SB-0189, As Passed Senate, May 12, 2005

SUBSTITUTE FOR

SENATE BILL NO. 189

     A bill to amend 1978 PA 368, entitled

"Public health code,"

(MCL 333.1101 to 333.25211) by adding section 17766b.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

     Sec. 17766b. (1) Except as otherwise provided under this

section, a person who possesses ephedrine or pseudoephedrine for

retail sale pursuant to a license issued under the general sales

tax act, 1933 PA 167, MCL 205.51 to 205.78, shall maintain all

products that contain any compound, mixture, or preparation

containing any detectable quantity of ephedrine or pseudoephedrine,

a salt or optical isomer of ephedrine or pseudoephedrine, or a salt

of an optical isomer of ephedrine or pseudoephedrine behind a

counter where the public is not permitted, within a locked case so

that a customer wanting access to the product must ask a store

employee for assistance, or within 20 feet of a counter that allows

the attendant to view the products in an unobstructed manner or

utilize an antitheft device on those products that uses special

package tags and detection alarms designed to prevent theft along

with constant video surveillance as follows:

     (a) The video camera is positioned so that individuals

examining or removing those products are visible.

     (b) The video camera is programmed to record, at a minimum, a

1-second image every 10 seconds.

     (c) The video images must be maintained for a minimum of 6

months and made available to any law enforcement agency upon

request.

     (d) The retailer shall prominently display a sign indicating

that the area is under constant video surveillance in a conspicuous

location, clearly visible to the public.

     (2) If the products described under subsection (1) are

maintained within 20 feet of a counter and that counter is not

staffed by 1 or more employees at all times, then the retail

distributor shall utilize antitheft devices and video surveillance

as provided under subsection (1) when the counter is not staffed.

If all of the products described under subsection (1) are

maintained behind the counter or within a locked case, then the

retailer is not required to maintain a log or any other type of

record detailing the sale of those products.

     (3) A person who sells a product described in subsection (1)

shall do each of the following:

     (a) Require the purchaser of a product described under

     subsection (1) to produce a valid photo identification that

includes the individual's name and date of birth.

     (b) Except as otherwise provided under subsection (2),

maintain a log or some type of record detailing the sale of a

product described under subsection (1), including the date of the

sale, the name and date of birth of the buyer, and the amount and

description of the product sold. The log or other means of

recording the sale as required under this subdivision shall be

maintained for a minimum of 6 months and made available to <<only a>> law

enforcement agency upon request. <<The log or other means of recording

 the sale is not a public record and is not subject to the freedom of information act, 1976 PA 442, MCL 15.231 to 15.246.  A person shall not sell or provide a copy of the log or other means of recording the sale to another for the purpose of surveys, marketing, or solicitations.>>

     (4) A person shall not knowingly do any of the following:

     (a) Sell any product described under subsection (1) to an

individual under 18 years of age.

     (b) Sell in a single over-the-counter sale more than 2

packages, or 48 tablets or capsules, of any product described under

subsection (1) to any individual.

     (c) Sell in a single over-the-counter sale more than 2

personal convenience packages containing 2 tablets or capsules each

of any product described under subsection (1) to any individual.

     (5) This section does not apply to the following:

     (a) A pediatric product primarily intended for administration

to children under 12 years of age according to label instructions.

     (b) A product containing pseudoephedrine that is in a liquid

form if pseudoephedrine is not the only active ingredient.

     (c) A product that the state board of pharmacy, upon

application of a manufacturer or certification by the United States

drug enforcement administration as inconvertible, exempts from this

section because the product has been formulated in such a way as to

effectively prevent the conversion of the active ingredient into

methamphetamine.

     (d) A product that is dispensed pursuant to a prescription.

     (6) A person who violates this section is responsible for a

state civil infraction as provided under chapter 88 of the revised

judicature act of 1961, 1961 PA 236, MCL 600.8801 to 600.8835, and

may be ordered to pay a civil fine of not more than $50.00 for each

violation.

     (7) A person described under subsection (1) shall post, in a

place close to the point of sale and conspicuous to both employees

and customers, a sign produced by the department of community

health that includes the following statement:

     "The sale of any product that contains any compound, mixture,

or preparation containing any detectable quantity of ephedrine or

pseudoephedrine, a salt or optical isomer of ephedrine or

pseudoephedrine, or a salt of an optical isomer of ephedrine or

pseudoephedrine to a minor under 18 years of age is prohibited by

law.".

     (8) If the sign required under subsection (7) is more than 6

feet from the point of sale, it shall be 5-1/2 inches by 8-1/2

inches and the statement required under subsection (7) shall be

printed in 36-point boldfaced type. If the sign required under

subsection (7) is 6 feet or less from the point of sale, it shall

be 2 inches by 4 inches and the statement required under subsection

(7) shall be printed in 20-point boldfaced type.

     (9) The department of community health shall produce the sign

required under subsection (7) and make copies of the sign available

for distribution to licensed retailers described in subsection (1)

free of charge on the effective date of this section. Licensed

retailers described in subsection (1) shall obtain copies of the

sign from the department of community health and distribute them

free of charge, upon request, to persons who are subject to

subsection (7).

     (10) It is an affirmative defense to a charge pursuant to

subsection (4)(a) that the defendant had in force at the time of

the citation and continues to have in force a written policy for

employees to prevent the sale of products that contain any

compound, mixture, or preparation containing any detectable

quantity of ephedrine or pseudoephedrine, a salt or optical isomer

of ephedrine or pseudoephedrine, or a salt of an optical isomer of

ephedrine or pseudoephedrine to persons under 18 years of age and

that the defendant enforced and continues to enforce the policy. A

defendant who proposes to offer evidence of the affirmative defense

described in this subsection shall file and serve notice of the

defense, in writing, upon the court and the prosecuting attorney.

The notice shall be served not less than 14 days before the hearing

date.

     (11) A prosecuting attorney who proposes to offer testimony to

rebut the affirmative defense described in subsection (10) shall

file and serve a notice of rebuttal, in writing, upon the court and

the defendant. The notice shall be served not less than 7 days

before the hearing date and shall contain the name and address of

each rebuttal witness.

     (12) One year after the effective date of the amendatory act

that added this section, the department of state police shall

submit a written report to the legislature regarding the impact and

effectiveness of the amendatory act that added this section,

including, but not limited to, the number of clandestine

methamphetamine lab incidents before and after this legislation.

     (13) Notwithstanding any other provision of law, beginning on

the effective date of the amendatory act that added this section, a

city, township, village, county, other local unit of government, or

political subdivision of this state shall not impose any new

requirement or prohibition pertaining to the sale of a product

described under subsection (1).  This subsection does not

invalidate or otherwise restrict a requirement or prohibition

described in this subsection existing on the effective date of the

amendatory act that added this section.

     Enacting section 1. This amendatory act takes effect 6 months

after the date it is enacted.