BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
4
8
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SB 484 (Wright)
As Introduced February 26, 2009
Hearing date: April 28, 2009
Health & Safety Code
JM:mc
PSEUDOEPHEDRINE:
SCHEDULING AS A CONTROLLED SUBSTANCE
HISTORY
Source: Attorney General's Office
Prior Legislation: AB 162 (Runner) - Ch. 978, Stats. 1999
Support: San Francisco District Attorney; California Police
Chiefs Association; Peace Officers Research Association
of California; California Narcotics Officers
Association; Los Angeles County Police Chiefs;
California Correctional Supervisors Organization;
Fresno County Board of Supervisors; Los Angeles County
District Attorney; California State Sheriffs
Association; Oregon State Pharmacy Association; Long
Beach Police Officers Association; Santa Ana Police
Officers Association; California Fraternal Order of
Police; Los Angeles County Professional Peace Officers
Association; San Bernardino County Sheriff's Department
Opposition:Consumer Healthcare Products Association; Taxpayers
for Improving Public Safety; Healthcare Distribution
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Management Association (unless amended);
Schering-Plough; California Retailers Association;
National Association of Chain Drug Stores
(SEE COMMENT #8 FOR AUTHOR'S AMENDMENTS THAT ELIMINATE FELONY
PENALTIES IN THE BILL. PSEUDOEPHEDRINE AND SPECIFIED DRUGS WILL
BE OBTAINABLE ONLY BY PRESCRIPTION, BUT NOT AS A CONTROLLED
SUBSTANCE.)
KEY ISSUES
SHOULD EPHEDRINE, PSEUDOEPHEDRINE, NORPSEUDOEPHEDRINE AND
PHENYLPROPANOLAMINE BE PLACED ON SCHEDULE V OF THE CONTROLLED
SUBSTANCE SCHEDULES, WITH THE FOLLOWING APPLICABLE PENALTIES:
POSSESSION OF ONE OF THESE CHEMICALS WOULD BE AN ALTERNATE
FELONY-MISDEMEANOR, WITH A MAXIMUM JAIL TERM OF ONE YEAR OR A PRISON
TRIAD OF 16 MONTHS, TWO YEARS OR THREE YEARS;
POSSESSION FOR SALE OF ONE OF THESE CHEMICALS WOULD BE A FELONY,
WITH A PRISON TERM OF 16 MONTHS, TWO YEARS OR THREE YEARS; AND
SALE OR OTHER TRANSFER OF ONE OF THESE CHEMICALS WOULD BE A FELONY,
WITH A PRISON TERM OF TWO, THREE OR FOUR YEARS?
PURPOSE
The purpose of this bill is to place ephedrine, pseudoephedrine,
norpseudoephedrine or phenylpropanolamine, and specified related
chemicals, on Schedule V of the controlled substance schedules
and to thereby provide that 1) possession of one of these
chemicals is an alternate felony-misdemeanor; 2) possession for
sale of one of these chemicals is a felony, with a prison term
of 16 months, two years or three years; and 3) sale or transfer
of one of these chemicals is a felony, with a prison term of
two, three or four years.
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Existing law provides the following restrictions and
requirements for the sale of ephedrine, pseudoephedrine,
norpseudoephedrine or phenylpropanolamine in over-the-counter
retail transactions:
A retailer in a single transaction may sell no more than
three packages of a product containing these chemicals.
A retailer may sell no more than nine grams of
ephedrine, pseudoephedrine, norpseudoephedrine or
phenylpropanolamine.
A first violation of these restrictions is a
misdemeanor, punishable by a jail term of up to six months,
a fine of up to $1,000, or both.
A second or subsequent violation is a misdemeanor,
punishable by a jail term of up to one year, a fine of up
to $10,000, or both. (Health & Saf. Code 11100, subd.
(g).)
Existing federal law (21 USC 830, subd. (e)) 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 7.5 grams per customer in a one-month
period.
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.
Existing law defines a dangerous drug as any drug that is unsafe
for self-use. It includes any drug that under federal or state
law can only be obtained through a prescription. (Health & Saf.
Code 4021.)
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Existing law classifies controlled substances in five schedules
according to their danger and potential for abuse. Schedule I
controlled substances have the greatest restrictions and
penalties, and are deemed by law to have no accepted medical
use. (Health and Saf. Code 11054-11058.)
Existing federal law (21 U.S.C. 812) includes the following
scheduling criteria:
Schedule I: The drug or other substance has a high
potential for abuse. The drug or other substance has no
currently accepted medical use in treatment in the United
States. There is a lack of accepted safety for use of the
drug or other substance under medical supervision.
Schedule II: The drug or other substance has a high
potential for abuse. The drug or other substance has a
currently accepted medical use in treatment in the United
States or a currently accepted medical use with severe
restrictions. Abuse of the drug or other substances may
lead to severe psychological or physical dependence.
Schedule III: The drug or other substance has a
potential for abuse less than the drugs or other substances
in Schedules I and II. The drug or other substance has a
currently accepted medical use in treatment in the United
States. Abuse of the drug or other substance may lead to
moderate or low physical dependence or high psychological
dependence.
Schedule IV. The drug or other substance has a low
potential for abuse relative to the drugs or other
substances in Schedule III. The drug or other substance
has a currently accepted medical use in treatment in the
United States. Abuse of the drug or other substance may
lead to limited physical dependence or psychological
dependence relative to the drugs or other substances in
Schedule III.
Schedule V: The drug or other substance has a low
potential for abuse relative to the drugs or other
substances in Schedule IV. The drug or other substance has
a currently accepted medical use in treatment in the United
States. Abuse of the drug or other substance may lead to
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limited physical dependence or psychological dependence
relative to the drugs or other substances in Schedule IV.
This bill places ephedrine, pseudoephedrine, norpseudoephedrine
or phenylpropanolamine in Schedule V of the controlled substance
schedules. This bill makes possession of ephedrine,
pseudoephedrine, norpseudoephedrine or phenylpropanolamine a
felony, punishable by imprisonment in state prison for 16
months, two years or three years and a fine of up to $10,000.
This bill makes possession for sale or specified transfer of
ephedrine, pseudoephedrine, norpseudoephedrine or
phenylpropanolamine a felony, punishable by imprisonment in
state prison for 16 months, two years or three years and a fine
of up to $10,000.
This bill makes selling, furnishing, et cetera, ephedrine,
pseudoephedrine, norpseudoephedrine or phenylpropanolamine a
felony, punishable by imprisonment in state prison for two,
three or four years and a fine of up to $10,000.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
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incarceration.<1>
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
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(Citation omitted.) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
Although the evidence may be less than perfectly
----------------------
<1> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
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clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .Under the PLRA, any prisoner release order that
we issue will be narrowly drawn, extend no further
than necessary to correct the violation of
constitutional rights, and be the least intrusive
means necessary to correct the violation of those
rights. For this reason, it is our present intention
to adopt an order requiring the State to develop a
plan to reduce the prison population to 120% or 145%
of the prison's design capacity (or somewhere in
between) within a period of two or three years.<2>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
1. Need for This Bill
According to the author:
---------------------------
<2> Three Judge Court Tentative Ruling, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (Feb. 9, 2009).
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The enormous impact of methamphetamine on human life,
public safety and health costs is hard to
overemphasize. A RAND study estimated that the yearly
cost of the nation's meth epidemic exceeds of $23
billion.
In 2008, California seized 119 meth labs, by far the
highest total in the Western United States. Also in
2008, a total of 15 meth "super labs" capable of
producing in excess of 10 pounds of meth were seized
in California.
Without a ready supply of ephedrine/psuedoephedrine,
found in many cold medications, criminals cannot make
meth. . . .
The restrictions that have been placed on
pseudoephedrine/ephedrine products do not work. . . .
Some retailers ignore the limits on the amount that
can be sold and criminals circumvent the restrictions
by "smurfing" -- making numerous purchases of
over-the-counter packages. . . .
SB 484 will require a prescription for purchase of
ephedrine-based drugs. SB 484 is modeled after an
Oregon law that resulted in a huge drop in meth labs.
In 2003, the last year products with
ephedrine/pseudoephedrine were not restricted, Oregon
discovered 473 labs. In 2007, following the
prescription, Oregon found 18 meth labs. Other states
are now considering similar legislation and similar
legislation has been introduced in Congress. . . .
Schedule V drugs, which would include
ephedrine/pseudoephedrine, can be prescribed by phone.
Drug manufacturers have also produced replacement
cold and allergy medicines containing phenylephrine,
which cannot be converted to meth and which would
remain readily available for purchase without
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restriction.
2. Scheduling a Drug or Chemical that is not Itself a Drug of
Abuse as a Controlled Substance
This bill would place pseudoephedrine and related drugs in
Schedule V of the controlled substance schedules, although these
chemicals are not directly used for intoxication. Such a
listing would arguably be a departure from the intended use of
and policy behind the controlled substance schedules.
Pseudoephedrine, because it is the basic chemical used for
clandestine manufacturing of methamphetamine, is a closely
regulated chemical. Distributors and sellers of pseudoephedrine
must make reports to the Department of Justice as to
transactions involving the chemical. A record of purchasers and
purchases must be kept. Failure to report, or including false
information in a report, is a misdemeanor, and in some cases a
felony for repeated violations. Sale of pseudoephedrine, except
in limited quantities of over-the-counter cold and allergy
medications, is a crime. It is a felony to sell pseudoephedrine
with knowledge that the drug will be used to manufacture a
controlled substance. (Health & Saf. Code 11100 et seq.)
The controlled substance schedules classify drugs of abuse in
five schedules. The drugs on Schedule I, which include heroin,
are deemed to have no legitimate medical use. Schedule I drugs
cannot be prescribed. Drugs on the other schedules are deemed
to have decreasing potential for abuse and decreasing
regulations concerning administration and prescription. Before
the state adopted an electronic reporting system for
prescriptions, Schedule II drugs could only be prescribed
through a special triplicate prescription, a copy of which was
kept by law enforcement.
Possession of any drug on Schedule V is an alternate
felony-misdemeanor. Possession for sale or other transfer is a
felony and sale or transfer is a felony, with a maximum prison
term of four years. What is commonly described as sale of a
controlled substance actually includes giving such a drug away.
In other words, were this bill to pass, it would be a felony to
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give someone a few pseudoephedrine decongestant tablets.
Many drugs that are not used for intoxication can only be
obtained through a prescription. These drugs are generally
described as "dangerous drugs," in contrast with
over-the-counter drugs that are deemed safe to use without
medical supervision. The drugs or chemicals placed in the
controlled substance schedules could be defined as drugs for
which a prescription is required, although not controlled
substances. Misdemeanor penalties apply to transfer of such
drugs, but a person would not be guilty of a felony for
possessing or transferring the drugs.
SHOULD PSEUDOEPHEDRINE AND OTHER SPECIFIED DRUGS OR CHEMICALS
THAT ARE NOT GENERALLY DIRECTLY USED FOR INTOXICATION, BUT THAT
ARE USED TO MANUFACTURE METHAMPHETAMINE, BE LISTED IN THE
SCHEDULES OF DRUGS OF ABUSE?
3. Access to Decongestant Medications Under this Bill for Persons
with Little or No Access to Physicians
Many consumers rely on pseudoephredine products to ease nasal
congestion due to colds, allergies and related maladies because
these products are effective. Because one does not need a
prescription to buy them, these medications are readily
available to people who do not have medical insurance or
reasonable access to physicians for non-emergency treatment.
This bill, in requiring cold and allergy sufferers to obtain a
prescription for pseudoephredine, would limit or deny access to
this effective medication for a significant portion of
Californians.
In recent years, because of restrictions on the sale and
distribution of pseudoephredine, the pharmaceutical industry has
developed and marketed alternative or substitute products. It
appears that the most commonly used substitute is phenylephrine.
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A recent article by Gayle Nicholas Scott, Pharm. D.,<3>
reviewed the relative efficacies of pseudoephredine and
phenylephrine.
Dr. Scott concluded: "Phenylephrine appears to have less
decongestant activity than pseudoephredine ." She also noted
that phenylephrine has a shorter half-life than pseudoephredine,
thus requiring more frequent use.
HOW EFFECTIVE ARE OVER-THE-COUNTER ALTERNATIVES TO
PSEUDOEPHEDRINE FOR PEOPLE WHO DO NOT HAVE ACCESS TO PHYSICIANS
TO OBTAIN A PRESCRIPTION FOR PSEUDOEPHEDRINE?
4. Potential Unintended Consequences
While pseudoephredine is an effective decongestant, sale of the
chemical with few restrictions creates serious problems because
it is used to make methamphetamine. In addition to
methamphetamine being a drug of serious abuse, manufacturing
methamphetamine produces toxic and volatile chemicals. The
toxic chemicals poison the environment, as illicit manufactures
dump waste wherever they can. People who are exposed to the
chemicals can become ill and can become severely injured if the
toxic materials explode in clandestine laboratories.
Illicit manufacturing of methamphetamine in California from
pseudoephedrine obtained through over-the-counter sales creates
serious problems. However, eliminating this source of chemicals
for methamphetamine manufacturing may not be free of negative
consequences. Eliminating California manufacturing of
methamphetamine may not substantially diminish use of the drug.
The supply of methamphetamine is driven by demand, and finished
methamphetamine appears to be readily available from sources
outside of California, including Mexico.
---------------------------
<3> Dr. Scott wrote the article as a consultant to Sportpharm, a
company that supplies medical supplies and drugs to athletic
organizations. Sportpharm is relied upon by organizations such
as USA Track and Field, the national governing body for track
and field, including anti-doping issues.
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Any policy change which might result in an increase in the
importation of methamphetamine from Mexico could have serious
and deleterious effects on public safety. Law enforcement and
media sources have recently noted an increase in violence used
by Mexican cartels in the United States, including significant
increases in violence related to Mexican cartels in border
states. (Mexican Drug Cartel Violence Spills Over, Alarming
U.S., New York Times, March 22, 2009.)
The New York Times article included a concise history of the
development of the Mexican illicit drug business, including the
more recent methamphetamine manufacturing and trafficking:
The spread of the Mexican cartels, longtime
distributors of marijuana, has coincided with their
taking over cocaine distribution from Colombian
cartels. Those cartels suffered setbacks when American
authorities curtailed their trading routes through the
Caribbean and South Florida. Since then, the
Colombians have forged alliances with Mexican cartels
to move cocaine, which is still largely produced in
South America, through Mexico and into the United
States. The Mexicans have also taken over much of the
methamphetamine business, producing the drug in "super
labs" in Mexico. The number of labs in the United
States has been on the decline. (Emphasis added.)
Media and law enforcement reports noted an increase in
involvement by Mexican drug organizations in the methamphetamine
trade when states across the country greatly restricted the
availability of pseudoephredine. A January 23, 2006 article in
the New York Times entitled, "Potent Meth Floods in as States
Curb Domestic Variety," described the intended and unintended
consequences of reducing access to pseudoephedrine in Midwest
states such as Iowa and Oklahoma. Law enforcement and health
officials found:
Laboratory seizures dropped dramatically (from 120 to 20
a month in Iowa);
Burn injuries from handling toxic chemicals decreased
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greatly in Iowa;
Demand remained constant, and even increased among women
in Iowa;
Decreases in removal of children because parents cooked
meth was offset by an increase in removals based on
parental use;
Mexican cartels greatly increased distribution of meth
as an addition to marijuana, cocaine and heroin;
Methamphetamine became much more potent and addictive -
often 80% pure crystal ice" meth;
Overdoses increased; and
Methamphetamine prices greatly increased, as did
burglaries, in Iowa.
COULD IMPOSITION OF A PRESCRIPTION REQUIREMENT FOR PURCHASE OF
PSEUDOEPHEDRINE AND SIMILAR CHEMICALS LEAD TO INCREASED PRESENCE
IN THE METHAMPHETAMINE TRADE BY MEXICAN DRUG CARTELS?
WOULD METHAMPHETAMINE COMMERCE BE MORE EFFECTIVELY CURBED BY
REDUCING DEMAND, WITH FEWER POTENTIAL INADVERTENT AND ADVERSE
CONSEQUENCES?
5. U.S. Drug Enforcement Agency (DEA) Analysis of Drug Trade in
Oregon and California, with Emphasis on Methamphetamine
This bill is essentially modeled on an Oregon law which placed
pseudoephedrine and similar drugs or chemicals on Schedule III
of the controlled substance schedules. The U.S. DEA publishes a
summary of illicit drug facts and issues as to each state. The
Oregon summary follows:
DEA Oregon Drug Analysis, with Emphasis on Methamphetamine:
Mexican drug trafficking organizations dominate the
illicit drug market in Oregon. The state serves as a
transshipment point for controlled substances smuggled
from Mexico to Washington and Canada. Recent trends
show the state is also becoming a transshipment point
for controlled substances smuggled from Mexico to
various states east of Oregon, such as Montana,
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Minnesota, Illinois, and New York. Marijuana and MDMA
(street name Ecstasy) from Canada also transit Oregon
en route to other U.S. locations. While
methamphetamine is a significant drug threat in
Oregon, marijuana, heroin, cocaine, and club drugs are
of concern. In 2007, drug prices in Oregon for
methamphetamine and cocaine doubled due to enforcement
operations in the United States and Mexico that
disrupted the supply of these drugs. Drug trafficking
organizations in Oregon also engage in money
laundering, using a variety of methods to legitimize
and reposition illicit proceeds.
Methamphetamine abuse, trafficking, and manufacturing
occur in Oregon. Methamphetamine is one of the most
widely abused controlled substances in the state and
availability is high. In the past, powder
methamphetamine was most common; however, seizures
show a switch to the more addictive and potent form of
meth referred to as "ice" or "crystal."
Oregon legislators enacted a number of laws aimed at
directly reducing methamphetamine availability and
local production. In July 2006, products containing
ephedrine and pseudoephedrine, . . . became Schedule
III controlled substances, available only by
prescription. In recent years, legislation restricted
sales of pseudoephedrine by limiting sales to licensed
pharmacies. In addition, pharmacies are required to
maintain a log of purchase transactions and keep
products behind a pharmacy counter. Reported
clandestine laboratory seizures have been declining,
and the local drug market has been increasingly
supplied with methamphetamine from other southwestern
states and Mexico. Mexican drug trafficking
organizations dominate the methamphetamine supply in
the Pacific Northwest. (Emphasis added.)
DEA data: diminishing methamphetamine lab incidents in
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Oregon, 2003- 2207:
-----------------------------------------------------
|2003 |375 |
|--------------------------+--------------------------|
|2004 |322 |
|--------------------------+--------------------------|
|2005 |189 |
|--------------------------+--------------------------|
|2006 |55 |
|--------------------------+--------------------------|
|2007 |20 |
-----------------------------------------------------
Pseudoephedrine did not become a prescription drug until 2006.
In 2003, when laboratory incidents began to fall in Oregon, the
state limited pseudoephedrine sales to licensed pharmacies and
required pharmacies to keep a log of purchasers.
The U.S. DEA summary for California follows:
DEA California Drug Analysis, with Specific Emphasis on
Methamphetamine:
Due to California's diverse culture and unique
geography ? many issues affect the drug situation in
California. ?[C]ocaine, heroin, methamphetamine, and
marijuana are smuggled ? from Mexico; however,
methamphetamine and marijuana are produced or
cultivated in large quantities within the state. San
Diego and Imperial Counties remain principal
transshipment zones for a variety of drugs - cocaine,
heroin, marijuana and methamphetamine - smuggled from
Mexico. Most drug traffickers/organizations that are
encountered by law enforcement continue to be
poly-drug traffickers rather than specializing in one
type of drug. Since September 11, 2001, greater
emphasis has been placed on carefully screening people
and vehicles at all California Ports of Entry into the
U.S. from Mexico. ?[T]traffickers must use other
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means to smuggle their contraband into the U.S.,
including the use of tunnels that run underneath the
border and more sophisticated hidden compartments in
vehicles. Los Angeles is a distribution center for
all types of illicit drugs destined for other major
metropolitan areas throughout the U.S. as well as
locally. Increased security ? at [LAX] continues to
deter drug traffickers? Although [rural] northern
California is awash in methamphetamine ? heroin
remains the number one drug of abuse in San Francisco,
heroin and crack cocaine continue to impact Oakland,
and methamphetamine continues in and around
Sacramento.
Methamphetamine is the primary drug threat in
California. Mexican organizations continue to
dominate the production and distribution of
high-quality meth, while a secondary trafficking
group, composed primarily of Caucasians, operates
small, unsophisticated laboratories. Clandestine
laboratories can be found in any location: high
density residential neighborhoods, sparsely populated
rural areas, remote desert locations in the southern
portions of California, and the forested areas in
northern California. In recent years, there has been
a decrease in the number of meth labs seized in
California and an increase in the number of meth labs
just south of the border in Mexico. Rural areas in
the Central Valley are the source of much of the meth
produced in California and seized elsewhere. Within
California itself, Hispanics and Caucasians are the
almost exclusive consumers of meth. Purity levels of
meth have ranged from a low of ten percent to a high
of 100 percent purity. As the supply of
pseudoephedrine from Canada has diminished after
successful law enforcement operations, there has been
a noticeable increase in pseudoephedrine and ephedrine
seized that originated from China. Restrictions on
pseudoephedrine importation into Mexico,
balance-of-power issues among rival Mexican cartels,
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and increased enforcement efforts by the current
Mexican government have all significantly impacted
methamphetamine manufacturing and the smuggling of
finished product into the Los Angeles area. (Emphasis
added.)
DEA data: diminishing methamphetamine lab incidents in
California, 2003- 2207:
-----------------------------------------------------
|2003 |1,281 |
|--------------------------+--------------------------|
|2004 |767 |
|--------------------------+--------------------------|
|2005 |468 |
|--------------------------+--------------------------|
|2006 |353 |
|--------------------------+--------------------------|
|2007 |221 |
| | |
-----------------------------------------------------
California, according to federal DEA data, has experienced
a drop in laboratory incidents since 2003. California law
was amended in 1999 (AB 162 (Runner) Ch. 978, Stats. 1999)
to limit each sale to no more than 9 grams. Federal law
restricts purchase of more than 3.6 grams a day and 7.5
grams in a month. Pharmacies must keep a log of such
transactions.
WHAT BENEFITS OR HARM HAVE RESULTED IN OREGON FROM CLASSIFYING
PSEUDOEPHEDRINE AND SIMILAR DRUGS, AS SPECIFIED, AS CONTROLLED
SUBSTANCES?
WOULD THE BENEFITS OF CLASSIFYING PSEUDOEPHEDRINE AND SIMILAR
DRUGS, AS SPECIFIED, AS CONTROLLED SUBSTANCES IN CALIFORNIA
OUTWEIGH WHATEVER NEGATIVE CONSEQUENCES MIGHT RESULT?
DO METHAMPHETAMINE MANUFACTURERS IN CALIFORNIA HAVE ACCESS TO
PSEUDOEPHEDRINE IN BULK QUANTITIES FROM CHINA AND MEXICO?
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6. Argument in Support
The California Peace Officers' Association and the California
Police Chiefs Association, which support this bill, submit:
This bill may be the most important
anti-methamphetamine bill ever introduced in
California. Currently, 90% of the methamphetamine
that is cooked in this state is produced from
pseudoephedrine that is sold in California retail
outlets. Clearly, California's current safeguards -
as well-intentioned as they were - have not worked.
Senate Bill 484, which is patterned after the very
successful Oregon statute, would require that
pseudoephedrine products could only be sold via
prescription. This would render inoperative the
sophisticated smurfing operations that, today, can
generate sufficient pseudeophedrine in one day to
produce a pound of methamphetamine.
7. Arguments in Opposition
The Consumer Healthcare Products Association argues in
opposition:
. . . Requiring consumers to obtain a prescription
to purchase PSE products would impose substantial, and
unnecessary, new costs on consumers and the healthcare
system. . . . CHPA supported . . . (requiring) all
PSE-containing OTCs to be sold from behind the
counter, limits purchases to 3.6 grams per day and 9
grams per 30 days, and requires purchaser signatures
in a logbook. California has yet to enact similar
restrictions that would give state and local law
enforcement jurisdiction to enforce these sales
limits. Since the CMEA and similar state restrictions
took effect, there has been a 61% nationwide drop in
meth lab incidents. California's lab incidents have
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been reduced by 86%, from a high of 2,579 incidents in
1999 to 349 lab incidents in 2008, . . .
. . . Oklahoma has seen a 90% reduction in the
number of meth labs discovered in the state since
implementing an electronic tracking system and other
PSE sales restrictions. Kentucky and Arkansas began
using similar systems state-wide in 2008. Kentucky's
sales data shows that less than 1.5% of sales are
blocked by the electronic tracking system because they
would have exceeded legal limits, demonstrating that
the vast majority of PSE sales are legitimate. While
electronic tracking is not a free solution, the
prescription alternative is an extremely costly route
for the state. Requiring a prescription for an OTC
drug will impose direct costs on the state to
reimburse physicians every time a Medicaid or SCHIP
recipient sees a doctor to obtain a PSE prescription.
Health insurance premiums for state employees could
also be affected. California would lose over
$4,460,000 in sales tax revenue (based on 2008 sales
data, not including Wal-Mart) because prescription
drugs are tax-exempt while OTCs are subject to sales
tax. Oregon is the only state that currently requires
a prescription for PSE, and while Oregon has seen a
significant reduction in meth lab incidents, it is
comparable to the reductions achieved in its
neighboring states which do not require a
prescription.
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Millions of consumers still wait in line at the
pharmacy and subject themselves to state and federal
criminal prosecution if they exceed legal quantity
limits to buy PSE. This demonstrates that for many,
PSE is the best remedy even though reformulated
products are available on the shelves and are easier
to obtain. Prescription status for PSE would mean
substantial new costs for these consumers, measured in
both time and money, to access important and needed
medicines.
8. Author's Proposed Amendments to Eliminate Felonies in the Bill
By placing pseudoephedrine and other specified chemicals on
Schedule V of the controlled substance schedules, SB 484 would
create new felony penalties for possession, possession for sale
and sale of these chemicals. To avoid creating new felonies,
the author has proposed that the bill could be amended to
provide that any person who obtains the specified chemicals is
guilty of an alternate infraction-misdemeanor.
As is noted in the discussion above, existing law includes
crimes, including felonies, for possession of pseudoephedrine or
other specified chemicals with the intent to manufacture
methamphetamine. Additional crimes apply to persons who
transfer these chemicals with the intent that they be used to
manufacture methamphetamine or with knowledge that the chemicals
will be used to manufacture methamphetamine. The new crime for
possessing pseudoephedrine or other specified chemicals without
a prescription be amended to provide that the new section does
not prohibit prosecution under any other applicable provision of
law.
SHOULD THIS BILL BE AMENDED TO PROVIDE THAT ANY PERSON WHO
OBTAINS PSEUDOEPHEDRINE OR SPECIFIED RELATED CHEMICALS, WITHOUT
A PRESCRIPTION IS GUILTY OF AN ALTERNATE INFRACTION-MISDEMEANOR?
SHOULD THE AMENDMENTS ALSO PROVIDE THAT POSSESSION OF
PSEUDOEPHEDRINE OR OTHER SPECIFIED CHEMICALS OR DRUGS WITHOUT A
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SB 484 (Wright)
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PRESCRIPTION CAN BE PROSECUTED UNDER ANY OTHER APPLICABLE
PROVISION OF LAW?
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