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 | |
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.
| 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 |