BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
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AB 1743 (Ting) 3
As Amended May 27, 2014
Hearing date: June 24, 2014
Business and Professions; Health and Safety Codes
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SALES OF SYRINGES
HISTORY
Source: Drug Policy Alliance; San Francisco AIDS Foundation
Prior Legislation: SB 41 (Yee) - Ch. 738, Stats. 2011
AB 1701 (Chesbro) - Ch. 667, Stats. 2010
AB 110 (Laird) - Ch. 707, Stats. 2007
AB 547 (Berg) - Ch. 692, Stats. 2005
SB 1159 (Vasconcellos) - Ch. 608, Stats. 2004
AB 136 (Mazzoni) - Ch. 762, Stats. 1999
Support: A New PATH; American Civil Liberties Union of
California; California Association of Alcohol and Drug
Program Executives; California Communities United
Institute; California Conference of Local AIDS
Directors; California Medical Association; California
Nurses Association; California Pharmacists
Association; California Primary Care Association;
California Public Defenders Association; California
Retailers Association; California Society of Addiction
Medicine; California Society of Health-System
Pharmacists; Center for Living and Learning; City and
County of San Francisco; County Alcohol and Drug
Program Administrators Association of California;
Dolores Street Community Services; Drug Policy
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Alliance; Friends Committee on Legislation of
California; HealthRIGHT 360; Homeless Health Care Los
Angeles; Los Angeles County Board of Supervisors; Los
Angeles Gay and Lesbian Center; National Association
of Social Workers, California Chapter; National Viral
Hepatitis Roundtable; Planned Parenthood Affiliates of
California; San Francisco HIV/AIDS Provider Network;
San Francisco Medical Society; Tarzana Treatment
Centers, Inc.; Transgender Law Center; UCSF Alliance
Health Project; University of California, San Diego;
California Mental Health Directors Association
Opposition:None known
Assembly Floor Vote: Ayes 45 - Noes 28
KEY ISSUE
SHOULD THE LIMIT OF 30 OR FEWER SYRINGES AND HYPODERMIC NEEDLES A
PHARMACIST MAY SELL TO AN ADULT IN A SINGLE TRANSACTION, AND THE
SAME LIMIT ON THE NUMBER OF SYRINGES AND NEEDLES A PERSON MAY OBTAIN
FROM A SPECIFIED SOURCE BE REPEALED UNTIL 2021?
PURPOSE
The purpose of this bill is to repeal until 2021 the provision
that limits the number of syringes and hypodermic needles a
pharmacist or physician may sell to an adult purchaser to 30 or
fewer devices; and 2) to extend to 2021 the requirement that a
pharmacist provide written or oral counseling to a purchaser of
syringes and hypodermic needles.
Existing law permits a pharmacist or physicians to furnish up to
30 hypodermic needles and syringes for human use, without a
prescription or local government authorization, to a person 18
years or older until January 1, 2015. (Bus. & Prof. Code
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�4145.5, subd. (b).)
Existing law permits a person without a prescription or license
to obtain up to 30 hypodermic needles and syringes from a
physician, pharmacist or hypodermic needle and exchange program
solely for personal use until January 1, 2015. (Health & Saf.
Code � 11364.1, subd. (c).)
Existing law requires pharmacies that furnish non-prescription
syringes to provide written information or verbal counseling to
consumers at the time of furnishing or sale of non-prescription
hypodermic needles or syringes on how to access drug treatment
and testing and treatment for HIV and hepatitis C, and how to
safely dispose of sharps waste. (Bus. & Prof. Code � 4145.5,
subd. (f).)
Existing law permits, until January 1, 2015, a city or county to
authorize a licensed pharmacist to sell or furnish up to 10
hypodermic needles or syringes to a person for human use without
a prescription if the pharmacy is registered with a local health
jurisdiction in disease prevention demonstration projects
(DPDP). (Bus. & Prof. Code � 4145.)
This bill deletes the limit on the number of syringes a
pharmacist or physician may provide to an adult without a
prescription and extends, until January 1, 2021, the statewide
authorization for pharmacists to sell syringes without a
prescription.
This bill deletes the limit on the number of syringes and
needles a person may possess, when the items are obtained from a
pharmacist, physician, needle exchange program or any other
lawful source, and extends this authorization until January 1,
2021.
This bill directs pharmacists and needle exchange programs to
counsel persons obtaining needles and syringes on safe disposal,
in addition to the existing requirement that they provide for
safe disposal.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
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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 that 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.
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 requiring the state to reduce its prison
population to 137.5 percent of design capacity. The State
submitted 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 opposed the
state's motion, arguing 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 % inmate population cap by December 31,
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2013.
The Three-Judge Court then ordered, on April 11, 2013, the state
of California to "immediately take all steps necessary to comply
with this Court's . . . Order . . . requiring defendants to
reduce overall prison population to 137.5% design capacity by
December 31, 2013." On September 16, 2013, the State asked the
Court to extend that deadline to December 31, 2016. In
response, the Court extended the deadline first to January 27,
2014, and then February 24, 2014, and ordered the parties to
enter into a meet-and-confer process to "explore how defendants
can comply with this Court's June 20, 2013, Order, including
means and dates by which such compliance can be expedited or
accomplished and how this Court can ensure a durable solution to
the prison crowding problem."
The parties were not able to reach an agreement during the
meet-and-confer process. As a result, the Court ordered
briefing on the State's requested extension and, on February 10,
2014, issued an order extending the deadline to reduce the
in-state adult institution population to 137.5% design capacity
to February 28, 2016. The order requires the state to meet the
following interim and final population reduction benchmarks:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
If a benchmark is missed the Compliance Officer (a position
created by the February 10, 2016 order) can order the release of
inmates to bring the State into compliance with that benchmark.
In a status report to the Court dated May 15, 2014, the state
reported that as of May 14, 2014, 116,428 inmates were housed in
the State's 34 adult institutions, which amounts to 140.8% of
design bed capacity, and 8,650 inmates were housed in
out-of-state facilities.
The ongoing prison overcrowding litigation indicates that prison
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capacity and related issues concerning conditions of confinement
remain unresolved. While real gains in reducing the prison
population have been made, even greater reductions may be
required to meet the orders of the federal court. Therefore,
the Committee's consideration of ROCA bills -bills that may
impact the prison population - will be informed by the following
questions:
Whether a measure erodes realignment and impacts the
prison population;
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.
COMMENTS
1. Need for This Bill
According to the author:
Sharing used syringes remains the most common mode of
hepatitis C transmission, and the second most common
cause of HIV and hepatitis B transmission in the
United States and California. These diseases are
costly and potentially deadly. The California Medical
Association, the California Nurses Association, and
the California Board of Pharmacies agree that safe and
legal syringe access through pharmacies is a key
component to the prevention and control of HIV/AIDS
and hepatitis B & C. The United Nations AIDS
Foundation and the World Health Organization have
found that very high or no caps on the amount of
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syringes an adult can purchase are associated with
less syringe sharing. Current law provides
pharmacists the discretion to sell up to 30 syringes
to an adult without a prescription. This law will
sunset on January 1, 2015, and without an extension of
the law, pharmacists in only 15 counties and 4 cities
will maintain the ability to sell syringes over the
counter. AB 1743 extends the sunset date in existing
law for six years and removes the cap on the number of
syringes an adult can purchase. By doing so,
California will use evidenced-based strategies to
prevent thousands of potentially deadly infections at
no cost to the taxpayers.
2. Consistent Statewide Policy on Syringe and Needle
Distribution and Possession
Existing law includes a number of provisions regulating how
syringes and needles are distributed without a prescription.
The statutes demonstrate the development of the issue and the
law. The first statutes were pilot projects, with relatively
strict limits on the number of syringes that could be
distributed without a prescription. The first programs were
subject to relatively short-term county approval, requiring
advocates to seek renewal on a regular basis. More recently,
the law authorized pharmacists and physicians to distribute up
to 30 needles and syringes. Some of the laws overlap and even
contradict each other,<1> perhaps creating confusion and
uncertainty about what practices are allowed.
This bill will create a statewide standard for both the
distribution of needles and syringes and a parallel provision
concerning persons who obtain and possess needles and syringes.
This could be helpful to persons who are not sure if they must
operate under a county-approved program or another law. This
bill does, however, include a January 1, 2021 sunset to allow
---------------------------
<1> The statutes concerning local government approval still
appear in the law. However, Business and Professions Code
Section 4149.5 provides that the authorization statutes are
inoperative through January 1, 2015.
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the Legislature to evaluate how the law is working.
3. Background on Syringe and Needle Availability and Disease
Prevention
California Department of Public Health (DPH) Office of AIDS
estimates that of the 117,553 persons reported to be living with
HIV/AIDS in California in 2012, 16.4 percent reported injection
drug use (IDU) as a risk factor, including approximately 9,672
men who reported both IDU and having sex with men as risk
factors. The Center for Disease Control and Prevention (CDC)
estimates that 50 to 90 percent of HIV-infected persons who use
injection drugs are also infected with hepatitis C virus (HCV).
IDU is the most commonly reported risk for HCV infection and is
the second most common risk factor for hepatitis B virus (HBV)
infection. CDPH's Office of Viral Hepatitis Prevention
estimates that at least 60 percent of prevalent cases of HCV
infection in California are associated with IDU, and reports an
estimated 750,000 people living with hepatitis C in the state.
The long-term health consequences and costs associated with
hepatitis C and B are considerable. The Office of Viral
Hepatitis Prevention reports that in 2010 alone there were more
than 30,000 hospitalizations in California for complications
related to HCV and HBV infection, at a cost of over 2.3 billion
dollars. According to the CDC, each year in the U.S.
approximately 12,000 to 15,000 people die from HCV.
Public health experts, including the CDC, have identified access
to sterile syringes as one component of a comprehensive HIV
prevention strategy designed to reduce HIV transmission among
IDUs. In the last 10 years, a number of national organizations
have endorsed deregulation to allow IDUs to purchase and possess
syringes and needles without a prescription, including the
American Medical Association, the American Pharmaceutical
Association, the National Association of Boards of Pharmacy
(NABP), the National Alliance of State and Territorial AIDS
Directors, and the Association of State and Territorial Health
Officials. California is one of only five states having
statewide limitations on the purchase of syringes, according to
a 2014 survey by the NABP. Although statewide sales are
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currently legal, there is a restriction as to the number.
4. Disease Prevention Pilot Programs for Limited Syringe Sales
SB 1159 (Vasconcellos), Chapter 608, Statutes of 2004,
established a five-year pilot program to allow California
pharmacies, when authorized by a local government, to sell up to
10 syringes to adults without a prescription. According to the
DPH Office of AIDS, 16 counties and four cities in California
authorized a DPDP (counties: Alameda, Contra Costa, Humboldt,
Los Angeles, Mendocino, Marin, San Francisco, San Luis Obispo,
San Mateo, Santa Barbara, Santa Clara, Santa Cruz, Solano,
Sonoma, Yolo, and Yuba; cities: Long Beach, Los Angeles,
Sacramento, and West Hollywood). By February 2010, over 650
pharmacies were registered to participate in the program
(according to DPH, this is an estimate because some counties did
not keep fully accurate records, and some pharmacies
misunderstood DPDP requirements and sold syringes without first
registering with the local health jurisdiction [LHJ]).
According to an evaluation of DPDP published in July 2010 by
DPH, SB 1159 appeared to have the desired effect of augmenting
access to sterile syringes to prevent transmission of
blood-borne viral infections among IDUs without many of the
negative consequences that some had feared. DPH's evaluation
suggests that counties authorizing over-the-counter (OTC) sale
of syringes without a prescription possess lower syringe sharing
levels among IDUs than counties that have not authorized OTC
sale. Additionally, since implementation of SB 1159, fewer
clients presenting for testing for HIV at state-funded testing
sites report injecting illegal drugs, suggesting that
authorization of OTC syringe sales did not have the negative
impact of increased injection drug activity, a concern expressed
by some prior to authorization. DPH's evaluation found that,
following implementation of SB 1159, accidental needle-stick
injury to law enforcement officers remained rare in California.
Between 2005 and 2009, post-authorization of DPDPs, 19
accidental needle-stick injuries were reported among law
enforcement in LHJs that had authorized DPDPs and 15 accidental
needle-stick injuries were reported among law enforcement in
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LHJs that had not authorized DPDPs. The variation in recent
years is not great enough to suggest a statistically significant
relationship to the authorization of DPDP. DPH's evaluation
found no increase in unsafe discard of syringes since
implementation of SB 1159. Finally, comparing time periods
prior to and following SB 1159 authorization, DPH found no
evidence of an increase in drug use or crime in the state of
California as a whole or in areas that authorized sale of
syringes without a prescription. The overall findings are
consistent with those of other states that have transitioned, as
California has, from a complete prohibition on sale and
possession of syringes, to allowing a limited number to be sold
to adults. The program was considered successful by the
localities that implemented it and the DPDP was suspended when
statewide sales were authorized by SB 41 (Yee), Chapter 738,
Statutes of 2011.
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5. Concise Descriptions of Prior Elated Legislation
SB 41 (Yee), Chapter 738, Statutes of 2011, permits syringe
sales of a maximum of 30 hypodermic needles or syringes to a
person without a prescription through licensed pharmacies
throughout the state until January 1, 2015 and makes inoperative
until that date, portions of the law establishing the DPDP.
AB 1701 (Chesbro), Chapter 667, Statues of 2010, establishes,
indefinitely, the DPDP, permitting cities or counties to
authorize licensed pharmacists to sell or furnish 10 or fewer
hypodermic needles or syringes to a person for use without a
prescription, as specified.
SB 1029 (Yee) of 2010 contained similar provisions to those
contained in this bill, and was vetoed by Governor
Schwarzenegger who stated: When I signed legislation my first
year in office allowing for a pilot program to allow the sale of
syringes through participating counties and registered
pharmacies, I was seeking to balance the competing public
health, law enforcement and local control issues that this issue
requires. I believe this balance was achieved and SB 1029 would
remove the ability of local officials to best determine policies
in their jurisdiction."
AB 110 (Laird), Chapter 707, Statutes of 2007, permits a public
entity that receives General Fund money from the Department of
Health Services (now DPH) for HIV prevention and education to
use that money to support needle exchange programs. AB 1597
(Laird) of 2005 contained substantially similar provisions to AB
110, but was vetoed by Governor Schwarzenegger.
AB 547 (Berg), Chapter 692, Statutes of 2005, creates the Clean
Needle and Syringe Exchange Program to permit needle exchange
programs without a local declaration of emergency.
AB 946 (Berg), of 2003 and AB 2871 (Berg) of 2004 would also
have repealed the requirement that a city or county authorize
its needle exchange program through a declaration of a local
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emergency. Both bills were vetoed by Governor Davis and
Governor Schwarzenegger, respectively.
SB 774 (Vasconcellos), of 2003 and SB 1785 (Vasconcellos) of
2002 would have permitted the furnishing of syringes without a
prescription. Both measures were vetoed by Governor Davis.
AB 136 (Mazzoni), Chapter 762, Statutes of 1999, exempts public
entities and their agents and employees who distribute
hypodermic needles or syringes to participants in clean needle
and syringe exchange projects authorized by the public entity
pursuant to a declaration of a local emergency from criminal
prosecution.
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