BILL ANALYSIS �
SB 514
Page 1
Date of Hearing: July 5, 2011
Counsel: Milena Nelson
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 514 (Simitian) - As Amended: May 10, 2011
SUMMARY : Prohibits any person, corporation, or retail
distributor from knowingly supplying, delivering, or giving
possession of a drug, material, compound, mixture, preparation
or substance containing any quantity of dextromethorphan to a
person under the age of 18 without a prescription.
Specifically, this bill :
1)States that unauthorized sales shall be an infraction,
punishable by a fine not to exceed $250.
2)States that it shall be prima facie evidence of a violation of
this section if the person, corporation, or retail distributor
making the sale does not require and obtain bona fide evidence
of majority and identity from the purchases, unless from the
purchaser's outward appearance the person making the sale
would reasonably presume the purchaser to be 25 years of age
or older.
3)States that proof that a person, corporation, or retail
distributor, or his or her agent or employee, demanded, was
shown, and acted in reasonable reliance upon, bone fide
evidence of majority and identity, shall be a defense to any
criminal prosecution under this section.
4)States that "bone fide evidence of majority and identity" is
defined as a document issued by a federal, state, county, or
municipal government, or subdivision or agency thereof,
including but not limited to a driver's license, California
state identification card, identification card issued to a
member of the armed forces, or other form of identification
that bears the name, date of birth, description, and picture
of the person.
5)States that notwithstanding any other provision of this
section, a retail clerk who fails to require and obtain proof
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of age from the purchaser is not guilty of an infraction, as
specified or subject to any civil penalties, unless he or she
is a willful participant in an ongoing criminal conspiracy to
violate this section.
6)Requires, if feasible, any person, corporation, or retail
distributor that sells or makes available product containing
dextromethorphan, as specified, without a prescription, to use
a cash register that is equipped with an age-verification
feature to monitor age-restricted items. The cash register
shall be programmed to direct the retail clerk making the ale
to request bona fide evidence of majority and identity before
a product containing dextromethorphan may be purchased.
EXISTING LAW:
1)States that any person who sells, dispenses, distributes,
furnishes, administers, gives, or offers to sell, dispense,
distribute, furnish, administer, or give Salvia divinorum or
Salvinorin A, or any substance or material containing Salvia
divinorum or Salvinorin A, to any person who is less than 18
years of age, is guilty of a misdemeanor punishable by
imprisonment in a county jail not exceeding six months, or by
a fine not exceeding $1,000, or by both that fine and
imprisonment. (Penal Code Section 379.)
2)States that any person who sells, furnishes, administers,
distributes, gives away, or offers to sell, furnish,
administer, distribute, or give away a device, canister, tank,
or receptacle either exclusively containing nitrous oxide or
exclusively containing a chemical compound mixed with nitrous
oxide, to a person under 18 years of age is guilty of a
misdemeanor. �Penal Code Section 381c(b).]
3)States that any person who sells, dispenses or distributes
toluene, or any substance or material containing toluene, to
any person who is less than 18 years of age shall be guilty of
a misdemeanor, and upon conviction shall be fined in a sum of
not less than $1,000, nor more than $2,500, or by imprisonment
for not less than six months nor more than one year. �Penal
Code Section 380(a).]
4)States that it shall be unlawful for any person, firm, or
corporation, except a parent or legal guardian, to sell or
give or in any way furnish to another person, who is in fact
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under the age of 18 years, any etching cream or aerosol
container of paint that is capable of defacing property
without first obtaining bona fide evidence of majority and
identity. �Penal Code Section 594.1(a)(1).]
5)Classifies controlled substances in five schedules according
to their danger and potential for abuse. Schedule I
controlled substances have the greatest restrictions and
penalties, including prohibiting the prescribing of a Schedule
I controlled substance. (Health and Safety Code Sections
11054 to 11058.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Ingesting too
much cold medicine can be just as hazardous as drinking too
much alcohol. And it is cheap , easy and legal for children to
obtain. The California Poison Control System reports that
dextromethorphan 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 most young people that these
products are entirely 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."
2)Dextromethorphan Not Listed on the Federal Schedule of
Controlled Substances : Both California and the Federal
Government have listing of controlled substances. Neither
California nor the Federal Government has included
dextromethorphan on their respective schedules.
3)Argument in Support : According to the Full Circle Treatment
Center , "As a provider of adolescent substance abuse services
in Roseville, CA we are firmly in support of your efforts to
pass Senate Bill 514 to prohibit the sale of non-prescription
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drugs containing dextromethorphan (DXM) to minors. We see
first hand the devastating effects of teen substance abuse and
when these substances are legal and available in every retail
store and every home medicine cabinet the perception of safety
is implicit. Teens believe that these products are safe
because of the way they obtain them. This could not be
further from the truth. We applaud your efforts to protect
our youth from obtaining these potentially dangerous and often
abused products."
4)Argument in Opposition : According to the California Grocers
Association , "A major issue is the absence of a
state-generated, authoritative list of products containing
DMX. Grocers would be forced to make an independent
determination regarding which products are covered by the ager
restriction and which may not be. In addition, an imbalance
between penalties applicable to grocery companies and
employees who actually fail to follow the new sales
restrictions exists in the proposed statute. While employment
action would be possible should a clerk violate the sales
restrictions, the employing business would be subject to
potential legal action and opportunistic litigation despite
earnest efforts to train employees and require them to follow
the law."
5)Previous Legislation :
a) AB 1853 (Simitian), of the 2003-04 Legislative Session,
would have banned the sale of any product containing
dextromethorphan to a person under the age of 18 without a
prescription. AB 1853 was never heard on the Assembly
Floor.
b) SB 307 (Simitian), of the 2005-06 Legislative Session,
was substantially similar to this bill. SB 307 was never
heard by Senate Public Safety Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
California Chapter of American College of Emergency Physicians
California Peace Officers' Association
California Police Chiefs Association, Inc.
California State Board of Pharmacy
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City of Palo Alto Police Department
Consumer Healthcare Products Association
Full Circle Treatment Center
Junior Leagues of California
Palo Alto Police Officers' Association
Rady Children's Hospital of San Diego
Opposition
California Grocers Association
Analysis Prepared by : Milena Nelson / PUB. S. / (916)
319-3744