BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
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SB 506 (Hill)
As Introduced February 21, 2013
Hearing date: April 9, 2013
Health and Safety Code
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PSEUDOEPHEDRINE AND RELATED PRODUCTS:
SALES LIMITS AND ELECTRONIC TRACKING OF SALES
HISTORY
Source: Consumer Healthcare Products Association
Prior Legislation: AB 1455 (Hill) - 2010, held in Senate
Judiciary
SB 484 (Wright) - 2009, failed passage in Assembly
Public Safety SB 276
(Vasconcellos) - Ch. 276, Stats. 2003
AB 154 (La Suer) - Ch. 13, Stats. 2001
AB 162 (Runner) - Ch. 978, Stats. 1999
Support: California State Sheriffs' Association; California
Manufacturers and Technology Association; Rickitt
Benckiser; BIOCOM; Valley Industry & Commerce
Association; Rite Aid; California Retailers
Associations; National Association of Chain Drug
Stores; California Pharmacists Association; Johnson &
Johnson; California District Attorneys Association;
Peace Officers Research Association of California;
California Chamber of Commerce; California Healthcare
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Institute; Shasta County Sheriff
Opposition:California Narcotics Officers Association; Electronic
Frontier Foundation; American Civil Liberties Union
(unless amended); Privacy Rights Clearinghouse (unless
amended)
KEY ISSUE
SHOULD SEVERAL CHANGES BE MADE TO HOW SALES OF PSEUDOEPHEDRINE ARE
MADE IN CALIFORNIA, INCLUDING REQUIRING THAT THESE SALES BE
MONITORED ELECTRONICALLY, AS SPECIFIED?
PURPOSE
The purposes of this bill are to 1) specifically provide in
California law, as is the case under federal law, that retail
sales of pseudoephedrine and related products to a single
customer are limited to 3.6 grams per transaction and 9 grams in
any 30-day period; 2) require the purchaser to provide a valid
photo identification and sign a "written" or electronic log
reflecting the person's identity and the amount and date of the
purchase; 3) require retailers to record this information in the
National Precursor Log Exchange (NPLEx) electronic tracking
system and to inform purchasers that the information will be
provided to law enforcement to prevent illegal sales; 4) require
retailers in selling the product to determine through the
electronic system if a sale would violate the law; 5) forbid
sales that violate the gram weight limits and identification
requirement; 6) provide that when the Department of Justice
(DOJ) enters into memorandum of understanding with the National
Association of Drug Diversion Investigators (NADDI), NADDI will
forward system data to DOJ weekly and provide law enforcement
with real-time access to NPLEx; 7) provide that neither the
state nor any state agency shall bear any costs for the
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development, installation or maintenance of the system; 8)
provide that the state shall impose no fee on a retail
distributor or manufacturer to defray costs for oversight or use
of the system; 9) provide that pseudoephedrine sales data shall
be subject to specified confidentiality rules for medical
records; 10) provide that retail distributors and the NPLEx
vendor shall maintain the data no longer than two years and
destroy the records at that time; and 11) state legislative
findings that a law enforcement investigation from a single
transaction in violation of purchase limits shall be supported
by probable cause.
Existing law , with specified and detailed exceptions, prohibits
disclosure of medical information without the authorization of
the patient. Medical information shall be disclosed pursuant to
a court order or a warrant issued to a law enforcement agency.
Other specific exceptions are enumerated. (Civ. Code � 56.10.)
Existing law provides that medical information can be disclosed
"when otherwise specifically required by law." (Civ. Code �
56.10, subd. (b)(9).)
Existing provisions of the California Constitution state that
all people have inalienable rights, including the right to
pursue and obtain privacy. (Cal. Const. Art. I, � 1.)
Existing law classifies controlled substances in five schedules
according to their dangerousness and potential for abuse.
(Health & Saf. Code �� 11054-11058.)
Existing law includes the CURES (Controlled Substance
Utilization Review and Evaluation System) system to provide for
the electronic monitoring of the prescribing and dispensing of
Schedule II, III and IV controlled substances. CURES provides
for the electronic transmission of Schedule II, III and IV
prescription data to the Department of Justice (DOJ) at the time
prescriptions are dispensed. (Health & Saf. Code � 11165.)
Existing law provides that pharmacists, in filling a controlled
substance prescription, shall provide to DOJ the patient's name,
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date of birth, the name, form, strength and quantity of the
drug, and the pharmacy name, pharmacy number and the prescribing
physician information. (Health & Saf. Code � 11165, subd. (d).)
Existing law provides that a licensed health care practitioner
eligible to prescribe Schedule II, III or IV controlled
substances, or a pharmacist, may make a written request to the
DOJ for the history of controlled substances dispensed to an
individual based on the data in CURES. (Health & Saf. Code �
11165.1, subd. (a).)
Existing law provides that the DOJ may initiate the referral of
the history controlled substances dispensed to an individual,
based on the CURES data, to licensed health care practitioners
and pharmacists, as specified. (Health & Saf. Code � 11165.1,
subd. (b).)
Existing law provides that the history of controlled substances
dispensed to a patient based on CURES data that is received by a
practitioner or pharmacist shall be considered medical
information, as specified. (Health & Saf. Code � 11165.1, subd.
(c).)
Existing law provides that prescriptions for controlled
substances must be made on special security forms to prevent
copying or forgery of prescriptions. (Health & Saf. Code �
11162.1.)
Existing law requires practitioners other than pharmacists who
prescribe or administer a controlled substance classified in
Schedule II to make a record containing the name and address of
the patient, date, and the character, name, strength, and
quantity of the controlled substance prescribed, as well as the
pathology and purpose for which the controlled substance was
administered or prescribed. (Health & Saf. Code � 11190, subd.
(a)-(b).)
Existing law requires prescribers who are authorized to dispense
Schedule II, III or IV controlled substance in their office or
place of practice to record and maintain information for each
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such prescription that includes the patient's name, address,
gender, and date of birth, prescriber's license and license
number, federal controlled substance registration number, state
medical license number, NDC number of the controlled substance
dispensed, quantity dispensed, diagnosis code, if available, and
original date of dispensing. This information shall be provided
to DOJ on a monthly basis. (Health & Saf. Code � 11190 subd.
(c).)
Existing law includes a detailed regulatory scheme for the
production and distribution of specified chemicals that may be
precursors to controlled substances. (Health & Saf. Code
� 11100.)
Existing law provides that producers and users of precursor
chemicals (Health & Saf. Code � 11100) must obtain a permit from
DOJ. Applications for permits must include documentation of
legitimate uses for regulated chemicals. (Health & Saf. Code �
11106.)
Existing law provides that "[s]elling, transferring, or
otherwise furnishing or obtaining any [restricted] substance
specified in subdivision (a) of [Health & Saf. Code] Section
11100 without a permit is a misdemeanor or a felony." (Health &
Saf. Code � 11106, subd. (j).)
Existing law provides that any person or entity that sells or
transfers one of a list of specified chemical precursors,
including pseudoephedrine, must obtain the purchaser's proper
identification, as specified, and a letter of authorization from
the purchaser which includes the purchaser's business license
number or DEA registration, the address of the business and a
description of how the chemical is to be used. The information
must be retained "in a readily available manner" for three
years. (Health & Saf. Code � 11100, subd. (c).)
Existing law requires any person or entity that sells,
transfers, or otherwise furnishes a specified chemical
precursor to another person or entity must submit a report to
the DOJ, generally within 21 days, of all of each
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transaction. The report must include the identification
information about the purchaser. (Health & Saf. Code �
11100, subd. (d).)
Existing law provides that violation of restricted chemical
reporting requirements (for transferring or obtaining restricted
chemicals) is misdemeanor. A first-time violation is punishable
by a county jail term of up to 6 months, a fine of up to 5,000,
or both. A subsequent violation is an alternate
felony-misdemeanor, punishable by a prison term of 16 months,
two years or three years for a felony, a county jail term of up
to 1 year, a fine of up to $100,000, or both such fine and
imprisonment. (Health & Saf. Code � 11100, subd. (f).)
Existing law requires specified recording and tracking of
transactions involving laboratory glassware, apparatus and
chemical reagents where the value of the material exceeds $100.
The purchaser must present valid identification. The bill of
sale must be retained for 3 years, as specified. The document
must be presented to law enforcement upon request. A violation
of these provisions is a misdemeanor punishable by imprisonment
in a county jail not exceeding 6 months, by a fine not exceeding
$1,000, or both. (Health & Saf. Code � 11107.)
Existing law provides that it is unlawful for a retailer to (i)
sell in a single transaction more than three packages, or 9
grams, of a product that he or she knows to contain ephedrine,
pseudoephedrine, norpseudoephedrine, or phenylpropanolamine.
With specified exceptions, the three package-9 grams per
transaction limitation applies to any product lawfully furnished
over the counter pursuant to applicable federal law. This
offense is a misdemeanor, punishable by a county jail term of up
to 6 months, a fine of up to $1,000, or both. The penalty for a
subsequent conviction is a misdemeanor term of up to one year in
jail, a fine of up to $10,000, or both. (Health & Saf. Code �
11100, subd. (g)(4).)
Existing federal law includes the Health Insurance Portability
and Accountability Act of 1996 (HIPAA) which, subject to
specified exceptions and procedures, provides that medical
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information shall be confidential. (Pub. Law 104-191; 45 CFR
160, 164.)
Existing federal law (21 USC � 830 (e) and 844 (a)) - the Combat
Methamphetamine Epidemic Act (CMEA) - includes very detailed
restrictions and requirements the for retail sale of ephedrine,
pseudoephedrine, norpseudoephedrine or phenylpropanolamine.
These restrictions include, in part:
No more than 3.6 grams in a single transaction.
No more than 9 grams per customer in a one-month period.
If the drug is obtained through postal or similar
delivery, no more than 7.5 grams can be so obtained.
Seller must maintain a written or electronic logbook of
each sale, including the date of the transaction, the name
and address of the purchaser and the quantity sold.
The purchaser must present valid identification, as
specified, and the seller must verify the identification.
The purchaser must sign a paper or electronic logbook,
as specified.
The seller must maintain these documents, as specified.
Law enforcement shall have access to the information
pursuant to regulations adopted by the Department of
Justice.
Existing federal law provides the following penalties:
Violation of the 9 gram purchase limit is a misdemeanor.
Violation of record-keeping laws is a misdemeanor, with
specified exceptions.
Violation of the distribution limits is punishable by
imprisonment for up to five years (pursuant to the federal
sentencing guidelines).
Distribution of pseudoephedrine with knowledge that it
will be used to manufacture a controlled substance, or
intentional evasion of record keeping or reporting
requirements, is subject to imprisonment for up to 10
years, or up to 20 years, as specified. (21 USC � 841 (c)
and 844 (a).)
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Existing federal law includes an exception to the log book
recording of transactions in the case of a transaction that
involves a single package that contains not more than 60
milligrams<1> of pseudoephedrine. (21 USC � 841
(e)(1)(A)(iii).)
Existing federal law requires retailers to retain purchase
information for at least two years. (21 USC � 841 (v)(6).)
Existing federal regulations provide that to protect the privacy
of individuals who purchase scheduled listed chemical products,
the disclosure of information in logbooks under section 1314.15
is restricted as follows:
The information shall be disclosed as appropriate to the
Administration and to State and local law enforcement
agencies.
The logbook information shall not be accessed, used, or
shared for any purpose other than compliance with this
title or to facilitate a product recall.
A regulated seller who in good faith releases
information in a logbook to Federal, State, or local law
enforcement authorities is immune from civil liability for
the release unless the release constitutes gross negligence
or intentional, wanton, or willful misconduct. (21 CFR �
1314.45.)
This bill repeals the existing statutory provisions for
over-the-counter sales of pseudoephedrine<2> and related
products and replaces them with new sales limits and a
state-wide database for monitoring and tracking sales of these
products.
---------------------------
<1> By way of illustration, a single 12-hour extended release
allergy-decongestant tablet typically contains 120 milligrams of
pseudoephedrine.
<2> Pseudoephedrine is the most commonly sold of the chemicals
or drugs covered by this bill. References to pseudoephedrine
alone in this analysis include the other chemicals covered by
the terms of this bill - ephedrine, norpseudoephedrine or
phenylpropanolamine.
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This bill includes or retains an exception for pseudoephedrine
sold or provided pursuant to a prescription.
This bill provides that a violation of the sales limits or
required procedures is a misdemeanor, punishable on a first
conviction by a fine of up to $1,000, a jail term of up to six
months, or both. Upon a subsequent conviction, the maximum jail
term is one year and the maximum fine is $10,000.
This bill includes the following required procedures and sales
limits:
A retailer must store pseudoephedrine products in a
locked cabinet or behind the counter.
A retailer may sell no more than 3.6 grams of
pseudoephedrine within 24 hours and no more than 9 grams in
a 30-day period.
As in federal law (CMEA), the data recording
requirements shall not apply to sale of a single package
containing no more than 60 milligrams of a product
containing pseudoephedrine.
The retailer must record the following at the time of
making a pseudoephedrine transaction:
o The date and time of the transaction.
o The type of identification used by the
purchaser, the agency issuing the identification and
the identification number.
o The name, date of birth and address of the
purchaser, as verified by a photo identification.
o The name of the product sold, the quantity of
packages and the total gram amount of pseudoephedrine
involved in the sale.
The name or initials of the person making the sale. The
retailer shall immediately transmit the information about
the sale and the purchaser to the electronic monitoring
system for the purpose of determining whether or not the
sale would exceed statutory limits.
The purchaser must provide valid identification, as
specified.
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The purchaser must sign a written or electronic log.
The log must reflect the following:
o Transaction date.
o The agency issuing the identification used by
the purchaser and the number of the identification.
o The name and address of the purchaser.
o The amount and kind of product sold.
This bill provides that a retailer shall not maintain a separate
copy of the transaction information, except as required by
federal data collection law.
This bill provides that in the event of a failure of the data
system that makes compliance with the data collection rules in
this bill, sales records shall be maintained in a written log or
in alternative electronic form.
This bill provides that on and after July 1, 2014, a retail
distributor shall immediately transmit information about each
sale to the National Precursor Log Exchange (NPLEx) to determine
whether or not the transaction is prohibited.
This bill requires the retailer to give notice to customers
explaining the identification and purchase data will be provided
to law enforcement pursuant to this bill and federal law.
Notice may be given electronically, in writing or through signs.
This bill provides that the retailer need not keep records of
pseudoephedrine transactions in a separate log or location from
those required by federal law.
This bill states that the Legislature finds that probable cause
is necessary before law enforcement can begin an investigation
based on a single transaction made in violation of
pseudoephedrine purchase limits.
This bill provides that data collected on over-the-counter sales
of pseudoephedrine shall be maintained by a retailer and the
vendor of the NPLEx system for no longer than two years, except
as required by federal law, and shall be destroyed after two
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years.
This bill provides retail distributors shall, pursuant to Civil
Code Section 56.101, preserve the confidentiality of the
information in the system and shall be subject to suit for
damages and an administrative penalty as authorized in Civil
Code Section 56.36.
This bill provides that law enforcement access to the database
from a location other than the retailer shall be limited to
records of a person whose attempted purchase was denied by the
system.
This bill provides that law enforcement access to the database
system shall be recorded by means of a unique access code for
each person using the system. Access records shall be
maintained by DOJ.
This bill provides that the system shall be capable of providing
retail distributors with an immediate real-time alert if a
person attempts to purchase pseudoephedrine in violation of the
limits and procedures in this bill.
This bill provides that the data system shall conform to the
Federal Bureau of Investigation's Criminal Justice Information
Systems security standards and may be audited annually.
This bill provides that neither the DOJ nor any state agency
shall bear any cost for developing, installing or maintaining
the system.
This bill provides that the state shall impose no fee on a
retailer distributor or manufacturer to defray administrative or
other costs for oversight or use of the system.
This bill directs the Board of Equalization to notify all
retailers by April 1, 2014, of the requirement to submit each
pseudoephedrine transaction to NPLEx.
This bill provides that upon adoption of a memorandum of
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understanding (MOU) between DOJ and NADDI, NADDI shall forward
California transaction records to DOJ weekly and provide
real-time access to the system for law enforcement.
This bill provides that the MOU shall constitute an enforceable
contract.
This bill states that the MOU must provide or conform to the
following:
No party to the MOU or any entity under contract to
provide the monitoring system shall be authorized to use
the data for any purpose other than authorized under this
bill, the federal CMEA and corresponding regulations.
The system operator shall be authorized to analyze the
data for the sole purpose of assessing and improving the
performance and efficacy of the system.
A retail distributor's access to the database shall be
limited to that retailer's records for complying with the
CMEA and the California monitoring system created by this
bill, except pursuant to law enforcement request or court
order.
This bill provides that DOJ may submit recommendations to NADDI
for improving identification of false identification cards.
This bill s states legislative intent to preempt all local
ordinances or regulations concerning the over-the-counter sale
of pseudoephedrine products.
This bill includes the following definitions concerning sellers
of pseudoephedrine:
"Retail distributor" means a grocery store, general merchandise
store, drug store, or related entity that sells pseudoephedrine
products only for personal use to walk-in customers or in
face-to-face transaction. The parent company of a retailer is
not a retail distributor for purposes of this bill.
"Drug store" "general merchandise store" or "grocery
store" means such an entity as described in a certain
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sections of specified classification manual published by
the U.S. Office of Management and Budget in 1987<3>.
"Sale for personal use" means a sale of pseudoephedrine
in a single transaction to an individual customer for
legitimate medical use. Sale for personal use also
includes sales to employers to be dispensed to employees
from first-aid kits or medicine chests.
This bill includes a January 1, 2019, sunset.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy known as "ROCA" (which
stands for "Receivership/ Overcrowding Crisis Aggravation"), the
Committee held measures which created a new felony, expanded the
scope or penalty of an existing felony, or otherwise increased
the application of a felony in a manner which could exacerbate
the prison overcrowding crisis. Under these principles, ROCA
was applied as a content-neutral, provisional measure necessary
to ensure that the Legislature did not erode progress towards
reducing prison overcrowding by passing legislation which would
increase the prison population. ROCA necessitated many hard and
difficult decisions for the Committee.
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<3> Codes 5912, 5311 to 5319 and 5411 (drug store, general
merchandise store and grocery store respectively) of the
Standard Industrial Classification Manual of the Office of
Management and Budget, 1987 edition.
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In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order to reduce the state's prison population to
137.5 percent of design capacity. The State submitted in part
that the, ". . . population in the State's 33 prisons has been
reduced by over 24,000 inmates since October 2011 when public
safety realignment went into effect, by more than 36,000 inmates
compared to the 2008 population . . . , and by nearly 42,000
inmates since 2006 . . . ." Plaintiffs, who oppose the state's
motion, argue in part that, "California prisons, which currently
average 150% of capacity, and reach as high as 185% of capacity
at one prison, continue to deliver health care that is
constitutionally deficient."
In an order dated January 29, 2013, the federal court granted
the state a six-month extension to achieve the 137.5 % prisoner
population cap by December 31st of this year.
The ongoing litigation indicates that prison capacity and
related issues concerning conditions of confinement remain
unsettled. However, in light of the real gains in reducing the
prison population that have been made, although even greater
reductions are required by the court, the Committee will review
each ROCA bill with more flexible consideration. The following
questions will inform this consideration:
whether a measure erodes realignment;
whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
whether a bill corrects a constitutional infirmity or
legislative drafting error; whether a measure proposes
penalties which are proportionate, and cannot be achieved
through any other reasonably appropriate remedy; and
whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
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COMMENTS
1. Need for This Bill
According to the author:
Since 2006, federal law has required that all OTC
(over-the-counter) pseudoephedrine (PSE) products be stored
behind the counter, requires purchasers to provide
identification and sign a paper logbook, and limits the
quantities which may be purchased to 3.6 grams per day and 9
grams per month. This is to prevent criminals from
accumulating large quantities of PSE and using it in the
illegal production of methamphetamine. California currently
has no mechanism to prevent criminals who are involved in
illegal trafficking of PSE from visiting multiple stores and
buying as many packages of PSE-containing products as they
want, because retailers' logbooks are not connected.
SB 506 requires California retailers selling OTC products
containing pseudoephedrine (PSE) to submit data required to be
collected under federal law to a unified electronic logbook
prior to completing the sale. Current law limits sales of
PSE, but does not provide retailers with a mechanism to ensure
that a sale is legal prior to completing it. The electronic
logbook required by this bill fills that gap. Retailers would
be alerted immediately when a consumer is about to exceed the
purchase limits, and required to stop the sale.
Twenty-six states already mandate the use of real-time
electronic logbooks for PSE sales: Alabama, Arizona, Arkansas,
Florida, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas,
Kentucky, Louisiana, Maine, Michigan, Missouri, Nebraska,
North Carolina, North Dakota, Ohio, Oklahoma, South Carolina,
Tennessee, Texas, Virginia, Washington, and West Virginia.
2. Restrictions on Pseudoephedrine in Other States
According to the 2010 Drug Threat Assessment by the U.S.
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Department of Justice, 45 states have enacted limits on
purchases of pseudoephedrine. Laws vary in other states. (2010
Threat Assessment, USDOJ, pp. 66-67.) Twenty states have made
pseudoephedrine a scheduled drug (controlled substance),
although most of those states create an exception for over the
counter sales consistent with federal law. Forty-three states
have imposed point-of-sale restrictions, and 26 have enacted
pseudoephedrine tracking laws. (Ibid.)
Oregon has required a prescription for pseudoephedrine purchases
since 2006. Mississippi has required a prescription since July,
2010. (See Comment # 12 for a discussion of the Oregon
experience.)
3. Standard Packages of Pseudoephedrine - How Much are 3.6 Grams
and 9 Grams?
A standard pseudoephedrine tablet contains 30 milligrams. The
tablets are sold in blister packages of 24 or 28 tablets. The
recommended dose is up to two tablets every four to six hours,
but no more than eight tablets a day. This bill, as amended on
June 14, 2010, exempts from data collection requirements single
dosage packs of up to 60 milligrams.
A box of 48 tablets contains 1440 milligrams (1.44 grams) of
pseudoephedrine. A box of 24 tablets contains 720 milligrams
(.720) grams of pseudoephedrine. Under federal law, a person
may in a single day buy no more than two boxes of 48 tablets and
a box of 24 tablets, or 120 tablets. At the recommended maximum
dose of 8 tablets per day, 3.6 grams is a 15-day supply. The
maximum monthly purchase amount - 9 grams - is approximately 306
tablets, a 38-day supply. The Mayo Clinic website warns not to
continue taking the medicine for more than 7 days if symptoms do
not improve.
Tables of Packaging, Sales Limits and Dosages<4>
-------------------------
<4> These charts assume that the pseudoephedrine tablet contains
nothing but pseudoephedrine. The actual amount of the drug in a
tablet may be somewhat less than the weight of the tablet.
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-------------------------------------------------------------------
|Package |Tablet |Milligrams |Grams per |
| |weight |per |Package |
| | |Package | |
|----------------+----------------+----------------+----------------|
|48 tablets |30 |1440 |1.44 |
| |milligrams | | |
| |- .03 | | |
| |grams | | |
|----------------+----------------+----------------+----------------|
|24 tablets |30 |720 |.720 |
| |milligrams | | |
| |- .03 | | |
| |grams | | |
-------------------------------------------------------------------
-----------------------------------------------------------------
|Daily |Packages |Tablet |Maximum |
|Limit | |limit |Dosage |
|---------------+----------------+----------------+---------------|
|3.6 grams |2 packs of |120 |15 days |
| |48 tabs, | |at |
| |and | |maximum |
| |1 pack of | |of 8 |
| |24 tabs | |tablets |
| | | |per day |
| | | | |
-----------------------------------------------------------------
-------------------------------------------------------------------
|Monthly |Packages |Tablet |Dosage |
|limit | |limit | |
|----------------+----------------+----------------+----------------|
|9 grams |6.25 packs |300 |38 days at |
| |of 48 | |maximum of |
| | | |8 tabs per |
| | | |day |
| | | | |
-------------------------------------------------------------------
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4. Privacy Concerns from Recording Pseudoephedrine Sales in a
Database that can be Accessed by Law Enforcement and
Pseudoephedrine Retailers
California and Federal Medical Privacy Law
California law includes relatively stringent medical privacy
rules. Unless a specified exception applies, such as a court
order or warrant, medical information can only be disclosed with
the authorization of the patient.
The federal Health Insurance Portability and Accountability Act
of 1996 (HIPAA) rules also require confidentiality of medical
information, with specified exceptions. It appears that HIPAA
controls over any conflicting state laws. Covered entities may
disclose protected health information (not pseudoephedrine
sales) to law enforcement officials for specified law
enforcement purposes, such as court orders, to identify suspects
or witnesses, to find missing persons, information about a crime
victim, notice of death and related matters.
The bill provides that a retail distributor can retain
information for no more than two years, except as required under
the federal CMEA. The retailer may not keep a copy of the
information, except as required by federal law.
The bill also makes a retail distributor's use of the system
subject to Section 56.101 of the Civil Code, which provides that
a health care provider, health plan, pharmaceutical company, or
contractor that creates, uses, stores or maintains, or destroys
medical records shall preserves the confidentiality of the
information in the records. Negligence as to medical records by
an entity subject to Section 56.101 is liable, pursuant to
Section 56.36, for an administrative penalty and a suit for
money damages.
Arguably, confidentiality is relatively high for purposes other
than law enforcement. That is, the information shall not be
accessed, used, or shared for any purpose other than to ensure
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compliance with the CMEA or to protect public health and safety
in a product recall. The CMEA regulations provide civil
immunity for information released to law enforcement. Immunity
does not apply if the release constitutes intentional misconduct
or gross negligence. (21 CFR � 1314.45.)
DOES THIS BILL PROTECT THE CONFIDENTIALITY OF PURCHASER
INFORMATION BY PROHIBITING A RETAIL DISTRIBUTOR FROM RETAINING
THE INFORMATION FOR MORE THAN TWO YEARS, BY SUBJECTING A
NEGLIGENT RETAILER TO SUIT AND AN ADMINISTRATIVE FINE, AND BY A
PROHIBITION ON COPYING THE INFORMATION?
Law Enforcement Access to the Database
This bill requires retailers to electronically record personal
information from each person who buys pseudoephedrine or related
products. This information is then entered into a database that
can be accessed in real time by law enforcement.
Federal law requires retailers to record the same information as
is required by this bill, and federal law provides that the
information can be electronically recorded. However, federal
law does not include a unified database into which all
transactions are recorded. According to a July, 2007 story
published by MSNBC about the Kentucky tracking law, privacy
advocates raised concerns about a system through which law
enforcement<5> can access data about drug store customers. The
advocates stated that the vast majority of pseudoephedrine
purchases are legitimate and that there was no reason for law
enforcement to information about people making such purchases.
Law enforcement representatives responded that the system is
simply an investigative tool, and does not provide probable
---------------------------
<5> Representatives of the sponsor submit that the data already
in the system would not be accessible to a retail clerk. The
only information provided by the system to the clerk at the time
of a sale is whether or not a sale is prohibited. The system
does not reveal the reason for the prohibition. The clerk would
give the customer a number to call for an explanation of the
denial of sale.
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SB 506 (Hill)
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cause for search or arrest.
Arguably, law enforcement has no use for any information in the
system except where a sale has been denied or the prospective
purchaser presented a questionable identification. The bill
does provide the following as to law enforcement access to the
database: "Access by law enforcement to the data contained in
the system from a location other than the retailer shall be
limited to the records of an individual whose attempted purchase
has been denied by the system." It may not be clear how law
enforcement learns that an individual's purchase attempt has
been denied. Perhaps this point should be clarified.
The bill apparently does not limit the time law enforcement can
retain the information. This raises the issue whether or not
some other law limits the time law enforcement, or the entity
operating the database, may retain the information.
ARE PRIVACY CONCERNS LIMITED BY THE REQUIREMENT THAT EACH LAW
ENFORCEMENT OFFICER MUST ACCESS THE DATABASE WITH A UNIQUE
IDENTIFIER THAT SHALL BE RETAINED AND MAY BE AUDITED BY DOJ AND
THAT REMOTE ACCESS TO THE DATABASE (AWAY FROM A RETAIL SITE) BY
LAW ENFORCEMENT SHALL BE LIMITED TO CIRCUMSTANCES WHERE A SALE
WAS DENIED BY THE SYSTEM?
SHOULD THE CIRCUMSTANCES UNDER WHICH A LAW ENFORCEMENT OFFICER
HAS ACCESS TO THE INFORMATION ABOUT A DENIED SALE BE CLARIFIED?
DOES THE AVAILABILITY OF PRESCRIPTIONS FOR PSEUDOEPHEDRINE LIMIT
PRIVACY CONCERNS ABOUT THE DATABASE?
DOES THE BILL ADEQUATELY LIMIT THE LENGTH OF TIME THAT THE
PRIVATE VENDOR OR LAW ENFORCEMENT CAN RETAIN THE DATA?
5. The CURES Program - Electronic Monitoring of Controlled
Substance Prescriptions, Private Contractor
The CURES program was established in 1997 by AB 3042 (Takasugi)
in response to recommendations of the Controlled Substance
Prescription Advisory Council. (SCR 74, 1992.) CURES was
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SB 506 (Hill)
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initially intended to electronically monitor the prescribing and
dispensing of Schedule II controlled substances such as
oxycodone. CURES provides for real-time electronic transmission
of specified prescription data to DOJ. Essentially the data is
analyzed for indications that controlled substances are being
improperly prescribed, or that drug abusers are obtaining
prescriptions from many doctor. Physicians and pharmacists, in
addition to law enforcement, have access to CURES data through
PAR - patient activity reports. A private contractor - Infinite
Solutions Inc. (ISI) - collects CURES data for DOJ.
DOES THE EXISTING CURES SYSTEM USE EXTENSIVE REAL-TIME DATA
TRACKING AND MONITORING OF CONTROLLED SUBSTANCE PRESCRIPTIONS
AND PATIENTS?
6. Decongestant Medications - Efficacy Comparisons
Many consumers rely on pseudoephedrine products to ease nasal
congestion because these products are effective. Because a
prescription is not requited, these medications are readily
available to those without medical insurance or access to
physicians for non-emergency treatment.
In recent years, because of restrictions on the sale and
distribution of pseudoephedrine, the pharmaceutical industry has
developed and marketed alternative or substitute products, often
phenylephrine These substitute decongestants are kept on open
shelves in drug stores and other retail shops, while
pseudoephedrine products must be kept behind the counter or in a
locked cabinet. It appears that the most commonly used
substitute is phenylephrine. Many consumers purchase these
products.
The website of the National Institutes of Health (NIH)
includes an article published in the British Journal of
Phamacology that surveyed studies of the relative efficacy
of orally administered pseudoephedrine and phenylephrine.
The author of the article, Professor Ronal Eccles of the
Common Cold Centre and Healthcare Clinical Trials at the
Cardiff University School of Biosciences noted that many
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SB 506 (Hill)
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companies were replacing pseudoephedrine with phenylephrine
in over-the-counter decongestant tablets. Eccles stated:
"[Phenylephrine and [pseudoephedrine] have been used as
oral decongestants for over 50 years in a large range of
medicines for the treatment of nasal congestion associated
with common cold and flu. There is support in the
literature for the efficacy of PDE as an orally
administered nasal decongestant [citation], but no support
for the efficacy of oral PE."<6>
Another article on the website of the NIH was published in
the International Journal of General Medicine<7> in 2010.
The article was authored by physicians from the University
of California, Wayne State University and a medical center
in each of Caracas Venezuela and London and considered a
wide range of treatments for upper respiratory congestion.
The article concluded: "Oral decongestants include
phenylephrine and pseudoephedrine, with the latter being
more effective. In some patients, their use can be
associated with adverse systemic effects, including
increased blood pressure, palpitations, appetite loss, and
insomnia."
ARE OVER-THE-COUNTER ALTERNATIVES TO PSEUDOEPHEDRINE EFFECTIVE?
WOULD THIS BILL ALLOW THOSE WITHOUT LIMITED ACCESS TO
PHYSICIANS, OR LIMITED FUNDS FOR TREATMENT, TO OBTAIN AN
EFFECTIVE MEDICATION WITHOUT A PRESCRIPTION?
7. New "Shake and Bake" or "One-Pot" Method for Making Small
Batches of Methamphetamine
Media and law enforcement reports have noted that a new process
for making methamphetamine on a small scale is rapidly growing
in popularity. This process is typically called "shake and
bake" or "one pot" because the drug is usually made in a 2-liter
---------------------------
<6> http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2000711 . The
journal noted that Eccles had previously acted as a consultant
to pharmaceutical companies that marketed nasal decongestants.
<7> http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2866555/
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bottle or a similar closable container and produces an amount
for personal use. This method requires much less
pseudoephedrine than required to make methamphetamine in a full
clandestine lab. Nevertheless, as with the full laboratory
method, the one pot method can be very dangerous. The chemicals
can explode and even create fireballs.
The shake and bake method essentially involves mixing crushed
pseudoephedrine tablets, a substance such as ammonia nitrate
(which can be found in instant cold packs for icing injuries),
lithium battery strips, drain cleaner (or similar product) and
water. The materials create a chemical reaction in a single
bottle. Recipes typically call for about 200 tablets of
pseudoephedrine. This amount falls within the monthly legal
limit.
CAN A PERSON MAKE METHAMPHETAMINE FOR PERSONAL USE WITH A
LEGALLY PURCHASED AMOUNT OF PSEUDOEPHEDRINE?
WILL THE "SHAKE AND BAKE" OR "ONE POT" METHAMPHETAMINE METHOD,
WHICH USES RELATIVELY SMALL AMOUNTS OF PSEUDOEPHEDRINE, MAKE IT
MORE DIFFICULT TO PREVENT DIVERSION OF PSEUDOEPHEDRINE FOR
METHAMPHETAMINE MANUFACTURING?
8. U.S. DOJ Attributes Rise in Laboratory Discoveries to
Development and Increase in the One-Pot, Small-Scale
Cooking Method
The 2010 Methamphetamine Threat Assessment published by the U.S.
DOJ National Drug Intelligence Center noted that an increasing
proportion of "laboratory" seizures or incidents result from
one-pot or shake and bake manufacturing:
Domestic methamphetamine laboratory seizures increased
from 3,096 laboratories in 2007 to 3,950 in 2008 to
5,308 in 2009 (see Figure 3 on page 5). Analysis of
laboratory seizure data indicate that the increase -71
percent since 2007 - primarily is due to an increase
in the prevalence of small-scale "one pot," or "shake
and bake," lithium ammonia method laboratories. In
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SB 506 (Hill)
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fact, of the small-scale laboratories seized between
2007 and 2009, the number of small-scale lithium
ammonia method laboratories increased 158 percent
overall - from 1,583 in 2007 to 2,584 in 2008 to 4,089
in 2009.
Domestic superlab seizures did not change
significantly [from 2007-2009]. The number of
superlabs [capable of producing 10 lbs. or more of the
drug in a cycle] seized increased only slightly from
2007 (11) to 2008 (17) before decreasing in 2009 (14).
? 13 [superlabs] were seized in California and one in
Georgia. Rising methamphetamine production in 2009 was
realized in six of the nine Organized Crime Drug
Enforcement Task Force regions, with the most notable
increase occurring in the Great Lakes Region.
The trend of increasing numbers of small-scale labs has
continued. The 2011 National Drug Threat Assessment<8>
found that 81% of laboratories found or seized since 2006
were "small scale" one-pot operations capable of producing
less than 2 ounces of methamphetamine. "Most of the
remaining laboratories were? small with capacities between
2 and 8 ounces?" (Nat. Drug Threat Assess. 2011, p. 35.)
In testimony to a congressional committee<9> on July 24,
2012, National Drug Control Policy Director R. Gil
Kerlikowske stated that domestic production has shifted
significantly away from superlabs toward much smaller-scale
operations. This shift occurred because sales of precursor
chemicals were limited by law. Kerlikowske noted that labs
have decreased in the West and increased in the Midwest and
South. While one-pot labs often produce methamphetamine
for personal use, the proliferation of very small labs can
-------------------------
<8> The National Drug Intelligence Center closed on June 15,
2012. It appears that the 2011 threat assessment will be the
last one published by the U.S. Department of Justice. No
explanation was given on the Website.
http://www.justice.gov/archive/ndic/topics/ndtas.htm#Top
<9> http://www.whitehouse.gov/ondcp/congressional-hearings
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SB 506 (Hill)
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stimulate new markets for the drug.
It appears that one-pot cooking may create less danger to the
public than traditionally cooking methods that create relatively
large quantities of toxic chemicals. An August 2009, AP story
stated that the one-pot methods produces enough for only a "few
hits." While there is substantial danger that a one-pot or soda
bottle used to make a small batch of methamphetamine could
explode, the danger appears to mainly be to the cooker and
persons in the immediate vicinity. However, the AP report noted
that the explosive power of one-pot cooking can cause
particularly intense fires, including a fire in an apartment.
Traditional cooking methods created a risk of explosion of the
building where the cooking took place. There have been reports
of entire apartments exploding. (WKRG.com, Mobile-Pensacola,
July 7, 2009.) In addition, traditional methods produce
relatively large amounts of waste chemicals that are abandoned
at the manufacturing site or dumped into the environment.
Children are particularly subject to contamination by
methamphetamine manufacturing. The toxic residue from a one-pot
recipe is typically left in a 2-liter soda bottle.
DO MANY OF THE METHAMPHETAMINE LABORATORIES FOUND IN RECENT
YEARS REFLECT GROWING USE OF THE SMALL-SCALE ONE-POT OR SHAKE
AND BAKE METHOD?
9. California and Federal Statutes on Pseudoephedrine Sales
Limits - Smurfing to Obtain Chemicals to Make
Methamphetamine
Despite limits on purchases of pseudoephedrine, laboratory
incidents in California rose in 2008 to 346. (As noted above,
the increase in laboratory incidents could be attributable in
significant part to the use of one-pot or one container cooking
methods.) Many law enforcement agencies, including the DEA,
have concluded that the rise in laboratories in 2008 resulted
from an increase in "smurfing" of pseudoephedrine. Smurfing
involves purchases of small amounts of pseudoephedrine from
numerous drug stores. While smurfers may violate federal law in
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SB 506 (Hill)
PageZ
purchasing more than 9 grams in a month - although each purchase
would not be over the 3.6 gram limit - the lack of adequate law
enforcement personnel and resources to manually review purchase
logs and absence of a database for tracking purchase or the
personnel allows smurfing to continue.
As noted above, the 2010 DOJ methamphetamine threat assessment
attributes much of the increase in laboratory incidents
nationally to the increasing use of small-batch one-pot method
of making methamphetamine. The 2011 threat assessment, the
testimony of the Director Kerlikowske and the California HIDTA
reports state that smurfing continues to be a significant
problem.<10>
10. Concerns over Continuing Demand for Methamphetamine;
Involvement of Drug Trafficking Organizations, or Cartels, in
Methamphetamine Trafficking
As long as demand for the drug is high, eliminating California
manufacturing of methamphetamine will not diminish use of the
drug if the drug remains available from others sources,
especially Mexico. Any policy change that results in an
increase in importation of methamphetamine from Mexico, even a
law that has the substantial benefit or reducing illicit
laboratories in California, could adversely affect public
safety. Law enforcement and media sources have recently noted
an increase in violence used by Mexican drug trafficking
organizations (DTOs) in the United States, including significant
increases in violence related to Mexican DTOs in border states.
(Mexican Drug Cartel Violence Spills Over, Alarming U.S., New
York Times, March 22, 2009.)
WILL MEXICAN DRUG TRAFFICKING ORGANIZATIONS MEET THE CONTINUING
---------------------------
<10>http://www.justice.gov/archive/ndic/pubs44/44849/44849p.pdf
http://www.whitehouse.gov/sites/default/files/page/files/rgk_hous
e_govt_reform_subcommittee_meth_testimony_-072412_-.pdf
http://www.justice.gov/archive/ndic/dmas/Northern_CA_DMA-2011(U).
pdf
http://www.justice.gov/archive/ndic/dmas/Los_Angeles_DMA-2011(U).
pdf
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SB 506 (Hill)
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DEMAND FOR METHAMPHETAMINE?
11. 2010 and 2011 U.S. DOJ Methamphetamine Analyses: Mexican
Drug Trafficking Organizations (DTOs) Dominate, Wide
Availability, Lowest Prices and Highest Purity Since 2005;
Reduced Volume of Domestic Production Volume, but More Very
Small Labs
The U.S. DOJ 2010 Threat assessment for methamphetamine was
published in the New York Times prior to release by the National
Drug Intelligence Center. The Times stated that the report was
likely not publicly released by the government because of
concerns over relations between the U.S. and the government of
Mexico. The Times story states that the assessment "portrays
drug cartels as easily able to circumvent the Mexican
government's restrictions on the importing of chemicals used to
manufacture meth, which has reached its highest purity and
lowest price in the United States since 2005." (U.S. Delays
Report tying Meth to Mexico, New York Times, June 8, 2010,
italics added.)
The Executive Summary of the 2010 methamphetamine threat
assessment presents a relatively pessimistic portrait of the
situation in the United States. Arguably, the only positive
conclusion in the assessment is that "[a]s Mexican ? production
increases, the need for domestic production will decrease.
Preliminary first-quarter 2010 data on methamphetamine
laboratory seizures reflect a downward trend in domestic
production - the result of restored availability of
Mexico-produce product."
The report states:
After gradually declining since 2006, domestic
methamphetamine availability is at a 5-year high as
a result of increasing large-scale production of the
drug in Mexico and, to a lesser extent, the increasing
prevalence of small-scale production in the United
States. Mid-2009 indicators, particularly increased
methamphetamine seizures along the Southwest Border
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SB 506 (Hill)
PageB
and seizures of bulk pseudoephedrine and
pseudoephedrine analogs entering Mexico, point to a
renewed ability of Mexican DTOs to acquire precursor
chemicals. This has led to resurgence in
methamphetamine production in Mexico. Moreover, the
increased use of nonephedrine-based methods of
methamphetamine production by Mexican DTOs, along with
seizures in Mexico of large-scale methamphetamine
laboratories that used nonephedrine-based production
methods, confirms increased production in Mexico.
At the same time, seizures of methamphetamine
laboratories in the United States rose for the second
year in a row, primarily because of the growing
prevalence of small-scale "onepot," or "shake and
bake," laboratories. As a result, overall
methamphetamine availability is high and increasing,
as evidenced by supplies of the purest methamphetamine
available in U.S. markets since 2005, at prices that
currently reflect a 5-year low. As Mexican
methamphetamine production increases, the need for
domestic production will decrease. Preliminary
first-quarter 2010 data on methamphetamine laboratory
seizures reflect a downward trend in domestic
production-the result of the restored availability of
Mexico-produced methamphetamine in U.S. drug markets.
(DOJ 2010 Meth. Threat Assess., p.1, italics added.)
The 2011 Los Angeles High Intensity Drug Trafficking Area
(HIDTA) report found that local production of methamphetamine
had declined in the prior three years. Seizure of large-scale
labs fell 63% and seizures of all labs fell 22% from 2008 to
2010. Nevertheless, "overall methamphetamine availability has
remained high because Mexican DTOs are smuggling large
quantities of the drug from Mexico into and through the
region."<11> The Northern California HIDTA report noted that
Mexican dominance of the methamphetamine trade is "unrivaled"
and that these DTOs are well-entrenched. The Northern
---------------------------
<11>http://www.justice.gov/archive/ndic/dmas/Los_Angeles_DMA-2011
(U).pdf .
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California report did note that Mexican DTOs had used profits
from the marijuana trade to fund methamphetamine manufacturing
in Central and Northern California.<12> It thus appears that
methamphetamine manufacturing in California does not follow a
single pattern. The Northern California report noted control of
cross-border DTO operations by family networks in San Jose,
Redwood City and East Palo Alto. From 2006 to 2010, the number
of small labs (capable of producing 2 pounds or less) seized in
the Northern California HIDTA<13> decreased steadily from 27 to
18, large scale labs (10 pounds or more capacity) varied from1
to 3, but medium-sized labs (2-9 pounds) fell markedly from 10
to 1.
The amount of methamphetamine shipped into the U.S. by Mexican
DTOs in 2009 exceeded the amount shipped in 2005, the year that
pseudoephedrine restrictions began in Mexico. The amount of
methamphetamine seized along the border in 2009 was 1,000
kilograms (43%) higher than the last year in which
pseudoephedrine importation was not limited in Mexico.
The 2010 DOJ methamphetamine threat assessment attributed much
of the increase in Mexican production to the use of the P2P
(using phenyl-2-propanone) method. In contrast, the United
Nations - through the International Narcotics Control Board
(INCB) - has noted that Mexican DTOs have contracted with
pseudoephedrine manufacturers in Asia. (Precursors, INCB 2008
report, pp. 7-8.) Further, the 2009 DOJ threat assessment noted
that Mexican DTOs would have little difficulty obtaining
pseudoephedrine in Central and South America. (2009 National
Drug Threat Assessment, DEA, pp. 13-16.)
The United Nations has reported that Mexican DTOs have set up
operations in Africa and the Middle East to obtain
methamphetamine precursors. The report stated: "Africa remains
---------------------------
<12>
http://www.justice.gov/archive/ndic/dmas/Northern_CA_DMA-2011(U).
pdf
<13>
http://www.justice.gov/archive/ndic/dmas/Northern_CA_DMA-2011(U).
pdf
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SB 506 (Hill)
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a major area of diversion of precursors of amphetamine-type
stimulants." The final destination for these chemicals was
Mexico. "Organized criminal groups have made use of fictitious
companies and falsified import authorizations ? [in Africa]."
(Precursors, INCB 2008 report, pp. 7-8.)
The 2011 National Drug Threat Assessment noted that Mexican DTOs
continue to dominate the methamphetamine trade. Prices have
fallen, availability has grown and purity levels have increased,
even with significant production from chemicals other than
pseudoephedrine. "Methamphetamine seizure rates inside the
United States and along the U.S. - Mexico border have increased
markedly since 2007." (2011 Nat. Drug Threat Assess., p. 32.)
Chart - Southwest Border Seizures of Methamphetamine
(Kilograms)<14>
-------------------------------------------
|2006 |2,706 |
|---------------------+---------------------|
|2007 |2,128 |
|---------------------+---------------------|
|2008 |2,221 |
|---------------------+---------------------|
|2009 |3,278 |
|---------------------+---------------------|
|2010 |4,486 |
-------------------------------------------
12. Oregon Law Requires a Prescription for Pseudoephedrine;
Prescription Proponents Attribute the Drop in Oregon Meth
Laboratories to that Law
Proponents of the Oregon law that requires a prescription for
pseudoephedrine attribute the dramatic reduction of
methamphetamine laboratory incidents in Oregon to the
prescription law. They argued that the law prevents "smurfing"
of pseudoephedrine through multiple over-the-counter purchases
---------------------------
<14> 2011 National Drug Threat Assessment, Table B3, p. 50.
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of the drug in an amount allowed by law. It has been noted that
the number Oregon meth lab incidents fell sharply in the year
before the law took effect. However, incidents have continued
to drop in the past few years.
Meth Lab Incidents in Oregon 2003-2008<15>
-----------------------------------------------------
|2004 |448 |
|--------------------------+--------------------------|
|2005 |192 |
|--------------------------+--------------------------|
|2006 |63 |
|--------------------------+--------------------------|
|2007 |20 |
|--------------------------+--------------------------|
|2008 |21 |
| | |
|--------------------------+--------------------------|
|2009 |13 |
|--------------------------+--------------------------|
|2010 |13 |
|--------------------------+--------------------------|
|2011 |10 |
-----------------------------------------------------
The 2013 Oregon HIDTA Threat Assessment<16> reports that
methamphetamine abuse in Oregon is a very serious problem,
despite the reduction in lab seizures. The HIDTA report,
although it acknowledges that data is somewhat inconsistent, is
a comprehensive compilation of relevant statistics, factors and
issues concerning methamphetamine use in Oregon:
Methamphetamine use remains high in Oregon. ?[T]he
number of fatalities related to methamphetamine use in
----------------------
<15> Source: Oregon Dept. of Justice
<16>
http://www.lanecounty.org/departments/sheriff/documents/2013%20or
egon_hidta_threat_assessment_final_062112.pdf
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2011 (107) is an historic high, reflecting more than
twice the number reported in 2001 (50) While ?
fatalities changed little from 2010 (106) to 2011
(107), varying availability of the drug and
accessibility to treatment services may underlie?
fluctuations in related deaths?.
Methamphetamine related arrests rose? 36 percent from
2009 to 2012, and 16 percent in the last year (January
2011 - 2012). ? [T]he percentage of males arrested in
Portland who admitted they used methamphetamine during
the prior month rose nearly twofold between 2009 and
2011. [There was also an] increase of nearly 72
percent ? in the proportion of male arrestees in
Portland who tested positive for the drug.
? Nearly one-quarter of people entering
publicly-funded treatment in the HIDTA region during
2011 reported using methamphetamine, higher than for
all other major illicit drugs with the exception of
marijuana (32%) and heroin (26%)
? Methamphetamine continues to be highly available in
Oregon, despite precursor chemical controls put in
place in the state and internationally. ?Oregon [was]
the first U.S. state to require a physician's
prescription to purchase cold and allergy medications
containing pseudoephedrine?. Since 2004?
methamphetamine labs seized in Oregon decreased by 98
percent. Furthermore, the Government of Mexico
implemented progressively tighter restrictions on
ephedrine and pseudoephedrine since 2005. ? Despite
additional controls, methamphetamine continues to flow
into the United States and Oregon. Approximately 93
percent of law enforcement officers surveyed reported
that crystal methamphetamine was highly available in
their area during 2011, a rise from 80 percent in
2009.
(More)
?While treatment admissions for amphetamine use
(includes methamphetamine) increased 25 percent in the
HIDTA region from 2003 through 2005, the number of
adults [entering treatment] reporting amphetamine as
their primary drug of abuse declined 35 percent
between 2005 and 2011, falling below heroin admissions
for the first time in 2011. While the drop in
admissions may reflect a decline in use, other
contributing factors, such as the effect of resource
constraints on treatment admission levels, should also
be considered. According to the AMHD, treatment
admissions dropped in 2003 as a result of significant
cuts in Medicaid funding during 2001 and 2002.
Medicaid coverage affects people below the 100 percent
federal poverty level and represents a sizeable
proportion of AMHD clients.
The Oregon Criminal Justice Commission reported methamphetamine
arrests in Oregon from November, 2006 through November, 2012.
There were 24 arrests per 100,000 persons in November 2006.
Arrests fell steadily to 14 per 100,000 in November, 2009.
Arrests then rose relatively steadily, reaching 24 per 100,000
again in January 2013.<17> The 2009 closing report of the
Oregon Methamphetamine Task Force stated that Oregon had
"eliminated" meth labs and reduced methamphetamine abuse.
Despite the conclusions of many in law enforcement that the
Oregon prescription law virtually eliminated methamphetamine
labs, the abstract of a study published in the journal Drug and
Alcohol Dependence<18> found that the Oregon law had little
effect on the number of meth. This was because labs in Oregon
had "bottomed out" before enactment of the law. Similar results
would be expected in other western states. In contrast, the
Mississippi prescription law produced a 50% drop in labs, which
was explained by the high prevalence of labs prior to enactment.
---------------------------
<17>http://www.oregon.gov/CJC/Pages/SAC.aspx
<18>
http://www.sciencedirect.com/science/article/pii/S037687161200137
8
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Similar results to those in Mississippi would be expected in
eastern states.
WOULD THE OREGON APPROACH BE MORE EFFECTIVE IN REDUCING THE METH
LAB PROBLEM THAN THE APPROACH PROPOSED BY THIS BILL?
WOULD THE OREGON APPROACH ADVERSELY AFFECT CONSUMERS WHO CANNOT
AFFORD A PRESCRIPTION? IF SO, WOULD ITS INTENDED BENEFITS
OUTWEIGH ITS POTENTIAL ADVERSE CONSEQUENCES?
13. Provisions in the Bill Stating Legislative Intent to
Preempt Local Ordinances and to Require Probable Cause for
Specified Investigations
The bill sets out legislative intent to preempt local ordinances
on monitoring of pseudoephedrine and related matters. The bill
also states legislative intent that a probable cause is
necessary to initiate an investigation based on a single denied
purchase of pseudoephedrine. These provisions raise the issue
of why the bill does not directly preempt local ordinances and
directly require probable cause for a law enforcement
investigation based on a single denied purchase.
SHOULD THE BILL DIRECTLY STATE THAT LOCAL ORDINANCES CONCERNING
PSEUDOEPHEDRINE MONITORING ARE PREEMPTED, RATHER THAN STATING
LEGISLATIVE INTENT THAT THIS OCCUR?
SHOULD THE BILL DIRECTLY STATE THAT PROBABLE CAUSE IS REQUIRED
FOR A LAW ENFORCEMENT INVESTIGATION BASED ON A SINGLE DENIED
PURCHASE, RATHER THAN STATING LEGISLATIVE INTENT IN THIS REGARD?
***************