Increasing momentum in states for age restrictions on sales of dextromethorphan-containing cough/cold products could drive retail industry support for a federal bill mandating a uniform, nationwide age restriction.

A bill prohibiting the sale of OTC medications containing dextromethorphan to minors passed the Oklahoma Senate March 7, while legislators in two other states ponder similar bills.

The Oklahoma House Health Committee will take up the DXM measure during the week of March 19, according to House co-author Rep. Doug Cox, who is a physician. The Senate version of the bill was introduced by Sen. Charlie Laster Feb. 5.

Lawmakers in Rhode Island and Maryland also recently introduced bills that would place an 18-and-older age restriction on OTC cough and cold medications containing DXM. Both measures are pending.

The Rhode Island bill, introduced in the state Senate Feb. 15 and referred to the Health and Human Services Committee, requires consumers to provide proof of age in order to purchase DXM products.

The Maryland measure, introduced in the Senate Feb. 26, requires ID checks as well, but additionally mandates retail outlets maintain logbook records and enforce a monthly purchase limit of 3.6 grams for any DXM products. The Senate has scheduled a hearing on the bill for March 22.

Although Maryland, Oklahoma and Rhode Island are the first states to propose DXM restrictions in this session, they are unlikely to be the last.

States including California, Connecticut, New Jersey, New York and Pennsylvania have introduced similar bills in recent years (¹ Also see "CHPA Policy On Dextromethorphan Age Restriction Under Development" - Pink Sheet, 13 June, 2005., p. 3).

Federal legislation that would preempt state restrictions on DXM could benefit retailers that otherwise would have to contend with a patchwork of requirements across the country.

Currently, Sen. Joe Biden, D-Del., is looking into "some sort of federal legislation" concerning DXM restrictions and hopes to introduce the bill during this congressional session, according to the National Association of Chain Drug Stores.

Biden met with the trade group within the last few months and discussed the possibility of such a bill, NACDS VP-Pharmacy and Regulatory Affairs Kevin Nicholson told "The Tan Sheet."

NACDS "probably could support a federal law ... so long as it just had an age restriction that prohibited sales to those under 18 without a prescription and that it would preempt state laws," Nicholson said.

Different Problems, Same Solution: Bad Idea?

The current DXM situation has some parallels to the development of pseudoephedrine restrictions over the past several years.

For example, retailers could potentially face a variety of DXM laws, recalling the complex landscape caused by the passage of differing state PSE laws before a national standard was adopted.

Oklahoma led other states in putting PSE behind the counter and may prove a bellwether for requiring DXM age restrictions as well (² Also see "Oklahoma Closes Pseudoephedrine “Smurfing” Loophole In Meth Law" - Pink Sheet, 9 May, 2005., p. 7).

The April 2004 passage of Oklahoma's PSE law led to other states adopting similar restrictions on products containing the decongestant (³ Also see "Pseudoephedrine Tablets Go Behind The Counter In Oklahoma" - Pink Sheet, 12 April, 2004., p. 4).

In the case of PSE, the varying state restrictions caused national retailers to adopt their own policies and eventually support a federal measure that largely preempted state laws.

NACDS lobbied heavily for a uniform, national PSE policy, which was adopted last year.

However, the final version of the federal Combat Meth Act contained a compromise on the state PSE law preemption issue: The regulation set a national standard for PSE restrictions, but did not preempt stricter state laws (⁴ Also see "Pseudoephedrine Will Be Behind The Counter Across The Country By October" - Pink Sheet, 6 March, 2006., p. 5).

A number of major food, drug and mass retailers, including CVS, Wal-Mart, Safeway and Walgreens, already voluntarily restrict DXM product sales to minors.

NACDS and the Consumer Healthcare Products Association have not yet taken solid positions on whether a federal DXM age restriction is necessary, but rather are focusing on educational efforts to combat hasty comparisons between DXM and PSE.

Nicholson suggested state lawmakers explore options such as educational initiatives intended to prevent teen abuse of other household substances, versus immediately adopting sales restrictions similar to those imposed on PSE products.

CHPA echoed the retailers' trade group. "The methamphetamine problem is so serious and so severe - and this is as well - but it does not have the environmental impact with the small toxic labs, etc. It's totally another thing," CHPA states.

The trade group is targeting its educational efforts at consumers by partnering with the Community Anti-Drug Coalitions of America for the February launch of its educational toolkit - "A Dose of Prevention" (⁵ Also see "CHPA Offers Retailers Toolkit To Slow DXM Abuse" - Pink Sheet, 19 February, 2007., p. 12).

The group supports voluntarily age restrictions adopted by retailers, but strongly opposes placing DXM products behind-the-counter with PSE.

Results from a recent survey showing a 15-fold increase in California teens' DXM abuse led the researchers to recommend behind-the-counter restrictions for DXM products (⁶ Also see "Dextromethorphan Abuse Study Raises Questions On Prevention Strategies" - Pink Sheet, 11 December, 2006., p. 10).

However, CHPA argues the restriction would fail to address the underlying issues leading to abuse of the substance while hampering access for legitimate consumers.

Additionally, some of the most serious cases of DXM abuse have been associated with the bulk powdered form of the ingredient purchased by teens over the Internet and industry has widely supported bills restricting bulk DXM.

A measure restricting the purchase of bulk DXM to entities registered with FDA was passed by the House during the 109th Congress, but the bill was not taken up by the Senate before the end of the session. The bill was reintroduced in the House by Reps. Fred Upton, R-Mich., and Rick Larsen, D-Wash., Feb. 8 (⁷ Also see "Bill To Restrict Bulk DXM Sales Reintroduced In House" - Pink Sheet, 19 February, 2007., p. 12).

- Jessica Lake (j.lake@elsevier.com)

Will Oklahoma Dextromethorphan Age Restriction Bill Lead The Way?

More from Archive

More from Pink Sheet