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H.B. 362
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ENFORCEMENT OF CONTROLLED SUBSTANCE
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LAWS
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2006 GENERAL SESSION
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STATE OF UTAH
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Chief Sponsor: David L. Hogue
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Senate Sponsor:
____________
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LONG TITLE
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General Description:
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This bill modifies Title 58, Chapter 37c, Utah Controlled Substance Precursor Act, by
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amending the regulation of retail sales of products used to make methamphetamine.
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Highlighted Provisions:
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This bill:
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. regulates the sale of products containing ephedrine and pseudoephedrine;
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. requires a retail distributor to:
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. request that purchasers provide photo identification;
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. keep a written or electronic list of transactions documenting:
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. name of purchaser;
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. date of transaction; and
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. name and amount of product purchased;
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. report transactions of products containing ephedrine and pseudoephedrine;
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. display or store the product in a locked case or in an area not accessible to
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customers;
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. restricts the purchaser to:
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. no more than 3.6 grams of product per day; and
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. a total of no more than 9 grams of product in any 30-day period;
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. makes exceptions for:
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. prescription medications; and
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. products formulated to effectively prevent the conversion of the active
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ingredient into methamphetamine, including liquid, gel caps, and pediatric
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forms of ephedrine or pseudoephedrine; and
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. provides a class B misdemeanor penalty for violations.
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Monies Appropriated in this Bill:
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None
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Other Special Clauses:
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None
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Utah Code Sections Affected:
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AMENDS:
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58-37c-8, as last amended by Chapter 271, Laws of Utah 2000
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58-37c-10, as repealed and reenacted by Chapter 155, Laws of Utah 1992
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58-37c-20, as last amended by Chapter 1, Laws of Utah 2000
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ENACTS:
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58-37c-20.1, Utah Code Annotated 1953
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Be it enacted by the Legislature of the state of Utah:
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Section 1.
Section
58-37c-8
is amended to read:
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58-37c-8. License -- Exceptions from licensure or regulation.
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(1) Any person engaged in a regulated transaction must be appropriately licensed under
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this chapter as a regulated distributor and regulated purchaser unless excepted from licensure
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under this chapter.
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(2) The division shall:
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(a) establish the form of application for a license, the requirements for licensure, and
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fees for initial licensure and renewal; and
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(b) identify required information to be contained in the application as a condition of
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licensure.
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(3) A practitioner who holds a Utah Controlled Substance License and a Controlled
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Substance Registration issued by the Drug Enforcement Administration of the U.S.
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Government is excepted from licensure under this chapter.
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(4) Any purchase, sale, transfer, furnishing, or receipt of any drug intended for lawful
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use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other
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animals, which contains [ephedrine, pseudoephedrine,] norpseudoephedrine[,] or
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phenylpropanolamine if [such] the drug is lawfully purchased, sold, transferred, or furnished as
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an over-the-counter medication without prescription pursuant to the federal Food, Drug and
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Cosmetic Act, 21 USC, Sec. 301 et seq., or regulations adopted thereunder are excepted from
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licensure, reporting, and recordkeeping under this chapter.
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(5) Any purchase, sale, transfer, receipt, or manufacture of any dietary supplement,
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vitamins, minerals, herbs, or other similar substances including concentrates or extracts, which
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are not otherwise prohibited by law, which may contain naturally occurring amounts of
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chemicals or substances listed in this chapter, or in rules adopted pursuant to Title 63, Chapter
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46a, Utah Administrative Rulemaking Act, are exempt from licensure under this chapter.
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(6) A purchaser of two ounces or less of crystal iodine in a single transaction is not
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required to be licensed as a regulated purchaser if the transaction complies with Section
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58-37c-18
.
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(7) Any purchase, sale, transfer, receipt, or manufacture of any product that contains
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any precursor chemical listed in Subsection
58-37c-3
(2)(ff) or (gg) and that is not intended for
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human consumption is exempt from licensure, regulation, or criminal penalties under this
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chapter.
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Section 2.
Section
58-37c-10
is amended to read:
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58-37c-10. Reporting and recordkeeping.
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(1) Any person who engages in a regulated transaction[,] or a transaction under Section
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58-37c-20.1
, unless excepted under the provisions of Subsections
58-37c-8
(3) and (4), shall
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submit a report with respect to [such] the transaction and shall maintain records of inventories
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in accordance with rules adopted by the division.
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(2) The division shall provide reporting forms upon which regulated transactions shall
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be reported.
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(3) The division shall furnish copies of reports of transactions under this section to
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appropriate law enforcement agencies.
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(4) The division shall adopt rules regulating:
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(a) records which shall be maintained and reports which shall be submitted by
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regulated distributors and regulated purchasers with respect to listed controlled substance
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precursors obtained, distributed, and held in inventory;
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(b) records which shall be maintained and reports which shall be submitted by
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regulated distributors and regulated purchasers with respect to extraordinary or unusual
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regulated transactions and a requirement that in [such] these cases the report must be received
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at least three working days prior to transfer of the listed controlled substance precursor;
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(c) identification which must be presented by a purchaser of any listed controlled
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substance precursor before the sale or transfer can be completed and recordkeeping
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requirements related to [such] the identification presented;
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(d) filing by each licensee the identification of all locations where any listed controlled
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substance precursor is held in inventory or stored and amending [such] the filing when any
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change in location is made;
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(e) reports and actions which must be taken by a regulated distributor or regulated
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purchaser in the event of any theft, loss, or shortage of a listed controlled substance precursor;
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(f) reports and actions which must be taken by a regulated distributor relating to a
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regulated transaction with an out-of-state purchaser;
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(g) reports and actions which must be taken by a regulated purchaser relating to a
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regulated transaction with an out-of-state distributor; and
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(h) regulated transactions to the extent [such] the regulation is reasonable and
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necessary to protect the public health, safety, or welfare.
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Section 3.
Section
58-37c-20
is amended to read:
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58-37c-20. Possession of ephedrine or pseudoephedrine -- Penalties.
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(1) Any person who is not licensed to engage in regulated transactions and not
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excepted from licensure who, under circumstances not amounting to a violation of Subsection
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58-37c-3
(12)(k) or Subsection
58-37d-4
(1)(a), possesses more than [12] 9 grams of ephedrine
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or pseudoephedrine, their salts, isomers, or salts of isomers, or a combination of any of these
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substances, is guilty of a class A misdemeanor.
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(2) (a) It is an affirmative defense to a charge under Subsection (1) that the person in
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possession of ephedrine or pseudoephedrine, or a combination of these two substances:
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(i) is a physician, pharmacist, retail distributor, wholesaler, manufacturer,
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warehouseman, or common carrier, or an agent of any of these persons; and
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(ii) possesses the substances in the regular course of lawful business activities.
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(b) (i) The defendant shall provide written notice of intent to claim an affirmative
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defense under this section as soon as practicable, but not later than ten days prior to trial. The
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court may waive the notice requirement in the interest of justice for good cause shown, if the
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prosecutor is not unfairly prejudiced by the lack of timely notice.
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(ii) The notice shall include the specifics of the asserted defense.
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(iii) The defendant shall establish the affirmative defense by a preponderance of the
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evidence. If the defense is established, it is a complete defense to the charges.
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(3) This section does not apply to dietary supplements, herbs, or other natural products,
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including concentrates or extracts, which:
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(a) are not otherwise prohibited by law; and
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(b) may contain naturally occurring ephedrine, ephedrine alkaloids, or
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pseudoephedrine, or their salts, isomers, or salts of isomers, or a combination of these
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substances, that:
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(i) are contained in a matrix of organic material; and
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(ii) do not exceed 15% of the total weight of the natural product.
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Section 4.
Section
58-37c-20.1
is enacted to read:
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58-37c-20.1. Pseudoephedrine products -- Limitations on retail sale.
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(1) Any retail distributor who sells any product, mixture, or preparation containing any
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detectable quantity of ephedrine or pseudoephedrine, its salts or optical isomers, or salts of
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optical isomers, or a combination of any of these substances to another person shall:
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(a) store the product in an area not accessible to customers before the sale is made,
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which may include a locked cabinet to display the product in an area accessible to customers, if
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the locked cabinet may only be opened by the retail distributor or its employees;
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(b) require the purchaser to produce photo identification issued by a governmental
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agency that includes the purchaser's date of birth; and
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(c) maintain, in accordance with Section
58-37c-10
, a written or electronic list of the
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sales under this section, documenting:
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(i) name of the purchaser;
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(ii) date of the transaction; and
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(iii) name and amount of the product purchased.
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(2) Notwithstanding the number of transactions, a person may not purchase more than
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3.6 grams of any product or any combination of products containing ephedrine or
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pseudoephedrine in a 24-hour period.
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(3) A person may not purchase, receive, or otherwise acquire a total of more than 9
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grams of any product or any combination of products containing ephedrine or pseudoephedrine
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within any 30-day period.
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(4) Subsection (2) does not apply to any quantity of a product containing ephedrine or
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pseudoephedrine dispensed under a valid prescription.
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(5) This section does not apply to products formulated to effectively prevent the
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conversion of the active ingredient into methamphetamine, including liquid, gel caps, and
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pediatric forms of ephedrine or pseudoephedrine.
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(6) Any violation of this Section is a class B misdemeanor.
Legislative Review Note
as of 2-2-06 10:55 AM
Based on a limited legal review, this legislation has not been determined to have a high
probability of being held unconstitutional.