SB-0756, As Passed House, June 12, 2014

SENATE BILL No. 756

February 5, 2014, Introduced by Senator PROOS and referred to the Committee on Judiciary.

A bill to amend 1978 PA 368, entitled

"Public health code,"

by amending sections 7340a and 17766f (MCL 333.7340a and

333.17766f), section 7340a as added by 2011 PA 84 and section

17766f as amended by 2011 PA 86.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 7340a. (1) ~~Beginning January 1, 2012, a retailer shall,~~

~~before~~ Before completing a sale under section 17766f, a retailer

shall electronically submit the required information to the

national precursor log exchange (NPLEx) administered by the

national association of drug diversion investigators (NADDI). A

retailer shall not be required to pay a fee for using the NPLEx

system.

(2) 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 record-

keeping mechanism until such time as the retailer is able to comply

with the electronic sales tracking requirement.

(3) NADDI shall provide real-time access to NPLEx information

through the NPLEx online portal to law enforcement in this state as

authorized by state and federal law.

(4) The system described in subsection (1) shall be capable of

generating a stop sale alert notifying the retailer that ~~completion~~

of the person is prohibited from purchasing a nonprescription

product containing ephedrine or pseudoephedrine due to a conviction

reported under the methamphetamine abuse reporting act or that

completing the sale will result in the seller's or purchaser's

violating the quantity limits set forth in section 17766f. ~~The~~

Except as otherwise provided by law, the seller shall not complete

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

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

of ephedrine or pseudoephedrine who has a reasonable fear of

imminent bodily harm if the dispenser does not complete a sale.

Each instance in which the override function is utilized shall be

logged by the system.

(5) A person's failure to comply with the record-keeping or

sales verification requirements of this section does not create a

civil cause of action for damages to any other person arising out

of that failure absent a direct and proximate cause, and the person

is immune from civil liability for any damages arising out of that

Senate Bill No. 756 as amended June 11, 2014

failure.

(6) A person who violates this section is guilty of a

misdemeanor punishable by a fine of not more than $500.00.

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~~ under 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.

alone or in a mixture to any individual within a 30-day period.

(d) 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.

(e) Sell any product described under this subsection to an

individual during the period in which a stop sale alert is

generated for that individual based upon criminal history record

information provided under the methamphetamine abuse reporting act. [The

NPLEX system shall contain an override function that may be used by a dispenser of ephedrine or pseudoephedrine who has a reasonable fear of imminent bodily harm if the dispenser does not complete a sale. Each instance in which the override function is utilized shall be logged by the system.]

(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.

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 $500.00 for

each violation.

(4) It is an affirmative defense to a citation issued ~~pursuant~~

to under 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) A prosecuting attorney who proposes to offer testimony to

rebut the affirmative defense described in subsection (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) 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.

Enacting section 1. This amendatory act takes effect January

1, 2015.

Enacting section 2. This amendatory act does not take effect

unless Senate Bill No. 535 of the 97th Legislature is enacted into

law.