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
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.
(c) Sell more than 9 grams of ephedrine or pseudoephedrine
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.
(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 $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.