HB-4322, As Passed Senate, June 29, 2005
SUBSTITUTE FOR
HOUSE BILL NO. 4322
A bill to amend 1978 PA 368, entitled
"Public health code,"
(MCL 333.1101 to 333.25211) by adding section 17766f.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 17766f. (1) A person who possesses 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 for retail sale pursuant to a license
issued under the general sales tax act, 1933 PA 167, MCL 205.51 to
205.78, shall not knowingly do any of the following:
(a) Sell any product described under this subsection 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
this subsection 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 this subsection to any individual.
(2) 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.
(3) 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.
(4) 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:
House Bill No. 4322 (H-1) as amended June 7, 2005
"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. In order to purchase a product described above, you must
provide the retailer with an official Michigan operator's or
chauffeur's license, an official Michigan personal identification
card, or any other bona fide picture identification which
establishes the identity and age of the individual. The retailer
may require you to sign a log or other type of record detailing the
sale of that product. State law further prohibits in a single over-
the-counter transaction the sale of more than 2 packages, or 48
tablets or capsules, of any product described above.".
(5) If the sign required under subsection (4) 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 (4) shall be
printed in 36-point boldfaced type. If the sign required under
subsection (4) is 6 feet or less from the point of sale, it shall
be 2 inches by 4 inches and the statement required under subsection
(4) shall be printed in 20-point boldfaced type.
(6) The department of community health shall produce the sign
required under subsection (4) and, beginning November 1, 2005, make
[the sign available to licensed retailers described in subsection (1) on
the department's internet website free of charge. Licensed retailers
described in subsection (1) shall obtain the sign from the department's
internet website and provide copies of the sign] free of
charge, upon request, to persons who are subject to subsection (4).
(7) It is an affirmative defense to a citation issued pursuant
to subsection (1)(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.
(8) A prosecuting attorney who proposes to offer testimony to
rebut the affirmative defense described in subsection (7) 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.
(9) Notwithstanding any other provision of law, beginning
December 15, 2005, 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) that is contrary
to, or in any way conflicting with, this section. This subsection
does not invalidate or otherwise restrict a requirement or
prohibition described in this subsection existing on December 15,
2005.
(10) Subsections (1) through (5) and (7) through (9) take
effect December 15, 2005.
Enacting section 1. This amendatory act does not take effect
unless Senate Bill No. 189 of the 93rd Legislature is enacted into
law.