BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                            



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                                    THIRD READING


          Bill No:  AB 2603
          Author:   V. Manuel Pérez (D), et al.
          Amended:  7/1/14 in Senate
          Vote:     21

           
           SENATE PUBLIC SAFETY COMMITTEE  :  7-0, 6/24/14
          AYES:  Hancock, Anderson, De León, Knight, Liu, Mitchell,  
            Steinberg
           
          ASSEMBLY FLOOR  :  79-0, 5/28/14 - See last page for vote


           SUBJECT  :    Controlled substances:  permissive lawful possession

           SOURCE  :     California Attorneys for Criminal Justice


           DIGEST  :    This bill provides that it is lawful for a person to  
          possess a prescription controlled substance with the authority  
          of the person for whom the prescription was issued, as  
          specified.

           ANALYSIS  :    

          Existing law:

           1. Classifies controlled substances in five schedules according  
             to their danger and potential for abuse.  Schedule I  
             controlled substances have the greatest restrictions and  
             penalties, including prohibiting the prescribing of a  
             Schedule I controlled substance.  

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           2. Makes it a crime to possess specified controlled substances  
             without a valid prescription from a licensed physician,  
             dentist, podiatrist, or veterinarian.  

           3. Makes it a crime to transport for sale specified controlled  
             substances unless upon the written prescription of a licensed  
             physician, dentist, podiatrist, or veterinarian.  

           4. Defines "prescription" for purposes of the Controlled  
             Substances Act (CSA), as "an oral order or electronic  
             transmission prescription for a controlled substance given  
             individually for the person(s) for whom prescribed, directly  
             from the prescriber to the furnisher or indirectly by means  
             of a written order of the prescriber."  

           5. Defines "ultimate user" for purposes of the CSA, as "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."  

           6. Defines "agent" for purposes of the CSA, as "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."  

           7. Provides that a dangerous drug sold or delivered to a person  
             within California shall be transferred, sold or delivered  
             only to:

              A.    An entity licensed by the Pharmacy Board; 
              B.    A manufacturer; 
              C.    An ultimate user; or 
              D.    The ultimate user's agent.  

           1. States that no person shall possess any controlled  
             substance, except that furnished to a person upon the  
             prescription of a physician, dentist, podiatrist,  
             veterinarian, or other specified persons in the medical  
             field.  

           2. States that no prescription for a controlled substance shall  
             be furnished to any person unknown and unable to properly  

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             establish his/her identity.  

           3. Allows the Pharmacy Board to establish procedures to prevent  
             unauthorized persons from receiving prescription drugs  
             furnished to a patient or a representative of the patient.  


          This bill provides that it is not unlawful for a person other  
          than the prescription holder to possess a prescribed controlled  
          substance under the following circumstances:

           1. The possession of the prescribed controlled substance is at  
             the direction or with the express authorization of the  
             prescription holder; and

           2. The sole purpose of the possession is to deliver the  
             prescription to the prescription holder for its prescribed  
             use or to discard the substance in a lawful manner.

           Comments
           
          According to the author:

            Relevant provisions in the Business and Professions Code  
            regulating pharmacies allow a prescription holder's "agent" or  
            "representative" to pick up the prescription and deliver it to  
            the prescription holder.  This agent is usually, and very  
            often, a family member.  This is especially likely where the  
            prescription holder is too sick or frail to go the pharmacy.   
            The Board of Pharmacy also may promulgate regulations "to  
            prevent unauthorized persons from receiving drugs furnished to  
            a patient or representative of the patient."  ? This appears  
            to establish a clear legislative intent that a representative  
            or agent of a patient - such as a family member or friend -  
            may pick up a prescription and deliver it to the patient.

            However, the Health and Safety Code provisions on controlled  
            substances appear to criminalize possession of a controlled  
            substance by any person other than the holder of the  
            prescription.  The controlled substance statutes do not  
            include an exception or privilege for possession for the sole  
            purpose of delivering a drug to the holder of a valid  
            prescription.  A recent decision of the Court of Appeal - that  
            has  been depublished by order of the Supreme Court -  

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            essentially held that the Health and Safety Code controlled  
            substance statutes trump the Business and Professions Code  
            provisions that authorize an agent or representative of a  
            patient to deliver a prescription to the holder of the  
            prescription.  While the appellate case no longer is valid  
            law, it still illustrates a problematic conflict in the law.  

            AB 2603 addresses the conflict or inconsistency between the  
            Business and Professions Code and the Health and Safety Code.   
            AB 2603 clarifies and establishes the prescription defense in  
            the Health and Safety Code.  This bill will clarify that a  
            family member or friend will not inadvertently violate the law  
            by picking up and delivering a prescription to the  
            prescription holder.  This is especially important to ensure  
            that the ill, elderly and residents of remote areas can obtain  
            the medications they need.  

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  No   Local:  
           No

           SUPPORT  :   (Verified  7/1/14)

          California Attorneys for Criminal Justice (source)
          California Association for Nursing Home Reform
          California Public Defenders Association
          California Senior Legislature
          Congress of California Seniors
          Consumer Federation of California
          Drug Policy Alliance
          Legal Services for Prisoners with Children
          Taxpayers for Improving Public Safety

           ASSEMBLY FLOOR  :  79-0, 5/28/14
          AYES:  Achadjian, Alejo, Allen, Ammiano, Bigelow, Bloom,  
            Bocanegra, Bonilla, Bonta, Bradford, Brown, Buchanan, Ian  
            Calderon, Campos, Chau, Chávez, Chesbro, Conway, Cooley,  
            Dababneh, Dahle, Daly, Dickinson, Donnelly, Eggman, Fong, Fox,  
            Frazier, Beth Gaines, Garcia, Gatto, Gomez, Gonzalez, Gordon,  
            Gorell, Gray, Grove, Hagman, Hall, Harkey, Roger Hernández,  
            Holden, Jones, Jones-Sawyer, Levine, Linder, Logue, Lowenthal,  
            Maienschein, Mansoor, Medina, Melendez, Mullin, Muratsuchi,  
            Nazarian, Nestande, Olsen, Pan, Patterson, Perea, John A.  
            Pérez, V. Manuel Pérez, Quirk, Quirk-Silva, Rendon,  
            Ridley-Thomas, Rodriguez, Salas, Skinner, Stone, Ting, Wagner,  

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            Waldron, Weber, Wieckowski, Wilk, Williams, Yamada, Atkins
          NO VOTE RECORDED:  Vacancy


          JG:k  7/2/14   Senate Floor Analyses 

                           SUPPORT/OPPOSITION:  SEE ABOVE

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