FROM THE DESK OF REPRESENTATIVE DE BOEF

February 17, 2005

Probably one of the biggest issues up for debate this year is the bill concerning access to pseudoephedrine.  Pseudoephedrine is the one ingredient essential in the manufacturing of methamphetamine.  Some ingredients required to make meth such as anhydrous ammonia, have substitutes.  Not so with pseudoephedrine – meth cannot be manufactured without it.  Current law allows retailers to market single ingredient products containing pseudoephedrine, but they have to be kept behind the counter and only two packs can be purchased at a time.

The easy access to pseudoephedrine and combined with the roll it plays in the manufacture of meth create a serious problem.  How do we balance the need to protect the public from the manufacture of meth while the public retains the right to purchase products that are commonly used to address cold symptoms?

Approximately 400 products would be effected by the restrictions proposed in House Study Bill 175.  Our caucus was able to view about 80 of them this week.  Among them are Nyquil, Sudafed, Actifed, Claritin D, Benadryl D, Robitussin, Pedia Care and nearly all cold and allergy medication.  To help you better understand the issue, below is an analysis of the House version of the pseudoephedrine bill.

What is a Schedule V Controlled Substance?

Schedule V controlled substances are the lowest form of controlled substance.  Any drug classified as “Schedule V” must be sold within a pharmacy and kept behind the pharmacy counter.  Many of these substances are available without a prescription.  However, there are several other restrictions that accompany the Schedule V classification.  They include:

• Requiring a licensed pharmacist or pharmacist intern supervised by a pharmacist to dispense the product.  Pharmacy technicians and other pharmacy employees are prohibited from dispensing the product, even if under direct supervision of a pharmacist.
• Requiring the purchaser to be at least 18 years old.
• Requiring the purchaser to furnish identification, unless the purchaser is known to the pharmacist.
• Requiring the pharmacist to maintain a record book, including the name and address of the purchaser, and indicating the name and quantity of the substance purchased.

Does HSB 175 contain additional requirements for the sale of Schedule V pseudoephedrine products?

Yes.  In addition to the requirements outlined above, HSB 175 also prohibits a pharmacy from selling more than 4000 milligrams of pseudoephedrine to a person in a 30 day period. 

Does HSB 175 require a purchaser to obtain a prescription for pseudoephedrine products?

No.  Requiring a product to be sold in a pharmacy does not mean a prescription is necessary to purchase it.  HSB 175 does not require a prescription to purchase pseudoephedrine products.   HSB 175 does not require a prescription for any pseudoephedrine product that does not already require a prescription. 

Can a retail establishment sell pseudoephedrine products?

Yes.  HSB 175 creates exceptions allowing retail establishments to sell small quantities of pseudoephedrine products.  The sale of these products is subject to the following restrictions:

• The pseudoephedrine products must be located in a locked cabinet or placed behind the retail counter, out of reach to the public.
• The product cannot contain more than 240 milligrams of pseudoephedrine.
• The purchaser is limited to one product every 24 hours, and cannot purchase more than 4,000 milligrams of pseudoephedrine product in a 30 day period.
• The purchaser must sign a log book and show photo identification, which will be available to law enforcement.

Are retail pharmacies (such as Walgreens and Drug Town) “retail establishments” or “pharmacies”?

Retail pharmacies are basically “retail establishments” that contain a pharmacy.  Thus, when selling pseudoephedrine products, a retail pharmacy must adhere to the same restrictions as any other retailer.  However, the actual pharmacy within the retail establishment may sell pseudoephedrine products just as any other pharmacy.  This same principle applies to grocery stores and any other retail establishment that also contains a pharmacy.

Does HSB 175 limit access to all cold and allergy medicine?

No.  HSB 175 only limits the sale of cold and allergy medicine containing pseudoephedrine, which is a decongestant.  Although pseudoephedrine is by far the most common, there are a few decongestant products that contain a decongestant other than pseudoephedrine.  Access to these and other cold and allergy products, such as antihistamines, will remain unaffected.

As mentioned, the House version restricts the sale of pseudoephedrine by a retailer such as a grocery store to no more than 240 milligrams with the a total of 4000 milligrams in 30 days.  The 240 milligrams would be a one day supply for an adult.  For example, if a person uses Clariton D, they would have to purchase a two week supply at a pharmacy.  Because this medication is 3600 milligrams, they would be required to get a doctor’s prescription in order to buy enough for the next two weeks if they use the product daily. 

The Senate passed a bill (Senate File 169) this week that is less stringent.  Their version allows two 360 milligram purchases in 24 hours with a total of up to 6000 milligrams in a month. Anything over 360 milligrams in a package would require being purchased under schedule V rules.  This would still require a doctor’s prescription as in the example given above.

The House is looking at the Senate version carefully and attempting to come up with language that would be acceptable to both chambers.  There are certainly those arguing that it should be a straight Schedule 5 with exemptions.  Those who feel this way will be offering a strike-all amendment suggesting very strict language.  Rest assured that we are making a genuine effort to find a solution that addresses the problem without penalizing law abiding citizens.

I have stated support for limited increase in cigarette tax to address the problems with Medicaid.  Do you support the Governor’s proposed $.80 increase  in cigarette tax?