Chapter 0615

Chapter 615 Oregon Laws 2001

AN ACT

HB 3661

Relating to controlled substance precursors; creating new provisions; and amending ORS 475.005, 475.035, 475.940, 475.945, 475.950, 475.955 and 475.965.

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

SECTION 1. ORS 475.940 is amended to read:

475.940. [(1) This section establishes, for purposes of ORS 475.950 and 475.955, substances that are precursor substances. The following are precursor substances:] As used in ORS 475.940 to 475.995:

(1) “Iodine matrix” means iodine at a concentration greater than 1.5 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[, Phenylacetone].

(b) Methylamine [in either gas or water solution].

(d) Ergotamine [tartrate].

(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) L-Ephedrine.]

[(q) DL-Ephedrine.]

(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-oxanolone, 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).

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

[(2) Any combination or compound containing ephedrine, or any of its salts or isomers, which is prepared for over-the-counter sale not otherwise prohibited by law is not a precursor substance for the purpose of subsection (1) of this section.]

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 [(1)] (3)(a) to (hh) and (nn) 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 [(1)] (3)(a) to (hh) and (nn) 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 [described under ORS 475.940 (1)] 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 [described under ORS 475.940 (1)] to patients upon prescription.

(c) Any person licensed by the State Board of Pharmacy who sells, transfers or otherwise furnishes a precursor substance [described under ORS 475.940 (1)] 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 [described under ORS 475.940 (1)] 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 section 6 of this 2001 Act.

(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.

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

SECTION 3. Sections 4 to 10 and 17 of this 2001 Act are added to and made a part of ORS 475.940 to 475.995.

SECTION 4. (1) Except as otherwise provided in subsection (2) of this section, a person commits the crime of unlawful possession of phosphorus if the person knowingly possesses any amount of phosphorus.

(2) Subsection (1) of this section does not apply to:

(a) A person who is conducting a licensed business that involves phosphorus in the manufacture of:

(A) The striking surface used for lighting matches;

(B) Flame retardant polymers; or

(C) Fireworks if the person possesses a federal license to manufacture explosives;

(b) A person who possesses phosphorus in conjunction with experiments conducted in a chemistry or chemistry related laboratory maintained by a:

(A) Regularly established public or private secondary school; or

(B) Public or private institution of higher education that is accredited by a regional or national accrediting agency recognized by the United States Department of Education;

(c) A retail distributor, wholesaler, manufacturer, warehouseman or common carrier or an agent of any of these persons, who possesses phosphorus in the regular course of lawful business activities;

(d) The possession of phosphorus as a component of a commercially produced product including, but not limited to, matchbooks, fireworks and emergency flares; or

(e) A person who possesses phosphorus in a chemical compound in the regular course of a lawful agricultural activity.

(3) Unlawful possession of phosphorus is a Class A misdemeanor.

SECTION 5. (1) A person commits the crime of unlawful possession of anhydrous ammonia if the person knowingly possesses anhydrous ammonia in a container that is not approved by the United States Department of Transportation to hold anhydrous ammonia nor constructed to meet state and federal health and safety standards to hold anhydrous ammonia.

(2) Unlawful possession of anhydrous ammonia is a Class A misdemeanor.

(3) This section does not apply to a person who possesses anhydrous ammonia as part of a cleanup, as defined in ORS 466.605, of anhydrous ammonia by the Department of Environmental Quality under ORS 466.610.

SECTION 6. (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 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 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 7. (1) Except as otherwise provided in subsection (2) of this section, a person commits the crime of unlawful possession of iodine in its elemental form if the person knowingly possesses more than two ounces of iodine in its elemental form.

(2) Subsection (1) of this section does not apply to:

(a) A physician, pharmacist, retail distributor, wholesaler, manufacturer, warehouseman or common carrier or an agent of any of these persons who possesses iodine in its elemental form in the regular course of lawful business activities;

(b) A person who possesses iodine in its elemental form in conjunction with experiments conducted in a chemistry or chemistry related laboratory maintained by a:

(A) Regularly established public or private secondary school;

(B) Public or private institution of higher education that is accredited by a regional or national accrediting agency recognized by the United States Department of Education; or

(C) Manufacturing, government agency or research facility in the course of lawful business activities;

(c) A licensed veterinarian; or

(d) A person working in a general hospital who possesses iodine in its elemental form in the regular course of employment at the hospital.

(3) A person who sells or otherwise transfers iodine in its elemental form to a physician, pharmacist, retail distributor, wholesaler, manufacturer, warehouseman, common carrier, chemistry laboratory, licensed veterinarian or general hospital or an agent of any of these persons or entities shall make a record of each sale or transfer. The record must be made on a form provided by the Department of State Police 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.

(4) Unlawful possession of iodine in its elemental form is a Class A misdemeanor.

SECTION 8. (1) Except as otherwise provided in subsection (2) of this section, a person commits the crime of unlawful possession of an iodine matrix if the person knowingly possesses an iodine matrix.

(2) Subsection (1) of this section does not apply to:

(a) A person who possesses an iodine matrix as a prescription drug, pursuant to a prescription issued by a licensed veterinarian or physician;

(b) A person who is actively engaged in the practice of animal husbandry of livestock as defined in ORS 609.125;

(c) A person who possesses an iodine matrix in conjunction with experiments conducted in a chemistry or chemistry related laboratory maintained by a:

(A) Regularly established public or private secondary school;

(B) Public or private institution of higher education that is accredited by a regional or national accrediting agency recognized by the United States Department of Education; or

(C) Manufacturing, government agency or research facility in the course of lawful business activities;

(d) A veterinarian, physician, pharmacist, retail distributor, wholesaler, manufacturer, warehouseman or common carrier or an agent of any any of these persons who possesses an iodine matrix in the regular course of lawful business activities; or

(e) A person working in a general hospital who possesses an iodine matrix in the regular course of employment at the hospital.

(3) A person who sells or otherwise transfers an iodine matrix to a person pursuant to a prescription issued by a licensed veterinarian or physician, to a person engaged in the practice of animal husbandry of livestock, to a chemistry or chemistry related laboratory, to a general hospital or to a veterinarian, physician, pharmacist, retail distributor, wholesaler, manufacturer, warehouseman or common carrier or an agent of any of these persons or entities, shall make a record of each sale or transfer. The record must be made on a form provided by the Department of State Police 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.

(4) Unlawful possession of an iodine matrix is a Class A misdemeanor.

SECTION 9. (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.

SECTION 10. (1) A person commits the crime of possession of a precursor substance with intent to manufacture a controlled substance if the person possesses one or more precursor substances with the intent to manufacture a controlled substance in violation of ORS 475.992 (1).

(2) Possession of a precursor substance with intent to manufacture a controlled substance is a Class B felony.

SECTION 11. Until the Department of State Police adopts a rule under section 9 of this 2001 Act, a person who sells or otherwise transfers two pounds or more of methyl sulfonyl methane shall make the reports required by section 9 of this 2001 Act.

SECTION 12. ORS 475.945 is amended to read:

475.945. This section grants authority to and establishes duties of the Department of State Police in relation to the requirements concerning precursor substances under ORS 475.940 [(1), 475.950 and 475.955] to 475.995. The following are applicable as described:

(1) The department may adopt rules in accordance with ORS 183.310 to 183.550 that add substances to those specifically enumerated in ORS 475.940 [(1)] (3) if the substance is a precursor to a controlled substance. Similarly, the department may delete such substances as it has added by administrative rule.

(2) Notwithstanding the time period established for reporting under ORS 475.950, the department may authorize the submission of such reports on a monthly basis with respect to repeated, regular transactions between the furnisher and recipient involving the same substance if the department determines that all of the following exist:

(a) A pattern of regular supply of such substance exists as between the manufacturer, wholesaler, retailer or other person who sells, transfers or otherwise furnishes such substance and the recipient of the substance.

(b) The recipient has established a record of use of the substance for lawful purposes.

(3) The department shall establish a common [reporting] form for reporting or recording for purposes of ORS 475.950 and sections 7 (3), 8 (3) and 9 (1) of this 2001 Act. The department may include as information required to be reported or recorded on the form any information the department determines will be convenient or useful to police agencies in finding potentially illegal uses of precursor substances. The reporting or recording form shall require at least the following information:

(a) The name of the substance.

(b) The quantity of the substance sold, transferred or furnished.

(d) The name and address of the person buying or receiving the substance accompanied by a verification of the person’s identification by means the department requires by rule.

(e) The name and address of the person selling, transferring or furnishing the substance accompanied by a verification of the person’s identification by means the department requires by rule.

(f) The name of any agent acting on behalf of any party to the transaction accompanied by a verification of the person’s identification by means the department requires by rule.

(4) The department shall establish a common reporting form for purposes of ORS 475.955. The department may include as information required to be reported on the form any information the department determines will be convenient or useful to police agencies in finding potentially illegal uses of precursor substances. The reporting form shall require at least the following information:

(a) The name of the person making the report.

(b) The name of the common carrier or person who transports the substance and date of shipment of the substance.

(5) The department shall furnish a copy of the report to the local law enforcement agency in whose jurisdiction the transaction occurred.

SECTION 13. ORS 475.955 is amended to read:

475.955. (1) A person commits the offense of failure to report missing precursor substances if the person:

(a) Is a licensee or other person regulated by the provisions of ORS 475.005 to 475.285 and 475.940 to 475.995;

(b) Discovers any theft or loss of any precursor substance [described under ORS 475.940 (1)] or any difference between the quantity received and the quantity shipped; and

(c) Within three days after discovery of the theft or loss or actual knowledge of the discrepancy, does not report the theft, loss or discrepancy to the Department of State Police in the manner provided by rule adopted under ORS 475.945.

(2) Penalties for providing false information on any report required under this section are provided under ORS 465.965.

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

SECTION 14. ORS 475.965 is amended to read:

475.965. (1) A person commits the offense of providing false information on a precursor substances report or record if the person knowingly provides false information in any report or record required under ORS 475.950 or 475.955 or section 7, 8 or 9 of this 2001 Act.

(2) The offense described in this section, providing false information on a precursor substances report or record, is a Class A misdemeanor.

SECTION 15. ORS 475.005 is amended to read:

475.005. As used in ORS 475.005 to 475.285 and 475.940 to 475.995, unless the context requires otherwise:

(1) “Abuse” means the repetitive excessive use of a drug short of dependence, without legal or medical supervision, which may have a detrimental effect on the individual or society.

(2) “Administer” means the direct application of a controlled substance, whether by injection, inhalation, ingestion or any other means, to the body of a patient or research subject by:

(a) A practitioner or an authorized agent thereof; or

(b) The patient or research subject at the direction of the practitioner.

(3) “Administration” means the Drug Enforcement Administration of the United States Department of Justice, or its successor agency.

(4) “Agent” means an authorized person who acts on behalf of or at the direction of a manufacturer, distributor or dispenser. It does not include a common or contract carrier, public warehouseman or employee of the carrier or warehouseman.

(5) “Board” means the State Board of Pharmacy.

(6) “Controlled substance” means a drug or its immediate precursor classified in Schedules I through V under the federal Controlled Substances Act, 21 U.S.C. 811 to 812, as modified under ORS 475.035. The use of the term “precursor” in this subsection does not control and is not controlled by the use of the term “precursor” in ORS 475.940[, 475.950 and 475.955] to 475.995.

(7) “Counterfeit substance” means a controlled substance or its container or labeling, which, without authorization, bears the trademark, trade name, or other identifying mark, imprint, number or device, or any likeness thereof, of a manufacturer, distributor or dispenser other than the person who in fact manufactured, delivered or dispensed the substance.

(8) “Deliver” or “delivery” means the actual, constructive or attempted transfer, other than by administering or dispensing, from one person to another of a controlled substance, whether or not there is an agency relationship.

(9) “Device” means instruments, apparatus or contrivances, including their components, parts or accessories, intended:

(a) For use in the diagnosis, cure, mitigation, treatment or prevention of disease in humans or animals; or

(b) To affect the structure of any function of the body of humans or animals.

(10) “Dispense” means to deliver a controlled substance to an ultimate user or research subject by or pursuant to the lawful order of a practitioner, and includes the prescribing, administering, packaging, labeling or compounding necessary to prepare the substance for that delivery.

(11) “Dispenser” means a practitioner who dispenses.

(12) “Distributor” means a person who delivers.

(13) “Drug” means:

(a) Substances recognized as drugs in the official United States Pharmacopoeia, official Homeopathic Pharmacopoeia of the United States or official National Formulary, or any supplement to any of them;

(b) Substances intended for use in the diagnosis, cure, mitigation, treatment or prevention of disease in humans or animals;

(d) Substances intended for use as a component of any article specified in paragraph (a), (b) or (c) of this subsection; however, the term does not include devices or their components, parts or accessories.

(14) “Manufacture” means the production, preparation, propagation, compounding, conversion or processing of a controlled substance, either directly or indirectly by extraction from substances of natural origin, or 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:

(a) By a practitioner as an incident to administering or dispensing of a controlled substance in the course of professional practice; or

(b) By a practitioner, or by an authorized agent under the practitioner’s supervision, for the purpose of, or as an incident to, research, teaching or chemical analysis and not for sale.

(15) “Marijuana” means all parts of the plant Cannabis family Moraceae, whether growing or not; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its resin. It does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of the plant which is incapable of germination.

(16) “Person” includes a government subdivision or agency, business trust, estate, trust or any other legal entity.

(17) “Practitioner” means physician, dentist, veterinarian, scientific investigator, certified nurse practitioner, physician assistant or other person licensed, registered or otherwise permitted by law to dispense, conduct research with respect to or to administer a controlled substance in the course of professional practice or research in this state but does not include a pharmacist or a pharmacy.

(18) “Prescription” means a written or oral direction, given by a practitioner for the preparation and use of a drug. When the context requires, “prescription” also means the drug prepared under such written or oral direction. Any label affixed to a drug prepared under written or oral direction shall prominently display a warning that the removal thereof is prohibited by law.

(19) “Production” includes the manufacture, planting, cultivation, growing or harvesting of a controlled substance.

(20) “Research” means an activity conducted by the person registered with the federal Drug Enforcement Administration pursuant to a protocol approved by the United States Food and Drug Administration.

(21) “Ultimate user” means a person who lawfully possesses a controlled substance for the use of the person or for the use of a member of the household of the person or for administering to an animal owned by the person or by a member of the household of the person.

SECTION 16. ORS 475.035 is amended to read:

475.035. (1) In arriving at any decision on changes in or addition to classification when changes or additions are proposed by the federal Drug Enforcement Administration or by any other reliable source, the State Board of Pharmacy shall review the scientific knowledge available regarding the substance, its pharmacological effects, patterns of use and misuse, and potential consequences of abuse, and consider the judgment of individuals with training and experience with the substance.

(2) Whenever the board determines that a change in or an addition to the schedule of a controlled substance is justified, the board by rule may order the change and fix the effective date thereof.

(3) If a substance is an ingredient of a controlled substance, the ingredient shall be considered to be in the same schedule as that controlled substance. Substances which are precursors of the ingredient shall not be subject to control solely because they are precursors of the ingredient. The use of the term “precursor” in this subsection does not control and is not controlled by the use of the term “precursor” in ORS 475.940[, 475.950 and 475.955] to 475.995.

(4) The board shall administer ORS 475.005 to 475.285 and 475.940 to 475.995 in accordance with ORS 183.310 to 183.550.

(5) Authority to control under this section does not extend to tobacco or to alcoholic beverages as defined in ORS 471.001.

SECTION 17. It is an affirmative defense to a charge of violating section 4, 5, 7 (1) or 8 (1) of this 2001 Act that the person possessed the precursor substance for a lawful purpose.

Approved by the Governor June 26, 2001

Filed in the office of Secretary of State June 26, 2001

Effective date January 1, 2002

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