BILL ANALYSIS �
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|SENATE RULES COMMITTEE | SB 514|
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THIRD READING
Bill No: SB 514
Author: Simitian (D)
Amended: 5/10/11
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 6-0, 5/3/11
AYES: Hancock, Calderon, Harman, Liu, Price, Steinberg
NO VOTE RECORDED: Anderson
SENATE APPROPRIATIONS COMMITTEE : 6-0, 5/23/11
AYES: Kehoe, Alquist, Lieu, Pavley, Price, Steinberg
NO VOTE RECORDED: Walters, Emmerson, Runner
SUBJECT : Dextromethorphan: sale to minors prohibited
SOURCE : Author
DIGEST : This bill (1) enacts a new crime, punishable as
an infraction, for any person, retailer, corporation or
retailer to willfully and knowingly provide dimenhydrinate
or dextromethorphan (DXM) to a minor in an over-the-counter
sale without a prescription, as specified; (2) presumes
that any transaction in which the defendant failed to check
the identification of a person who did not appear to be at
least 25 years of age violates this new crime; (3) allows
an affirmative defense where the seller demanded and
reasonably relied on apparently valid proof of the
purchaser's age, as specified; (4) provides that a retail
clerk is not criminally or civilly liable unless the clerk
was a willful participant in an ongoing criminal conspiracy
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to violate this new crime; and (5) requires a seller of
over-the-counter DXM to use, if feasible, a cash register
equipped with an age verification feature, as specified.
ANALYSIS : Existing law specifies that an infraction is
not punishable by imprisonment. A person charged with an
infraction is not allowed a jury trial. Indigent
infraction defendants are not entitled to counsel at public
expense. (Penal Code Section 19.6.)
This bill makes it an infraction for any person,
corporation or retailer to sell a substance containing
dimenhydrinate or DXM, as defined, over-the-counter without
a prescription to a person under the age of 18.
This bill provides that a violation is presumed if the
seller does not obtain proof of age, as defined, unless the
purchaser appears to be over the age of 25.
This bill provides that "proof of age" means a photo
identification that includes the person's name, description
and picture that was issued by a government entity, as
specified.
This bill includes the following affirmative defense:
The seller required and obtained identification
from the purchaser establishing that he/she was an
adult proof of majority from the purchaser.
The seller reasonably relied on the identification.
This bill provides that a retail clerk who fails to require
and obtain proof of age from a DXM purchaser shall not be
guilty of an infraction or subject to a civil penalty.
This bill provides that a clerk's immunity from liability
does not apply if the clerk is participating in an ongoing
criminal conspiracy to violate the prohibition created by
this bill.
This bill provides that a seller of DXM shall use, if
feasible, a cash register with a feature directing the
person selling the product to obtain proof that purchaser
is at least 18 years of age.
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DXM is the active ingredient found in many over-the-counter
cough and cold medications. DXM is found in more than 140
brand-name products such as Coricidin, Robitussin, and
NyQuil, and are sold over-the-counter in grocery stores,
pharmacies, and other retail outlets. Individuals who abuse
DXM in excessive amounts refer to DXM as robo-tripping,
skittling, dex, or candy. While safe when taken at the
recommended dosage, products containing DXM can produce
"hallucinations and dissociative, outofbody experiences
when taken in larger amounts. The California Poison
Control System reports that DXM has been the most commonly
abused substance reported in abuse calls received over the
past decade from patients aged 6-17 years.
This bill prohibits the sale of a non-prescription drug
containing DXM to a minor. Any person, corporation, or
retail distributor that knowingly supplies, delivers, or
gives possession of any product containing DXM to a minor
is guilty of an infraction punishable by a fine of up to
$250. The creation of a new crime will result in
non-reimbursable local enforcement costs offset to a minor
degree by fine revenue.
Comments
Statistics from the CPCS indicate that of the 228 cases of
DXM abuse reported by minors in 2010:
71 percent were treated in an emergency room.
4 percent were admitted to the hospital intensive
care unit.
4 percent were admitted to the hospital in a
non-critical care unit.
6 percent refused referral to a hospital.
2 percent were treated at home.
13 percent were lost to follow up.
It should be noted that calls to the CPCS do not constitute
the universe of DXM abuse cases. There are likely a number
of minors who abuse DXM but do not come to the attention of
the CPCS. Based on this information, to the extent the
prohibition of sales of DXM to minors results in fewer
cases of abuse and subsequent medical care, there would be
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potentially significant future health care cost savings.
The amount of publicly-funded health care costs incurred
for treating minors specific to DXM abuse is unknown, but
could be significant.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
According to the Senate Appropriations Committee analysis:
Fiscal Impact (in thousands)
Major Provisions 2011-12 2012-13
2013-14 Fund
Reduced health careUnknown; potentially significant
Fed/General/
costs cost savings
Local
Sales tax loss Unknown;
sales tax revenue loss of General
$50 per $1,000 in retail sales to
minors
New infraction Unknown;
non-reimbursable local Local
enforcement costs offset to a minor
degree by fine revenue
SUPPORT : (Verified 5/24/11)
American College of Emergency Physicians, State Chapter of
California
California District Attorneys Association
California Peace Officers Association
California Pharmacists Association
California State Board of Pharmacy
California Police Chiefs Association
Center for Healthier Communities at Rady Children's
Hospital, San Diego
Consumer Healthcare Products Association
DXM: 18 and Over-the-Counter Coalition
Full Circle Treatment Center
Junior Leagues of California SPAC
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Junior League of Palo AltoMid Peninsula
Palo Alto Peace Officers' Association
Palo Alto Police Department
ARGUMENTS IN SUPPORT : According to the author's office,
ingesting too much cold medicine can be as hazardous as
drinking too much alcohol. It is cheap, easy and legal for
children to obtain. The California Poison Control System
reports that DXM abuse calls have increased more than 850
percent in the last ten years. This problem is serious and
widespread. One in ten teenagers say they've used DXM to
get high making it more popular than LSD, cocaine, ecstasy
or meth. The fact that DXM is legal and readily available
over-the-counter, suggests to young people that DXM is
safe. Indeed, that false sense of security has been
identified as a contributing factor in abuse. Age specific
limitations will help communicate to teens and their
parents that there are serious consequences associated with
inappropriate use.
The DXM: 18 and Over-the-Counter Coalition argues in
support:
Dextromethorphan (DXM) is an active ingredient in
more than 140 cough and cold medicines sold
over-the-counter in grocery stores, pharmacies and
other retail outlets. When taken as recommended,
products containing DXM are safe and effective in
suppressing coughs. However, 5% of American teens
(an estimated 400,000 in California) endanger their
lives by abusing DXM through consuming medicines in
excessive doses to get high. Abusers, who ingest
8-20 times the recommended therapeutic dose, risk
serious complications that can include seizures,
brain damage, liver damage and death in addition to
the dangers associated with mental disassociation.
Teens who abuse DXM believe it's a "safe high"
because it's legal and easily available in the same
stores that sell gum and soda. Street names like
Skittles, Velvet and Red-Devils imply light-hearted
fun. Minors are not aware that the dangers multiply
when DXM is abused with alcohol, prescription drugs
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or narcotics. Consequently, between 2004 and 2007,
emergency room visits associated with DXM abuse rose
70%, raising concerns about public safety and
associated healthcare costs. The solution is that
proposed by SB 514: Prohibit the sale, without a
prescription, of over the counter medicines
containing Dextromethorphan to a minor.
RJG:do 5/24/11 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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