BILL ANALYSIS Ó
AB 1280
Page 1
Date of Hearing: May 3, 2011
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Ammiano, Tom, Chair
AB 1280 (Hill) - As Amended: March 25, 2011
REVISED
SUMMARY : Requires, effective January 1, 2013, retailers of
ephedrine and pseudoephedrine to transmit specified purchase
information to the National Precursor Log Exchange (NPLEx) to
determine if the proposed sale violates purchasing restrictions.
Specifically, this bill :
1)Creates a misdemeanor for any retail distributor, except
pursuant to a valid prescription from a licensed practitioner
with prescriptive authority, to sell or distribute to a person
specified amounts of nonprescription products containing
ephedrine, pseudoephedrine, norpseudoephedrine, or
phenylpropanolamine within specified time limits, to sell or
distribute any of those substances to a person whose
information has generated an alert, or, except under specified
conditions, to sell or distribute to any purchaser a
nonprescription product containing any amount of those
substances.
2)Requires the secure storage and monitoring of products
containing any amount of ephedrine, pseudoephedrine,
norpseudoephedrine, or phenylpropanolamine, as specified.
3)Requires retail distributors to transmit sale information to
the National Precursor Log Exchange (NPLEx) for purposes of
determining whether the sale would violate these provisions.
4)Requires the Department of Justice (DOJ) to enter into a
memorandum of understanding with the National Association of
Drug Diversion Investigators regarding the transaction records
in NPLEx, as specified.
5)Provides that the information in the system may not be used
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for any purpose other than to meet the requirements of, or
comply with, this act or a certain federal act, as specified.
6) Specifies legislative findings and intent.
7)States that this bill's provisions would remain in effect only
until January 1, 2018.
EXISTING LAW :
1)Prohibits with specified and detailed exceptions, 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.
(Civil Code Section 56.10.)
2)Classifies controlled substances in five schedules according
to their dangerousness and potential for abuse. (Health and
Safety Code (HSC) Sections 11054 to 11058.)
3)Includes a detailed regulatory scheme for the production and
distribution of specified chemicals that may be precursors to
controlled substances. (HSC Section 11100.)
4)Provides that producers and users of precursor chemicals (HSC
Section 11100) must obtain a permit from DOJ. Applications
for permits must include documentation of legitimate uses for
regulated chemicals. (HSC Section 11106.)
5)Provides that "Ýs]elling, transferring, or otherwise
furnishing or obtaining any Ýrestricted] substance specified
in subdivision (a) of ÝHSC] Section 11100 without a permit is
a misdemeanor or a felony." ÝHSC Section 11106(j).]
6)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 Drug Enforcement Agency (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. ÝHSC Section
11100(c).]
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7)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 DOJ, generally within
21 days, of all of each transaction. The report must include
the identification information about the purchaser. ÝHSC
Section 11100(d).]
8)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 one year, a fine of up to $100,000, or both such fine
and imprisonment. ÝHSC Section 11100(f).]
9)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 three 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. (HSC Section 11107.)
10)Provides that it is unlawful for a retailer to (i) sell in a
single transaction more than three packages, or nine grams, of
a product that he or she knows to contain ephedrine,
pseudoephedrine, norpseudoephedrine, or phenylpropanolamine.
With specified exceptions, the three package/nine 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 six months, a fine of up to $1,000, or both.
ÝHSC Section 11100(g)(3).]
11)Includes the Health Insurance Portability and Accountability
Act of 1996 (HIPAA) which, subject to specified exceptions and
procedures, provides that medical information shall be
confidential. (Pub. Law 104-191; 45 CFR 160, 164.)
12)Includes very detailed restrictions and requirements the for
retail sale of ephedrine, pseudoephedrine, norpseudoephedrine
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or phenylpropanolamine. These restrictions include, in part
Ý21 USC Section 830(e) and 844(a)]:
a) No more than 3.6 grams in a single transaction.
b) No more than 9 grams per customer in a one-month period.
c) If the drug is obtained through postal or similar
delivery, no more than 7.5 grams can be so obtained.
d) 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.
e) The purchaser must present valid identification, as
specified, and the seller must verify the identification.
f) The purchaser must sign a paper or electronic logbook,
as specified.
g) The seller must maintain these documents, as specified.
h) Law enforcement shall have access to the information
pursuant to regulations adopted by DOJ.
13)Provides the following penalties Ý21 USC Section 841(c) and
844(a)]:
a) Violation of the 9 gram purchase limit is a misdemeanor.
b) Violation of record-keeping laws is a misdemeanor, with
specified exceptions.
c) Violation of the distribution limits is punishable by
imprisonment for up to five years (pursuant to the federal
sentencing guidelines).
d) 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.
14)Includes an exception to the log book recording of
transactions in the case of a transaction that involves a
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single package that contains not more than 60 milligrams of
psuedoephedrine. Ý21 USC Section 841(e)(1)(A)(iii).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "AB 1280
provides teeth to existing federal law limiting the sales of
pseudoephedrine (PSE) products. Federal law in place since
2006 has imposed both daily and monthly limits on quantities
of products containing PSE that can be purchased. Consumers
must specifically ask for the products (only available behind
the counter), provide identification and sign a log book prior
to completing a sale. Limits on PSE quantities were imposed
as it is a primary ingredient in the manufacture of
methamphetamine.
"However, the paper logs maintained by each store or pharmacy
are independent. As such, there is no way for a retailer to
know if an individual has already met or exceeded the federal
limit. A criminal could easily go from one store to another
and hence accumulate large quantities of PSE.
"AB 1280 requires California retailers selling PSE products over
the counter to enter the purchase into an electronic log prior
to completing the sale. The networked, unified, electronic
log will immediately alert retailers if the customer has
exceeded the federal limits. If so, retailers would be
required to stop the sale.
"The electronic log in AB 1280 will be both consumer and
retailer friendly. The interaction for the consumer would be
the same as under current law. The retailer would simply
enter the information into an electronic log (i.e. a web-based
interface) as opposed to the existing paper log. Retailers
will know in real-time whether or not the purchase will exceed
the federal limits.
"The electronic log in AB 1280 would be both anti-criminal and
pro-consumer. Criminals will have a much harder time
violating federal law if each store he or she approaches knows
immediately whether or not the purchase is legal.
Simultaneously, AB 1280 will protect access to effective
medication for the millions of California allergy sufferers."
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2)Background : According to background material supplied by the
author, "Federal law, since 2006, limits the quantities of
products containing pseudoephedrine (PSE) that can be
purchased both on a daily and monthly basis (3.6 grams and 9
grams respectfully). The reasons for the restrictions are
that PSE products can be used in the production of
methamphetamine. Consumers buying PSE products, which are
ONLY available behind the counter, must provide identification
and sign a logbook documenting their purchase. Despite these
restrictions, there is nothing to stop criminals from visiting
multiple stores and obtaining the legal limit in each and
potentially accumulating sufficient PSE to manufacture large
quantities of methamphetamine. There is no way for one
pharmacy or store to determine what may or may not have been
sold to an individual by another.
"AB 1280 remedies this deficiency. The bill requires retailers
selling over-the-counter PSE products to submit specified
information into an electronic, networked, logbook prior to
completing the sale. The information would be identical to
that already required to be entered into the existing paper
logbook. Retailers would immediately know whether a consumer
has exceeded the federal purchase limits and would be required
to stop the sale."
3)NPLEx : The National Precursor Log Exchange is a real-time
electronic logging system used by pharmacies and law
enforcement to track sales of over-the-counter (OTC) cold and
allergy medications containing precursors to the illegal drug,
methamphetamine.
The National Association of Drug Diversion Investigators (NADDI)
provides NPLEx at no cost to states that have legislation
requiring real-time electronic monitoring of precursor
purchases and agree to use the system
4)Restrictions on Pseudoephedrine in Other States : According to
the 2010 Drug Threat Assessment by the United States DOJ, 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
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point-of-sale restrictions, and 26 have enacted
pseudoephedrine tracking laws. (Ibid.)
Oregon has required a prescription for pseudoephedrine purchases
since 2006. Mississippi will require a prescription in July,
2010.
According to this bill's sponsor, the following states have
electronic tracking of pseudoephedrine sales: Alabama,
Arkansas, Florida, Illinois, Iowa, Kansas, Kentucky,
Louisiana, Missouri, Oklahoma, South Carolina, and Washington.
5)Standard Packages of Pseudoephedrine : 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 per 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 1,440 milligrams (1.44 grams) of
pseudoephedrine. A box of 24 tablets contains 720 milligrams
(0.720) 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 eight 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's
Web site warns not to continue taking the medicine for more
than seven days if symptoms do not improve.
6)Decongestant Medications - Efficacy Comparisons : Many
consumers rely on pseudoephredine products to ease nasal
congestion as those products are effective. Because one does
not need a prescription to buy them, 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 pseudoephredine, the pharmaceutical industry
has developed and marketed alternative or substitute products.
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
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cabinet. It appears that the most commonly used substitute is
phenylephrine.
A recent article by Gayle Nicholas Scott, Pharm. D., reviewed
the relative efficacies of pseudoephredine and phenylephrine.
Dr. Scott concluded, "Phenylephrine appears to have less
decongestant activity than pseudoephedrine." Dr. Scott also
noted that phenylephrine has a shorter half-life than
pseudoephedrine thus requiring more frequent use.
7)New "Shake and Bake" or "One-Pot" Method for Making Small
Batches of Methamphetamine : Recent 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 two-liter
bottle or a similar closable container and typically 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 is very dangerous; the
chemicals can explode and 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.
8)United States 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 United States 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.
Analysis of laboratory seizure data indicate that the
increase - 71% since 2007 - primarily is due to an increase in
the prevalence of small-scale "one pot," or "shake and bake,"
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lithium ammonia method laboratories. In fact, of the
small-scale laboratories seized between 2007 and 2009, the
number of small-scale lithium ammonia method laboratories
increased 158% overall- from 1,583 in 2007 to 2,584 in 2008 to
4,089 in 2009.
Domestic super lab seizures did not change significantly during
this period. The number of superlabs Ýcapable of producing 10
pounds or more of the drug in a cycle] seized increased only
slightly from 2007 (11) to 2008 (17) before decreasing in 2009
(14). Thirteen "super labs" 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 total number of laboratories
seized in the region increased 62%, from 1,012 in 2008 to
1,640 in 2009. Of the 1,640 reported laboratories seized in
the region in 2009, most (1,332) were capable of producing
only two ounces or less of methamphetamine per production
cycle.
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, an Associated Press (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 two-liter soda bottle.
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The federal DOJ has reported that super labs (at least 10-pound
capacity per cycle) are still being discovered in California
and that super labs have used "smurfed" pseudoephedrine.
Nevertheless, the one-pot or shake and bake method appears to
present less danger to the public and the environment than
large-scale operations.
9)Concerns over Continuing Demand for Methamphetamine,
Involvement of Drug Cartels in Methamphetamine Trafficking :
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
methamphetamine can be available from sources outside of
California, including Mexico.
Any policy change which would result in an increase in the
importation of methamphetamine from Mexico could have
significant 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.)
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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, "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:
a) Laboratory seizures dropped dramatically (from 120 to 20
per month in Iowa);
b) Burn injuries from handling toxic chemicals decreased
greatly in Iowa;
c) Demand remained constant, and even increased among women
in Iowa;
d) Decreases in removal of children because parents cooked
meth was offset by an increase in removals based on
parental use;
e) Mexican cartels increased distribution of
methamphetamine;
f) Methamphetamine became more potent and addictive;
g) Overdoses increased; and,
h) Methamphetamine prices increased, as did burglaries, in
Iowa.
10)Drug Enforcement Administration Analysis of Methamphetamine
Markets and Trafficking : The United States Drug Enforcement
Administration (DEA) publishes relatively extensive reports
about drug use and trafficking. The DEA reports data for each
state and publishes narrative reports for each state. The
agency also publishes a "threat assessment" that tracks and
projects drug trends.
The current DEA summary for California follows:
"DEA California Drug Analysis, with Specific Emphasis on
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Methamphetamine: ÝM]any issues affect the drug situation in
California. . . . ÝC]ocaine, heroin, methamphetamine, and
marijuana are smuggled . . . from Mexico; however,
methamphetamine and marijuana are produced . . . in large
quantities within the state. San Diego and Imperial Counties
remain principal transshipment zones for ÝMexican drugs].
Most drug traffickers/organizations . . . Ýare] poly-drug
traffickers. . . . Since September 11, 2001, Ýthere has
been] greater . . . screening . . . at all
ÝMexico-California] Ports of Entry. . . . ÝT]traffickers
must use other means to smuggle contraband . . . , including .
. . tunnels that run underneath the border and
. . . hidden compartments in vehicles. Los Angeles is a
distribution center for all types of illicit drugs. . . .
Increased security . . . at ÝLAX] continues to deter drug
traffickers . . . . Although Ýrural] 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 . . . 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 . . . . 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. . . . 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, and increased ÝMexican]
enforcement efforts . . . have all significantly impacted
methamphetamine manufacturing and the smuggling of finished
product into the Los Angeles area."
11)Methamphetamine Lab Incidents, Pseudoephedrine Sales Laws,
Methamphetamine Threat Assessment for the Future : DEA data on
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methamphetamine laboratory incidents in California, 2003-
2207:
2003 1,
281
2004
767
2005
468
2006
353
2007
221
2008
346
12) California and Federal Statutes on
Pseudoephedrine Sales Limits : California law was amended
in 1999 ÝAB 162 (Runner), Chapter 978, Statutes of 1999]
to limit each sale to no more than nine grams. Federal
law restricts purchase of more than 3.6 grams per day and
7.5 grams per month. Pharmacies must keep a log of such
transactions. Laboratory incidents, however, rose in
2008 to 346. Many law enforcement agencies, including
the DEA, have concluded that the rise in laboratories in
2008 resulted from an increase in "smurfing" of
pseudoehpedrine. Smurfing involves purchases of small
amounts of pseudoephedrine from numerous drug stores.
While smurfers may violate federal law in purchasing more
than nine 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.
13) Current Supply Reduction, Likely Expansion of
Mexican Cartels and other Traffickers into Central
America, South America, Africa and the Middle East : The
availability of methamphetamine in California and other
states appears to have decreased, perhaps largely because
of interdiction efforts against Mexican cartels, reduced
availability of precursor chemicals in Mexico and violent
competition among the cartels. Nevertheless, the DEA's
current methamphetamine threat assessment concludes that
Mexican cartels are likely moving methamphetamine
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production to Central and South America. The DEA noted
that the cartels would have little difficulty obtaining
pseudoephedrine in Central and South America. (2009
National Drug Threat Assessment, DEA, pp. 13-16.) Steady
demand for methamphetamine in California could lead to
increasing supply in the relatively near future.
14) The DEA 2009 Threat Assessment includes the
following Summary for Methamphetamine in the United
States : Domestic methamphetamine production likely will
increase moderately in the near term. Decreased flow of
methamphetamine from Mexico, the relocation of some
Mexican methamphetamine producers from Mexico to
California, the resurgence of small-scale methamphetamine
production, and the emergence of large-scale
pseudoephedrine smurfing operations throughout the
country create conditions conducive to a moderate
increase in domestic methamphetamine production,
particularly in western states but also in some eastern
states. For example, law enforcement reporting indicates
that much of the bulk pseudoephedrine compiled through
large-scale pseudoephedrine smurfing operations in the
Southwest Region is destined for Atlanta, Georgia. A
stable supply of bulk pseudoephedrine shipments to
Atlanta could result in a significant increase in
laboratories in the Southeast Region.
Increasing pseudoephedrine and ephedrine diversion and
methamphetamine production on the part of Mexican DTOs in
South American countries will likely continue in the near
term, facilitating both an increase in methamphetamine
production in Mexico and the subsequent flow of
Mexico-produced methamphetamine into the United States.
Conditions at many South American countries and their
ports are favorable for ephedrine and pseudoephedrine
diversion and smuggling. Such conditions include the
high volume of commercial traffic through these
countries, the free trade zone, and lack of precursor
chemical regulations. Moreover, conditions at many South
American ports are susceptible to smuggling activity due
to lack of staffing and automated inspection systems, and
by the limitations placed on customs inspectors by Free
Trade Zone mandates. As long as such activities are
viable.
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Mexican DTOs will exploit South American sources for
methamphetamine precursors and for production of the drug
where possible.
The United Nations, through the International Narcotics
Control Board (INCB), has reported that Mexican cartels
have established operations in Africa and the Middle East
in order to obtain methamphetamine precursors. The
report stated, "Africa remains a major area of diversion
of precursors of amphetamine-type stimulants." The
final destination for these chemicals was identified as
Mexico. The report noted "organized criminal groups have
made use of fictitious companies and falsified import
authorizations ? Ýin Africa]." (Precursors, INCB 2008
report, pp. 7-8.)
15)Drug Demand and Treatment Issues : It has been argued
that the only lasting solution to the serious and
relatively wide-spread problems of methamphetamine abuse
is to lessen demand for the drug through treatment
programs. While funding for treatment programs is very
limited in these difficult economic conditions, it is
also costly to incarcerate methamphetamine offenders.
The so-called "War on Drugs" was begun by the Nixon
administration around 1970. Initially, the majority of
the money spent in the "war" was for treatment. (New
York Times, June 18, 1971.) Treatment of heroin addicts
in Washington D.C. jails in 1970 was linked to a
substantial decrease in burglaries in the city in the
next year. The Nixon administration supplied the funds
for the program. (PBS, Frontline, Thirty Years of
America's Drug War.) However, by 1973, the focus shifted
to interdiction and prosecution of drug offenders,
including creation of the DEA, in Nixon's second term in
office. At the time, critics questioned whether a
law-enforcement approach would adequately address the
problems of drug abuse. (New York Times, March 29,
1973.)
The University of California, Los Angeles (UCLA) is tasked
with reporting on the Substance Abuse and Crime
Prevention Act (SACPA). (Proposition 36 of the 2000
General Election.) UCLA researchers have concluded that
SACPA has save $2.00 for every $1 spent on the program.
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Every $1 spent on persons who completed SACPA programs
saved the state $4. The 2008 report concluded, "Two
conclusions follow from the cost analyses: Proposition
36 substantially reduced incarceration costs and resulted
in greater cost savings for some eligible offenders than
for others." (UCLA SACPA Report, 2008, p. 11.)
The researchers found that progress has been made in the
treatment of methamphetamine abusers. The researchers
made numerous recommendations to improve SACPA, including
increased funding to provide more residential treatment
for those with severe drug problems, particularly
methamphetamine users. Recognizing the state's fiscal
problems, the researchers did include a number of
low-cost recommendations in the 2008 report of SACPA.
These include making it easier for offenders to engage in
treatment programs and assessment and using drug court
models to increase cooperation among the courts,
probation, treatment providers, attorneys and
participants. (Id, at pp. 6, 12, 52.)
16)Argument in Support : According to the California
Retailers Association , "Ýc]urrent law only requires
stores to log the sale of PSE products in wither written
or electronic form, but does not require a central
repository for that information, thus allowing
individuals to go from store to store to exceed federally
established PSE product purchase limits.
"AB 1280 seeks to create a privately funded electronic PSE
sales and tracking system to prevent prospective
methamphetamine manufacturers from going from store to
store to purchase PSE products beyond the federally
established limits, a practice known as 'smurfing.' Even
though federal law imposes limits on the amount of PSE
product that can be legally purchased (3.6 grams per day
and 9 grams in 30 days), California law does not have a
mechanism to prevent determined criminals from smurfing
to get PSE products used in domestic methamphetamine
production. Meth labs pose serious risks to the
communities in which they are located as they are very
dangerous, toxic and volatile and their cemediation is
extremely costly.
"AB 1280 will require all retailers who sell PSE products
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to participate in and enter PSE sales information into
the National Precursor Log Exchange (NPLEx), an
electronic database that provides retailers with real
time information regarding an individual's ability to
purchase the PSE products before the sale is completed.
NPLEx will allow retailers to obtain approval from the
system to make a sale and will block sales to consumers
who have exceeded purchase limits, thereby stopping
illegal sales before they happen."
17)Argument in Opposition : According to the American Civil
Liberties Union , "Ýt]his measure would result in the
treatment of all allergy and cold symptom sufferers as
criminal suspects without any probable cause. AB 1280
raises serious concerns around consumer expectations of
privacy and protections against unlawful search and
seizure, as protected by the Fourth Amendment and Article
I, §§ 1 and 13 of our state constitution. Under this
bill, law enforcement officials would have access without
a warrant to innocent purchasers' private information
contained in a privately held database - with few privacy
or security protections. Law enforcement officers could
follow up with individuals after their purchase of a
packet of the common congestion remedy, 'Sudafed,' and
grill them about why they purchased it, what their
medical condition is, and other private information.
These absurd results should be avoided.
"We strongly oppose the creation of a government-mandated
database of all people who purchase any amount of a
lawful over-the-counter medication with open access by
law enforcement agencies without justification. Law
enforcement access to prescription medication requires
that law enforcement obtain a search warrant under the
California Confidentiality of Medical Information Act
(Civil Code Section 56.10(b)(6)). Furthermore, stores
faced with law enforcement request for information about
people purchasing non-prescription medications should
require search warrants.
"We strongly urge the committee and the author to delete
the database of all ephedrine purchases.
"However, should this legislation move forward, it is
imperative that the following standards be incorporated
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in the bill to minimize the Fourth Amendment and privacy
concerns:
a) "A provision similar to the California
Confidentiality of Medical Information Act (Civil Code
§ 56 et seq.) should be inserted. (Legislative
findings regarding investigation standards do not
address whether law enforcement should be able to
access the database.)
"No employee of the Department of Justice or other
law-enforcement personnel may access the database
without a search warrant issued in compliance with
Chapter 3 of Title 12 of the Penal Code (beginning
with section 1523), unless there are specific,
articulable facts indicating the need for immediate
action to prevent imminent danger to life or serious
damage to property.
b) "Prohibit retailers from obtaining any information
from the database other than a "stop sale" response
(i.e., retailers should not have any access to any
personal information).
c) "The database should be held by the Department of
Justice rather than by a private company (without a
public bidding process).
d) "The legislation incorporates at a minimum the
following security and privacy protections:
i) "The security breach laws should apply (see
Civil Code Section 1798.29).
ii) "Private right of action by data subject if
data is used, disclosed, or shared in violation of
the law.
iii) "An annual independent audit (and public
report) of the use of the system by the Department
of Justice. An audit every three years of the
effectiveness of the system.
iv) "Destruction of personal information at the
time of expiration of the statute of limitations for
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prosecution of a purchaser.
v) "There must be an electronic audit trail of all
access to the database, which should be subject to
DOJ oversight.
"If you or your staff wish to discuss this matter
further, please do not hesitate to contact us."
17)Related Legislation : SB 315 (Wright) allow sale or
distribution of ephedrine, pseudoephedrine,
norpseudoephedrine or phenylpropanolamine by prescription
only and to provide that a person who obtains of one of
these drugs without a prescription is guilty of an
alternate misdemeanor-infraction. SB 315 is pending
hearing by the Senate Health Committee.
18)Prior Legislation : AB 1455 (Hill), of the 2009-10
Legislative Session, conformed state law to federal law
providing that a person in an over the counter
transaction may buy no more than 3.6 grams of
pseudoephedrine for a related product in a single
transaction and no more than nine grams in any 30-day
period. AB 1455 was held without recommendation by the
Senate Judiciary Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
Alameda County Sheriff's Office
Bayer HealthCare
BIOCOM
Calaveres County Sheriff
California Chamber of Commerce
California District Attorneys Office
California Health Institute
California Retailers Association
California State Sheriffs' Association
Consumer Healthcare Products Association
California Manufacturers and Technology Association
National Association of Chain Drug Stores
Peace Officers Research Association of California
Reckitt Benckiser
Rite Aid
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Sacramento County Sheriff's Department
San Joaquin County Sheriff
Shasta County Sheriff
Opposition
American Civil Liberties Union
California Department of Justice
California Narcotics Officers' Association
California Public Defenders Association
National Narcotics Officers' Association Coalition
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744