PRIOR PRINTER'S NO. 1587 PRINTER'S NO. 4710
No. 1329 Session of 2005
INTRODUCED BY J. EVANS, BALDWIN, BEBKO-JONES, BOYD, CALTAGIRONE,
CAPPELLI, CAUSER, CLYMER, CRAHALLA, CRUZ, DALLY, DENLINGER,
DeWEESE, DiGIROLAMO, FABRIZIO, FLEAGLE, FRANKEL, GEIST,
GINGRICH, GOOD, GRELL, HENNESSEY, HERMAN, HERSHEY,
HICKERNELL, M. KELLER, KILLION, MAJOR, MARSICO, McILHATTAN,
PICKETT, PYLE, RAPP, REICHLEY, SCAVELLO, SONNEY,
R. STEVENSON, E. Z. TAYLOR, TURZAI, WATSON, WHEATLEY, WILT,
YOUNGBLOOD AND BROWNE, APRIL 12, 2005
AS REPORTED FROM COMMITTEE ON JUDICIARY, HOUSE OF
REPRESENTATIVES, AS AMENDED, OCTOBER 3, 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 schedules of controlled substances. DEFINING "MOBILE RETAIL <--
12 VENDOR"; FURTHER PROVIDING FOR PROHIBITED ACTS AND PENALTIES;
13 AND PROVIDING FOR REPORTING, FOR CONFIDENTIALITY AND FOR
14 FALSE STATEMENTS OR MISREPRESENTATION.
15 The General Assembly of the Commonwealth of Pennsylvania
16 hereby enacts as follows:
17 Section 1. Section 4(5) of the act of April 14, 1972 <--
18 (P.L.233, No.64), known as The Controlled Substance, Drug,
19 Device and Cosmetic Act, is amended by adding a subclause to
20 read:
1 Section 4. Schedules of Controlled Substances.--The
2 following schedules include the controlled substances listed or
3 to be listed by whatever official name, common or usual name,
4 chemical name, or trade name designated.
5 * * *
6 (5) Schedule V--In determining that a substance comes within
7 this schedule, the secretary shall find: a low potential for
8 abuse relative to the substances listed in Schedule IV;
9 currently accepted medical use in the United States; and limited
10 physical dependence and/or psychological dependence liability
11 relative to the substances listed in Schedule IV. The following
12 controlled substances are included in this schedule:
13 * * *
14 (iii) Any compound, mixture, or preparation containing any
15 detectable quantity of ephedrine, pseudoephedrine or
16 phenylpropanolamine or any of their salts or optical isomers, or
17 salts of optical isomers, but shall not include any of the
18 following:
19 1. Any compound, mixture, or preparation in liquid, liquid
20 capsule, or liquid gel capsule form if ephedrine,
21 pseudoephedrine or phenylpropanolamine is not the only active
22 ingredient.
23 2. Any compound, mixture, or preparation which has been
24 determined by the secretary to be formulated in such a way as to
25 effectively prevent the conversion of the active ingredient into
26 methamphetamine or its salts or optical isomers, or salts of
27 optical isomers.
28 Section 2. This act shall take effect in 60 days.
29 SECTION 1. SECTION 2(B) OF THE ACT OF APRIL 14, 1972 <--
30 (P.L.233, NO.64), KNOWN AS THE CONTROLLED SUBSTANCE, DRUG,
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1 DEVICE AND COSMETIC ACT, IS AMENDED BY ADDING A DEFINITION TO
2 READ:
3 SECTION 2. DEFINITIONS.--* * *
4 (B) AS USED IN THIS ACT:
5 * * *
6 "MOBILE RETAIL VENDOR" MEANS A PERSON OR ENTITY THAT MAKES
7 SALES AT RETAIL FROM A STAND THAT IS INTENDED TO BE TEMPORARY,
8 OR IS CAPABLE OF BEING MOVED FROM ONE LOCATION TO ANOTHER,
9 WHETHER THE STAND IS LOCATED WITHIN OR ON THE PREMISES OF A
10 FIXED FACILITY, SUCH AS A KIOSK AT A SHOPPING CENTER OR AIRPORT,
11 OR WHETHER THE STAND IS LOCATED ON UNIMPROVED REAL ESTATE, SUCH
12 AS A LOT OR FIELD LEASED FOR RETAIL PURPOSES.
13 * * *
14 SECTION 2. SECTION 13(C) OF THE ACT, AMENDED DECEMBER 14,
15 1984 (P.L.988, NO.200), IS AMENDED AND SUBSECTION (A) IS AMENDED
16 BY ADDING CLAUSES TO READ:
17 SECTION 13. PROHIBITED ACTS; PENALTIES.--(A) THE FOLLOWING
18 ACTS AND THE CAUSING THEREOF WITHIN THE COMMONWEALTH ARE HEREBY
19 PROHIBITED:
20 * * *
21 (39) THE KNOWING OR INTENTIONAL PURCHASE AT RETAIL DURING A
22 THIRTY-DAY PERIOD OF MORE THAN NINE (9) GRAMS OF EPHEDRINE BASE,
23 PSEUDOEPHEDRINE BASE OR PHENYLPROPANOLAMINE BASE IN A PRODUCT OR
24 THE SALE AT RETAIL OR PURCHASE AT RETAIL OF ANY PRODUCT
25 CONTAINING EPHEDRINE, PSEUDOEPHEDRINE, PHENYLPROPANOLAMINE, OR
26 ANY OF THEIR SALTS, OPTICAL ISOMERS OR SALTS OF OPTICAL ISOMERS,
27 EXCEPT FOR ANY QUANTITY OF THE SUBSTANCES DISPENSED UNDER A
28 VALID PRESCRIPTION AND UNLESS ALL OF THE FOLLOWING APPLY:
29 (I) THE PRODUCT DOES NOT, FOR ANY PURCHASER, EXCEED A DAILY
30 AMOUNT OF THREE AND SIX-TENTHS (3.6) GRAMS OF EPHEDRINE BASE,
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1 PSEUDOEPHEDRINE BASE OR PHENYLPROPANOLAMINE BASE IN SUCH
2 PRODUCT.
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) IF THE SELLER IS A MOBILE RETAIL VENDOR:
11 (A) THE SELLER COMPLIES WITH SUBCLAUSE (II) BY PLACING THE
12 PRODUCT IN A LOCKED CABINET.
13 (B) THE SELLER DOES NOT SELL MORE THAN SEVEN AND FIVE-TENTHS
14 (7.5) GRAMS OF EPHEDRINE BASE, PSEUDOEPHEDRINE BASE OR
15 PHENYLPROPANOLAMINE BASE IN SUCH PRODUCTS PER CUSTOMER DURING A
16 THIRTY-DAY PERIOD.
17 (IV) THE SELLER DELIVERS THE PRODUCT DIRECTLY INTO THE
18 CUSTODY OF THE PURCHASER.
19 (V) THE SELLER MAINTAINS A WRITTEN OR ELECTRONIC LOGBOOK OF
20 SALES THAT IDENTIFIES THE PRODUCT BY NAME, THE QUANTITY SOLD,
21 THE NAME AND ADDRESS OF THE PURCHASER AND THE DATE AND TIME OF
22 THE SALES.
23 (VI) THE SELLER REQUIRES THE PROSPECTIVE PURCHASER TO
24 PRESENT AN IDENTIFICATION CARD WITH A PHOTOGRAPH, TO SIGN THE
25 LOGBOOK AND TO ENTER THE PURCHASER'S NAME, ADDRESS AND DATE AND
26 TIME OF SALE.
27 (VII) THE SELLER DETERMINES THAT THE NAME ENTERED IN THE
28 LOGBOOK CORRESPONDS TO THE NAME ON THE IDENTIFICATION PRESENTED
29 AND THAT THE DATE AND TIME ENTERED ARE CORRECT.
30 (VIII) THE SELLER ENTERS THE NAME AND QUANTITY OF THE
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1 PRODUCT SOLD INTO THE LOGBOOK.
2 (IX) THE SELLER INCLUDES A NOTICE IN THE LOGBOOK THAT
3 ENTERING FALSE STATEMENTS OR MISREPRESENTATIONS IN THE LOGBOOK
4 MAY SUBJECT THE PURCHASER TO CRIMINAL PENALTIES.
5 (X) THE SELLER MAINTAINS EACH ENTRY IN THE LOGBOOK FOR NOT
6 FEWER THAN TWO YEARS AFTER THE DATE ON WHICH THE ENTRY WAS MADE.
7 * * *
8 (C) ANY PERSON WHO VIOLATES THE PROVISIONS OF CLAUSES (21),
9 (22) [AND (24)], (24) AND (39) OF SUBSECTION (A) SHALL BE GUILTY
10 OF A MISDEMEANOR, AND SHALL, ON CONVICTION THEREOF, BE PUNISHED
11 ONLY AS FOLLOWS:
12 (1) UPON CONVICTION OF THE FIRST SUCH OFFENSE, HE SHALL BE
13 SENTENCED TO IMPRISONMENT NOT EXCEEDING SIX MONTHS, OR TO PAY A
14 FINE NOT EXCEEDING TEN THOUSAND DOLLARS ($10,000), OR BOTH.
15 (2) UPON CONVICTION OF THE SECOND AND SUBSEQUENT OFFENSE, HE
16 SHALL BE SENTENCED TO IMPRISONMENT NOT EXCEEDING TWO YEARS, OR
17 TO PAY A FINE NOT EXCEEDING TWENTY-FIVE THOUSAND DOLLARS
18 ($25,000), OR BOTH.
19 * * *
20 SECTION 3. THE ACT IS AMENDED BY ADDING SECTIONS TO READ:
21 SECTION 13.3. REPORTING.--(A) A RETAILER, INCLUDING A
22 PHARMACY, STORE OR OTHER RETAIL MERCANTILE ESTABLISHMENT, SHALL
23 PROMPTLY COMMUNICATE TO LAW ENFORCEMENT ANY CONFIRMED REPORT OR
24 ACTUAL KNOWLEDGE OF A THEFT OR LOSS OF A PRODUCT UNDER SECTION
25 13(A)(39) WHERE THE QUANTITY WITH RESPECT TO THE EPHEDRINE BASE,
26 PSEUDOEPHEDRINE BASE OR PHENYLPROPANOLAMINE BASE IN THE PRODUCT
27 IS THIRTY GRAMS OR MORE.
28 (B) A PERSON WHO MAKES A REPORT TO LAW ENFORCEMENT UNDER
29 SUBSECTION (A) SHALL BE IMMUNE FROM ANY CIVIL OR CRIMINAL
30 LIABILITY WITH RESPECT TO THE REPORT OR ITS CONTENTS IF THE
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1 PERSON HAS REASONABLE GROUNDS FOR SUSPECTING THE LOSS OR THEFT.
2 (C) A VIOLATION OF SUBSECTION (A) SHALL CONSTITUTE A
3 MISDEMEANOR OF THE THIRD DEGREE.
4 SECTION 13.4. CONFIDENTIALITY.--(A) EXCEPT AS PROVIDED IN
5 SUBSECTION (B), RETAILERS SHALL PROHIBIT THE ACCESSING, USING OR
6 SHARING OF INFORMATION IN A LOGBOOK FOR ANY PURPOSE OTHER THAN
7 TO ENSURE COMPLIANCE WITH THIS ACT OR TO FACILITATE A PRODUCT
8 RECALL TO PROTECT PUBLIC HEALTH AND SAFETY.
9 (B) RETAILERS SHALL DISCLOSE THE INFORMATION IN A LOGBOOK TO
10 LAW ENFORCEMENT AGENCIES UPON REQUEST.
11 SECTION 13.5. FALSE STATEMENTS OR MISREPRESENTATIONS.--THE
12 PROVISION OF FALSE STATEMENTS OR MISREPRESENTATIONS BY A
13 PURCHASER TO A RETAILER SHALL CONSTITUTE A MISDEMEANOR OF THE
14 THIRD DEGREE.
15 SECTION 4. THIS ACT SHALL TAKE EFFECT IN 60 DAYS.
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