PRIOR PRINTER'S NO. 1640 PRINTER'S NO. 1890
No. 1116 Session of 2006
INTRODUCED BY WONDERLING, MADIGAN, ROBBINS, GORDNER, ARMSTRONG,
PUNT, SCARNATI, BOSCOLA, ORIE, D. WHITE, KASUNIC, RAFFERTY,
COSTA, PILEGGI, RHOADES, PICCOLA AND STACK, MARCH 23, 2006
SENATOR CORMAN, PUBLIC HEALTH AND WELFARE, AS AMENDED,
JUNE 20, 2006
AN ACT
1 Amending the act of April 14, 1972 (P.L.233, No.64), entitled
2 "An act relating to the manufacture, sale and possession of
3 controlled substances, other drugs, devices and cosmetics;
4 conferring powers on the courts and the secretary and
5 Department of Health, and a newly created Pennsylvania Drug,
6 Device and Cosmetic Board; establishing schedules of
7 controlled substances; providing penalties; requiring
8 registration of persons engaged in the drug trade and for the
9 revocation or suspension of certain licenses and
10 registrations; and repealing an act," further providing for
11 prohibited acts and penalties; and providing for affirmative <--
12 defenses, for exception and for reporting. REPORTING, FOR <--
13 CONFIDENTIALITY AND FOR FALSE STATEMENTS OR
14 MISREPRESENTATION.
15 The General Assembly of the Commonwealth of Pennsylvania
16 hereby enacts as follows:
17 Section 1. Section 13(c) of the act of April 14, 1972
18 (P.L.233, No.64), known as The Controlled Substance, Drug,
19 Device and Cosmetic Act, amended December 14, 1984 (P.L.988,
20 No.200), is amended and subsection (a) is amended by adding
21 clauses to read:
22 Section 13. Prohibited Acts; Penalties.--(a) The following
23 acts and the causing thereof within the Commonwealth are hereby
1 prohibited:
2 * * *
3 (39) The sale at retail of any product containing ephedrine, <--
4 pseudoephedrine, phenylpropanolamine, or any of their salts,
5 optical isomers or salts of optical isomers unless one of the
6 following applies:
7 (i) The product is offered for sale behind a counter where
8 the public is not permitted.
9 (ii) The product is offered for sale using any type of
10 antitheft device system, including an electronic antitheft
11 device system that utilizes a product tag and detection alarm
12 which prevents the theft of the product.
13 (40) The delivery, in any single over-the-counter retail
14 sale, of more than three packages, or any number of packages
15 that contain a combined total of more than nine grams of any
16 product containing ephedrine, pseudoephedrine,
17 phenylpropanolamine, or any of their salts, optical isomers or
18 salts of optical isomers. This clause shall not apply to
19 pediatric products labeled pursuant to Federal regulation as
20 being primarily intended for administration to children under
21 twelve years of age or to any compound, mixture or preparation
22 which has been determined by the secretary to be formulated in
23 such a way as to effectively prevent the conversion of the
24 active ingredient into methamphetamine or its salts or optical
25 isomers or salts of optical isomers.
26 (39) THE SALE AT RETAIL OF ANY PRODUCT CONTAINING EPHEDRINE, <--
27 PSEUDOEPHEDRINE, PHENYLPROPANOLAMINE, OR ANY OF THEIR SALTS,
28 OPTICAL ISOMERS OR SALTS OF OPTICAL ISOMERS, EXCEPT FOR ANY
29 QUANTITY OF THE SUBSTANCES DISPENSED UNDER A VALID PRESCRIPTION
30 AND UNLESS ALL OF THE FOLLOWING APPLY:
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1 (I) THE PRODUCT DOES NOT, FOR ANY PURCHASER, EXCEED A DAILY
2 AMOUNT OF 3.6 GRAMS.
3 (II) THE PRODUCT IS OFFERED IN A MANNER THAT DOES NOT
4 PROVIDE CUSTOMERS WITH DIRECT ACCESS TO THE PRODUCT BEFORE THE
5 SALE IS MADE AND IS MAINTAINED BEHIND THE COUNTER. FOR PURPOSES
6 OF THIS SUBCLAUSE, BEHIND-THE-COUNTER MAINTENANCE OF A PRODUCT
7 SHALL INCLUDE STORAGE OF THE PRODUCT IN A LOCKED CABINET THAT IS
8 LOCATED IN AN AREA OF THE FACILITY TO WHICH CUSTOMERS HAVE
9 DIRECT ACCESS.
10 (III) THE SELLER DELIVERS THE PRODUCT DIRECTLY INTO THE
11 CUSTODY OF THE PURCHASER.
12 (IV) THE SELLER MAINTAINS A WRITTEN OR ELECTRONIC LOGBOOK OF
13 SALES THAT IDENTIFIES THE PRODUCT BY NAME, THE QUANTITY SOLD,
14 THE NAME AND ADDRESS OF THE PURCHASER AND THE DATE AND TIME OF
15 THE SALES.
16 (V) THE SELLER REQUIRES THE PROSPECTIVE PURCHASER TO PRESENT
17 AN IDENTIFICATION CARD WITH A PHOTOGRAPH, TO SIGN THE LOGBOOK
18 AND TO ENTER THE PURCHASER'S NAME, ADDRESS AND DATE AND TIME OF
19 SALE.
20 (VI) THE SELLER DETERMINES THAT THE NAME ENTERED IN THE
21 LOGBOOK CORRESPONDS TO THE NAME ON THE IDENTIFICATION PRESENTED
22 AND THAT THE DATE AND TIME ENTERED ARE CORRECT.
23 (VII) THE SELLER ENTERS THE NAME AND QUANTITY OF THE PRODUCT
24 SOLD INTO THE LOGBOOK.
25 (VIII) THE SELLER INCLUDES A NOTICE IN THE LOGBOOK THAT
26 ENTERING FALSE STATEMENTS OR MISREPRESENTATIONS IN THE LOGBOOK
27 MAY SUBJECT THE PURCHASER TO CRIMINAL PENALTIES.
28 (IX) THE SELLER MAINTAINS EACH ENTRY IN THE LOGBOOK FOR NOT
29 FEWER THAN TWO YEARS AFTER THE DATE ON WHICH THE ENTRY WAS MADE.
30 * * *
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1 (c) Any person who violates the provisions of clauses (21),
2 (22) [and (24)], (24), (39) and (40) AND (39) of subsection (a) <--
3 shall be guilty of a misdemeanor, and shall, on conviction
4 thereof, be punished only as follows:
5 (1) Upon conviction of the first such offense, he shall be
6 sentenced to imprisonment not exceeding six months, or to pay a
7 fine not exceeding ten thousand dollars ($10,000), or both.
8 (2) Upon conviction of the second and subsequent offense, he
9 shall be sentenced to imprisonment not exceeding two years, or
10 to pay a fine not exceeding twenty-five thousand dollars
11 ($25,000), or both.
12 * * *
13 Section 2. The act is amended by adding sections to read:
14 Section 13.3. Affirmative Defenses.--It is an affirmative <--
15 defense for a retailer who violates section 13(a)(40) that,
16 prior to the date of the alleged violation, the retailer
17 complied with all of the following relating to products
18 containing ephedrine, pseudoephedrine, phenylpropanolamine, or
19 any of their salts, optical isomers or salts of optical isomers:
20 (1) Adopted and implemented a policy relating to the sale of
21 these products and conspicuously posted a notice describing
22 section 13(a)(40).
23 (2) Adopted a disciplinary policy that includes employee
24 counseling and suspension for failure to comply with the
25 provisions of section 13(a)(40).
26 (3) Has implemented the policy adopted under clause (2) with
27 regard to the employee who violated section 13(a)(40).
28 The affirmative defense under this section may be used by a
29 retailer no more than three times at each retail location during
30 any twenty-four (24)-month period.
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1 Section 13.4. Exception.--The provisions of section
2 13(a)(39) and (40) shall not apply to any quantity of the
3 substance dispensed under a valid prescription.
4 Section 13.5. Reporting.--(a) A pharmacy, store or other
5 retail mercantile establishment shall promptly communicate to
6 law enforcement a confirmed report or actual knowledge of the
7 theft or loss of thirty (30) or more grams of any drug
8 containing ephedrine, pseudoephedrine, phenylpropanolamine, or
9 any of their salts, optical isomers or salts of optical isomers
10 as an active ingredient.
11 (b) A person who makes a report to law enforcement under
12 this section shall be immune from any civil or criminal
13 liability with respect to the report or its contents if the
14 person has reasonable grounds for suspecting the loss or theft.
15 (c) A violation of subsection (a) constitutes a misdemeanor
16 of the third degree.
17 SECTION 13.3. REPORTING.--(A) A RETAILER, INCLUDING A <--
18 PHARMACY, STORE OR OTHER RETAIL MERCANTILE ESTABLISHMENT, SHALL
19 PROMPTLY COMMUNICATE TO LAW ENFORCEMENT ANY CONFIRMED REPORT OR
20 ACTUAL KNOWLEDGE OF THE THEFT OR LOSS OF THIRTY (30) OR MORE
21 GRAMS OF ANY DRUG CONTAINING EPHEDRINE, PSEUDOEPHEDRINE,
22 PHENYLPROPANOLAMINE, OR ANY OF THEIR SALTS, OPTICAL ISOMERS OR
23 SALTS OF OPTICAL ISOMERS AS AN ACTIVE INGREDIENT.
24 (B) A PERSON WHO MAKES A REPORT TO LAW ENFORCEMENT UNDER
25 SUBSECTION (A) SHALL BE IMMUNE FROM ANY CIVIL OR CRIMINAL
26 LIABILITY WITH RESPECT TO THE REPORT OR ITS CONTENTS IF THE
27 PERSON HAS REASONABLE GROUNDS FOR SUSPECTING THE LOSS OR THEFT.
28 (C) A VIOLATION OF SUBSECTION (A) SHALL CONSTITUTE A
29 MISDEMEANOR OF THE THIRD DEGREE.
30 SECTION 13.4. CONFIDENTIALITY.--(A) EXCEPT AS PROVIDED IN
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1 SUBSECTION (B), RETAILERS SHALL PROHIBIT THE ACCESSING, USING OR
2 SHARING OF INFORMATION IN A LOGBOOK FOR ANY PURPOSE OTHER THAN
3 TO ENSURE COMPLIANCE WITH THIS ACT OR TO FACILITATE A PRODUCT
4 RECALL TO PROTECT PUBLIC HEALTH AND SAFETY.
5 (B) RETAILERS MAY DISCLOSE THE INFORMATION IN A LOGBOOK TO
6 LAW ENFORCEMENT AGENCIES.
7 SECTION 13.5. FALSE STATEMENTS OR MISREPRESENTATIONS.--THE
8 PROVISION OF FALSE STATEMENTS OR MISREPRESENTATIONS BY A
9 PURCHASER TO A RETAILER SHALL CONSTITUTE A MISDEMEANOR OF THE
10 THIRD DEGREE.
11 Section 3. This act shall take effect in 60 days.
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