72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 1141
House Bill 2034
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of Representative Alan Brown
for Lincoln County Government)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Modifies definition of iodine matrix. Prohibits sale of certain
precursor substances to minors. Exempts veterinarians from
certain crimes. Changes reporting requirements for methyl
sulfonyl methane.
Permits law enforcement officer to issue warning notice for
certain precursor substance offenses. Provides injunctive relief
for repeated violations.
A BILL FOR AN ACT
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 - } { + 3.7 + } 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.
(c) D-lysergic acid.
(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.
(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 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) Notwithstanding subsection (2) of this section, a
person commits the crime of unlawful distribution of ephedrine,
pseudoephedrine or phenylpropanolamine if the person sells any
quantity of ephedrine, pseudoephedrine or phenylpropanolamine to
a minor. + }
{ - (3) - } { + (4) + } 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) - } { + (5) + } 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) - } { + (6)(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. + }
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