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F I S C A L I M P A C T R E P O R T

SPONSOR Heaton

DATE TYPED 03/01/05 HB 825

SHORT TITLE Psuedoephedrine as a Controlled Substance

SB

ANALYST McSherry

REVENUE

Estimated Revenue

Subsequent

Years Impact

Recurring

or Non-Rec

Fund

Affected

FY05

FY06

NFI

($75.0)

($75.0) Recurring

Pharmacy Board

Fund

(Parenthesis ( ) Indicate Revenue Decreases)

House Bill 825 relates to SB413 Amend drug, device & cosmetic and pharmacy acts and HB110

Methamphetamine Offences Revision.

SOURCES OF INFORMATION

LFC Files

Responses Received From

Department of Health (DOH)

Regulations and Licensing Department (RLD)

Public Defender (PD)

Administrative Office of the Courts (AOC)

Economic Development Department (EDD)

Attorney General’s Office (AGO)

SUMMARY

Synopsis of Bill

House Bill 825 proposes to add pseudoephedrine to the Controlled Substances Act.

The bill would:

Delete a clause that excludes non-narcotic substances from control by the Act if they can

be lawfully sold over the counter without a prescription.

Provide language specifying that any compound, mixture or preparation that contains any

detectable quantity of pseudoephedrine, its salts or its optical isomers, can only be dispensed by

a licensed pharmacist including pseudoephedrine.

House Bill 825 -- Page 2

Add language requiring that a person purchasing such a compound show photo ID, in-

cluding birth date, and sign a log or receipt showing the date of the transaction, the person’s

name, and the amount of the compound.

Provide that a person would be limited to no more than nine grams of the compound

within a thirty-day period, provided that the compound is not dispensed pursuant to a valid pre-

scription.

Allow board of pharmacy, by rule, to remove a product containing pseudoephedrine from

the said restrictions if the board determines that the product cannot be converted into metham-

phetamine.

Significant Issues

According to the Public Defender (PD), Ephedrine, which could be simply be derived from

pseudoephedrine, is a necessary precursor to methamphetamine, a Schedule I controlled sub-

stance and retail outlets selling psuedoephedrine are thought to be the source for the precursors

of most methamphetamine used in the United States.

PD further cites that Sudafed, a typical over-the-counter/nonprescription pseudoephedrine brand,

has a dosage of one or two 30 mg. tablets per four to six hour period. This bill would permit pos-

session of 300 Sudafed tablets monthly (9 grams = 9,000 milligrams ÷ 30 mg. = 300 tablets),

which would be enough to treat most allergy symptoms.

A New Mexican with a prescription under the proposed act could have all the pseudoephedrine

his/her physician prescibed.

According to the Board of Pharmacy, the illicit use of pseudoephedrine products in the manufac-

ture of methamphetamine is a serious problem in New Mexico. Pseudoephedrine products are

currently available for the public’s use in the treatment of a broad range of medical condi-

tions/symptoms including the common cold, influenza, and seasonal allergies and are sold in

numerous stores, supermarkets, pharmacies, and other businesses.

The Board of Pharmacy (BoP) reports that it is currently in the process of licensing all retail sell-

ers of pseudoephedrine products and restricting the sale of pseudoephedrine products to two blis-

ter packages/or 6 grams of pseudoephedrine to any one individual during a 7 day period; prod-

ucts must also be within 20 feet of sight line of pharmacy or behind sales counter or locked.

The

board reports that this rule went into effect on January 30

th

of 2005.

BoP points out that the placement of pseudoephedrine products in schedule V would effectively

restrict the availability of those products to only through a licensed pharmacy and that the pro-

posed provision is similar to the Oklahoma law enacted last year only allowing the sale of those

products through licensed pharmacies.

Under the proposed bill’s provisions, communities without pharmacies, or communities without

24-hour pharmacies when the pharmacy is closed, would not be able to purchase pseudoephed-

rine products.

The AG points out that current statute disallows Pharmacy Board from making any over-the-

counter drug a scheduled or controlled substance, and asserts that this restriction would not allow

the Pharmacy Board the ability to control drug precursors satisfactorily.

House Bill 825 -- Page 3

PERFORMANCE IMPLICATIONS

The Public Defender predicts that, over time, enactment of the proposed bill could decrease the

workload of the courts, prosecutors, and Public Defender Department by a predicted reduction

in the methamphetamine problem in New Mexico, and a corresponding reduction in the criminal

cases associated with it.

DOH cites that the proposed bill would support its Strategic Plan in terms of controlling inap-

propriate use of addictive controlled substances.

FISCAL IMPLICATIONS

The Pharmacy Board reports that it would lose approximately $75,000 in recurring revenues

from the licensure of the sellers of pseudoephedrine products.

ADMINISTRATIVE IMPLICATIONS

Monitoring adherence to the proposed controls would be required. Because pseudoephedrine is

sold widely in a number of retail outlets including pharmacies, convenience stores, grocery

stores, mass merchandisers, ec, monitoring could require a substantial workload.

The Pharmacy Board reports that it would be required to change current regulations concerning

the sale of pseudoephedrine products and to stop licensing the retail and wholesale distributors of

the products.

The Board of Pharmacy supports the proposed elimination of the language in NMSA 30-31-3E,

the provision prohibiting the Board from scheduling a drug as a controlled substance if it is

available in over the counter preparations. This amendment would allow the Board, if necessary

to protect the public health, to place drugs like ephedrine and pseudoephedrine in schedule 5 of

the controlled substance act.

CONFLICT, DUPLICATION, COMPANIONSHIP, RELATIONSHIP

Legislation was passed during last year authorizing the Board of Pharmacy to license the whole-

salers/retailers of methamphetamine precursors (including pseudoephedrine) and to adopt regula-

tions for the sale of those products. The Board did adopt regulations that that included security

requirements for the drugs, training requirements for the employees, and limits on sales to any

one individual. The regulations became effective January 30, 2005. The Board would like to

monitor the effectiveness of these new measures to combat the methamphetamine problem dur-

ing the next year in order to determine if any further measures should be taken. The current law

allows the Board by rule to enact further restrictions if necessary to curb the illicit production of

methamphetamine.

House Bill 825 relates to HB 110 which proposes to add Methamphetamine, its salts, isomers,

and salts of isomers to the substances prohibited by the Trafficking in Controlled Substances

Act.

TECHNICAL ISSUES

The Board of Pharmacy licenses approximately 400 pharmacies in New Mexico. Not every

city/or community in New Mexico has a pharmacy.

OTHER SUBSTANTIVE ISSUES

Department of Health, points out that nationally, the number of seizures of methamphetamines

House Bill 825 -- Page 4

increased from 3000, in 1997 to 14,000 in 2002 and that in 2001, the DOH Office of Epidemiol-

ogy reported that five percent of youth in grades 9-12 were using methamphetamines. The report

further cited that 40 percent of referrals to treatment for methamphetamines were from the crimi-

nal justice system.

WHAT WILL BE THE CONSEQUENCES OF NOT ENACTING THIS BILL.

The Board of Pharmacy would continue to regulate the sale of pseudoephedrine.

Medication that can be sold without a prescription (such as pseudoepherine) would not be cov-

ered by the Controlled Substances Act and would be available for purchase in facilities other

than pharmacies.

EM/lg:yr