It has been requested by several sources that “the other side of the coin” be presented in the effort by cities to curb methamphetamine production by confining medicines containing pseudo ephedrine to a prescription-only standard, which are worth applauding. But is this the best solution?
It has been said that measures being used to try to curb these medicines have not had the intended effect where it has been tried, such as Oregon and Mississippi, and it has harmed consumers who rely on these medicines for their intended purposes, particularly cold and allergy remedies.
Sources tell us that “the DEA estimates 80 percent of meth sold in the United States comes from Mexico and is now accounting for as much as 80 percent of the drug sold in America.”
“The Oregon legislation restricting the availability of pseudo ephedrine has contributed to an increase in trafficking of finishing product, such as Mexican-made ‘ice,’ even though these restrictions have reduced the number of methamphetamine labs reported to be operating in the state.”
In Mississippi it is reported that, “meth use is still as prominent as it always has been. Higher grades of meth are coming from Mexico, where super labs refine the product to the purest form and is then being trucked into the United States.”
The fact that the state has yet to enact a ban on these medicines containing pseudo ephedrine is frustrating. While calling for medicines containing meth precursors to be located behind the counter, Tennessee’s “I Hate Meth Act” subsection n, says, “This section shall supersede any local laws or ordinances currently regulating sales of products containing any immediate methamphetamine precursor.”
In other words, the cities don’t appear to have the regulatory authority to start telling pharmacists and doctors what they can and cannot do outside of issuing a business license.
When the firm Baker, Donelson, Bearman, Caldwell & Berkowitz, PC of Memphis was asked by the Consumer Healthcare Products Association whether Tennessee municipalities and counties are legally entitled to pass measures regulating the sale of pseudoephedrine-containing medications in light of the “I Hate Meth Act,” their answer was:
“We believe that it is likely that a court considering the legality of a local jurisdiction’s attempt to require a prescription for an immediate methamphetamine precursor would find that the local measure is superseded by and/or contrary to the State statute and, therefore, void. Tennessee Code Annotated § 39-17-413, as amended by the 2011 “I Hate Meth Act” (IHMA) regulates the sale of immediate methamphetamine precursors. The Act specifically “superseded” local laws and ordinances that regulated the sale of these products prior to its passage and prohibits any local jurisdiction from passing local laws and ordinances which are contrary to the statute.
Therefore, any local law regulating the sale of immediate methamphetamine precursors should be void. Even if a court were to find that the term “supersede” does not, alone, void future local legislation, the detail and breadth of the IHMA most likely indicates the General Assembly’s intent to act exclusively in regulating the sale of immediate methamphetamine precursors.
In Tennessee, local governments do not generally possess autonomous rights of self-governance. Rather, the power of local government is specifically delegated by the General Assembly. It is well settled in Tennessee that cities and counties as well as metropolitan forms of government have only those powers expressly granted by or necessarily implied from state statutes.
Therefore, a local government is generally prohibited from exercising powers that are not either expressly granted by the government’s enabling legislation or otherwise implied. Even when a local government acts within its scope of power, it must yield to the extent that its actions conflict with the general laws of the state. When an ordinance conflicts with a statute, the ordinance must give way to the imperatives of the statute. (“Municipal authorities cannot adopt ordinances which infringe the spirit of state law or are repugnant to the general policy of the state.”) products. See Tenn. Code Ann. § 39-17-431.
ANALYSIS: In the event local governmental entities in Tennessee promulgate new legislation intended to subject their constituents to additional regulations when purchasing medications containing pseudoephedrine and/or ephedrine at their local pharmacies, we must determine (a) whether the local government has express or implicit authority to pass ordinances intended to further regulate the sale of ephedrine and pseudoephedrine containing medicines in light of the expansive regulations set forth in Tenn. Code Ann. § 39-17-431 and (b) whether Tenn. Code Ann. § 39-17-431(n) specifically forbids any local action regulating immediate precursors in any manner.
Based on our research of Tennessee law, there appears to be no express authority stating that the power to regulate the sale of ephedrine and pseudoephedrine-containing medications has been expressly granted by the General Assembly to either county or municipal governments. Therefore, any such power must necessarily derive from an implicit authorization to act in this regard.
The regulation of the sale of immediate methamphetamine precursors would constitute the exercise of a police power. In Tennessee, local governments do not have inherent police power; such powers must instead be granted by statute or set forth in the entity’s charter. “The police power belongs exclusively to the state and passes to local governments only (through) legislative enactment.”
Does a municipality have the authority to enact and enforce a municipal ordinance that prohibits the sale, delivery or distribution of pseudoephedrine, its salts or optical isomer, or salts of optical isomers, without a valid prescription written by a practitioner who is licensed to prescribe controlled dangerous substances?
A municipality that undertakes to enact an ordinance prohibiting the dispensing, sale or distribution of pseudoephedrine except upon the order of a lawful prescription removes an option carefully preserved by the Legislature for persons desiring to lawfully obtain pseudoephedrine without the necessity or burden of obtaining a prescription. Under the Legislature’s present policy, a person residing in one municipality may lawfully acquire pseudoephedrine in another municipality without the necessity of obtaining a prescription.
A municipality adopting an ordinance prohibiting the dispensing, sale or distribution of pseudoephedrine without a prescription would necessarily conflict with the Legislature’s regulatory policy by removing the ability of persons to lawfully acquire pseudoephedrine products within that community without first obtaining a lawful prescription. In enacting its present policy, the Legislature has exercised its legitimate power to address a general, state-wide concern, and has chosen to preserve the freedom of the consumer to acquire needed pseudoephedrine without the necessity, inconvenience and potential expense of first obtaining a legal prescription. Any attempt by a municipality under our current law, whether a charter municipality or a non-charter municipality, to prohibit the dispensing, sale or distribution of pseudoephedrine from a pharmacy without a legal prescription through the enactment of an ordinance would conflict with the general State policy currently regulating such transactions and such an ordinance would be unauthorized, void, and unenforceable.”
Arguments have been made on all sides of this issue and all with great cause. Meth manufacturing and consumption have cast a shadow across our state and much of the southeast. It is agreed that the state needs to revisit this issue and, at the last, push for revamping the NPLEx system to plug some of the gaping holes that allow excess purchases of medicines containing pseudo ephedrine. It wouldn’t be out of bounds for the state to go a step further and ban over-the-counter sales of these medicines statewide. But that’s for the state to decide.
But a restriction of that magnitude isn’t a guaranteed fix, especially if it’s only done at a local level. A local ban inconveniences law-abiding citizens just to try and punish the law- breakers.
For example, hydrocodone, a well-known pain medicine that is only available by prescription, has been at the center of widespread abuse. A recent national survey on drug use and health by the American Association of Poison Control Centers found that more than 23 million people over the age of 12 abused or misused hydrocodone.
Prosecutors pushing for maximum penalties for those caught buying and selling pseudo ephedrine to known meth makers would do wonders to complement the NPLEx system (currently such a crime is a Class A misdemeanor and carries a maximum sentence of 11 months, 29 days in jail and a $2,500 fine. The NPLEx system is the state’s tracking system of pseudo ephedrine sales that is designed to prevent a person from obtaining more than 3.6 grams of pseudo ephedrine a day or more that 9 grams in a 30-day period).
We understand something has to be done. Punishing the law-abiding citizens and forcing a $5 purchase of a medicine like Sudafed for sinus problems to become a $25 co-pay to the doctor may not be the answer.
If the answer were easy, meth would not be the monster it is today. But will a local ban have the potential to do more harm than good?