HB-4749, As Passed Senate, June 30, 2011
June 14, 2011, Introduced by Rep. Price and referred to the Committee on Health Policy.
A bill to amend 1978 PA 368, entitled
"Public health code,"
by amending sections 17766c, 17766e, and 17766f (MCL 333.17766c,
333.17766e, and 333.17766f), section 17766c as amended by 2003 PA
308, section 17766e as added by 2005 PA 87, and section 17766f as
added by 2005 PA 86.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec.
17766c. (1) A person shall not possess do any of the
following:
(a) Purchase more than 3.6 grams of ephedrine or
pseudoephedrine alone or in a mixture within a single calendar day.
(b) Purchase more than 9 grams of ephedrine or pseudoephedrine
alone or in a mixture within a 30-day period.
(c) Possess more than 12 grams of ephedrine or pseudoephedrine
alone or in a mixture.
(2) A person who violates this section is guilty of a crime as
follows:
(a) A person who violates subsection (1)(a) or (b) is guilty
of a misdemeanor punishable by imprisonment for not more than 93
days or a fine of not more than $500.00, or both.
(b) A person who violates subsection (1)(c) is guilty of a
felony punishable by imprisonment for not more than 2 years or a
fine of not more than $2,000.00, or both.
(3) This section does not apply to any of the following:
(a) A person who possesses ephedrine or pseudoephedrine
pursuant to a license issued by this state or the United States to
manufacture, deliver, dispense, possess with intent to manufacture
or deliver, or possess a controlled substance, prescription drug,
or other drug.
(b) An individual who possesses ephedrine or pseudoephedrine
pursuant to a prescription.
(c) A person who possesses ephedrine or pseudoephedrine for
retail sale pursuant to a license issued under the general sales
tax act, 1933 PA 167, MCL 205.51 to 205.78.
(d) A person who possesses ephedrine or pseudoephedrine in the
course of his or her business of selling or transporting ephedrine
or pseudoephedrine to a person described in subdivision (a) or (c).
(e) A person who, in the course of his or her business, stores
ephedrine or pseudoephedrine for sale or distribution to a person
described in subdivision (a), (c), or (d).
(f) Any product that the state board of pharmacy, upon
application of a manufacturer, exempts from this section because
the product has been formulated in such a way as to effectively
prevent the conversion of the active ingredient into
methamphetamine.
(g) Possession of any pediatric product primarily intended for
administration to children under 12 years of age according to label
instructions.
Sec. 17766e. (1) Except as otherwise provided under this
section, a person who possesses ephedrine or pseudoephedrine for
retail sale pursuant to a license issued under the general sales
tax act, 1933 PA 167, MCL 205.51 to 205.78, shall maintain all
products that contain any compound, mixture, or preparation
containing any detectable quantity of ephedrine or pseudoephedrine,
a salt or optical isomer of ephedrine or pseudoephedrine, or a salt
of an optical isomer of ephedrine or pseudoephedrine in accordance
with 1 of the following:
(a) Behind a counter where the public is not permitted.
(b) Within a locked case so that a customer wanting access to
the product must ask a store employee for assistance.
(c)
Within 20 feet of a counter that allows the attendant to
view
the products in an unobstructed manner or utilize an antitheft
device
on those products that uses special package tags and
detection
alarms designed to prevent theft along with constant
video
surveillance as follows:
(i) The video camera is positioned so that individuals
examining
or removing those products are visible.
(ii) The video camera is programmed to record, at a
minimum, a
1-second
image every 5 seconds.
(iii) The video images must be maintained for a minimum
of 6
months
and made available to any law enforcement agency upon
request.
(iv) The retailer shall prominently display a sign
indicating
that
the area is under constant video surveillance in a conspicuous
location,
clearly visible to the public.
(2)
If the products described under subsection (1) are
maintained
within 20 feet of a counter and that counter is not
staffed
by 1 or more employees at all times, then the retail
distributor
shall utilize antitheft devices and video surveillance
as
provided under subsection (1)(c) when the counter is not
staffed.
If all of the products described under subsection (1) are
maintained
behind the counter or within a locked case, then the
retailer
is not required to maintain a log or any other type of
record
detailing the sale of those products.
(2) (3)
A person who sells a product
described in subsection
(1) shall do each of the following:
(a) Require the purchaser of a product described under
subsection (1) to produce a valid government issued photo
identification that includes the individual's name and date of
birth.
(b)
Except as otherwise provided under subsection (2),
maintain
Maintain a log or some type of record detailing the sale
of a product described under subsection (1), including the date of
the sale and the time of purchase, the name, address, and date of
birth
of the buyer, and the amount and description of the product
sold, and a description of the identification used to make the
purchase, such as the state in which a driver license used for
identification was issued and number of that license. The seller
shall also require the purchaser to sign the log at the time of
sale. Information entered into the national precursor log exchange
(NPLEX) satisfies the requirement to maintain a log or some type of
record detailing the sale under this subdivision. The log or other
means of recording the sale as required under this subdivision
shall be maintained for a minimum of 6 months and made available to
only a law enforcement agency upon request. The log or other means
of recording the sale is not a public record and is not subject to
the freedom of information act, 1976 PA 442, MCL 15.231 to 15.246.
A person shall not sell or provide a copy of the log or other means
of recording the sale to another for the purpose of surveys,
marketing, or solicitations.
(3) (4)
This section does not apply to the
following:
(a) A pediatric product primarily intended for administration
to children under 12 years of age according to label instructions.
(b) A product containing pseudoephedrine that is in a liquid
form if pseudoephedrine is not the only active ingredient.
(c) A product that the state board of pharmacy, upon
application of a manufacturer or certification by the United States
drug enforcement administration as inconvertible, exempts from this
section because the product has been formulated in such a way as to
effectively prevent the conversion of the active ingredient into
methamphetamine.
(d) A product that is dispensed pursuant to a prescription.
(4) (5)
A person who violates this section
is responsible for
a state civil infraction as provided under chapter 88 of the
revised judicature act of 1961, 1961 PA 236, MCL 600.8801 to
600.8835, and may be ordered to pay a civil fine of not more than
$50.00
$500.00 for each violation.
(5) (6)
By December 15, 2006, the
department of state police
shall submit a written report to the legislature regarding the
impact and effectiveness of the amendatory act that added this
section and section 17766f, including, but not limited to, the
number of clandestine methamphetamine lab incidents before and
after this legislation.
Sec. 17766f. (1) A person who possesses products that contain
any compound, mixture, or preparation containing any detectable
quantity of ephedrine or pseudoephedrine, a salt or optical isomer
of ephedrine or pseudoephedrine, or a salt of an optical isomer of
ephedrine or pseudoephedrine for retail sale pursuant to a license
issued under the general sales tax act, 1933 PA 167, MCL 205.51 to
205.78, shall not knowingly do any of the following:
(a) Sell any product described under this subsection to an
individual under 18 years of age.
(b) Sell more than 3.6 grams of ephedrine or pseudoephedrine
alone or in a mixture to any individual on any single calendar day.
(c) Sell more than 9 grams of ephedrine or pseudoephedrine
alone or in a mixture to any individual within a 30-day period.
(b)
Sell in a single over-the-counter sale more than 2
packages,
or 48 tablets or capsules, of any product described under
this
subsection to any individual.
(d) (c)
Sell in a single over-the-counter
sale more than 2
personal convenience packages containing 2 tablets or capsules each
of any product described under this subsection to any individual.
(2) This section does not apply to the following:
(a) A pediatric product primarily intended for administration
to children under 12 years of age according to label instructions.
(b) A product containing pseudoephedrine that is in a liquid
form if pseudoephedrine is not the only active ingredient.
(c) A product that the state board of pharmacy, upon
application of a manufacturer or certification by the United States
drug enforcement administration as inconvertible, exempts from this
section because the product has been formulated in such a way as to
effectively prevent the conversion of the active ingredient into
methamphetamine.
(d) A product that is dispensed pursuant to a prescription.
(3) A person who violates this section is responsible for a
state civil infraction as provided under chapter 88 of the revised
judicature act of 1961, 1961 PA 236, MCL 600.8801 to 600.8835, and
may
be ordered to pay a civil fine of not more than $50.00 $500.00
for each violation.
(4)
A person described under subsection (1) shall post, in a
place
close to the point of sale and conspicuous to both employees
and
customers, a sign produced by the department of community
health
that includes the following statement:
"The
sale of any product that contains any compound, mixture,
or
preparation containing any detectable quantity of ephedrine or
pseudoephedrine,
a salt or optical isomer of ephedrine or
pseudoephedrine,
or a salt of an optical isomer of ephedrine or
pseudoephedrine
to a minor under 18 years of age is prohibited by
law.
In order to purchase a product described above, you must
provide
the retailer with an official Michigan operator's or
chauffeur's
license, an official Michigan personal identification
card,
or any other bona fide picture identification which
establishes
the identity and age of the individual. The retailer
may
require you to sign a log or other type of record detailing the
sale
of that product. State law further prohibits in a single over-
the-counter
transaction the sale of more than 2 packages, or 48
tablets
or capsules, of any product described above.".
(5)
If the sign required under subsection (4) is more than 6
feet
from the point of sale, it shall be 5-1/2 inches by 8-1/2
inches
and the statement required under subsection (4) shall be
printed
in 36-point boldfaced type. If the sign required under
subsection
(4) is 6 feet or less from the point of sale, it shall
be
2 inches by 4 inches and the statement required under subsection
(4)
shall be printed in 20-point boldfaced type.
(6)
The department of community health shall produce the sign
required
under subsection (4) and, beginning November 1, 2005, make
the
sign available to licensed retailers described in subsection
(1)
on the department's internet website free of charge. Licensed
retailers
described in subsection (1) shall obtain the sign from
the
department's internet website and provide copies of the sign
free
of charge, upon request, to persons who are subject to
subsection
(4).
(4) (7)
It is an affirmative defense to a
citation issued
pursuant to subsection (1)(a) that the defendant had in force at
the time of the citation and continues to have in force a written
policy for employees to prevent the sale of products that contain
any compound, mixture, or preparation containing any detectable
quantity of ephedrine or pseudoephedrine, a salt or optical isomer
of ephedrine or pseudoephedrine, or a salt of an optical isomer of
ephedrine or pseudoephedrine to persons under 18 years of age and
that the defendant enforced and continues to enforce the policy. A
defendant who proposes to offer evidence of the affirmative defense
described in this subsection shall file and serve notice of the
defense, in writing, upon the court and the prosecuting attorney.
The notice shall be served not less than 14 days before the hearing
date.
(5) (8)
A prosecuting attorney who proposes
to offer testimony
to
rebut the affirmative defense described in subsection (7) (4)
shall file and serve a notice of rebuttal, in writing, upon the
court and the defendant. The notice shall be served not less than 7
days before the hearing date and shall contain the name and address
of each rebuttal witness.
(6) (9)
Notwithstanding any other provision
of law, beginning
December 15, 2005, a city, township, village, county, other local
unit of government, or political subdivision of this state shall
not impose any new requirement or prohibition pertaining to the
sale of a product described under subsection (1) that is contrary
to, or in any way conflicting with, this section. This subsection
does not invalidate or otherwise restrict a requirement or
prohibition described in this subsection existing on December 15,
2005.
(10)
Subsections (1) through (5) and (7) through (9) take
effect
December 15, 2005.
Enacting section 1. This amendatory act does not take effect
unless Senate Bill No. 333 of the 96th Legislature is enacted into
law.