MISSISSIPPI LEGISLATURE
2005 Regular Session
To: Judiciary A
By: Representative Smith (39th), Reynolds
AN ACT TO PLACE RESTRICTIONS ON THE SALE OF METHAMPHETAMINE PRECURSORS; TO PROVIDE CRIMINAL OFFENSES AND PENALTIES; TO PROHIBIT THE POSSESSION OF PRECURSORS WITH THE INTENT TO CREATE METHAMPHETAMINE OR OTHER CONTROLLED SUBSTANCES; TO PROVIDE PENALTIES; TO PROVIDE FOR UNIFORM APPLICATION OF THE PROVISIONS OF THIS ACT; TO REQUIRE THE BUREAU OF NARCOTICS TO CREATE A PROGRAM RELATED TO THE METHAMPHETAMINE PROBLEM TO ASSIST RETAILERS IN REPORTING SUSPICIOUS ACTIVITIES; TO AMEND SECTION 41-29-313, MISSISSIPPI CODE OF 1972, IN CONFORMITY THERETO; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. (1) (a) No retail establishment or individual shall transfer, sell, deliver or provide more than two (2) packages or six (6) grams of pseudoephedrine base, ephedrine base or phenylpropanolamine base product in a single retail sales transaction to a consumer.
(b) Pseudoephedrine base, ephedrine base or phenylpropanolamine products shall be stored by retail establishments by: (i) placing the products behind a counter; (ii) placing the products within thirty (30) feet of the establishment's cashiers; (iii) placing the products in a locked display case; or (iv) placing the products under video surveillance.
(c) Every month all wholesalers of pseudoephedrine base, ephedrine base or phenylpropanolamine products shall provide the Mississippi Bureau of Narcotics with copies of all sales receipts of such products.
(2) This section does not apply to pediatric products primarily intended for administration, according to label instructions, to children under twelve (12) years of age, either:
(a) In solid dosage form when individual dosage units do not exceed fifteen (15) milligrams of ephedrine, pseudoephedrine or phenylpropanolamine; or
(b) In liquid form when recommended dosage units, according to label instructions, do not exceed fifteen (15) milligrams of ephedrine, pseudoephedrine or phenylpropanolamine per five (5) milliliters of liquid product; or
(c) In liquid form that are primarily intended for administration to children under two (2) years of age for whom the recommended dosage does not exceed two (2) milliliters and that have a total package content of not more than one (1) fluid ounce.
(3) The retail sale of nonliquid pseudoephedrine, ephedrine or phenylpropanolamine product is limited to:
(a) Sales in packages containing not more than a total of three (3) grams of pseudoephedrine base, ephedrine base or phenylpropanolamine base; and
(b) Sales in blister packs, each blister containing not more than two (2) dosage units, or when the use of blister packs is technically infeasible, sales in unit dose packets or pouches.
(4) Any retail establishment, not currently licensed/registered by the Mississippi State Board of Pharmacy, which sells pseudoephedrine, ephedrine or phenylpropanolamine products shall submit a notice of intent to sell with the Mississippi State Board of Pharmacy indicating the establishment's intent to sell pseudoephedrine, ephedrine or phenylpropanolamine products.
(5) A person is guilty of unlawful distribution of a methamphetamine precursor when he knowingly and unlawfully sells, transfers, distributes, or dispenses any product containing ephedrine, pseudoephedrine or phenylpropanolamine, if the person knows that the purchaser will use the product as a precursor to methamphetamine or another controlled illegal substance or if the person sells, transfers, distributes or dispenses the product with reckless disregard as to how the product will be used.
(a) Unlawful distribution of a methamphetamine precursor is a felony subject to a fine of not more than Five Thousand Dollars ($5,000.00) or imprisonment for not more than five (5) years, or both, for the first offense and subject to a fine of not more than Twenty-five Thousand Dollars ($25,000.00) or imprisonment for not more than twenty (20) years, or both, for a second or subsequent offense.
(b) A retailer who is the general owner or operator of an establishment that sells pseudoephedrine, ephedrine, or phenylpropanolamine products shall not be penalized pursuant to this section if the retailer documents that an employee training program was conducted to train employees on compliance with this section.
SECTION 2. (1) A person is guilty of unlawful possession of a methamphetamine precursor when he knowingly and unlawfully possesses a product containing ephedrine, pseudoephedrine or phenylpropanolamine with intent to use the product as a precursor to methamphetamine or another controlled substance.
(2) Except as provided herein, possession of one or more products containing more than forty-eight (48) grams of ephedrine, pseudoephedrine or phenylpropanolamine, or their salts, isomers or salts of isomers shall constitute a rebuttable presumption of the intent to use the product as a precursor to methamphetamine or another controlled substance. The rebuttable presumption established by this subsection shall not apply to the following persons who are lawfully possessing the identified drug products in the course of legitimate business:
(a) A retail distributor of the drug products described in subsection (2) possessing a valid business license or wholesaler;
(b) A wholesale drug distributor, or its agents, licensed by the Mississippi State Board of Pharmacy;
(c) A manufacturer of drug products described in subsection (2), or its agents, licensed by the Mississippi State Board of Pharmacy;
(d) A pharmacist licensed by the Mississippi State Board of Pharmacy; or
(e) A licensed health care professional possessing the drug products described in subsection (2) in the course of carrying out his profession.
(3) Unlawful possession of a methamphetamine precursor is a felony subject to a fine of not more than Five Thousand Dollars ($5,000.00) or imprisonment for not more than five (5) years, or both, for the first offense and subject to a fine of not more than Twenty-five Thousand Dollars ($25,000.00) or imprisonment for not more than twenty (20) years, or both, for a second or subsequent offense.
SECTION 3. This act is applicable and uniform throughout this state and in all counties, cities, towns and political subdivisions, whether incorporated or unincorporated therein. A county, city or town may not adopt or enforce any ordinance, pertaining to this act, which prohibits conduct that is not prohibited under this act, or defining violations or penalties different from those provided under this act. However, this section does not preclude a county, city, town or political subdivision from revoking, canceling, suspending, or otherwise limiting a business or professional license it has issued for conduct that violates any provision of this act.
SECTION 4. (1) The Bureau of Narcotics shall develop and maintain a program to inform retailers about the methamphetamine problem in the state and devise procedures and forms for retailers to use in reporting to the Bureau of Narcotics suspicious purchases, thefts or other transactions involving any products under the retailer's control which contain a regulated precursor under the provisions of this act including, but not limited to, over-the-counter, nonprescription pseudoephedrine products.
(2) Reporting by retailers as required by this section shall be voluntary.
(3) Retailers participating in the program and reporting information to the Bureau of Narcotics in good faith pursuant to this section shall be immune from civil and criminal liability for a violation of this act.
SECTION 5. Section 41-29-313, Mississippi Code of 1972, is amended as follows:
41-29-313. (1) (a) Except as authorized in this section and as provided in Sections 1 through 4 of this act, it is unlawful for any person to knowingly or intentionally:
(i) Purchase, possess, transfer or distribute any two (2) or more of the listed precursor chemicals or drugs in any amount with the intent to unlawfully manufacture a controlled substance;
(ii) Purchase, possess, transfer or distribute any two (2) or more of the listed precursor chemicals or drugs in any amount, knowing, or under circumstances where one reasonably should know, that the listed precursor chemical or drug will be used to unlawfully manufacture a controlled substance.
(b) Any person who violates this subsection (1), upon conviction, is guilty of a felony and may be imprisoned for a period not to exceed thirty (30) years and shall be fined not less than Five Thousand Dollars ($5,000.00) nor more than One Million Dollars ($1,000,000.00), or both fine and imprisonment.
(2) (a) It is unlawful for any person to knowingly or intentionally steal or unlawfully take or carry away any amount of anhydrous ammonia.
(b) It is unlawful for any person to purchase, possess, transfer or distribute any amount of anhydrous ammonia, knowing, or under circumstances where one reasonably should know, that the anhydrous ammonia will be used to unlawfully manufacture a controlled substance.
(c) It is unlawful for any person to purchase, possess, transfer or distribute two hundred fifty (250) dosage units or fifteen (15) grams in weight (dosage unit and weight as defined in Section 41-29-139) of pseudoephedrine or ephedrine, knowing, or under circumstances where one reasonably should know, that the pseudoephedrine or ephedrine will be used to unlawfully manufacture a controlled substance.
(d) Any person who violates this subsection (2), upon conviction, is guilty of a felony and may be imprisoned for a period not to exceed five (5) years and shall be fined not more than Five Thousand Dollars ($5,000.00), or both fine and imprisonment.
(3) The terms "listed precursor drug or chemical" means a precursor drug or chemical that, in addition to legitimate uses, may be used in manufacturing a controlled substance in violation of this chapter. Such term includes any salt, optical isomer or salt of an optical isomer, whenever the existence of such salt, optical isomer or salt of optical isomer is possible within the specific chemical designation. The chemicals or drugs listed in this section are included by whatever official, common, usual, chemical or trade name designated. The following are "listed precursor drugs or chemicals":
(a) Ether;
(b) Anhydrous ammonia;
(c) Pseudoephedrine;
(d) Ephedrine;
(e) Denatured alcohol (Ethanol);
(f) Lithium;
(g) Freon;
(h) Hydrochloric acid;
(i) Hydriodic acid;
(j) Red phosphorous;
(k) Iodine;
(l) Sodium metal;
(m) Muriatic acid;
(n) Sulfuric acid;
(o) Hydrogen chloride gas;
(p) Potassium;
(q) Methanol;
(r) Isopropyl alcohol;
(s) Hexanes;
(t) Heptanes;
(u) Acetone;
(v) Toluene;
(w) Xylenes.
(4) Nothing in this section shall preclude any farmer from storing or using any of the listed precursor drugs or chemicals listed in this section in the normal pursuit of farming operations.
(5) Nothing in this section shall preclude any wholesaler, retailer or pharmacist from possessing or selling the listed precursor drugs or chemicals in the normal pursuit of business.
(6) Any person who violates the provisions of this section with children under the age of eighteen (18) years present may be subject to a term of imprisonment or a fine, or both, of twice that provided in this section.
(7) Any person who violates the provisions of this section when the offense occurs in any hotel or apartment building or complex may be subject to a term of imprisonment or a fine, or both, of twice that provided in this section. For the purposes of this subsection (7), the following terms shall have the meanings ascribed to them:
(a) "Hotel" means a hotel, inn, motel, tourist court, apartment house, rooming house, or any other place where sleeping accommodations are furnished or offered for pay if four (4) or more rooms are available for transient guests.
(b) "Apartment building" means any building, including, without limitation, a condominium building, having four (4) or more dwelling units.
SECTION 6. This act shall take effect and be in force from and after July 1, 2005.