Legislature(2015 - 2016)CAPITOL 120
04/09/2015 01:00 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| SB43 | |
| HB125 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 125 | TELECONFERENCED | |
| *+ | HJR 17 | TELECONFERENCED | |
| + | SB 43 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | SB 30 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
April 9, 2015
1:07 p.m.
MEMBERS PRESENT
Representative Gabrielle LeDoux, Chair
Representative Wes Keller, Vice Chair
Representative Bob Lynn
Representative Max Gruenberg
Representative Neal Foster
Representative Charisse Millett
Representative Matt Claman
MEMBERS ABSENT
Representative Kurt Olson (alternate)
OTHER MEMBERS IN ATTENDANCE
Representative Jim Colver
COMMITTEE CALENDAR
CS FOR SENATE BILL NO. 43(JUD)
"An Act relating to immunity for a fire department and employees
or members of a fire department."
- HEARD & HELD
HOUSE BILL NO. 125
"An Act relating to the sale of products containing
dextromethorphan; relating to the regulation of dextromethorphan
by municipalities; and providing for an effective date."
- MOVED HB 125 OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
BILL: SB 43
SHORT TITLE: IMMUNITY FOR FIRE DEPT. & MEMBERS
SPONSOR(s): SENATOR(s) COGHILL
02/06/15 (S) READ THE FIRST TIME - REFERRALS
02/06/15 (S) CRA, JUD
02/17/15 (S) CRA AT 3:30 PM BELTZ 105 (TSBldg)
02/17/15 (S) Heard & Held
02/17/15 (S) MINUTE(CRA)
03/05/15 (S) CRA AT 3:30 PM BELTZ 105 (TSBldg)
03/05/15 (S) Moved CSSB 43(CRA) Out of Committee
03/05/15 (S) MINUTE(CRA)
03/06/15 (S) CRA RPT CS 3DP SAME TITLE
03/06/15 (S) DP: BISHOP, EGAN, MACKINNON
03/16/15 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/16/15 (S) Scheduled but Not Heard
03/18/15 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/18/15 (S) Heard & Held
03/18/15 (S) MINUTE(JUD)
03/20/15 (S) JUD AT 1:30 PM BUTROVICH 205
03/20/15 (S) Moved CSSB 43(JUD) Out of Committee
03/20/15 (S) MINUTE(JUD)
03/23/15 (S) JUD RPT CS 4DP SAME TITLE
03/23/15 (S) DP: MCGUIRE, COGHILL, COSTELLO,
WIELECHOWSKI
04/01/15 (S) TRANSMITTED TO (H)
04/01/15 (S) VERSION: CSSB 43(JUD)
04/02/15 (H) READ THE FIRST TIME - REFERRALS
04/02/15 (H) CRA, JUD
04/06/15 (H) CRA REFERRAL REMOVED
04/09/15 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 125
SHORT TITLE: RESTRICTIONS ON SALE OF DEXTROMETHORPHAN
SPONSOR(s): REPRESENTATIVE(s) MILLETT
02/25/15 (H) READ THE FIRST TIME - REFERRALS
02/25/15 (H) JUD
04/09/15 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
JORDAN SHILLING, Staff
Senator John Coghill
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented CSSB 43 on behalf of Senator
Coghill, prime sponsor.
MITCH FLYNN, Fire Chief
Steese Volunteer Fire Department
Fairbanks, Alaska
POSITION STATEMENT: During the hearing on CSSB 43, expressed
concern regarding lack of immunity for the Steese Volunteer Fire
Department.
DOUG SCHRAGE, Fire Chief
Fairbanks University of Alaska Fire Department
Alaska Fire Chiefs Association
Fairbanks, Alaska
POSITION STATEMENT: During the hearing on CSSB 43, offered
support for SB 43.
JILL DOLAN, Assistant Borough Attorney
Fairbanks Northstar Borough
Fairbanks, Alaska
POSITION STATEMENT: During the hearing on CSSB 43, answered
questions.
GRACE ABBOTT, Staff
Representative Charisse Millett
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 125, on behalf of
Representative Millett, prime sponsor.
KACI SCHROEDER, Assistant Attorney General
Criminal Division
Department of Law
Juneau, Alaska
POSITION STATEMENT: Answered questions during the hearing on HB
125.
SEAN MOORE
Consumer Healthcare Products Association (CHPA)
Washington D.C.
POSITION STATEMENT: Testified and answered questions during the
hearing on HB 125.
ACTION NARRATIVE
1:07:19 PM
CHAIR GABRIELLE LEDOUX called the House Judiciary Standing
Committee meeting to order at 1:07 p.m. Representatives Lynn,
Gruenberg, Keller, and LeDoux were present at the call to order.
Representatives Millett, Claman, and Foster arrived as the
meeting was in progress. Also in attendance was Representative
Colver.
1:08:27 PM
SB 43-IMMUNITY FOR FIRE DEPT. & MEMBERS
CHAIR LEDOUX announced that the first order of business would be
SENATE BILL NO. 43, "An Act relating to immunity for a fire
department and employees or members of a fire department."
1:08:39 PM
JORDAN SHILLING, Staff, Senator John Coghill, Alaska State
Legislature, said SB 43 relates to contract fire departments and
affects the fire departments of Fairbanks, Anchorage, Chugiak
and Girdwood. He offered that government creates immunities for
itself in different areas which is fairly common especially when
it comes to public safety and fire departments in particular.
He advised that most states have statutes that protects the fire
departments themselves and its employees. He referred to AS
09.65.070, and conveyed that it provides immunity except to
contract departments. He offered that he researched the
legislative history of AS 09.65.070, and noted it was
established in the mid-1970s, and is not clear whether contract
fire departments were in existence, and that the language was
crafted from a statute in Delaware.
1:10:21 PM
CHAIR LEDOUX asked whether contract fire departments are
considered volunteer fire departments.
MR. SHILLING answered that these are .501(C)(3), non-profits and
are mostly volunteer based although the chief will generally be
paid.
1:10:48 PM
MR. SHILLING continued his presentation and stated that because
the Municipality of Anchorage and the Fairbanks Northstar
Borough contract with these fire departments and utilize their
services even though the statute doesn't cover those fire
departments, fire fighters, and volunteers. In that regard,
they are exposed to extra liability that others are not and this
bill extends that immunity to those departments. He advised
that initially the bill was introduced with full immunity. He
further advised that concerns were expressed in creating a
blanket immunity so the fairly common carve out exception of
gross negligence and willful acts of misconduct was added. He
pointed out that the second change to the bill was as a result
of Representative Seaton's suggestion to ensure that this
immunity does not somehow apply to a contractor of a private
entity.
1:12:10 PM
CHAIR LEDOUX questioned "does not apply to ..."
1:12:12 PM
MR. SHILLING offered the example of a village having a
relationship with a contract department, and that department had
a subsequent contract with a private entity, the change was to
ensure that this bill did not somehow protect the private
entity.
1:12:37 PM
CHAIR LEDOUX asked whether this only covers contracts with
.501(C) organizations.
MR. SHILLING responded that Chair LeDoux was correct in that
these are mostly structured in that manner.
1:12:57 PM
REPRESENTATIVE GRUENBERG referred to a 3/16/15, letter from Fire
Chief John Fullenwider, Municipality of Anchorage, which read:
"These bill, if enacted, will protect residents by reducing the
risk of liability and frivolous tort claims against municipal
and non-profit fire agencies." He asked what the bill does to
change the liability of the municipality itself.
MR. SHILLING answered that municipally operated departments,
such as the Anchorage Fire Department already has protections in
statutes and this bill does not affect those and if anything
extends its protections, but certainly does not reduce it.
REPRESENTATIVE GRUENBERG said a bill is forthcoming related to
the issue of retroactivity. He surmised that this bill is not
retroactive and will only apply to claims arising on or after
the effective date of this Act.
MR. SHILLING replied "that is correct, there is not an
applicability section here so it would apply."
REPRESENTATIVE GRUENBERG highlighted that he is serving notice
he may offer an applicability section to state that this applies
to claims arising on or after the effective date of this Act.
Although, he realizes he may have violated the 24-hour rule, but
it is important to make it clear.
1:15:48 PM
MR. SHILLING opined that the drafter of the bill may be on the
line to determine whether this is a necessary change as it may
be that this inherently only applies to claims on or after.
REPRESENTATIVE GRUENBERG offered that routinely within criminal
law it includes the language, but this issue has not been before
the House Judiciary Standing Committee this year on the civil
side.
CHAIR LEDOUX opened public testimony.
1:17:34 PM
MITCH FLYNN, Fire Chief, Steese Volunteer Fire Department, said
the Steese Volunteer Fire Department, a non-profit organization
in Fairbanks, provides fire and EMS services through a contract
with the Fairbanks Northstar Borough. He noted that last year
the legal team at the Fairbanks Northstar Borough pointed out
his department's lack of immunity protection and vulnerability
to lawsuits. He requested a change in the Alaska Statutes that
provides the same immunity protections as offered to
municipalities. He explained there are approximately seven non-
profit fire departments statewide contracting with a municipal
government and providing the services of fire and EMS, and noted
that the population base is approximately 100,000 residents. He
highlighted his concern that the lack of immunity protection may
have a negative impact on recruitment and retention of
volunteers in the future. On a good note, he stated, by passing
this legislation it may help identify costs and annual premiums
for general liability insurance that is paid out. He described
the irony of the situation in that his department may respond to
a Fairbanks Northstar Borough call and yet incur a liability
claim of which affects the taxpayer. He remarked it is the
desire of his department to offer fire and EMS services safely
and to the best of its ability without the fear of lawsuits and
unwanted claims.
1:20:47 PM
DOUG SCHRAGE, Fire Chief, Fairbanks University of Alaska Fire
Department, Alaska Fire Chiefs Association, said that the Alaska
Fire Chief Association represents most of the fire and emergency
service leaders throughout the state. He said he joins with
Chief Flynn, local colleagues, and those of the Alaska Fire
Chiefs Association in support of SB 43. He explained that the
University Fire Department, the Steese Fire Department, and
several others are student based, non-profit fire departments
providing fire protection to the Fairbanks Northstar Borough on
a contractual basis. As such, he explained, it is not a
municipal fire department and would benefit from the immunity
this bill affords. He noted that of particular concern is that
it is a workforce development program responsible for providing
many of Alaska's municipal fire departments with experienced and
training fire fighters. He pointed out that in this current
fiscal environment, at the University, concern over the
liability this bill addresses could be a factor in the future of
its program. For those reasons, he stated, he joined his
colleagues in supporting SB 43.
1:22:52 PM
REPRESENTATIVE CLAMAN asked what it would look like for a non-
municipal fire department in terms of where there would and
would not be potential liability, should SB 43 pass.
CHIEF SCHRAGE responded that this bill extends to fire
departments such as his in extending immunity from liability
essentially under the Doctrine of Sovereign Immunity to non-
municipal fire departments. He described the department as
contractors and therefore independent of the municipal or
borough government those immunities do not extend to the
departments or employees. He described its exposure to general
liability as enormous in terms of nonfeasance or failure to
provide service all the way to injury to his employees, and
noted it may be a failure to protect the citizens that pay
taxes. He opined that this bill would specifically address
those sorts of immunities.
REPRESENTATIVE CLAMAN offered that currently municipalities have
greater protections as it has the protection of the sovereign.
Whereas, he continued, a volunteer fire department could be
exposed to negligence and liability for the work they are
performing rather than the gross negligence protection currently
afforded municipalities in the same setting.
CHIEF SCHRAGE offered "that is my understanding."
1:25:06 PM
CHIEF SCHRAGE responded to Representative Gruenberg that on an
elementary level he is familiar with the legalities of this
bill, but is not intimately familiar with the nuances and
effects of the various substitute versions and amendments.
1:28:03 PM
The committee took an at-ease from 1:28 to 1:30 p.m.
1:30:19 PM
REPRESENTATIVE GRUENBERG referred to current law and the House
Judiciary Standing Committee CS, and then referred to [Section
1], AS 09.65.070(c), [page 1, lines 5-8], which read:
(c) An action for tort or breach of a contractual
duty based on the act or omission of an employee or
member of a fire department in the execution of a
function for which the department is established may
not be maintained against an employee or member of a
fire department ...
REPRESENTATIVE GRUENBERG highlighted that the first sentence is
essentially the same as current law except more elegantly
drafted.
1:31:11 PM
JILL DOLAN, Assistant Borough Attorney, Fairbanks Northstar
Borough, agreed with Representative Gruenberg and noted that the
substantial change is the definition of fire department that
begins on page 1, lines 13-24 ...
REPRESENTATIVE GRUENBERG interjected that before anticipating
his questions, to refer to the second sentence, [page 1, lines
8-23], which read:
An action for tort or breach of a contractual duty
based on the act or omission of an employee or member
of a fire department in the execution of a function
for which the department is established may not be
maintained against a fire department unless the action
alleges intentional misconduct or gross negligence or
is based on the act or omission of an employee or
member of a fire department in the execution of a duty
under contract with a private entity.
REPRESENTATIVE GRUENBERG described the sentence as re-
establishing the liability of ... the first sentence deals with
an action, on line 6, "or omission of an employee ..." He
offered that in other words, if a person sues a fireman because
he dropped a person and said "burn, burn," that's what it
applies. In the event a person sues the fire department, which
is where the second sentence comes in, on lines 10-11, "may not
be maintained against a fire department." He opined that is the
essential difference between the first sentence and the second
sentence. Whereas, he pointed out, the first sentence is an
action against an employee, and the second sentence is an action
against a fire department.
1:32:47 PM
MS. DOLAN answered that Representative Gruenberg was correct
with the additional qualification that if the action is against
a fire department, a person can still have an action if it
alleges intentional misconduct or gross negligence.
REPRESENTATIVE GRUENBERG offered that Ms. Dolan was one step
ahead of him as under current law a person can sue a fire
department for negligence. He said that "this" immunizes the
fire department itself, whether or not it is volunteer. A
person can no longer sue it unless the action alleges
intentional misconduct or gross negligence, he reiterated.
MS. DOLAN responded that currently in AS 09.65.070(d) there is,
for municipal fire departments, discretionary function immunity
for damages. Therefore, she explained, currently a person
cannot maintain an action for damages against a municipal fire
department if it is based on a discretionary function. She
further explained that the same immunity does not apply to the
contracted fire department, such as what Chief Flynn and Chief
Schrage were discussing, as they are contracted fire
departments. She related that the intent was to incorporate a
similar immunity and to Subsection (c) for those fire
departments.
1:34:18 PM
CHAIR LEDOUX remarked that discretionary immunity means that a
fire department can't be sued because it decided not to exercise
a function. For example, the Department of Transportation
(DOT), if a division does not put up a guard rail, the state
cannot be sued. In the event DOT puts up a guard rail and does
not maintain the guard rail, the state can be sued. She noted
that the first example is discretionary and a government cannot
be sued for not doing something which is discretionary. The
government can be sued for negligence in something the
government decides to undertake.
MS. DOLAN stated that Chair LeDoux "is absolutely correct," as
discretionary functions are generally aspects involving
allocation of financial resources. She agrees that once a duty
is undertaken it generally cannot be taken in a non-negligent
manner, but there are certain on-the-scene decisions in
firefighting that could be discretionary because it entails
resource allocation and those decisions are vested in the fire
chief in charge. She offered that the courts have extended some
discretionary function immunity in the context of fire that
would include on-the-scene decisions.
1:35:54 PM
REPRESENTATIVE GRUENBERG surmised that discretionary actions are
immunized and the issue here is regarding non-discretionary. He
read that under current law, if a person sues a fire department
itself rather than the individual, for non-discretionary the
standard is negligence. He referred to line 11, " ...
intentional or gross negligence ..." He stated that is now the
standard and opined it was added and was not in the original
bill. He described it as significantly raising the standard for
suing a fire department involved in a non-discretionary
function.
1:37:00 PM
MS. DOLAN replied that it changes the standard for the non-
discretionary function. The intent, she explained, was that
because contracted fire departments cannot enjoy discretionary
function immunity to leave subsection (d) intact and allow
municipalities to continue to enjoy the immunity. Instead, in
the context of looking at fire departments in general, extend an
immunity that is not a full and complete immunity and limit it,
she highlighted. She further highlighted that the intentional
misconduct or gross negligence language is intended to limit how
far that immunity could extend, and while listening to the
hearing with the committee substitute noted it is not intended
to expand the immunity.
REPRESENTATIVE GRUENBERG opined that he intends to look at the
bill because it appears to go as far as it can go.
CHAIR LEDOUX announced she would hold the bill as it appears
this bill may go farther than the original intent of the
sponsor.
1:38:20 PM
MR. SHILLING advised that upon introduction of the bill, the
non-discretionary immunity was to non-discretionary activities
for fire departments. He stated the only action the Senate
Community and Regional Affairs Standing Committee performed was
the carve out for intentional misconduct or gross negligence.
He noted the intention all along was to expand that immunity.
REPRESENTATIVE GRUENBERG opined that the committee should look
at the bill and ascertain that it does what was intended.
CHAIR LEDOUX closed public testimony after ascertaining no one
further wished to testify, and announced SB 43 is held over.
HB 125-RESTRICTIONS ON SALE OF DEXTROMETHORPHAN
1:40:13 PM
CHAIR LEDOUX announced that the final order of business would be
HOUSE BILL NO. 125, "An Act relating to the sale of products
containing dextromethorphan; relating to the regulation of
dextromethorphan by municipalities; and providing for an
effective date."
1:40:28 PM
GRACE ABBOTT, Staff, Representative Charisse Millett, Alaska
State Legislature, said that HB 125 deals with dextromethorphan
(DXM), and for decades families have been using over the counter
cough medicine to treat coughs and colds. She described the
cough medicines as containing DXM which when used correctly is
safe and effective in soothing symptoms. However, she
explained, when taken in high doses these medicines can produce
hallucinations, confusion, blurred vision, nausea, excessive
fatigue, and loss of motor control. She noted that,
unfortunately according to a 2013 study, four percent of teen-
agers have intentionally taken exceedingly large amount of cough
medicine containing DXM to get high. She expressed that
Alaskans take substance abuse issues very seriously and the
abuse of DXM should be no exception. She described HB 125 as
seeking to assist in combating this problem by prohibiting the
sale of DXM to Alaskans under the age of 18. The step in asking
for proof of age prior to sale would maintain access to
effective over-the-counter cough medicines for [Alaskans] who
use them to treat cough symptoms associated with colds and flu
while limiting access to the small yet notably significant
number of adolescents who might abuse them, she related. The
penalty to those who sell to minors begins at $150 and escalate
to $250 for the second and any future violations, she pointed
out.
1:42:41 PM
REPRESENTATIVE FOSTER advised that he bought Sudafed and noted
there are two kinds that can be bought at the front counter and
behind the counter. He asked how this would fit into HB 125.
MS. ABBOTT opined that she is not quite as familiar with the
manner Sudafed is regulated, but not only is Sudafed behind the
counter but it also requires that identification be scanned and
usually the information is put into a data base. She further
opined that this effort was undertaken to track and regulate the
production of methamphetamines. However, she said, unlike
Sudafed what would happen with DXM containing medicines is that
these medicines would still be available over-the-counter as a
cashier upon purchase would check identification or note that
the person may be over the age of 25.
REPRESENTATIVE FOSTER advised he had to sign a log book, but
with this bill there is no log book and just the identification
requirement.
MS. ABBOTT answered that it is just the identity check and is
still available to people under the age of 18 with a
prescription from a doctor, as well as people over the age of 18
who would have to do nothing except possibly show identification
upon purchase.
1:44:26 PM
REPRESENTATIVE LYNN referred to Sec. 1, [AS 11.76.150(a)(1),
page 1], lines 8-9, which read:
(1) the seller, retailer, or vendor checks a
government-issued photo identification and determines
the person is 18 years of age or older;
REPRESENTATIVE LYNN surmised a photo identification is required
to buy cough syrup but not for voting.
MS. ABBOTT answered "As best I understand it, yes."
1:45:07 PM
REPRESENTATIVE KELLER surmised that the problem is consumption
rather than something being refined and therefore a more potent
detrimental drug.
MS. ABBOTT responded that as best she understands, although she
is not an expert regarding the manufacture of drugs. She
explained that DXM is being consumed as one would a cough syrup
and in excessive amounts.
CHAIR LEDOUX assumed it is not made into concentrates.
MS. ABBOTT answered "I don't believe they do."
1:45:59 PM
REPRESENTATIVE MILLETT offered that the most common activities
with DXM and [teen-agers], in speaking with police officers, is
that teens are taking the cough syrup, mixing it with soda, and
drinking it, which is called "Robo tripping." She explained
that large quantities are consumed with health effects
detrimental to these young kids whose bodies and minds are
forming who are looking for a quick high which sometimes turns
into more than a quick high.
1:46:39 PM
REPRESENTATIVE GRUENBERG referred to Section 2, [AS 29.10.149,
page 2, line 6], which read:
(65) AS 29.35.149 (regulation of dextromethorphan)
REPRESENTATIVE GRUENBERG advised the bill drafting style only
sets out subsection 65, as it does not set out the complete
section. He stated, "it apparently is limitation of home rule
powers. Only the following provisions of this title apply to
home rule municipalities as prohibition on acting otherwise than
provided ..." In other words, he explained, that they can do
anything they want except for "stuff" that is listed here, and
now there is a new section 65. He read, "These provisions
supersede existing and prohibit future home rule enactments that
provide otherwise." He stated they have now added to the other
64 provisions this "new little" provision in Section 3, which
says that home rule municipalities cannot regulate DXM.
MS. ABBOTT replied "You are correct," and when looking at
Section 3, it provides that for other municipalities as well.
1:48:30 PM
REPRESENTATIVE GRUENBERG referred to Section 1, [AS
11.76.150(a)(2), page 1], lines 10-11, which read:
(2) from the person's outward appearance,
the seller, retailer, or vendor would reasonably
presume the person to be 25 years of age or older; or
REPRESENTATIVE GRUENBERG remarked that Section 1, requires a
government issued photo identification. He stated that Section
2, indicates that the clerk behind the counter can sell [DXM] to
a person if the person's outward appearance the clerk would
reasonably presume the customer is 25 years of age or older. He
described the language as unusual which puts an unusual burden
on the clerk and asked why that language is in the bill.
MS. ABBOTT responded that if a customer notably looks older than
25 it would be an acceptable manner of selling DXM to the
customer and not card them at the register.
REPRESENTATIVE GRUENBERG said that with regard to subsection
(2), he would like to hear from the people in the industry in
protecting the employee.
1:50:55 PM
MS. ABBOTT noted she could not cite the specific statute, but
that this is common place in the adopted business practices of
major retailers in Alaska.
REPRESENTATIVE GRUENBERG asked whether there is language similar
in other statutes so there is not one requirement for this one
drug.
1:51:58 PM
KACI SCHROEDER, Assistant Attorney General, Criminal Division,
Department of Law, advised she has not researched that
particular language, but there used to be a rule that an
establishment had to card someone attempting to buy alcohol if
they looked under 35 years of age. She stated she does not know
if that was just practice or whether it was in statute. She
noted that the looks of someone in determining age is not
uncommon.
REPRESENTATIVE GRUENBERG opined that it used to be that way and
then it became too dicey and the decision was to card everyone.
He stated he does not want to see a clerk have to pay $150.
1:52:59 PM
REPRESENTATIVE KELLER questioned whether Ms. Schroeder is aware
of laws on the books that have dosages related to them. He
asked if the bill would be starting something that is very
different ... the exception was made for drugs that were being
refined but there are a lot of items in the local grocery store
that have a recommended dosage and what kind of criteria is the
legislature going to use for deciding to card for "that" one.
MS. SCHROEDER answered that this is a bit of a new thing but as
long as the legislature has a rational basis for doing this ...
the record has clearly established a rational basis and it would
be fine.
1:54:17 PM
CHAIR LEDOUX surmised that Representative Keller might be
pointing out that it is not necessarily unconstitutional where
the rational basis would be applied, but rather exactly where is
the legislature going. She asked whether it would become
something in the area of a person looking overweight shouldn't
be sold ice cream and questioned whether the committee is going
down that path.
MR. SCHROEDER advised that should the legislature go down that
path is solely within the purview of the legislature. She
opined that other states have tried to limit access to soda, for
instance, and the issue has been before other legislatures.
1:54:56 PM
REPRESENTATIVE MILLETT stated that the point here is that the
sponsor is trying to protect children under 18 who can walk into
a store and buy something that will severely harm them in large
doses because they are attempting to get high. She pointed out
that there is a section of kids using this in a profoundly
harmful manner.
1:55:44 PM
REPRESENTATIVE KELLER responded that he has no doubt of the
honorable intentions of the sponsor. His said his concern is
the unintended consequences that may be there with this kind of
legislation. He asked whether the sponsor had researched
whether there is a possibility of a competing drug company
winning [a lawsuit] due to this legislation, and he would like
to follow the money. He requested testimony from vendors of the
product.
CHAIR LEDOUX opened public testimony.
1:57:27 PM
SEAN MOORE, Consumer Healthcare Products Association (CHPA),
said he was testifying on behalf of the Consumer Healthcare
Products Association (CHPA). He said that essentially HB 125
prohibits the sale of over-the-counter cough medicine containing
dextromethorphan (DXM) to those under the age of 18. He stated
that CHPA is the premier trade association representing
manufacturers and marketers for over-the-counter medicine. He
described DXM as the most widely used cough depressant on the
market and was developed in the 1950s as a non-narcotic
alternative to codeine cough medicine. He described a small but
significant amount of teens use DXM to get high by ingesting 25-
50 times the recommended dose. He pointed out that 25 doses is
approximately 1.5, 5 ounce bottles of cough syrup. He advised
that a few years ago the U.S. Food and Drug Industry (FDA) came
to the industry and strongly encouraged it to help reduce the
rate of abuse otherwise the federal government would consider
more restrictive action. He said that asking an individual to
sign a log book when purchasing Sudafed is an effort to prevent
having to go down that road for cough medicine DXM, maintaining
access for millions of Americans that use this medicine
responsibly and controlling it, and keeping it out of the hands
of kids who are seeking to intentionally abuse it. He expressed
that this is something CHPA members take very seriously and are
engaged in a multi-pronged effort to reduce the number of teens
abusing its products. He offered that in addition, CHPA is
putting legislation such as this and groups specializing in drug
abuse prevention such as, the partnership of DrugFree.org, and
the Community Anti-drug Coalitions of America that maintains
StopMedicineAbuse.org dedicated to raise awareness and teaching
parents to spot signs of abuse. He remarked that to date eight
other states have adopted age 18 restrictions and a handful of
additional states are considering doing so this year. He
highlighted that most national retailers are already voluntarily
restricting sales to children so it is about leveling the
playing field and providing a statewide policy to give parents
greater control over the medicines to which their children have
access. He urged the committee's support for HB 125.
2:00:34 PM
REPRESENTATIVE GRUENBERG requested written testimony.
MR. MOORE said he would submit written testimony and advised
that CHPA is represented locally by Mr. Eldon Mulder.
REPRESENTATIVE GRUENBERG asked whether the language in the bill
is model language he supplied, and whether it is enforced in any
other state.
MR. MOORE replied that he worked with Representative Millett and
Legislative Legal and Research to craft the language to fit into
Alaska's statutes. He reiterated that this policy has been
adopted in eight other states.
REPRESENTATIVE GRUENBERG referred Mr. Moore to page 1, lines 10-
11, and asked whether the language on the "25 years of age or
older" is in any other states.
MR. MOORE answered "Yes," it is generally to provide some relief
for people who appear over the age of 25 not having to dig
through their wallet or through their purse so they can purchase
the product, and are clearly over the age of 18. He opined that
most states use the "appearing to be over the age of 25."
2:02:33 PM
REPRESENTATIVE GRUENBERG referred to the manner in which
Alaska's alcohol law have evolved over a long period of time,
the trend has been to go the other way and have a bright line
procedure. He noted there are significant penalties against the
company and the employee if there is a violation. He asked
whether that alternative approach has been considered in these
other states in attempting to protect the employees.
MR. MOORE opined that he did not believe CHPA does has a
position on that being included, as it is attempting to craft
this legislation with as little burden as possible for an
ordinary consumer. Although, he related, if it is the will of
the committee to remove that provision and make it a black and
white card everyone, CHPA would not be opposed.
2:04:01 PM
REPRESENTATIVE MILLETT referred to [Sec. 1, AS 11.76.150(b)],
page 1, line 14, and page 2, lines 1-4, which read:
(b) A seller, retailer, or vendor or an employee
of a seller, retailer, or vendor who knowingly or
willfully violates this section is guilty of a
violation and is punishable by a fine of
(1) $150 for the first violation; and
(2) for the second and subsequent violation.
REPRESENTATIVE MILLETT opined that there is no intent ...
REPRESENTATIVE GRUENBERG interjected "No absolute liability."
REPRESENTATIVE MILLETT reiterated that there is no absolute
liability and she would not mind taking it out as she does not
want to kill the bill due to this issue. She opined that the
disclaimer appears on page 2, line 1, which sets the bar less
than Representative Gruenberg's thinking on the bright line.
REPRESENTATIVE GRUENBERG said the issue could be dealt with.
2:04:55 PM
REPRESENTATIVE CLAMAN remarked that recently he was in a sister-
state and bought a bottle of wine yet the clerk did not request
his identification wherein Alaska cards everyone. He asked
whether other states may be more relaxed in terms of alcohol and
giving the clerk authority to make a judgement call.
MR. MOORE advised he is not familiar with tobacco or alcohol
statutes of other states. He advised that in Washington, D.C.,
he recalls seeing signs at the register wherein someone under
the age of 35 will be carded.
2:06:50 PM
REPRESENTATIVE KELLER noted that he was asked if he wanted a
senior citizen discount. He questioned whether part of the
motivation for this in the other states is the threat of federal
action, and questioned the source of that threat.
MR. MOORE submitted that the FDA monitored the "future study"
which is conducted annually by the National Institute on Drug
Abuse. He said the numbers in 2008-2009 of teens abusing cough
medicine intentionally to get high were alarming to the FDA, and
the numbers suggested the trend was increasing. In 2010, the
FDA held a hearing on the matter and during that time considered
requiring a prescription for DXM and other measures such as
putting it behind the counter, or sign a log book, and the
industry was opposed to those measures. The industry committed
to working to bring those abuse rates down and, he noted, the
FDA strongly encouraged the industry to bring those numbers
down. He pointed out that this is one of the parts of its
strategy including reaching out to parents, partnering with a
number of organizations whose full mission is to reduce
substance abuse across the country. The industry has seen some
success as the numbers are coming down as a number of states are
adopting the age 18 restrictions. He remarked that the industry
would like to think it is due also to how it ramped up its
educational efforts in bringing the numbers down. He believes
the industry is on to something and it is the right strategy.
He added to his prior testimony that not only does cough
medicine contains DXM, but it also contains acetaminophen. In
that case, he related, if an individual is taking 25 times the
recommended dose, the individual is receiving 25 times the
recommended dose which is incredibly harmful to the liver and
potentially lethal. He noted that its unintended consequences
is what caught the FDA's attention.
2:10:27 PM
REPRESENTATIVE GRUENBERG stated his hang up is just on
subsection (2), as the legal standard is on page 2, line 1,
"knowingly or willfully." He said he does not know how a person
can be willful if they don't know and the language should read
only "knowingly." In the event, the seller knows the person is
under the age of [18], they can be tagged with a violation.
Although, the standard on subsection (2), he said is "from the
person's outward appearance a person would reasonably presume."
He described a scenario where a person reasonably presumed to be
under the age of 25, but couldn't be tagged with a violation
unless the person actually knew it. There is a difference in
standard there and he has seen 14-year old who look pretty old.
2:12:14 PM
REPRESENTATIVE MILLETT remarked that she would like a friendly
amendment from Representative Gruenberg at the appropriate time
during the hearing.
REPRESENTATIVE GRUENBERG questioned whether Mr. Moore's legal
team knows whether the defense of age supposed to be on the
defendant, or who would have the burden of proof on that issue.
He asked how that is interpreted in the other states with the
same statute.
MR. MOORE responded that he is not a lawyer and does not have
the expertise in that field, but could ask his legal team to
provide the committee a letter at a later date.
2:13:32 PM
CHAIR LEDOUX quiered whether most of the misuse an issue with
8th grade kids through 16-years of age. She imagined that at
about 16 the teens start moving into other things rather than
cough medicine. She asked about an 18-year old with a driver's
license with a cough who can't buy cough syrup.
MS. ABBOTT responded that the bill does not restrict all types
of cough syrup which appears to be an occasional sticking point
with this bill. The bill exclusively puts the onerous on cough
syrup containing DXM, with incredible sedative qualities.
CHAIR LEDOUX reiterated that she was asking how much of a real
problem is there with kids 16-years of age and older because
this problem seems to be with really young teen-agers. She
opined that at 16 and older they are trying to get booze rather
than cough medicine.
MS. ABBOTT deferred to Mr. Moore and stated that the studies she
reviewed had an age range including kids over age 16 using the
medicine as a high. However, the age range was with 8-12
graders, including 18-year olds. She stated she could not speak
to whether it stops at any point.
MR. MOORE responded that in monitoring the "future studies" he
referred to earlier it covers teens in grades between 8th-12th
grades. He pointed out that in 2014, 12th graders were actually
twice as likely to abuse DXM as an 8th grade student. He stated
they are seeing it in older teens of which is a potential
gateway to abusing additional substances down the road. He
reiterated that they are seeing a higher rate of abuse in 16-18
year olds.
CHAIR LEDOUX closed public testimony after ascertaining no one
further wished to testify.
2:17:42 PM
CHAIR LEDOUX commented with respect to Representative
Gruenberg's concerns about the clerk who may not tag someone 18-
20, is that it would be easier for the clerk. She pointed out
that a store could say that everyone is tagged and ask for
everyone's identification. She pointed out that when someone is
clearly over a certain age, why do they have to go through that
hassle. She stated she would leave the language the way it is
in the bill.
2:18:35 PM
REPRESENTATIVE MILLETT opined it makes it easier for retail
stores and pointed out that "knowingly and willfully" is in the
statutes, and that the language is fine as it is.
CHAIR LEDOUX said she would look at the phrase "knowingly and
willfully," in that it does not say it is an affirmative
defense. She highlighted that the laws generally say when
something is an affirmative defense it is set out in the
statute. She evaluated that it is a burden on law enforcement
to show that someone "knowingly and willfully" violated the
statute and is not overly onerous on the vendor. She remarked
that she is not thrilled with the committee making one more
thing not quite illegal, but on the hand she is not thrilled
with the alternative which looks like it is going to go the way
of Sudafed and be behind the counter. She pointed out that she
hates to accede to the will of the federal government, sometimes
there is the reality.
2:20:30 PM
REPRESENTATIVE KELLER referred to a statement that there are a
large number of products containing DXM, and "you" say it's not
onerous but the store has to sort these things out and set them
aside because otherwise the clerk will not be reading the fine
print just because a kid is underage. He questioned how many
products the bill speaking to, and what about the labeling.
CHAIR LEDOUX remarked that Representative Keller has a good
point.
2:21:11 PM
REPRESENTATIVE MILLETT stated that [cash registers] can be keyed
to alert the cashier that identification is required, such as
tobacco or magazines. She offered that stores can code products
with DXM which alerts the cashier.
CHAIR LEDOUX asked if the bill has been in other committees.
REPRESENTATIVE MILLETT replied "No."
REPRESENTATIVE MILLETT answered Chair LeDoux that it is next
going to the floor.
2:21:58 PM
REPRESENTATIVE MILLETT responded to Chair LeDoux that she will
check with the retailer's association to determine whether it is
overly burdensome for them and get back to her before it goes to
the floor.
CHAIR LEDOUX answered that she would like Representative Millett
to do that.
2:22:13 PM
REPRESENTATIVE MILLETT responded to Representative Keller that
she will also ask the National Federation of Independent
Businesses (NFIB) to see if they have a position on the bill.
2:22:24 PM
REPRESENTATIVE CLAMAN commented that he broadly agrees with
Chair LeDoux in that the notion it will start shifting into
everyone being carded does become onerous for a business. He
advised he googled the ingredients for Robitussin Cold & Cough
medicine which includes Pseudoephedrine and DXM all in the same
drug. He noted that the concept of shifting into more drugs the
public will be carded for is a challenge for retailers and the
public. Yet, he remarked, at the same time this is a real
concern as there are kids abusing these medications and there is
no easy solution. He opined the bill is well intended but
eventually there may be 15 different cough medicines going
behind the counter.
2:24:26 PM
REPRESENTATIVE MILLETT advised that Mr. Moore is a retailer
representative also and that Fred Meyers and Carrs/Safeway
Alaska Operations are already doing this for DXM. She opined
that if it is onerous there would not voluntary compliance as
possibly they saw the writing on the wall. She advised she will
check with NFIB.
2:24:59 PM
REPRESENTATIVE KELLER moved to report HB 125, labelled 29-
LS0544\A out of committee with individual recommendations and
the accompanying fiscal notes. There being no objection HB 125
moved out of the House Judiciary Standing Committee.
2:25:29 PM
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 2:25 P.M.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB0125A.PDF |
HJUD 4/9/2015 1:00:00 PM |
HB 125 |
| HB125 Fiscal Note - LAW.pdf |
HJUD 4/9/2015 1:00:00 PM |
HB 125 |
| HB125 Letter of Support CHPA.pdf |
HJUD 4/9/2015 1:00:00 PM |
HB 125 |
| HB125 Sponsor Statement.pdf |
HJUD 4/9/2015 1:00:00 PM |
HB 125 |
| HB125 Support Document Age 18 DXM Restriction States.pdf |
HJUD 4/9/2015 1:00:00 PM |
HB 125 |
| HB125 Support Document Know Your Medicine Cabinet.pdf |
HJUD 4/9/2015 1:00:00 PM |
HB 125 |
| SB43 Sponsor Statement.pdf |
HJUD 4/9/2015 1:00:00 PM |
SB 43 |
| SB43 Letter of Support - AFD.pdf |
HJUD 4/9/2015 1:00:00 PM |
SB 43 |
| SB43 Fiscal Note 1.PDF |
HJUD 4/9/2015 1:00:00 PM |
SB 43 |
| SB43 Fiscal Note 2.PDF |
HJUD 4/9/2015 1:00:00 PM |
SB 43 |
| SB43 Letter of Support - City of Fairbanks.pdf |
HJUD 4/9/2015 1:00:00 PM |
SB 43 |
| SB43 Letter of Support - Fire Chiefs Assoc..pdf |
HJUD 4/9/2015 1:00:00 PM |
SB 43 |
| SB43 Letter of Support - FNSB.pdf |
HJUD 4/9/2015 1:00:00 PM |
SB 43 |
| SB43 Letter of Support - Interior Fire Chiefs.pdf |
HJUD 4/9/2015 1:00:00 PM |
SB 43 |
| SB43 Summary of Changes.pdf |
HJUD 4/9/2015 1:00:00 PM |
SB 43 |
| SB43 ver P.pdf |
HJUD 4/9/2015 1:00:00 PM |
SB 43 |