substances
for lawful purposes.
(2) The person selling, transferring, or otherwise furnishing any
substance specified in subdivision (a) shall affix his or her
signature or otherwise identify himself or herself as a witness to
the identification of the purchaser or purchasing individual, and
shall, if a common carrier is used, maintain a manifest of the
delivery to the purchaser for three years.
(e) This section shall not apply to any of the following:
(1) Any pharmacist or other authorized person who sells or
furnishes a substance upon the prescription of a physician, dentist,
podiatrist, or veterinarian.
(2) Any physician, dentist, podiatrist, or veterinarian who
administers or furnishes a substance to his or her patients.
(3) Any manufacturer or wholesaler licensed by the California
State Board of Pharmacy that sells, transfers, or otherwise furnishes
a substance to a licensed pharmacy, physician, dentist, podiatrist,
or veterinarian, or a retail distributor as defined in subdivision
(h), provided that the manufacturer or wholesaler submits records of
any suspicious sales or transfers as determined by the Department of
Justice.
(4) Any analytical research facility that is registered with the
federal Drug Enforcement Administration of the United States
Department of Justice.
(5) A state-licensed health care facility that administers or
furnishes a substance to its patients.
(6) (A) Any sale, transfer, furnishing, or receipt of any product
that contains ephedrine, pseudoephedrine, norpseudoephedrine, or
phenylpropanolamine and which is lawfully sold, transferred, or
furnished over the counter without a prescription pursuant to the
Federal Food, Drug, and Cosmetic Act (21 U.S.C. Sec. 301 et seq.) or
regulations adopted thereunder. However, this section shall apply to
preparations in solid or liquid dosage form, except pediatric liquid
forms, as defined, containing ephedrine, pseudoephedrine,
norpseudoephedrine, or phenylpropanolamine where the individual
transaction involves more than three packages or nine grams of
ephedrine, pseudoephedrine, norpseudoephedrine, or
phenylpropanolamine.
(B) Any ephedrine, pseudoephedrine, norpseudoephedrine, or
phenylpropanolamine product subsequently removed from exemption
pursuant to Section 814 of Title 21 of the United States Code shall
similarly no longer be exempt from any state reporting or permitting
requirement, unless otherwise reinstated pursuant to subsection (d)
of Section 814 of Title 21 of the United States Code as an exempt
product.
(7) The sale, transfer, furnishing, or receipt of any betadine or
povidone solution with an iodine content not exceeding 1 percent in
containers of eight ounces or less, or any tincture of iodine not
exceeding 2 percent in containers of one ounce or less, that is sold
over the counter.
(8) Any transfer of a substance specified in subdivision (a) for
purposes of lawful disposal as waste.
(f) (1) Any person specified in subdivision (a) or (d) who does
not submit a report as required by that subdivision or who knowingly
submits a report with false or fictitious information shall be
punished by imprisonment in a county jail not exceeding six months,
by a fine not exceeding five thousand dollars ($5,000), or by both
the fine and imprisonment.
(2) Any person specified in subdivision (a) or (d) who has
previously been convicted of a violation of paragraph (1) shall, upon
a subsequent conviction thereof, be punished by imprisonment in the
state prison, or by imprisonment in a county jail not exceeding one
year, by a fine not exceeding one hundred thousand dollars
($100,000), or by both the fine and imprisonment.
(g) (1) Except as otherwise provided in subparagraph (A) of
paragraph (6) of subdivision (e), it is unlawful for any
manufacturer, wholesaler, retailer, or other person to sell,
transfer, or otherwise furnish a substance specified in subdivision
(a) to a person under 18 years of age.
(2) Except as otherwise provided in subparagraph (A) of paragraph
(6) of subdivision (e), it is unlawful for any person under 18 years
of age to possess a substance specified in subdivision (a).
(3) (A) A first violation of this subdivision is a misdemeanor.
(B) Any person who has previously been convicted of a violation of
this subdivision shall, upon a subsequent conviction thereof, be
punished by imprisonment in a county jail not exceeding one year, by
a fine not exceeding ten thousand dollars ($10,000), or by both the
fine and imprisonment.
(h) This section shall remain in effect only until January 1,
2018, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2018, deletes or extends
that date.
SEC. 2. Section 11100 is added to the Health and Safety Code, to
read:
11100. (a) Any manufacturer, wholesaler, retailer, or other
person or entity in this state that sells, transfers, or otherwise
furnishes any of the following substances to any person or entity in
this state or any other state shall submit a report to the Department
of Justice of all of those transactions:
(1) Phenyl-2-propanone.
(2) Methylamine.
(3) Ethylamine.
(4) D-lysergic acid.
(5) Ergotamine tartrate.
(6) Diethyl malonate.
(7) Malonic acid.
(8) Ethyl malonate.
(9) Barbituric acid.
(10) Piperidine.
(11) N-acetylanthranilic acid.
(12) Pyrrolidine.
(13) Phenylacetic acid.
(14) Anthranilic acid.
(15) Morpholine.
(16) Ephedrine.
(17) Pseudoephedrine.
(18) Norpseudoephedrine.
(19) Phenylpropanolamine.
(20) Propionic anhydride.
(21) Isosafrole.
(22) Safrole.
(23) Piperonal.
(24) Thionylchloride.
(25) Benzyl cyanide.
(26) Ergonovine maleate.
(27) N-methylephedrine.
(28) N-ethylephedrine.
(29) N-methylpseudoephedrine.
(30) N-ethylpseudoephedrine.
(31) Chloroephedrine.
(32) Chloropseudoephedrine.
(33) Hydriodic acid.
(34) Gamma-butyrolactone, including butyrolactone; butyrolactone
gamma; 4-butyrolactone; 2(3H)-furanone dihydro; dihydro-2
(3H)-furanone; tetrahydro-2-furanone; 1,2-butanolide; 1,4-butanolide;
4-butanolide; gamma-hydroxybutyric acid lactone; 3-hydroxybutyric
acid lactone and 4-hydroxybutanoic acid lactone with Chemical
Abstract Service number (96-48-0).
(35) 1,4-butanediol, including butanediol; butane-1,4-diol;
1,4-butylene glycol; butylene glycol; 1,4-dihydroxybutane;
1,4-tetramethylene glycol; tetramethylene glycol; tetramethylene
1,4-diol with Chemical Abstract Service number (110-63-4).
(36) Red phosphorus, including white phosphorus, hypophosphorous
acid and its salts, ammonium hypophosphite, calcium hypophosphite,
iron hypophosphite, potassium hypophosphite, manganese hypophosphite,
magnesium hypophosphite, sodium hypophosphite, and phosphorous acid
and its salts.
(37) Iodine or tincture of iodine.
(38) Any of the substances listed by the Department of Justice in
regulations promulgated pursuant to subdivision (b).
(b) The Department of Justice may adopt rules and regulations in
accordance with Chapter 3.5 (commencing with Section 11340) of Part 1
of Division 3 of Title 2 of the Government Code that add substances
to subdivision (a) if the substance is a precursor to a controlled
substance and delete substances from subdivision (a). However, no
regulation adding or deleting a substance shall have any effect
beyond March 1 of the year following the calendar year during which
the regulation was adopted.
(c) (1) (A) Any manufacturer, wholesaler, retailer, or other
person or entity in this state, prior to selling, transferring, or
otherwise furnishing any substance specified in subdivision (a) to
any person or business entity in this state or any other state, shall
require (i) a letter of authorization from that person or business
entity that includes the currently valid business license number or
federal Drug Enforcement Administration (DEA) registration number,
the address of the business, and a full description of how the
substance is to be used, and (ii) proper identification from the
purchaser. The manufacturer, wholesaler, retailer, or other person or
entity in this state shall retain this information in a readily
available manner for three years. The requirement for a full
description of how the substance is to be used does not require the
person or business entity to reveal their chemical processes that are
typically considered trade secrets and proprietary information.
(B) For the purposes of this paragraph, "proper identification"
for in-state or out-of-state purchasers includes two or more of the
following: federal tax identification number; seller's permit
identification number; city or county business license number;
license issued by the State Department of Public Health; registration
number issued by the federal Drug Enforcement Administration;
precursor business permit number issued by the Bureau of Narcotic
Enforcement of the Department of Justice; driver's license; or other
identification issued by a state.
(2) (A) Any manufacturer, wholesaler, retailer, or other person or
entity in this state that exports a substance specified in
subdivision (a) to any person or business entity located in a foreign
country shall, on or before the date of exportation, submit to the
Department of Justice a notification of that transaction, which
notification shall include the name and quantity of the substance to
be exported and the name, address, and, if assigned by the foreign
country or subdivision thereof, business identification number of the
person or business entity located in a foreign country importing the
substance.
(B) The department may authorize the submission of the
notification on a monthly basis with respect to repeated, regular
transactions between an exporter and an importer involving a
substance specified in subdivision (a), if the department determines
that a pattern of regular supply of the substance exists between the
exporter and importer and that the importer has established a record
of utilization of the substance for lawful purposes.
(d) (1) Any manufacturer, wholesaler, retailer, or other person or
entity in this state that sells, transfers, or otherwise furnishes a
substance specified in subdivision (a) to a person or business
entity in this state or any other state shall, not less than 21 days
prior to delivery of the substance, submit a report of the
transaction, which includes the identification information specified
in subdivision (c), to the Department of Justice. The Department of
Justice may authorize the submission of the reports on a monthly
basis with respect to repeated, regular transactions between the
furnisher and the recipient involving the substance or substances if
the Department of Justice determines that a pattern of regular supply
of the substance or substances exists between the manufacturer,
wholesaler, retailer, or other person or entity that sells,
transfers, or otherwise furnishes the substance or substances and the
recipient of the substance or substances, and the recipient has
established a record of utilization of the substance or substances
for lawful purposes.
(2) The person selling, transferring, or otherwise furnishing any
substance specified in subdivision (a) shall affix his or her
signature or otherwise identify himself or herself as a witness to
the identification of the purchaser or purchasing individual, and
shall, if a common carrier is used, maintain a manifest of the
delivery to the purchaser for three years.
(e) This section shall not apply to any of the following:
(1) Any pharmacist or other authorized person who sells or
furnishes a substance upon the prescription of a physician, dentist,
podiatrist, or veterinarian.
(2) Any physician, dentist, podiatrist, or veterinarian who
administers or furnishes a substance to his or her patients.
(3) Any manufacturer or wholesaler licensed by the California
State Board of Pharmacy that sells, transfers, or otherwise furnishes
a substance to a licensed pharmacy, physician, dentist, podiatrist,
or veterinarian, or a retail distributor as defined in subdivision
(h), provided that the manufacturer or wholesaler submits records of
any suspicious sales or transfers as determined by the Department of
Justice.
(4) Any analytical research facility that is registered with the
federal Drug Enforcement Administration of the United States
Department of Justice.
(5) A state-licensed health care facility that administers or
furnishes a substance to its patients.
(6) (A) Any sale, transfer, furnishing, or receipt of any product
that contains ephedrine, pseudoephedrine, norpseudoephedrine, or
phenylpropanolamine and which is lawfully sold, transferred, or
furnished over the counter without a prescription pursuant to the
Federal Food, Drug, and Cosmetic Act (21 U.S.C. Sec. 301 et seq.) or
regulations adopted thereunder. However, this section shall apply to
preparations in solid or liquid dosage form, except pediatric liquid
forms, as defined, containing ephedrine, pseudoephedrine,
norpseudoephedrine, or phenylpropanolamine where the individual
transaction involves more than three packages or nine grams of
ephedrine, pseudoephedrine, norpseudoephedrine, or
phenylpropanolamine.
(B) Any ephedrine, pseudoephedrine, norpseudoephedrine, or
phenylpropanolamine product subsequently removed from exemption
pursuant to Section 814 of Title 21 of the United States Code shall
similarly no longer be exempt from any state reporting or permitting
requirement, unless otherwise reinstated pursuant to subsection (d)
of Section 814 of Title 21 of the United States Code as an exempt
product.
(7) The sale, transfer, furnishing, or receipt of any betadine or
povidone solution with an iodine content not exceeding 1 percent in
containers of eight ounces or less, or any tincture of iodine not
exceeding 2 percent in containers of one ounce or less, that is sold
over the counter.
(8) Any transfer of a substance specified in subdivision (a) for
purposes of lawful disposal as waste.
(f) (1) Any person specified in subdivision (a) or (d) who does
not submit a report as required by that subdivision or who knowingly
submits a report with false or fictitious information shall be
punished by imprisonment in a county jail not exceeding six months,
by a fine not exceeding five thousand dollars ($5,000), or by both
the fine and imprisonment.
(2) Any person specified in subdivision (a) or (d) who has
previously been convicted of a violation of paragraph (1) shall, upon
a subsequent conviction thereof, be punished by imprisonment in the
state prison, or by imprisonment in a county jail not exceeding one
year, by a fine not exceeding one hundred thousand dollars
($100,000), or by both the fine and imprisonment.
(g) (1) Except as otherwise provided in subparagraph (A) of
paragraph (6) of subdivision (e), it is unlawful for any
manufacturer, wholesaler, retailer, or other person to sell,
transfer, or otherwise furnish a substance specified in subdivision
(a) to a person under 18 years of age.
(2) Except as otherwise provided in subparagraph (A) of paragraph
(6) of subdivision (e), it is unlawful for any person under 18 years
of age to possess a substance specified in subdivision (a).
(3) Notwithstanding any other law, it is unlawful for any retail
distributor to (A) sell in a single transaction more than three
packages of a product that he or she knows to contain ephedrine,
pseudoephedrine, norpseudoephedrine, or phenylpropanolamine, or (B)
knowingly sell more than nine grams of ephedrine, pseudoephedrine,
norpseudoephedrine, or phenylpropanolamine, other than pediatric
liquids as defined. Except as otherwise provided in this section, the
three package per transaction limitation or nine gram per
transaction limitation imposed by this paragraph shall apply to any
product that is lawfully sold, transferred, or furnished over the
counter without a prescription pursuant to the Federal Food, Drug,
and Cosmetic Act (21 U.S.C. Sec. 301 et seq.), or regulations adopted
thereunder, unless exempted from the requirements of the federal
Controlled Substances Act (21 U.S.C. Sec. 801 et seq.) by the federal
Drug Enforcement Administration pursuant to Section 814 of Title 21
of the United States Code.
(4) (A) A first violation of this subdivision is a misdemeanor.
(B) Any person who has previously been convicted of a violation of
this subdivision shall, upon a subsequent conviction thereof, be
punished by imprisonment in a county jail not exceeding one year, by
a fine not exceeding ten thousand dollars ($10,000), or by both the
fine and imprisonment.
(h) For the purposes of this article, the following terms have the
following meanings:
(1) "Drug store" is any entity described in Code 5912 of the
Standard Industrial Classification (SIC) Manual published by the
United States Office of Management and Budget, 1987 edition.
(2) "General merchandise store" is any entity described in Codes
5311 to 5399, inclusive, and Code 5499 of the Standard Industrial
Classification (SIC) Manual published by the United States Office of
Management and Budget, 1987 edition.
(3) "Grocery store" is any entity described in Code 5411 of the
Standard Industrial Classification (SIC) Manual published by the
United States Office of Management and Budget, 1987 edition.
(4) "Pediatric liquid" means a nonencapsulated liquid whose unit
measure according to product labeling is stated in milligrams,
ounces, or other similar measure. In no instance shall the dosage
units exceed 15 milligrams of phenylpropanolamine or pseudoephedrine
per five milliliters of liquid product, except for liquid products
primarily intended for administration to children under two years of
age for which the recommended dosage unit does not exceed two
milliliters and the total package content does not exceed one fluid
ounce.
(5) "Retail distributor" means a grocery store, general
merchandise store, drugstore, or other related entity, the activities
of which, as a distributor of ephedrine, pseudoephedrine,
norpseudoephedrine, or phenylpropanolamine products, are limited
exclusively to the sale of ephedrine, pseudoephedrine,
norpseudoephedrine, or phenylpropanolamine products for personal use
both in number of sales and volume of sales, either directly to
walk-in customers or in face-to-face transactions by direct sales.
"Retail distributor" includes an entity that makes a direct sale, but
does not include the parent company of that entity if the company is
not involved in direct sales regulated by this article.
(6) "Sale for personal use" means the sale in a single transaction
to an individual customer for a legitimate medical use of a product
containing ephedrine, pseudoephedrine, norpseudoephedrine, or
phenylpropanolamine in dosages at or below that specified in
paragraph (3) of subdivision (g). "Sale for personal use" also
includes the sale of those products to employers to be dispensed to
employees from first aid kits or medicine chests.
(i) It is the intent of the Legislature that this section shall
preempt all local ordinances or regulations governing the sale by a
retail distributor of over-the-counter products containing ephedrine,
pseudoephedrine, norpseudoephedrine, or phenylpropanolamine.
(j) This section shall become operative on January 1, 2018.
SEC. 3. Section 11100.02 is added to the Health and Safety Code,
to read:
11100.02. (a) Notwithstanding any other law, it is unlawful for
any retail distributor to knowingly do the following, except pursuant
to a valid prescription from a licensed practitioner with
prescriptive authority:
(1) To sell or distribute to the same purchaser within any 30-day
period more than nine grams, or within any day more than 3.6 grams,
of ephedrine base, pseudoephedrine base, norpseudoephedrine base, or
phenylpropanolamine base contained in any product that is lawfully
sold, transferred, or furnished over the counter without a
prescription pursuant to the Federal Food, Drug, and Cosmetic Act (21
U.S.C. Sec. 301 et seq.), or regulations adopted thereunder, unless
exempted from the requirements of the federal Controlled Substances
Act (21 U.S.C. Sec. 801 et seq.) by the federal Drug Enforcement
Administration pursuant to Section 814 of Title 21 of the United
States Code.
(2) To sell or distribute any ephedrine, pseudoephedrine,
norpseudoephedrine, or phenylpropanolamine to a person whose
information has generated an alert as described in paragraph (3) of
subdivision (d) regarding that sale.
(3) To sell or distribute to any purchaser a nonprescription
product containing any amount of ephedrine, pseudoephedrine,
norpseudoephedrine, or phenylpropanolamine, except under the
following conditions:
(A) The purchaser shall produce valid government-issued photo
identification.
(B) The purchaser shall sign a written or electronic log showing
the following:
(i) The date and time of the transaction.
(ii) The identification number presented.
(iii) The agency issuing the identification and the type of
identification issued.
(iv) The name, date of birth, and address of the purchaser.
(v) The amount of ephedrine base, pseudoephedrine base,
norpseudoephedrine base, or phenylpropanolamine base contained in the
material, compound, mixture, or preparation sold.
(b) The retail distributor shall store any product containing any
amount of ephedrine, pseudoephedrine, norpseudoephedrine, or
phenylpropanolamine either behind the counter or in a locked cabinet
so that the customer does not have access to the product.
(c) (1) To facilitate the monitoring of the sales of
nonprescription products containing ephedrine, pseudoephedrine,
norpseudoephedrine, or phenylpropanolamine, the retail distributor
shall record all of the following information at the point of sale
regarding the proposed transaction for the purpose of complying with
this section or the federal Combat Methamphetamine Epidemic Act of
2005, or any regulation adopted pursuant to this section or that act,
and for no other purpose:
(A) The date and time of the transaction.
(B) The identification number of the purchaser, issuing agency of
the identification, and the type of identification used.
(C) The name, date of birth, and address of the purchaser verified
through a photo identification of the purchaser.
(D) The name, quantity of packages, and total gram weight of
ephedrine base, pseudoephedrine base, norpseudoephedrine base, or
phenylpropanolamine base contained in a product or products
purchased, received, or otherwise acquired.
(E) The name or initials of the person making the sale.
(2) Beginning January 1, 2013 On and after
July 1, 2012 , the retail distributor shall transmit the
information immediately to the National Precursor Log Exchange
(NPLEx) administered by the National Association of Drug Diversion
Investigators (NADDI) for purposes of determining whether the
proposed sale would violate this section and therefore may not
proceed, provided that the NPLEx system is available to retailers in
the state without a charge for accessing the system. The transaction
information shall not be accessed, stored, or used by the retail
distributor for any purpose other than to meet the requirements set
forth in this section or to comply with the provisions of the federal
Combat Methamphetamine Epidemic Act of 2005, or any regulation
adopted pursuant to this section or that act. The retail distributor
shall not maintain a separate copy of the transaction information
except as required by the federal Combat Methamphetamine Epidemic Act
of 2005.
(3) (A) A retail distributor shall provide notice electronically,
in writing, or by signage to purchasers that the information
collected pursuant to the federal Combat Methamphetamine Epidemic Act
of 2005 and this section shall be provided to law enforcement for
purposes of determining the legality of a proposed sale.
(B) The Legislature finds that it is necessary for probable cause
to be demonstrated to trigger an investigation in connection with an
individual whose requested purchase is denied by the system a single
time.
(4) This subdivision shall not be construed to require a retail
distributor to maintain state-required records relating to the sale
of products containing ephedrine, pseudoephedrine,
norpseudoephedrine, or phenylpropanolamine in a separate location or
log from records required by federal law to be kept with respect to
those products.
(5) The recording requirements specified in this subdivision shall
not apply to the sale of a single package containing not more than
60 milligrams of pseudoephedrine, consistent with the federal Combat
Methamphetamine Epidemic Act of 2005.
(6) If a retail distributor experiences mechanical or electronic
failure of the system and is unable to comply with the recording
requirements of this subdivision, the retail distributor shall
maintain the required records in a written log or an alternative
electronic recordkeeping mechanism until the retail distributor is
able to comply with the recording requirements of this subdivision.
(d) (1) Provided that the department executes a memorandum of
understanding (MOU) with NADDI governing access, pursuant to this
subdivision, NADDI shall forward California transaction records in
NPLEx to the Department of Justice weekly and provide real-time
access to NPLEx information through the NPLEx online portal to law
enforcement in the state as authorized by the department.
(2) The system shall allow retail distributors of products
containing ephedrine, pseudoephedrine, norpseudoephedrine, or
phenylpropanolamine to enter into the database the information
specified in subdivision (d) (c)
regarding the proposed sale of those products.
(3) The system shall be capable of providing the retail
distributor with an immediate real-time alert any time any provision
of this section is being violated by a proposed sale.
(4) The MOU shall state that no party to the MOU nor any entity
under contract to provide the electronic authorization and monitoring
system shall be authorized to use the information contained in the
system for any purpose other than those set forth in this section,
the federal Combat Methamphetamine Epidemic Act of 2005, or any
regulation adopted pursuant to this section or that act. However, the
system operator shall be authorized to analyze the information for
the sole purpose of assessing and improving the performance and
efficacy of the system. In addition, the MOU shall require that any
retail distributor's access to the electronic authorization and
monitoring system's database is limited solely to records of sales
transactions made by that retail distributor, which access shall be
solely for purposes of complying with the federal Combat
Methamphetamine Epidemic Act of 2005 or this section, or to respond
to a duly authorized law enforcement request or court order for
information collected under that act or this section.
(5) The system's security program shall comply with the security
standards for the Criminal Justice Information System of the Federal
Bureau of Investigation and may be audited once a year by the
department.
(6) A retail distributor's use of the system shall be subject to
Section 56.10 56.101 of the Civil Code.
A retail distributor shall not maintain any records collected under
this system for longer than two years, or as otherwise required by
the federal Combat Methamphetamine Epidemic Act of 2005.
(7) Law enforcement access to the system shall be recorded by
means of a unique access code for each individual accessing the
system. Each user's history shall be maintained and may be audited by
the department.
(8) The department may submit recommendations to NADDI regarding
system changes to assist in identifying false identification cards.
(e) The State Board of Equalization shall notify all retailers
about the requirement to submit transactions to NPLEx no later than
September April 1, 2012.
(f) This section shall not apply to a health care practitioner
with prescriptive authority who is currently licensed in this state.
(g) (1) A first violation of this section is a misdemeanor.
(2) Any person who has previously been convicted of a violation of
this section shall, upon a subsequent conviction thereof, be
punished by imprisonment in a county jail not exceeding one year, by
a fine not exceeding ten thousand dollars ($10,000), or by both the
fine and imprisonment.
(h) For the purposes of this section, the following terms have the
following meanings:
(1) "Department" means the Department of Justice.
(2) "Drug store" is any entity described in Code 5912 of the
Standard Industrial Classification (SIC) Manual published by the
United States Office of Management and Budget, 1987 edition.
(3) "General merchandise store" is any entity described in Codes
5311 to 5399, inclusive, and Code 5499 of the Standard Industrial
Classification (SIC) Manual published by the United States Office of
Management and Budget, 1987 edition.
(4) "Grocery store" is any entity described in Code 5411 of the
Standard Industrial Classification (SIC) Manual published by the
United States Office of Management and Budget, 1987 edition.
(5) "Retail distributor" means a grocery store, general
merchandise store, drugstore, or other related entity, the activities
of which, as a distributor of ephedrine, pseudoephedrine,
norpseudoephedrine, or phenylpropanolamine products, are limited
exclusively to the sale of ephedrine, pseudoephedrine,
norpseudoephedrine, or phenylpropanolamine products for personal use
both in number of sales and volume of sales, either directly to
walk-in customers or in face-to-face transactions by direct sales.
"Retail distributor" includes an entity that makes a direct sale, but
does not include the parent company of that entity if the company is
not involved in direct sales regulated by this article.
(6) "Sale for personal use" means the sale in a single transaction
to an individual customer for a legitimate medical use of a product
containing ephedrine, pseudoephedrine, norpseudoephedrine, or
phenylpropanolamine in amounts at or below that specified in
subdivision (a). "Sale for personal use" also includes the sale of
those products to employers to be dispensed to employees from first
aid kits or medicine chests.
(i) It is the intent of the Legislature that this section shall
preempt all local ordinances or regulations governing the sale by a
retail distributor of over-the-counter products containing ephedrine,
pseudoephedrine, norpseudoephedrine, or phenylpropanolamine.
(j) This section shall remain in effect only until January 1,
2018, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2018, deletes or extends
that date.
SEC. 4. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.