BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
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SB 514 (Simitian)
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As Amended April 25, 2011
Hearing date: May 3, 2011
Health & Safety Code
JM:mc
DEXTROMETHORPHAN (DXM) COUGH SUPPRESSANT:
INFRACTION FOR OVER THE COUNTER SALE TO MINORS
HISTORY
Source: Author
Prior Legislation: AB 1853 (Simitian) - 2004, died on Assembly
Inactive File
SB 307 (Simitian) - 2006, died in Senate
Support: DXM: 18 and Over-the-Counter Coalition; California
Peace Officers Association; California Police Chiefs
Association; Palo Alto Police Officers' Association;
Palo Alto Police Department; Consumer Healthcare
Products Association
Opposition:None known
KEY ISSUES
SHOULD IT BE AN INFRACTION FOR ANY PERSON, CORPORATION OR
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RETAILER TO PROVIDE DEXTROMETHORPHAN (DXM) TO A MINOR IN AN
OVER-THE-COUNTER SALE WITHOUT A PRESCRIPTION?
SHOULD A DEFENDANT'S FAILURE TO REQUIRE AND OBTAIN BONA FIDE
IDENTIFICATION FROM A PURCHASER WHO DID NOT APPEAR TO BE OVER 25
YEARS OF AGE BE PRIMA FACIE EVIDENCE OF THE CRIME?
(CONTINUED)
SHOULD PROOF THAT THE SELLER DEMANDED AND REASONABLY RELIED ON
APPARENTLY VALID PROOF OF THE PURCHASER'S AGE BE A DEFENSE TO THE
CRIME PROPOSED BY THIS BILL, AS SPECIFIED?
SHOULD SELLERS OF DXM PRODUCTS BE REQUIRED TO USE, IF FEASIBLE, A
CASH REGISTER EQUIPPED WITH A FEATURE DIRECTING CLERKS TO VERIFY THE
AGE OF PURCHASERS, AS SPECIFIED?
PURPOSE
The purposes of this bill are to 1) enact a new crime,
punishable as an infraction, for any person, retailer,
corporation or retailer to willfully and knowingly provide DXM
to a minor in an over-the-counter sale without a prescription,
as specified; 2) presume that any transaction in which the
defendant failed to check the identification of a person who did
not appear to be at least 25 years of age violates this new
crime; 3) allow an affirmative defense where the seller demanded
and reasonably relied on apparently valid proof of the
purchaser's age, as specified; 4) provide that a retail clerk is
not criminally or civilly liable unless the clerk was a willful
participant in an ongoing criminal conspiracy to violate this
new crime; and 5) require a seller of over-the-counter DXM to
use, if feasible, a cash register equipped with an age
verification feature, as specified.
Existing law specifies that an infraction is not punishable by
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imprisonment. A person charged with an infraction is not
allowed a jury trial. Indigent infraction defendants are not
entitled to counsel at public expense. (Pen. Code § 19.6.)
This bill makes it an infraction for any person, corporation or
retailer to sell a substance containing dimenhydrinate or
dextromethorphan (DXM), as defined, over-the-counter without a
prescription to a person under the age of 18.
This bill provides that a violation is presumed if the seller
does not obtain proof of age, as defined, unless the purchaser
appears to be over the age of 25.
This bill provides that "proof of age" means a photo
identification that includes the person's name, description and
picture that was issued by a government entity, as specified.
This bill includes the following affirmative defense:
The seller required and obtained identification from
the purchaser establishing that he or she was an adult
proof of majority from the purchaser.
The seller reasonably relied on the identification.
This bill provides that a retail clerk who fails to require and
obtain proof of age from a DXM purchaser shall not be guilty of
an infraction or subject to a civil penalty.
This bill provides that a clerk's immunity from liability does
not apply if the clerk is participating in an ongoing criminal
conspiracy to violate the prohibition created by this bill.
This bill provides that a seller of DXM shall use, if feasible,
a cash register with a feature directing the person selling the
product to obtain proof that purchaser is at least 18 years of
age.
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RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
As these cases have progressed, prison conditions have
continued to be assailed, and the scrutiny of the federal courts
over California's prisons has intensified.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On Monday, June 14, 2010, the U.S. Supreme Court agreed to hear
the state's appeal of this order and, on Tuesday, November 30,
2010, the Court heard oral arguments. A decision is expected as
early as this spring.
In response to the unresolved prison capacity crisis, in early
2007 the Senate Committee on Public Safety began holding
legislative proposals which could further exacerbate prison
overcrowding through new or expanded felony prosecutions.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
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According to the author:
Ingesting too much cold medicine can be as hazardous
as drinking too much alcohol. And it is cheap , easy
and legal for children to obtain. The California
Poison Control System reports that DXM abuse calls
have increased more than 850 percent in the last ten
years. This problem is serious and widespread.
One in ten teenagers says they've used DXM to get
high-making it more popular than LSD, cocaine, ecstasy
or meth. The fact that DXM is legal and readily
available over-the-counter suggests to young people
that DXM is safe. Indeed, that false sense of
security has been identified as a contributing factor
in abuse. Age specific limitations will help
communicate to teens and their parents that there are
serious consequences associated with inappropriate
use. (Emphasis in original.)
2. Development of Use of DXM and Dimenhydrinate for Intoxication
According to the Erowid Website (an information website about
psychoactive drugs), the following timeline describes the
development and use of DXM:
-----------------------------------------------------------------
|1958 |DXM approved by FDA as cough |
| |suppressant |
|--------------------------------+--------------------------------|
|1960s-1970s |DXM available over-the-counter |
| |in tablet form under the brand |
| |name Romilar. Romilar is |
| |intended as a replacement for |
| |codeine cough syrup. |
|--------------------------------+--------------------------------|
|1973 |Romilar tablets are removed |
| |from the market because of |
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| |recreational use. |
|--------------------------------+--------------------------------|
|1977 |Cough syrups containing DXM are |
| |introduced. It is understood |
| |that recreational use will be |
| |limited because of the |
| |unpleasant nature of drinking |
| |large volumes of syrup. |
|--------------------------------+--------------------------------|
|1980s |Recreational use of DXM in the |
| |"punk" subculture. |
|--------------------------------+--------------------------------|
|1990s through present |Recreational use |
| |spreads. |
| | |
-----------------------------------------------------------------
DXM often appears in formulations with other drugs. Some of
these other drugs can be harmful when taken in high doses,
particularly in combination with DXM and other drugs. These
other medications and chemicals can be particularly harmful for
persons with various medical conditions.
3. Combination of Strict Liability - Business Owner Liable if
Clerk Sells DXM to a Minor without Owner's Knowledge - and an
Affirmative Defense - Business Owner not Guilty if Clerk
Checked Purchaser's Identification
The most basic definition of a crime is the combination of a
prohibited act done with a specified intention or knowledge.
For example, theft is the taking of another person's property
with the intent to permanently deprive the owner of the
property. Receiving stolen property involves accepting property
with the knowledge that it was stolen.
Crimes that do not involve criminal intent or knowledge are
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usually described as strict liability crimes. Strict liability
crimes generally concern health and welfare matters -
contaminated food, for example. Because strict liability crimes
include no element of intent, knowledge or even criminal
negligence, strict liability crimes are typically no more than
misdemeanors, often with relatively small fines and no jail
time. Strict liability crimes are largely regulatory. (In re
Jennings (2004) 34 Cal.4th at pp. 266-269.)
This bill would provide that the owner or operator of a business
commits an infraction where a clerk sold DXM to a minor, even
where the owner had no knowledge of the transaction. As such,
it could be argued that the bill is equivalent to a strict
liability crime as to the retailer or the corporate owner of a
business.
However, the bill allows the retailer or corporate defendant to
avoid strict liability by proving that the clerk who sold the
product relied upon apparently valid identification. In this
way, the the bill arguably provides a strong incentive for
businesses to train clerks to not sell DXM to minors and to
always check identification if the purchaser appears to be no
older than 25.
UNDER THIS BILL, WOULD BUSINESS OWNERS HAVE A STRONG INCENTIVE
TO TRAIN CLERKS TO NOT SELL DXM TO MINORS?
4. No Criminal or Civil Liability for Clerks; but Clerks Could be
Disciplined or Fired
The bill specifically provides that retail clerks cannot be
prosecuted or subject to civil liability for selling a DXM
product to a minor. However, the bill was amended on April 25,
2011, to strike a provision stating that a clerk could not be
disciplined for selling DXM to a minor. As such, it appears
that a store owner or manager could fire or otherwise discipline
a clerk who sold DXM to a minor and thus subjected the store
owner or corporation to prosecution for an infraction.
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SHOULD A CLERK WHO SELLS DXM TO A MINOR BE IMMUNE FROM
PROSECUTION UNDER THIS BILL, BUT OTHERWISE SUBJECT TO BEING
FIRED OR DISCIPLINED BY A STORE OWNER?
5. Argument in Support
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The DXM: 18 and Over-the-Counter Coalition argues in support:
Dextromethorphan (DXM) is an active ingredient in more
than 140 cough and cold medicines sold
over-the-counter in grocery stores, pharmacies and
other retail outlets. When taken as recommended,
products containing DXM are safe and effective in
suppressing coughs. However, 5% of American teens (an
estimated 400,000 in California) endanger their lives
by abusing DXM through consuming medicines in
excessive doses to get high. Abusers, who ingest 8-20
times the recommended therapeutic dose, risk serious
complications that can include seizures, brain damage,
liver damage and death in addition to the dangers
associated with mental disassociation.
Teens who abuse DXM believe it's a "safe high" because
it's legal and easily available in the same stores
that sell gum and soda. Street names like Skittles,
Velvet and Red-Devils imply light-hearted fun. Minors
are not aware that the dangers multiply when DXM is
abused with alcohol, prescription drugs or narcotics.
Consequently, between 2004 and 2007, emergency room
visits associated with DXM abuse rose 70%, raising
concerns about public safety and associated healthcare
costs. The solution is that proposed by SB 514:
Prohibit the sale, without a prescription, of over the
counter medicines containing Dextromethorphan to a
minor.
6. Concerns About the Bill From Various Groups
A number of groups have provided the Committee with letters
commenting on the bill without taking a position on the bill.
For example, the California Pharmacists Association requests
that the bill be amended to allow over-the-counter sale or
dispensing of DXM to a minor that is "pharmacy-directed."
Pharmacy-directed would mean that a minor would be directed to
consult with a pharmacist at the time of sale. The association
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notes DXM is an effective cough suppressant.
The California District Attorneys Association would support the
bill if the immunity from liability given to retail clerks is
amended out of the bill. CDAA argues that providing such
immunity severely limits the effectiveness of the bill.
The California Grocers Association appreciates that the author
removed a provision barring employers from disciplining clerks
who sell DXM to minors. That association was strongly opposed
to that provision. However, the association notes that very
many products contain DXM and that grocers would have difficulty
complying with the prohibition on sales to minors.
7. The Amount of the Infraction Fine is Not Stated in the Bill
It is often assumed that an infraction, in the absence of a more
specific fine, is punishable by a maximum fine of $250. That
assumption appears to flow from the provisions of Penal Code
Section 19.8, which state that the offenses listed in that
section, when prosecuted as infractions, are punishable by a
maximum fine of $250. However, a close reading of Section 19.8
indicates that the section does not prescribe a standard or
default fine for every infraction for which a specific fine or
maximum fine is not stated.
The author or Committee may wish to amend this bill to state the
maximum fine applicable to a violation of the prohibition of
selling a DXM product to a minor. The fine can be set at a
maximum of $250, as is the case with most infractions in the
Penal Code.
SHOULD THIS BILL BE AMENDED TO SPECIFICALLY STATE THE MAXIMUM
FINE, SUCH AS $250, THAT MAY BE IMPOSED FOR THE SALE OF DXM TO A
MINOR?
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