Introduced Version




SENATE BILL No. 498

_____


DIGEST OF INTRODUCED BILL



Citations Affected: IC 10-13-3-40; IC 34-30-2-152.3; IC 35-31.5-2; IC 35-48.

Synopsis: Ephedrine or pseudoephedrine. Provides that materials, compounds, mixtures, or preparations that contain ephedrine or pseudoephedrine are schedule III controlled substances that may be dispensed only by prescription. Repeals: (1) the law allowing the dispensing of ephedrine and pseudoephedrine without a prescription subject to certain restrictions; and (2) provisions related to that law.

Effective: July 1, 2013.



Head


    January 14, 2013, read first time and referred to Committee on Corrections & Criminal Law.




Introduced

First Regular Session 118th General Assembly (2013)


PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana Constitution) is being amended, the text of the existing provision will appear in this style type, additions will appear in this style type, and deletions will appear in this style type.
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SENATE BILL No. 498


    A BILL FOR AN ACT to amend the Indiana Code concerning criminal law and procedure.

Be it enacted by the General Assembly of the State of Indiana:


SOURCE: IC 10-13-3-40; (13)IN0498.1.1. -->     SECTION 1. IC 10-13-3-40, AS ADDED BY P.L.190-2006, SECTION 1, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2013]: Sec. 40. (a) The department may use the appropriations described in subsection (b) for either or both of the following purposes:
        (1) operating and maintaining the central repository for criminal history data.
        (2) Establishing, operating, or maintaining an electronic log to record the sale of drugs containing ephedrine or pseudoephedrine in accordance with IC 35-48-4-14.7.
    (b) If the amount of money that is deposited in the state general fund during a state fiscal year from handgun license fees (as described in IC 35-47-2-4) exceeds one million one hundred thousand dollars ($1,100,000), the excess is appropriated from the state general fund to the department for the purposes purpose described in subsection (a). An appropriation under this section is subject to allotment by the budget agency.
SOURCE: IC 34-30-2-152.3; (13)IN0498.1.2. -->     SECTION 2. IC 34-30-2-152.3 IS REPEALED [EFFECTIVE JULY 1, 2013]. Sec. 152.3. IC 35-48-4-14.7 (Concerning a retailer who discloses information concerning the sale of a product containing ephedrine or pseudoephedrine).
SOURCE: IC 35-31.5-2-61; (13)IN0498.1.3. -->     SECTION 3. IC 35-31.5-2-61 IS REPEALED [EFFECTIVE JULY 1, 2013]. Sec. 61. "Constant video monitoring", for purposes of IC 35-48-4-14.7, has the meaning set forth in IC 35-48-4-14.7(b)(1).
SOURCE: IC 35-31.5-2-66; (13)IN0498.1.4. -->     SECTION 4. IC 35-31.5-2-66 IS REPEALED [EFFECTIVE JULY 1, 2013]. Sec. 66. "Convenience package", for purposes of IC 35-48-4-14.7, has the meaning set forth in IC 35-48-4-14.7(b)(2).
SOURCE: IC 35-31.5-2-120; (13)IN0498.1.5. -->     SECTION 5. IC 35-31.5-2-120 IS REPEALED [EFFECTIVE JULY 1, 2013]. Sec. 120. "Ephedrine", for purposes of IC 35-48-4-14.7, has the meaning set forth in IC 35-48-4-14.7(b)(3).
SOURCE: IC 35-31.5-2-256; (13)IN0498.1.6. -->     SECTION 6. IC 35-31.5-2-256 IS REPEALED [EFFECTIVE JULY 1, 2013]. Sec. 256. "Pseudoephedrine", for purposes of IC 35-48-4-14.7, has the meaning set forth in IC 35-48-4-14.7(b)(4).
SOURCE: IC 35-31.5-2-279; (13)IN0498.1.7. -->     SECTION 7. IC 35-31.5-2-279 IS REPEALED [EFFECTIVE JULY 1, 2013]. Sec. 279. "Retailer", for purposes of IC 35-48-4-14.7, has the meaning set forth in IC 35-48-4-14.7(b)(5).
SOURCE: IC 35-31.5-2-320; (13)IN0498.1.8. -->     SECTION 8. IC 35-31.5-2-320 IS REPEALED [EFFECTIVE JULY 1, 2013]. Sec. 320. "Suspicious order", for purposes of IC 35-48-4-14.7, has the meaning set forth in IC 35-48-4-14.7(b)(6).
SOURCE: IC 35-31.5-2-343; (13)IN0498.1.9. -->     SECTION 9. IC 35-31.5-2-343 IS REPEALED [EFFECTIVE JULY 1, 2013]. Sec. 343. "Unusual theft", for purposes of IC 35-48-4-14.7, has the meaning set forth in IC 35-48-4-14.7(b)(7).
SOURCE: IC 35-48-2-8; (13)IN0498.1.10. -->     SECTION 10. IC 35-48-2-8, AS AMENDED BY P.L.22-2008, SECTION 3, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2013]: Sec. 8. (a) The controlled substances listed in this section are included in schedule III.
    (b) Stimulants. Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances having a stimulant effect on the central nervous system, including its salts, isomers (whether optical, position, or geometric), and salts of such isomers whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation:
        (1) Those compounds, mixtures, or preparations in dosage unit form containing any stimulant substances listed in schedule II which compounds, mixtures, or preparations were listed on April 1, 1986, as excepted compounds under 21 CFR 1308.32, and any other drug of the quantitative composition shown in that list for those drugs or that is the same except that it contains a lesser

quantity of controlled substances (1405).
        (2) Benzphetamine (1228).
        (3) Chlorphentermine (1645).
        (4) Clortermine (1647).
        (5) Phendimetrazine (1615).
    (c) Depressants. Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances having a depressant effect on the central nervous system:
        (1) Any compound, mixture, or preparation containing:
            (A) amobarbital (2126);
            (B) secobarbital (2316);
            (C) pentobarbital (2271); or
            (D) any of their salts;
        and one (1) or more other active medicinal ingredients which are not listed in any schedule.
        (2) Any suppository dosage form containing:
            (A) amobarbital (2126);
            (B) secobarbital (2316);
            (C) pentobarbital (2271); or
            (D) any of their salts;
        and approved by the Food and Drug Administration for marketing only as a suppository.
        (3) Any substance which contains any quantity of a derivative of barbituric acid, or any salt thereof (2100).
        (4) Chlorhexadol (2510).
        (5) Embutramide (2020).
        (6) Lysergic acid (7300).
        (7) Lysergic acid amide (7310).
        (8) Methyprylon (2575).
        (9) Sulfondiethylmethane (2600).
        (10) Sulfonethylmethane (2605).
        (11) Sulfonmethane (2610).
        (12) A combination product containing Tiletamine and Zolazepam or any salt thereof (Telazol) (7295).
        (13) Any drug product containing gamma-hydroxybutyric acid, including its salts, isomers, and salts of isomers, for which an application is approved under section 505 of the federal Food, Drug and Cosmetic Act, 21 U.S.C. 301 et seq. (2012).
    (d) Nalorphine (a narcotic drug) (9400).
    (e) Narcotic Drugs. Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation

containing any of the following narcotic drugs, or their salts calculated as the free anhydrous base or alkaloid, in the following limited quantities:
        (1) Not more than 1.8 grams of codeine, per 100 milliliters or not more than 90 milligrams per dosage unit, with an equal or greater quantity of an isoquinoline alkaloid of opium (9803).
        (2) Not more than 1.8 grams of codeine, per 100 milliliters or not more than 90 milligrams per dosage unit, with one (1) or more active, nonnarcotic ingredients in recognized therapeutic amounts (9804).
        (3) Not more than 300 milligrams of dihydrocodeinone, per 100 milliliters or not more than 15 milligrams per dosage unit, with a fourfold or greater quantity of an isoquinoline alkaloid of opium (9805).
        (4) Not more than 300 milligrams of dihydrocodeinone, per 100 milliliters or not more than 15 milligrams per dosage unit, with one (1) or more active nonnarcotic ingredients in recognized therapeutic amounts (9806).
        (5) Not more than 1.8 grams of dihydrocodeine, per 100 milliliters or not more than 90 milligrams per dosage unit, with one (1) or more active, nonnarcotic ingredients in recognized therapeutic amounts (9807).
        (6) Not more than 300 milligrams of ethylmorphine, per 100 milliliters or not more than 15 milligrams per dosage unit, with one (1) or more active, nonnarcotic ingredients in recognized therapeutic amounts (9808).
        (7) Not more than 500 milligrams of opium per 100 milliliters or per 100 grams or not more than 25 milligrams per dosage unit, with one (1) or more active, nonnarcotic ingredients in recognized therapeutic amounts (9809).
        (8) Not more than 50 milligrams of morphine, per 100 milliliters or per 100 grams with one (1) or more active nonnarcotic ingredients in recognized therapeutic amounts (9810).
        (9) Buprenorphine (9064).
    (f) Anabolic steroid (as defined in 21 U.S.C. 802(41)(A) and 21 U.S.C. 802(41)(B)).
    (g) The board shall except by rule any compound, mixture, or preparation containing any stimulant or depressant substance listed in subsections (b) through (e) from the application of any part of this article if the compound, mixture, or preparation contains one (1) or more active medicinal ingredients not having a stimulant or depressant effect on the central nervous system, and if the admixtures are included

therein in combinations, quantity, proportion, or concentration that vitiate the potential for abuse of the substances which have a stimulant or depressant effect on the central nervous system.
    (h) Any material, compound, mixture, or preparation which contains any quantity of Ketamine (7285).
    (i) Hallucinogenic substances:
        Dronabinol (synthetic) in sesame oil and encapsulated in a soft gelatin capsule in a United States Food and Drug Administration approved drug product (7369).
     (j) A material, compound, mixture, or preparation that contains a quantity of any of the following substances, pure or adulterated:
        (1) Ephedrine.
        (2) Pseudoephedrine.

SOURCE: IC 35-48-4-14.7; (13)IN0498.1.11. -->     SECTION 11. IC 35-48-4-14.7 IS REPEALED [EFFECTIVE JULY 1, 2013]. Sec. 14.7. (a) This section does not apply to the following:
        (1) Ephedrine or pseudoephedrine dispensed pursuant to a prescription.
        (2) The sale of a drug containing ephedrine or pseudoephedrine to a licensed health care provider, pharmacist, retail distributor, wholesaler, manufacturer, or an agent of any of these persons if the sale occurs in the regular course of lawful business activities. However, a retail distributor, wholesaler, or manufacturer is required to report a suspicious order to the state police department in accordance with subsection (f).
        (3) The sale of a drug containing ephedrine or pseudoephedrine by a person who does not sell exclusively to walk-in customers for the personal use of the walk-in customers. However, if the person described in this subdivision is a retail distributor, wholesaler, or manufacturer, the person is required to report a suspicious order to the state police department in accordance with subsection (f).
    (b) The following definitions apply throughout this section:
        (1) "Constant video monitoring" means the surveillance by an automated camera that:
            (A) records at least one (1) photograph or digital image every ten (10) seconds;
            (B) retains a photograph or digital image for at least seventy-two (72) hours;
            (C) has sufficient resolution and magnification to permit the identification of a person in the area under surveillance; and
            (D) stores a recorded photograph or digital image at a location that is immediately accessible to a law enforcement officer.
        (2) "Convenience package" means a package that contains a drug

having as an active ingredient not more than sixty (60) milligrams of ephedrine or pseudoephedrine, or both.
        (3) "Ephedrine" means pure or adulterated ephedrine.
        (4) "Pseudoephedrine" means pure or adulterated pseudoephedrine.
        (5) "Retailer" means a grocery store, general merchandise store, drug store, or other similar establishment where ephedrine or pseudoephedrine products are available for sale.
        (6) "Suspicious order" means a sale or transfer of a drug containing ephedrine or pseudoephedrine if the sale or transfer:
            (A) is a sale or transfer that the retail distributor, wholesaler, or manufacturer is required to report to the United States Drug Enforcement Administration;
            (B) appears suspicious to the retail distributor, wholesaler, or manufacturer in light of the recommendations contained in Appendix A of the report to the United States attorney general by the suspicious orders task force under the federal Comprehensive Methamphetamine Control Act of 1996; or
            (C) is for cash or a money order in a total amount of at least two hundred dollars ($200).
        (7) "Unusual theft" means the theft or unexplained disappearance from a particular retail store of drugs containing ten (10) grams or more of ephedrine, pseudoephedrine, or both in a twenty-four (24) hour period.
    (c) This subsection does not apply to a convenience package. A retailer may sell a drug that contains the active ingredient of ephedrine, pseudoephedrine, or both only if the retailer complies with the following conditions:
        (1) The retailer does not sell the drug to a person less than eighteen (18) years of age.
        (2) The retailer does not sell drugs containing more than three and six-tenths (3.6) grams of ephedrine or pseudoephedrine, or both, to one (1) individual on one (1) day, or seven and two-tenths (7.2) grams of ephedrine or pseudoephedrine, or both, to one (1) individual in a thirty (30) day period.
        (3) The retailer requires:
            (A) the purchaser to produce a valid government issued photo identification card showing the date of birth of the person;
            (B) the purchaser to sign a written or electronic log attesting to the validity of the information; and
            (C) the clerk who is conducting the transaction to initial or electronically record the clerk's identification on the log.

        Records from the completion of a log must be retained for at least two (2) years. A law enforcement officer has the right to inspect and copy a log or the records from the completion of a log in accordance with state and federal law. A retailer may not sell or release a log or the records from the completion of a log for a commercial purpose. The Indiana criminal justice institute may obtain information concerning a log or the records from the completion of a log from a law enforcement officer if the information may not be used to identify a specific individual and is used only for statistical purposes. A retailer who in good faith releases information maintained under this subsection is immune from civil liability unless the release constitutes gross negligence or intentional, wanton, or willful misconduct.
        (4) The retailer maintains a record of information for each sale of a nonprescription product containing pseudoephedrine or ephedrine. Required information includes:
            (A) the name and address of each purchaser;
            (B) the type of identification presented;
            (C) the governmental entity that issued the identification;
            (D) the identification number; and
            (E) the ephedrine or pseudoephedrine product purchased, including the number of grams the product contains and the date and time of the transaction.
        (5) Beginning January 1, 2012, a retailer shall, except as provided in subdivision (6), before completing a sale of an over-the-counter product containing pseudoephedrine or ephedrine, electronically submit the required information to the National Precursor Log Exchange (NPLEx) administered by the National Association of Drug Diversion Investigators (NADDI), if the NPLEx system is available to retailers in the state without a charge for accessing the system. The retailer may not complete the sale if the system generates a stop sale alert.
        (6) If a retailer selling an over-the-counter 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 recordkeeping mechanism until the retailer is able to comply with the electronic sales tracking requirement.
        (7) The retailer stores the drug behind a counter in an area inaccessible to a customer or in a locked display case that makes the drug unavailable to a customer without the assistance of an

employee.
        (8) The retailer posts a sign warning that:
            (A) it is a criminal offense for a person to purchase drugs containing more than seven and two-tenths (7.2) grams of ephedrine or pseudoephedrine, or both, in a thirty (30) day period;
            (B) it is a criminal offense for a person to purchase drugs containing more than three and six-tenths (3.6) grams of ephedrine or pseudoephedrine, or both, on one (1) day; and
            (C) depending on the amount of ephedrine or pseudoephedrine contained in the drug, purchasing more than one (1) package of drugs containing ephedrine or pseudoephedrine on one (1) day may be a crime.
        The warning sign must list maximum amounts of ephedrine or pseudoephedrine that may be purchased in both grams and milligrams.
    (d) A person may not purchase drugs containing more than three and six-tenths (3.6) grams of ephedrine or pseudoephedrine, or both, on one (1) day, or more than seven and two-tenths (7.2) grams of ephedrine or pseudoephedrine, or both, in a thirty (30) day period. These limits apply to the total amount of base ephedrine and pseudoephedrine contained in the products and not to the overall weight of the products.
    (e) This subsection only applies to convenience packages. A retailer may not sell drugs containing more than sixty (60) milligrams of ephedrine or pseudoephedrine, or both in any one (1) transaction if the drugs are sold in convenience packages. A retailer who sells convenience packages must secure the convenience packages behind the counter in an area inaccessible to a customer or in a locked display case that makes the drug unavailable to a customer without the assistance of an employee.
    (f) A retail distributor, wholesaler, or manufacturer shall report a suspicious order to the state police department in writing.
    (g) Not later than three (3) days after the discovery of an unusual theft at a particular retail store, the retailer shall report the unusual theft to the state police department in writing. If three (3) unusual thefts occur in a thirty (30) day period at a particular retail store, the retailer shall, for at least one hundred eighty (180) days after the date of the last unusual theft, locate all drugs containing ephedrine or pseudoephedrine at that particular retail store behind a counter in an area inaccessible to a customer or in a locked display case that makes the drug unavailable to customers without the assistance of an employee.

    (h) A unit (as defined in IC 36-1-2-23) may not adopt an ordinance after February 1, 2005, that is more stringent than this section.
    (i) A person who knowingly or intentionally violates this section commits a Class C misdemeanor. However, the offense is a Class A misdemeanor if the person has a prior unrelated conviction under this section.
    (j) A retailer who uses the electronic sales tracking system in accordance with this section is immune from civil liability for any act or omission committed in carrying out the duties required by this section, unless the act or omission was due to negligence, recklessness, or deliberate or wanton misconduct. A retailer is immune from liability to a third party unless the retailer has violated a provision of this section and the third party brings an action based on the retailer's violation of this section.
    (k) The following requirements apply to the NPLEx:
        (1) Information contained in the NPLEx may be shared only with law enforcement officials.
        (2) A law enforcement official may access Indiana transaction information maintained in the NPLEx for investigative purposes.
        (3) NADDI may not modify sales transaction data that is shared with law enforcement officials.
        (4) At least one (1) time per week, NADDI shall forward Indiana data contained in the NPLEx, including data concerning a transaction that could not be completed due to the issuance of a stop sale alert, to the state police department.