AG says locals can’t mandate pseudoephedrine by prescription only

Cities and counties passing local ordinances to require a prescription for medications containing pseudoephedrine run afoul of existing state law, according to state Attorney General Bob Cooper in an opinion released today.

“Enactment by a Tennessee county or municipality of a local ordinance that prohibits the sale, delivery or distribution of over-the-counter products containing ephedrine or pseudoephedrine without a valid prescription from a health care professional licensed in Tennessee would violate Tenn. Code Ann. § 39-17-431 (the “Meth-Free Tennessee Act of 2005,” as amended in 2011),” says the opinion released Monday.

“That section demonstrates the General Assembly’s intent to occupy the entire field of regulation of immediate methamphetamine precursors such as ephedrine or pseudoephedrine, so as to permit no local enactments,” says the opinion requested by Rep. Judd Matheny.

The full opinion is HERE.

Several local governments have enacted such ordinances, even though bills to require pseudoephedrine by prescription only have failed in the Legislature.

Here’s an AP story (basically rewriting a Chattanooga TFP story) written prior to release of the AG opinion:

CHATTANOOGA, Tenn. (AP) — Since a small Franklin County town passed an ordinance requiring a doctor’s prescription to buy pseudoephedrine-based cold medicines, other Tennessee communities have taken the same action in hopes of cracking down on methamphetamine production.

The goal is to sever a link from the supply chain in making meth, the Chattanooga Times Free Press (http://bit.ly/18inUOv ) reports.

Most of the city ordinances call for a $50 civil penalty assessed against anyone who sells the medicine to someone who doesn’t have a valid prescription.

The town of Huntland in Franklin County passed its ordinance last June. Other cities in Franklin County followed Huntland’s lead.

The man who spearheaded the effort, Winchester Police Chief Dennis Young, began road trips across the state to push for passage of similar ordinances.

The meth ordinance has drawn fire from the Municipal Technical Advisory Service, the Tennessee Municipal League and the Tennessee Municipal Attorneys Association, as well as drug companies that make cold medicine.

“TML and MTAS are of the opinion that federal and state law occupy the field in regulating these drugs and that ordinances adopted by cities would be of doubtful validity,” said a correspondence sent last summer to Tennessee cities from Dennis Huffer, with the Municipal Attorneys Association. “MTAS is urging cities to be cautious and obtain an Attorney General opinion approving cities’ authority in this regard before adopting such an ordinance. TMAA joins MTAS in urging caution.”

Tennessee’s attorney general has not weighed in, the newspaper reported. (Note: Now he has; see above.)

The Consumer Healthcare Products Association, an advocate for the healthcare products industry, supports state-level legislation because, it says, local measures are “not effective.”

“Everyone involved in this debate is committed to advancing solutions to address methamphetamine production in Tennessee,” association spokeswoman Elizabeth Funderburk said. “We believe the state legislature is best positioned to set policy for the state. Moreover, we have concerns that these efforts not only unnecessarily burden residents in certain jurisdictions but believe these initiatives have questionable legality and run counter to the spirit of the legislation passed by the Tennessee legislature in 2012.”

Current Tennessee law requires buyers of the cold and allergy medicines containing the precursor to show a photo ID and sign a logbook that is submitted to the state. People may not buy more than 3.6 grams of pseudoephedrine per day or more than 9 grams over 30 days.

Law enforcement officials say “smurfs,” — people who buy pseudoephedrine-based cold medicines for meth production — circumvent those laws by traveling from town to town or even state to state to stay ahead of record-keeping and purchasing limits.

Spring City Manager Stephania Motes said when Decatur, Tenn. — on the east side of the Tennessee River in Meigs County — passed the ordinance, smurfs descended on the Rhea County town.

“That was sort of the catalyst because we started getting a lot more traffic coming into Spring City, and so our ‘pseudo’ sales started going through the roof because we didn’t have that ordinance and Decatur did,” she said.

Motes said another motive in passing the measure was that pharmacists are forced to become the “policemen” on the front line of sales of the cold medicine meth cooks use.

“You cannot make meth without pseudoephedrine,” she said. “We felt this not only helps the pharmacists out but helps in our fight against meth.”

After Spring City passed the first of two readings of its ordinance in November, Dayton, Tenn., leaders set a public hearing on the idea in January to get some input from the public, according to Dayton City Recorder Thomas Solomon.

Young said Spring City is the 18th Tennessee city to pass the ordinance. More than 40 others are taking a serious look at the measure, he said.