THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

INTRODUCED BY QUINN, BAKER, DiGIROLAMO, WATSON, CALTAGIRONE, COHEN, D. COSTA, P. COSTA, DeLUCA, GILLESPIE, GROVE, HORNAMAN, M. K. KELLER, KILLION, MALONEY, MANN, MICCARELLI, MILLARD, MILNE, MURT, PICKETT, ROSS, K. SMITH, STERN, SWANGER, RAPP, MILLER, HARPER AND GINGRICH, JUNE 19, 2012

REFERRED TO COMMITTEE ON HEALTH, JUNE 19, 2012  

AN ACT

Amending the act of April 14, 1972 (P.L.233, No.64), entitled

"An act relating to the manufacture, sale and possession of

controlled substances, other drugs, devices and cosmetics;

conferring powers on the courts and the secretary and

Department of Health, and a newly created Pennsylvania Drug,

Device and Cosmetic Board; establishing schedules of

controlled substances; providing penalties; requiring

registration of persons engaged in the drug trade and for the

revocation or suspension of certain licenses and

registrations; and repealing an act," further providing for

prohibited acts and penalties; and providing for ephedrine

and pseudoephedrine and electronic tracking.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Section 13(a)(40) and (c) of the act of April 14,

1972 (P.L.233, No.64), known as The Controlled Substance, Drug,

Device and Cosmetic Act, amended or added November 23, 2010

(P.L.1081, No.107), are amended to read:

Section 13.  Prohibited Acts; Penalties.--(a)  The following

acts and the causing thereof within the Commonwealth are hereby

prohibited:

* * *

(40)  [The sale at retail of any product containing

ephedrine, pseudoephedrine, phenylpropanolamine, or any of their

salts, optical isomers or salts of optical isomers as the sole

active ingredient unless one of the following applies:

(i)  The product is offered for sale behind a counter where

the public is not permitted.

(ii)  The product is offered for sale within a locked cabinet

that is located in an area of the facility involved to which

customers do have direct access.] (Reserved).

* * *

(c)  Any person who violates the provisions of clauses (21),

(22), (24)[, (39) and (40)] and (39) of subsection (a) shall be

guilty of a misdemeanor, and shall, on conviction thereof, be

punished only as follows:

(1)  Upon conviction of the first such offense, he shall be

sentenced to imprisonment not exceeding six months, or to pay a

fine not exceeding ten thousand dollars ($10,000), or both.

(2)  Upon conviction of the second and subsequent offense, he

shall be sentenced to imprisonment not exceeding two years, or

to pay a fine not exceeding twenty-five thousand dollars

($25,000), or both.

* * *

Section 2.  The act is amended by adding a section to read:

Section 13.6.  Ephedrine and Pseudoephedrine; Electronic

Tracking.--(a)  Retailers shall be limited from sales and an

individual shall be limited from purchases of ephedrine or

pseudoephedrine base, or their salts, isomers or salts of

isomers in the following amounts:

(1)  3.6 grams of ephedrine or pseudoephedrine base contained

in a product or combination of products per day.

(2)  9 grams of ephedrine or pseudoephedrine base contained

in a product or combination of products per thirty-day period.

(b)  Nonprescription products containing ephedrine or

pseudoephedrine shall be maintained behind the counter or in a

locked case where the customer does not have direct access.

(c)  A retailer shall require any person purchasing a

nonprescription product that contains ephedrine or

pseudoephedrine to present a valid government-issued photo

identification at the point of sale. The retailer shall record

the following:

(1)  Name and address of the purchaser.

(2)  Name and quantity of product purchased.

(3)  Date and time of purchase.

(4)  Purchaser identification type and number, such as

driver's license state and number, and require the purchaser's

signature in a logbook.

(d)  A retailer shall, before completing a sale under this

section, electronically submit the required information to the

National Precursor Log Exchange (NPLEx) administered by the

National Association of Drug Diversion Investigators (NADDI).

Absent wantonness, recklessness or deliberate misconduct, any

retailer using the electronic sales tracking system in

accordance with this subsection shall not be civilly liable as a

result of any act or omission in carrying out the duties

required by this subsection and shall be immune from liability

to any third party unless the retailer has violated any

provision of this subsection in relation to a claim brought for

such violation.

(e)  If a retailer selling a nonprescription product

containing ephedrine or pseudoephedrine experiences mechanical

or electronic failure of the electronic sales tracking system

and is unable to comply with the electronic sales tracking

requirement, the retailer shall maintain a written log or an

alternative electronic recordkeeping mechanism until such time

as the retailer is able to comply with the electronic sales

tracking requirement.

(f)  NADDI shall forward State transaction records in the

NPLEx to the department weekly and provide real-time access to

the NPLEx information through the NPLEx online portal to law

enforcement in this Commonwealth as authorized by the

department.

(g)  NPLEx shall be capable of generating a stop sale alert,

which shall be a notification that completion of the sale would

result in the seller or purchaser violating the quantity limits

set forth in this section. The seller shall not complete the

sale if the electronic system generates a stop sale alert. The

system shall contain an override function that may be used by a

retailer of ephedrine or pseudoephedrine who has a reasonable

fear of imminent bodily harm if it does not complete a sale.

Each instance in which the override function is used shall be

logged by the system.

(h)  A violation of any provision of this section is a

misdemeanor, punishable by fine only.

(i)  This section does not apply to a person who obtains the

product pursuant to a valid prescription.

(j)  This section shall supersede any other laws or

regulations governing the sales of products containing ephedrine

or pseudoephedrine.

(k)  If a retailer that sells a nonprescription product

containing pseudoephedrine or ephedrine experiences mechanical

or electronic failure of the electronic sales tracking system

and is unable to comply with the electronic sales tracking

requirements of this section, the retailer must maintain a

written log or an alternative electronic recordkeeping mechanism

until the retailer is able to comply with the electronic

tracking system requirements. A retailer that does not have

Internet access to the electronic sales tracking system is

compliant with the requirements of this section if the retailer

maintains a written log or an alternative electronic

recordkeeping mechanism.

Section 3.  This act shall take effect in 180 days.