HB322 By Representative Johnson RFD Judiciary Rd 1 25-FEB-20

SYNOPSIS: This bill would prohibit a business establishment from selling dextromethorphan to a child under 18 years of age and would provide criminal fines for violations. The bill would also prohibit a political subdivision of this state from adopting or enforcing a law or rule governing the sale, distribution, or possession of dextromethorphan.

Amendment 621 of the Constitution of Alabama of 1901, now appearing as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended, prohibits a general law whose purpose or effect would be to require a new or increased expenditure of local funds from becoming effective with regard to a local governmental entity without enactment by a 2/3 vote unless: it comes within one of a number of specified exceptions; it is approved by the affected entity; or the Legislature appropriates funds, or provides a local source of revenue, to the entity for the purpose.

The purpose or effect of this bill would be to require a new or increased expenditure of local funds within the meaning of the amendment. However, the bill does not require approval of a local governmental entity or enactment by a 2/3 vote to become effective because it comes within one of the specified exceptions contained in the amendment.

A BILL TO BE ENTITLED AN ACT

To prohibit a business establishment from selling dextromethorphan to a child under 18 years of age; to provide criminal penalties; to specify certain exceptions; to prohibit a political subdivision of this state from adopting or enforcing a law or rule governing the sale, distribution, or possession of dextromethorphan; and in connection therewith would have as its purpose or effect the requirement of a new or increased expenditure of local funds within the meaning of Amendment 621 of the Constitution of Alabama of 1901, now appearing as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:

Section 1. For purposes of this act, the following words have the following meanings:

(1) DEXTROMETHORPHAN. A finished drug product containing any quantity of dextromethorphan.

(2) FINISHED DRUG PRODUCT. A drug legally marketed under the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. §321 et. seq, that is in finished dosage form.

(3) SALE. Includes an exchange, barter, or trade.

Section 2. (a) A business establishment may not dispense, distribute, or sell dextromethorphan to a person under 18 years of age.

(b) Before dispensing, distributing, or selling dextromethorphan over the counter, a business establishment shall require the person obtaining the drug to display a driver's license or other form of identification containing the person's photograph and indicating that the person is 18 years of age or older, unless the person making the sale reasonably concludes that the person buying the dextromethorphan is 27 years of age or older.

Section 3. (a) A business establishment violating this act shall be guilty of a criminal violation pursuant to subsection (d) of Section 13A-5-3, Code of Alabama 1975, subject to the penalties provided in this section.

(b)(1) Upon a first conviction, the business establishment shall be given a warning.

(2) Upon a second conviction within a two-year period, the business establishment shall be fined one hundred dollars ($100).

(3) Upon a third conviction within a two-year period, the business establishment shall be fined two hundred dollars ($200).

(4) Upon a fourth or subsequent conviction within a two-year period, the business establishment shall be fined three hundred dollars ($300).

(c) Prosecution for a violation of this act shall be commenced by the issuance of a citation by a law enforcement officer.

Section 4. (a) It is a defense in an action brought under this act that the person to whom the dextromethorphan was dispensed, distributed, or sold presented to the business establishment apparently valid proof of identification.

(b) A proof of identification satisfies the requirements of subsection (a) if it contains a physical description and photograph consistent with the person's appearance, purports to establish that the person is 18 years of age or older, and was issued by a governmental agency. The proof of identification may include a driver's license issued by this state or another state, a passport, or an identification card issued by a state or the federal government.

(c) It is a defense in an action brought under this act that the business establishment made a good faith effort to comply with this act.

Section 5. (a) This act does not apply to the sale of any product dispensed or delivered by a licensed pharmacist according to a prescription issued by a practitioner for a valid medical purpose within the scope of the practitioner's license.

(b) This act does not require a business establishment to do either of the following:

(1) Keep specific records of transactions covered by this act.

(2) Store dextromethorphan in a specific location in a business establishment or otherwise restrict the availability of dextromethorphan to customers.

Section 6. (a) A political subdivision of this state may not adopt or enforce an ordinance, order, rule, or policy that governs the sale, distribution, or possession of dextromethorphan.

(b) An ordinance, order, rule, or policy described by subsection (a) is void and unenforceable.

Section 7. Although this bill would have as its purpose or effect the requirement of a new or increased expenditure of local funds, the bill is excluded from further requirements and application under Amendment 621, now appearing as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended, because the bill defines a new crime or amends the definition of an existing crime.

Section 8. This act shall become effective on January 1, 2021, following its passage and approval by the Governor, or its otherwise becoming law.

Dextromethorphan

Crimes and Offenses

Criminal Law and Procedure

Business and Commerce

Minors

Municipalities