AN ACT
RELATING TO DRUG
PRECURSORS; PROVIDING THE BOARD OF PHARMACY WITH AUTHORITY TO ADD CERTAIN
SUBSTANCES TO THE LIST OF DRUG PRECURSORS; REVISING THE FEE THAT THE BOARD MAY
CHARGE FOR THE LICENSING AND CONTROL OF DRUG PRECURSORS; INCREASING PENALTIES;
AMENDING SECTIONS OF THE DRUG PRECURSOR ACT.
BE IT ENACTED BY THE
LEGISLATURE OF THE STATE OF NEW MEXICO:
Section
1. Section 30-31B-1 NMSA 1978 (being
Laws 1989, Chapter 177, Section 1) is amended to read:
"30-31B-1. SHORT TITLE.--Chapter 30, Article 31B NMSA 1978
may be cited as the "Drug Precursor Act"."
Section
2. Section 30-31B-2 NMSA 1978 (being
Laws 1989, Chapter 177, Section 2) is amended to read:
"30-31B-2. DEFINITIONS.--As used in the Drug Precursor
Act:
A. "administer" means the direct
application of a controlled substance by any means to the body of a patient or
research subject by a practitioner or his agent;
B. "agent" includes an authorized
person who acts on behalf of a manufacturer, distributor or dispenser. "Agent" does not include a common
or contract carrier, public warehouseman or employee of the carrier or
warehouseman;
C. "board" means the board of
pharmacy;
D. "bureau" means the bureau of narcotics
and dangerous drugs of the United States department of justice or its successor
agency;
E. "controlled substance" means a drug
or substance listed in Schedules I through V of the Controlled Substances Act
or regulations adopted thereto;
F. "controlled substance analog" means
a substance other than a controlled substance that has a chemical structure
substantially similar to that of a controlled substance in Schedule I, II, III,
IV or V or which was specifically designed to produce effects substantially
similar to that of controlled substances in Schedule I, II, III, IV or V. Examples of chemical classes in which
controlled substance analogs are found include, but are not limited to, the
following:
(1) phenethylamines;
(2) N-substituted piperidines;
(3) morphinans;
(4) ecogonines;
(5) quinazolinones;
(6) substituted indoles; and
(7) arylcycloalkylamines.
Specifically
excluded from the definition of "controlled substance analog" are
those substances which are generally recognized as safe and effective within
the meaning of the Federal Food, Drug and Cosmetic Act or have been
manufactured, distributed or possessed in conformance with the provisions of an
approved new drug application or an exemption for investigational use within
the meaning of Section 505 of the Federal Food, Drug and Cosmetic Act;
G. "deliver" means the actual,
constructive or attempted transfer from one person to another of a controlled
substance or controlled substance analog, whether or not there is an agency
relationship;
H. "dispense" means to deliver a
controlled substance to an ultimate user or research subject pursuant to the
lawful order of a practitioner, including the administering, prescribing,
packaging, labeling or compounding necessary to prepare the controlled
substance for that delivery;
I. "dispenser" means a practitioner
who dispenses and includes hospitals, pharmacies and clinics where controlled
substances are dispensed;
J. "distribute" means to deliver other
than by administering or dispensing a controlled substance or controlled
substance analog;
K. "drug" means substances recognized
as drugs in the official United States pharmacopoeia, official homeopathic
pharmacopoeia of the United States, official national formulary or any
respective supplement to these publications.
"Drug" does not include devices or their components, parts or
accessories;
L. "drug precursor" means any
substance, material, compound, mixture or preparation listed in Section
30-31B-3 NMSA 1978 or regulations adopted thereto or any of their salts or
isomers. "Drug precursor"
specifically excludes those substances, materials, compounds, mixtures or
preparations which are prepared for dispensing pursuant to a prescription or
over-the-counter distribution as a substance which is generally recognized as
safe and effective within the meaning of the Federal Food, Drug and Cosmetic
Act or have been manufactured, distributed or possessed in conformance with the
provisions of an approved new drug application or an exemption for
investigational use within the meaning of Section 505 of the Federal Food, Drug
and Cosmetic Act, unless the board makes the findings required pursuant to
Subsection B of Section 30-31B-4 NMSA 1978;
M. "immediate precursor" means a
substance which is a compound commonly used or produced primarily as an
immediate chemical intermediary used in the manufacture of a controlled
substance, the control of which is necessary to prevent, curtail or limit the
manufacture of controlled substances;
N. "license" means a license issued by
the board to manufacture, possess, transfer or transport a drug precursor;
O. "manufacture" means the production,
preparation, compounding, conversion or processing of a drug precursor by
extraction from substances of natural origin, independently by means of
chemical synthesis or by a combination of extraction and chemical synthesis and
includes any packaging or repackaging of the substance or labeling or
relabeling of its container, except that this term does not include the
preparation or compounding of a controlled substance by a practitioner:
(1) as an incident to his administering or
dispensing of a controlled substance in the course of his professional
practice; or
(2) by his agent under his supervision for the
purpose of or as an incident to research, teaching or chemical analysis and not
for sale;
P. "person" includes an individual,
sole proprietorship, partnership, corporation, association, the state or any
political subdivision of the state or other legal entity;
Q. "possession" means to actively or
constructively exercise dominion over;
R. "practitioner" means a physician,
dentist, veterinarian or other person licensed to prescribe and administer
drugs which are subject to the Controlled Substances Act;
S. "prescription" means an order given
individually for the person for whom is prescribed a controlled substance,
either directly from the prescriber to the pharmacist or indirectly by means of
a written order signed by the prescriber and in accordance with the Controlled
Substances Act or regulations adopted thereto; and
T. "transfer" means the sale,
possession with intent to sell, barter or giving away of a drug
precursor."
Section
3. Section 30-31B-4 NMSA 1978 (being
Laws 1989, Chapter 177, Section 4) is amended to read:
"30-31B-4. DUTY TO ADMINISTER.--
A. The board shall administer the Drug Precursor
Act and by regulation may add substances to the list of drug precursors
enumerated in Section 30-31B-3 NMSA 1978.
The board shall promulgate regulations pursuant to the procedures of the
Uniform Licensing Act.
B. In determining whether to add to the list of
drug precursors a substance, material, compound, mixture or preparation that is
generally recognized as safe and effective within the meaning of the Federal
Food, Drug and Cosmetic Act or that has been manufactured, distributed or
possessed in conformance with the provisions of an approved new drug
application or an exemption for investigational use within the meaning of
Section 505 of the Federal Food, Drug and Cosmetic Act, the board shall
consider:
(1) whether the substance, material, compound,
mixture or preparation is:
(a) a source of a substance already controlled
under the Controlled Substances Act; or
(b) subject to being easily converted to an
immediate precursor of a substance already controlled under the Controlled
Substances Act;
(2) the relative ease by which use of the
substance, material, compound, mixture or preparation can facilitate the manufacture
of a controlled substance;
(3) legitimate uses that would be unduly hampered
by listing the substance, material, compound, mixture or preparation as a drug
precursor;
(4) whether the substance, material, compound,
mixture or preparation is formulated to effectively prevent its conversion into
an immediate precursor of a substance already controlled under the Controlled
Substances Act; and
(5) any other factors relevant to and consistent
with the public health and safety.
C. In determining whether a substance, material,
compound, mixture or preparation should be added to the list of drug
precursors, the board shall consider:
(1) whether the substance, material, compound,
mixture or preparation is an immediate precursor of a substance already
controlled under the Controlled Substances Act;
(2) the relative ease by which use of the
substance, material, compound, mixture or preparation can facilitate the
manufacture of a controlled substance;
(3) legitimate uses which would be unduly
hampered by listing the substance, material, compound, mixture or preparation
as a drug precursor; and
(4) any other factors relevant to and consistent
with the public health and safety.
D. After considering the factors enumerated in
Subsection B or C of this section, the board shall make findings and issue
regulations listing the substance, material, compound, mixture or preparation
as a drug precursor if it finds that the substance, material, compound, mixture
or preparation has a significant potential for use in the manufacture of
controlled substances.
E. If the board designates a substance,
material, compound, mixture or preparation as a drug precursor, then
substances, materials, compounds, mixtures or preparations which are precursors
of the drug precursor so designated shall not be subject to control solely
because they are precursors of a drug precursor.
F. If any substance, material, compound, mixture
or preparation is designated as controlled under federal law and notice is
given to the board, the board may, by regulation, similarly control the
substance under the Drug Precursor Act after providing for a hearing pursuant
to the Uniform Licensing Act.
G. Authority to control under this section does
not extend to distilled spirits, wine, malt beverages, tobacco or pesticides as
defined in the Pesticide Control Act."
Section
4. Section 30-31B-6 NMSA 1978 (being
Laws 1989, Chapter 177, Section 6) is amended to read:
"30-31B-6. REGULATIONS.--
A. The board may promulgate regulations and
charge reasonable fees relating to the licensing and control of the
manufacture, possession, transfer and transportation of drug precursors. The fees shall not be more than two hundred
fifty dollars ($250) per license for a wholesaler's license, a distributor's
license or a manufacturer's license. The
fees shall not be more than fifty dollars ($50.00) per license for a retail
distributor's license, when the retail distributor has ten or more
employees. The fees shall not be more
than twenty-five dollars ($25.00) per license for a retail distributor's
license, when the retail distributor has fewer than ten employees.
B. Every person who manufactures, possesses,
transfers or transports any drug precursor or who proposes to engage in the
manufacture, possession, transfer or transportation of any drug precursor shall
obtain, annually, a license issued by the board.
C. Persons licensed by the board to manufacture,
possess, transfer or transport drug precursors may manufacture, possess,
transfer or transport those substances to the extent authorized by their
license and in conformity with the other provisions of the Drug Precursor Act.
D. The following persons need not be licensed
under the Drug Precursor Act and may lawfully possess drug precursors:
(1) physicians;
(2) an agent of any licensed manufacturer of any
drug precursor if he is acting in the usual course of his principal's business
or employment;
(3) an employee of a licensed common or contract
carrier or licensed warehouseman whose possession of any drug precursor is in
the usual course of the licensed common or contract carrier or licensed
warehouseman's business;
(4) a student enrolled in a chemistry class for
credit; provided, however, that the student's use of the drug precursor is for
a bona fide educational purpose and that the chemistry department of the
educational institution otherwise possesses all the necessary licenses required
by the board;
(5) a consumer who uses a drug precursor for its
intended purpose and who does not use the drug precursor to manufacture a
substance controlled under the Controlled Substances Act;
(6) a pharmacy, an agent or employee of a
pharmacy or a contractor for a pharmacy;
(7) a pharmacist, an agent or employee of a
pharmacist or a contractor for a pharmacist; or
(8) an agent or employee of a licensed retail
establishment or a contractor for a licensed retail establishment.
E. The board may waive by regulation the
requirement for licensing of certain manufacturers if it is consistent with the
public health and safety.
F. The board may inspect the establishment of a
licensee or applicant for license in accordance with the board's
regulations."
Section
5. Section 30-31B-12 NMSA 1978 (being
Laws 1989, Chapter 177, Section 12) is amended to read:
"30-31B-12. DRUG PRECURSORS--PROHIBITED
ACTS--PENALTIES.--
A. It is unlawful for any person:
(1) to transfer drug precursors except to an
authorized licensee;
(2) to intentionally use in the course of the
manufacture or transfer of a drug precursor a license number which is
fictitious, revoked, suspended or issued to another person;
(3) to intentionally acquire or obtain, or
attempt to acquire or obtain, possession of a drug precursor by
misrepresentation, fraud, forgery, deception or subterfuge;
(4) to intentionally furnish false or fraudulent
material information in, or omit any material information from, any
application, report or other document required to be kept or filed under the
Drug Precursor Act or any record required to be kept by that act;
(5) who is a licensee to intentionally
manufacture a drug precursor not authorized by his license or to intentionally
transfer a drug precursor not authorized by his license to another licensee or
authorized person;
(6) to intentionally refuse or fail to make, keep
or furnish any record, notification, order form, statement, invoice or
information required under the Drug Precursor Act;
(7) to intentionally refuse an entry into any
premises for any inspection authorized by the Drug Precursor Act; or
(8) to manufacture, possess, transfer or
transport a drug precursor without the appropriate license or in violation of
any rule or regulation of the board.
B. Any person who violates any provision of this
section is guilty of a fourth degree felony and shall be sentenced pursuant to
the provisions of Section 31-18-15 NMSA 1978.
C. When a person owns or operates a retail
establishment where drug precursors are sold by an employee in violation of the
provisions of this section, it is an affirmative defense to a prosecution of
that owner or operator if he furnishes documentation that he provided the
employee with a training program regarding state and federal laws and
regulations regarding drug precursors; provided that, if the owner or operator
knew or should have known of the employee's violation, the owner or operator
shall also be in violation of the provisions of this section.
D. When drug precursors are sold by an employee
of a retail establishment in violation of the provisions of this section, it is
an affirmative defense to a prosecution of that employee that he did not
receive training from his employer regarding state and federal laws and
regulations regarding drug precursors."
Section
6. EFFECTIVE DATE.--The effective date
of the provisions of this act is July 1, 2004.
HJC/HB 111
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