2014 Tennessee Code
Title 39 - Criminal Offenses
Chapter 17 - Offenses Against Public Health, Safety and Welfare
Part 4 - Drugs
§ 39-17-431 - Immediate methamphetamine precursor -- Prohibitions.

(a) Except as provided in this section, any product that contains any immediate methamphetamine precursor may be dispensed only by a licensed pharmacy.

(b) (1) A product or category of products that contains any immediate methamphetamine precursor shall be exempt from the requirements of this section if the ingredients are not in a form that can be used in the manufacture of methamphetamine.

(2) The board of pharmacy, in consultation with the Tennessee bureau of investigation (TBI), shall determine whether a product or category of products that contain any immediate methamphetamine precursor is not in a form that can be used in the manufacture of methamphetamine. In making such a determination, the board shall solicit the written opinion of the bureau and work with the bureau to develop procedures that consider, among other factors:

(A) The ease with which the product can be converted to methamphetamine, including the presence or absence of a "molecular lock" completely preventing a product's use in methamphetamine manufacture;

(B) The ease with which pseudoephedrine can be extracted from a product and whether it forms a salt, emulsion, or other form; and

(C) Any other pertinent data that can be used to determine the risk of a product being viable in the illegal manufacture of methamphetamine.

(3) The board of pharmacy shall maintain a public list of the exempted products or categories of products. Any person may request that a product or category of products be included on the exemption list.

(c) (1) A pharmacy shall not sell products containing ephedrine or pseudoephedrine base, or their salts, isomers or salts of isomers to the same person in an amount more than:

(A) Five and seventy-six hundredths (5.76) grams in any period of thirty (30) consecutive days; or

(B) Twenty-eight and eight tenths (28.8) grams in any one-year period.

(2) A person shall not purchase products containing ephedrine or pseudoephedrine base, or their salts, isomers or salts of isomers in an amount more than:

(A) Five and seventy-six hundredths (5.76) grams in any period of thirty (30) consecutive days; or

(B) Twenty-eight and eight tenths (28.8) grams in any one-year period.

(3) The limits in this subsection (c) shall apply whether one (1) form of identification required in subsection (d) is used to make the purchase or if two (2) or more forms of identification required in subsection (d) are used to purchase the products. The limits contained in this subsection (c) shall apply to the total amount of base ephedrine and pseudoephedrine contained in the products and not the overall weight of the products. The prohibitions contained in this subsection (c) shall not apply to a person who obtains the product or products pursuant to a valid prescription issued by a licensed health care practitioner authorized to prescribe by the laws of the state.

(4) This subsection (c) also shall apply to pharmacist-generated prescription orders of the product pursuant to § 63-10-206. The provision of the patient education and counseling as a part of the practice of pharmacy shall be required when any product is issued under this subsection (c).

(5) There shall be no protocol or procedure mandated by any individual or corporate entity that interferes with the pharmacist's professional duty to counsel and evaluate the patient's appropriate pharmaceutical needs and the exercise of the pharmacist's professional judgment as to whether it is appropriate to dispense medication as set forth in subsection (d) or otherwise.

(d) The pharmacist or pharmacy intern under the supervision of the pharmacist shall require any person purchasing an over-the-counter product containing pseudoephedrine or ephedrine to present valid government issued photo identification at the point of sale. The pharmacist or pharmacy intern shall counsel with the person seeking to purchase the product as to the reasons for needing the product and may decline the sale if the pharmacist or pharmacy intern believes the sale is not for a legitimate medical purpose. The pharmacist, pharmacy technician, or pharmacy intern shall maintain an electronic record of the sale under this subsection (d) and the record may be maintained in the form of a pharmacist prescription order as provided by § 63-10-206(c). The electronic record shall include the name and address of purchaser; name and quantity of product purchased; date and time purchased; purchaser identification type and number, such as driver license state and number; and the identity, such as name, initials or identification code, of the dispensing pharmacist or pharmacy intern. If a system is not able to record the identification type and number, the pharmacist, pharmacy technician, or pharmacy intern shall write the identification type and number on the prescription order. The electronic record shall also be maintained in a manner that allows for the determination of the equivalent number of packages purchased and total quantity of base ephedrine or pseudoephedrine purchased.

(e) (1) By January 1, 2012, each pharmacy in this state shall have in place and operational all equipment necessary to access and use the National Precursor Log Exchange (NPLEx) administered by the National Association of Drug Diversion Investigators (NADDI). The NPLEx system shall be available for access and use free of charge to the pharmacies and this state.

(2) Beginning January 1, 2012, before completing a sale of an over-the-counter product containing pseudoephedrine or ephedrine not otherwise excluded from the record keeping requirement, a pharmacy shall electronically submit the required information to NPLEx administered by NADDI. On learning of a data entry error in which a transaction was submitted to NPLEx when it should not have been, the pharmacy shall submit a data entry error correction to NPLEx to remedy the error and prevent an inappropriate stop sale alert from being generated for a person who may seek to purchase an over-the-counter product containing pseudoephedrine or ephedrine. Except as provided in subsection (j), the seller shall not complete the sale if the system generates a stop sale alert.

(3) Absent negligence, wantonness, recklessness, or deliberate misconduct, any pharmacy utilizing the electronic sales tracking system in accordance with this subsection (e) shall not be civilly liable as a result of any act or omission in carrying out the duties required by this subsection (e) and shall be immune from liability to any third party unless the retailer has violated this subsection (e) in relation to a claim brought for such violation. This subsection (e) shall not apply to a person who obtains the product or products pursuant to a valid prescription.

(4) The data entered into, stored and maintained by the NPLEx may only be used by law enforcement officials, healthcare professionals and pharmacists and only for controlling the sale of methamphetamine precursors.

(5) If, for any reason, the NPLEx administered by NADDI is no longer the system used in this state to track the sale of methamphetamine precursors, whether because the system no longer functions, is no longer in existence, is no longer offered to the state without cost, or is otherwise no longer available, each pharmacy shall switch to and commence using the Tennessee Methamphetamine Information System (TMIS), as soon as the equipment necessary to access and use the system is made available at no charge to the pharmacy. TMIS shall be available for access and use free of charge to the pharmacies.

(f) If a pharmacy selling an over-the-counter product containing pseudoephedrine or ephedrine experiences mechanical or electronic failure of the tracking system and is unable to comply with the electronic sales tracking requirement, the pharmacy or retail establishment shall maintain a written log until such time as the pharmacy or retail establishment is able to comply with the electronic sales tracking requirement.

(g) A pharmacy selling an over-the-counter product containing pseudoephedrine or ephedrine may seek an exemption from submitting transactions to the electronic sales tracking system in writing to the board of pharmacy stating the reasons therefore. The board of pharmacy may grant an exemption for good cause shown, but in no event shall such exemption exceed one hundred eighty (180) days. Any pharmacy or retail establishment that receives an exemption shall maintain a hardcopy logbook and must still require the purchaser to provide the information required under this section before completion of any sale. The logbook shall be maintained as a record of each sale for inspection by any law enforcement officer or inspector of the board of pharmacy during normal business hours.

(h) Nonexempt products containing an immediate methamphetamine precursor shall be maintained behind-the-counter of the pharmacy or in a locked case within view of and within twenty-five feet (25') of the counter.

(i) All data that is collected from Tennessee pharmacies and stored in the NPLEx will be downloaded and exported by electronic means to TMIS at least every twenty-four (24) hours. This export of data will be in a version in compliance with the National Information Exchange Standard and agreed to by both the TBI and NADDI. The export will be executed without a charge to TMIS or any agency of this state. Any and all data exported to, obtained by, gathered by, transmitted to and/or stored by TMIS or its designee, once received from NADDI, is the property of this state. TMIS has the authority to control, administer, and disseminate, at its discretion, this transaction data for the purpose of enforcing federal and state laws. In addition to the exporting of data to TMIS, real time access to NPLEx information through the NPLEx online portal shall be provided to law enforcement in the state free of charge.

(j) (1) NPLEx shall generate a stop sale alert, if completion of a sale would result in the seller or purchaser violating the quantity limits set forth in this section. The system shall contain an override function that may be used by a dispenser of ephedrine or pseudoephedrine who has a reasonable fear of imminent bodily harm if the sale is not completed. Each instance in which the override function is utilized shall be logged by the system.

(2) In instances when a data entry correction has been submitted to the NPLEx concerning a purchaser in accord with subdivision (e)(2), the NPLEx shall not generate a stop sale alert in cases where the quantity limit is exceeded due to the data entry error for which the correction was submitted.

(k) A violation of subsections (a)-(j) is a Class A misdemeanor, punishable by fine only. If the person in violation is a licensed pharmacy or pharmacist, the violation shall be reported to the board of pharmacy for review and appropriate action. If a product is dispensed in violation of subsection (a), the owner or operator of the wholesale or retail establishment dispensing the product shall be in violation of subsection (a).

(l) (1) The TBI, in cooperation with NADDI which administers NPLEx, shall devise a method to electronically notify NADDI at least every seven (7) days of any person placed on the methamphetamine registry pursuant to § 39-17-436(b). The notification shall include the first, middle and last names of the person, the person's date of birth and the person's driver license number or any other state or federal identification number. NPLEx shall be designed to generate a stop-sale alert for any purchaser whose name has been submitted to the registry. Such person shall be prohibited from purchasing nonexempt products at the point-of-sale using NPLEx.

(2) The bureau shall also notify NADDI when a person is removed from the methamphetamine registry pursuant to § 39-17-436(e). When notified, the person shall be removed from NPLEx and is permitted to purchase nonexempt products.

(3) (A) Any person who sells or delivers a nonexempt substance to a person known to be on the methamphetamine registry commits a Class A misdemeanor.

(B) Any person who purchases or attempts to purchase a nonexempt substance while such person is on the methamphetamine registry commits a Class A misdemeanor.

(m) (1) It is an offense for a person not authorized to do so to knowingly engage in any of the following conduct with respect to a nonexempt product containing an immediate methamphetamine precursor and required to be maintained behind-the-counter of the pharmacy as specified in subsection (h):

(A) Attempt to sell the product knowing that it will be used to produce methamphetamine, or with reckless disregard of its intended use;

(B) Attempt to purchase the product with the intent to manufacture methamphetamine or deliver the product to another person whom they know intends to manufacture methamphetamine, or with reckless disregard of the other person's intent;

(C) Purchase the product at different times or locations for the purpose of circumventing the maximum allowable quantity of the product that may lawfully be purchased during a thirty-day or one-year period; or

(D) Use a false identification to purchase the product for the purpose of circumventing the maximum allowable quantity of the product that may lawfully be purchased during a thirty-day or one-year period.

(2) A violation of this subsection (m) shall be a Class A misdemeanor. All proceeds from fines imposed pursuant to this subsection (m) shall be used by the jurisdiction making the arrest for methamphetamine clean-up activities in that jurisdiction.

(n) This section shall supersede any local laws or ordinances currently regulating sales of products containing any immediate methamphetamine precursor.

(o) For the purposes of this section, "pharmacy" means only a pharmacy operating under title 63, chapter 10, which sells any immediate methamphetamine precursor at retail to the public.

(p) No person under eighteen (18) years of age may purchase a product that contains any immediate methamphetamine precursor, except pursuant to a valid prescription issued by a licensed healthcare practitioner authorized to prescribe by the law of the state or a pharmacist generated prescription issued pursuant to § 63-10-206.