Chapter 448 Oregon Laws 2003

AN ACT

HB 2034

Relating to precursor substances; creating new provisions; and amending ORS 475.940, 475.950, 475.973 and 475.978.

Be It Enacted by the People of the State of Oregon:

SECTION 1. ORS 475.940 is amended to read:

475.940. As used in ORS 475.940 to 475.999:

(1) “Iodine matrix” means iodine at a concentration greater than [1.5] two percent by weight in a matrix or solution.

(2) “Matrix” means something, as a substance, in which something else originates, develops, or is contained.

(3) “Precursor substance” means:

(a) Phenyl-2-propanone.

(b) Methylamine.

(d) Ergotamine.

(e) Diethyl Malonate.

(f) Malonic acid.

(g) Ethyl Malonate.

(h) Barbituric acid.

(i) Piperidine.

(j) N-acetylanthranilic acid.

(k) Ethylamine.

(L) Pyrolidine.

(m) Phenylacetic acid.

(n) Anthranilic acid.

(o) Morpholine.

(p) Ephedrine.

(q) Pseudoephedrine.

(r) Norpseudoephedrine.

(s) Phenylpropanolamine.

(t) Benzyl cyanide.

(u) Ergonovine.

(v) 3,4-Methylenedioxyphenyl-2-propanone.

(w) Propionic anhydride.

(x) Insosafrole (Isosafrole).

(y) Safrole.

(z) Piperonal.

(aa) N-methylephedrine.

(bb) N-ethylephedrine.

(cc) N-methylpseudoephedrine.

(dd) N-ethylpseudoephedrine.

(ee) Hydriotic acid.

(ff) Gamma butyrolactone (GBL), including butyrolactone, 1,2-butanolide, 2-oxanol-one, tetrahydro-2-furanone, dihydro-2(3H)-furanone and tetramethylene glycol, but not including gamma aminobutyric acid (GABA).

(gg) 1,4-butanediol.

(hh) Any salt, isomer or salt of an isomer of the chemicals listed in paragraphs (a) to (gg) of this subsection.

(ii) Iodine in its elemental form.

(jj) Iodine matrix.

(kk) Red phosphorus, white phosphorus, yellow phosphorus or hypophosphorus acid and its salts.

(LL) Anhydrous ammonia.

[(mm) Methyl sulfonyl methane (MSM).]

[(nn)] (mm) Any substance established as a precursor substance by rule under authority granted in ORS 475.945.

SECTION 2. ORS 475.950 is amended to read:

475.950. (1) A person commits the offense of failure to report a precursor substances transaction if the person does any of the following:

(a) Sells, transfers or otherwise furnishes any precursor substance described in ORS 475.940 (3)(a) to (hh) and [(nn)] (mm) and does not, at least three days before delivery of the substance, submit to the Department of State Police a report that meets the reporting requirements established by rule under ORS 475.945.

(b) Receives any precursor substance described in ORS 475.940 (3)(a) to (hh) and [(nn)] (mm) and does not, within 10 days after receipt of the substance, submit to the Department of State Police a report that meets the reporting requirements established by rule under ORS 475.945.

(2) This section does not apply to any of the following:

(a) Any pharmacist or other authorized person who sells or furnishes a precursor substance upon the prescription of a physician, dentist, podiatric physician and surgeon or veterinarian.

(b) Any practitioner, as defined in ORS 475.005, who administers or furnishes a precursor substance to patients upon prescription.

(c) Any person licensed by the State Board of Pharmacy who sells, transfers or otherwise furnishes a precursor substance to a licensed pharmacy, physician, dentist, podiatric physician and surgeon or veterinarian for distribution to patients upon prescription.

(d) Any person who is authorized by rule under ORS 475.945 to report in an alternate manner if the person complies with the alternate reporting requirements.

(e) Any patient of a practitioner, as defined in ORS 475.005, who obtains a precursor substance from a licensed pharmacist, physician, dentist, podiatric physician and surgeon or veterinarian pursuant to a prescription.

(f) Any person who sells or transfers ephedrine, pseudoephedrine or phenylpropanolamine in compliance with ORS 475.973.

(g) Any practitioner, as defined in ORS 475.005, who dispenses a precursor substance to a person with whom the practitioner has a doctor-patient or doctor-client relationship.

(h) Any person who obtains a precursor substance from a practitioner, as defined in ORS 475.005, with whom the person has a doctor-patient or doctor-client relationship.

(3) Penalties related to providing false information on a report required under this section are provided under ORS 475.965.

(4) The Department of State Police and any law enforcement agency may inspect the sales records of any retail or wholesale distributor of methyl sulfonyl methane or a precursor substance during the normal business hours of the retail or wholesale distributor.

(5) The offense described in this section, failure to report a precursor substances transaction, is a Class A misdemeanor.

SECTION 3. ORS 475.973 is amended to read:

475.973. (1)(a) Except as otherwise provided in paragraphs (b) and (c) of this subsection, a person commits the crime of unlawful possession of ephedrine, pseudoephedrine or phenylpropanolamine if the person knowingly possesses more than nine grams of ephedrine, pseudoephedrine or phenylpropanolamine, the salts, isomers or salts of isomers of ephedrine, pseudoephedrine or phenylpropanolamine or a combination of any of these substances.

(b) Paragraph (a) of this subsection does not apply to a veterinarian, physician, pharmacist, retail distributor, wholesaler, manufacturer, warehouseman or common carrier or an agent of any of these persons if the possession is in the regular course of lawful business activities.

(c) Paragraph (a) of this subsection does not apply to a person in possession of less than 24 grams of ephedrine, pseudoephedrine or phenylpropanolamine, or the salts, isomers or salts of isomers of ephedrine, pseudoephedrine or phenylpropanolamine, in the home or residence of the person under circumstances that are consistent with typical medicinal or household use, as indicated by factors that include but are not limited to storage location, purchase date, possession of the products in a variety of strengths, brands, types or purposes and expiration date. The exception under this paragraph does not apply if the substances, in excess of nine grams, were all purchased within a period of seven consecutive days.

(2)(a) [Except as otherwise provided in paragraph (b) of this subsection,] A person commits the crime of unlawful distribution of ephedrine, pseudoephedrine or phenylpropanolamine if the person sells or otherwise transfers more than nine grams of ephedrine, pseudoephedrine or phenylpropanolamine, the salts, isomers or salts of isomers of ephedrine, pseudoephedrine or phenylpropanolamine or a combination of any of these substances to a person other than a veterinarian, physician, pharmacist, retail distributor, wholesaler, manufacturer, warehouseman or common carrier or an agent of any of these persons in the regular course of lawful business activities.

(b) Paragraph (a) of this subsection does not apply to pediatric products primarily intended for administration, according to label instructions, to children under 12 years of age, either:

(A) In solid dosage form when individual dosage units do not exceed 15 milligrams of ephedrine, pseudoephedrine or phenylpropanolamine; or

(B) In liquid form when recommended dosage units, according to label instructions, do not exceed 15 milligrams of ephedrine, pseudoephedrine or phenylpropanolamine per five milliliters of liquid product.

(c) Paragraph (a) of this subsection does not apply to pediatric products in liquid form that are primarily intended for administration to children under two years of age for whom the recommended dosage does not exceed two milliliters and that have a total package content of not more than one fluid ounce.

(3) This section does not apply to products that the State Board of Pharmacy, upon application of a manufacturer, exempts by rule because the product is formulated to effectively prevent conversion of the active ingredient into methamphetamine or its salts or precursors. Upon notification from the Department of State Police that the department has probable cause to believe that a product exempted under this subsection does not effectively prevent conversion of the active ingredient into methamphetamine or its salts or precursors, the State Board of Pharmacy may issue an emergency rule revoking the exemption for the product pending a full hearing.

(4) This section does not apply to dietary supplements, herbs or natural products, including concentrates or extracts, that are not otherwise prohibited by law and that contain naturally occurring ephedrine alkaloids in a matrix of organic material such that the substances do not exceed 15 percent of the total weight of the dietary supplement, herb or natural product.

(5)(a) Unlawful possession of ephedrine, pseudoephedrine or phenylpropanolamine is a Class A misdemeanor.

(b) Unlawful distribution of ephedrine, pseudoephedrine or phenylpropanolamine is a Class A misdemeanor.

SECTION 4. ORS 475.978 is amended to read:

475.978. (1) A person who sells or otherwise transfers more than the amount permitted by administrative rule adopted by the Department of State Police of methyl sulfonyl methane to a person other than a physician, pharmacist, veterinarian, retail distributor, wholesaler, manufacturer, warehouseman or common carrier or an agent of any of these persons shall make a record of each such sale or transfer. The record must be made on a form provided by the department and must be retained by the person for at least three years. Failure to make or retain a record required under this subsection is a Class A violation.

(2) The department shall adopt a rule establishing the minimum amount of methyl sulfonyl methane the sale or transfer of which requires a report under subsection (1) of this section. In establishing the minimum amount, the department shall determine an amount that is reasonably designed not to infringe upon legitimate uses of methyl sulfonyl methane but that discourages the use of methyl sulfonyl methane in the illicit production and distribution of methamphetamine.

(3) This section applies to the sale or transfer of bulk methyl sulfonyl methane in its powder form only, and does not apply to the sale or transfer of products containing methyl sulfonyl methane in other forms including, but not limited to, liquids, tablets, capsules not containing methyl sulfonyl methane in pure powder form, ointments, creams, cosmetics, foods and beverages.

SECTION 5. Sections 6 and 7 of this 2003 Act are added to and made a part of ORS 475.940 to 475.999.

SECTION 6. (1) In lieu of making an arrest or issuing a citation, a law enforcement officer may deliver a warning notice to a person or business that the officer has probable cause to believe has sold or otherwise delivered a precursor substance in violation of ORS 475.940 to 475.999 whenever the officer reasonably believes that the public interest will be adequately served under the circumstances by issuance of a written warning notice. The notice must be in substantially the following form:

____________________________________________________________________________

WARNING NOTICE

Please Read this Notice Carefully!!!

TO: _____(name of person or business)

DATE: _____(date of notice)

FROM: _____(name of law enforcement agency)

RE: _____(name of precursor substance or product)

The undersigned law enforcement officer has probable cause to believe that on _______ (date of violation), you sold or otherwise delivered a quantity of the precursor substance identified above in violation of the laws of the State of Oregon.

This warning notice has been given to you in lieu of formal action concerning that violation. Please be aware that any further violation may result in formal action being taken against you, which may include, but is not limited to, the filing of an action in circuit court seeking a court order prohibiting you from selling or delivering any quantity of one or more precursor substances to any person.

____________

Law Enforcement Officer

____________________________________________________________________________

(2) A warning notice issued by a law enforcement officer under subsection (1) of this section shall be personally delivered to the person named in the notice, or personally delivered to the person in charge of the business named in the notice.

SECTION 7. (1) Whenever it appears that any person has repeatedly sold or delivered one or more precursor substances in violation of the provisions of ORS 475.940 to 475.999, the county attorney or city attorney may cause a civil suit to be instituted in the circuit court for injunctive relief to restrain the person from selling or delivering one or more of the precursor substances.

(2) Upon a proper showing, the court may grant a permanent or temporary injunction prohibiting the defendant or defendants from any further sale or delivery of any amount of one or more precursor substances.

(3) The court may decline to enter an injunctive order against a defendant who:

(a) Demonstrates no knowledge of the existence of the violation, or demonstrates reasonable efforts to stop the violation from occurring;

(b) Has not been guilty of any contempt of court in the proceedings; and

(c) The court finds will make best efforts to immediately end any violation that may exist and prevent any further violation from occurring.

Approved by the Governor June 24, 2003

Filed in the office of Secretary of State June 24, 2003

Effective date January 1, 2004

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