A New York county adopts an ordinance limiting sales of dextromethorphan products to consumers 19 years old and up, while trade groups are looking to a uniform national solution that will curb abuse, maintain consumer access and limit retailer burdens.

Suffolk County, N.Y., legislators on May 15 unanimously approved a local law, which they say is the first nationwide, banning the sale of DXM products to consumers 18 years old and younger.

The Suffolk resolution creating the law says, "Recent news accounts indicate that children and teens across the country are intentionally ingesting large amounts of non-prescription cough and cold medicines containing [DXM] as a recreational drug." The law will take effect in three months, according to the resolution.

While the Consumer Healthcare Products Association emphasizes education as the most important strategy for combating abuse, the association does not oppose state, local or federal DXM age restrictions. However, any sales restriction "should strike an appropriate balance between curbing abuse and preserving legitimate consumer access without undue burdens on retailers and pharmacists," CHPA spokesperson Elizabeth Funderburk told "The Tan Sheet."

"We're on record as supportive of the Suffolk County ordinance, and support communities' efforts to address DXM abuse," Funderburk noted.

The association supports age restrictions with manual point-of-sale identification checks incorporated into retailers' existing check-out systems and procedures, but not transaction records or limits to consumer access, as are required for pseudoephedrine-containing products.

Transaction requirements such as logbooks can add minutes to the purchase experience.

Sen. Joe Biden, D-Del., is reportedly working on a national DXM age-restriction bill (¹ Also see "Will Oklahoma Dextromethorphan Age Restriction Bill Lead The Way?" - Pink Sheet, 12 March, 2007., p. 3).

CHPA also looks to the retail industry, as well as consumer education, as a front-line resource for curbing DXM abuse.

"Employee training is essential to educating sales personnel and customers alike, and retailers should undertake good faith efforts to train employees," Funderburk said.

As part of a program it launched with Community Anti-Drug Coalitions of America in February - "A Dose of Prevention" - CHPA will host town hall meetings in August across the country to increase awareness of OTC product abuse (² Also see "CHPA Offers Retailers Toolkit To Slow DXM Abuse" - Pink Sheet, 19 February, 2007., p. 12).

The Retailer Perspective

The National Association of Chain Drug Stores expects local DXM laws to create operating problems for its members, although voluntary retailer age restrictions are proliferating.

"Most of our members operate in multiple states and in multiple jurisdictions and it is difficult to operate the chain operation when you have different requirements across state and local boundaries," NACDS Vice President-Pharmacy and Regulatory Affairs Kevin Nicholson said.

The question of state and local laws creating different requirements for OTC retailers helped drive federal restrictions in the case of PSE products. The Combat Meth Act of 2005 was created to stop purchases of large quantities of PSE OTCs for the purpose of making methamphetamine (³ Also see "Pseudoephedrine Will Be Behind The Counter Across The Country By October" - Pink Sheet, 6 March, 2006., p. 5).

The act set a national standard for PSE restrictions, pre-empting less strict state or local laws but not stricter ones. Pre-emption helped minimize the possibility of retailers working under different rules in each state.

NACDS wants at least the same level of pre-emption for a federal regulation if age restrictions on DXM product sales are mandated.

"We don't support localities passing their own restrictions," Nicholson said. "We would support federal legislation for an age restriction, but not at the state or local level."

Major Chains Adopting Age Restriction

Ahold USA is the latest retail chain to limit DXM sales. On May 15 the Landover, Md.-based firm said its Giant Food Stores chain in Pennsylvania and its Tops Markets in the northeast began an age restriction for DXM product sales on May 13.

Ahold's Giant Food chain in mid-Atlantic states and its Stop & Shop Supermarket chain in New England states will apply the restriction starting May 20, the firm said.

Ahold Public Affairs Manager Jamie Miller said the firm did not make the change to ward off possible state or local laws requiring age restrictions on DXM product sales. "It's a way to minimize the abuse of these products that's been documented by many teens across the country," Miller said.

Cashiers in the Ahold chains' stores will ask for identification from consumers buying the products when it appears they are not 18 or older. The products are "going to continue to be on display in the sales floor," Miller said.

Ahold does not expect DXM products will have to be moved behind the counter, as PSE-containing products have been. Miller said purchases of DXM products for inappropriate use are by a particular group of consumers while purchases of large quantities of PSE products for making meth were made by consumers across a wide age span.

"It's a specific group we've identified- young people - that has been abusing these products," he said.

"Millions of people use these products all the time but because there has been a recent trend of many young people abusing these products, we decided to take the steps that we did."

According to NACDS, its members with age restrictions on DXM sales include Brooks Eckerds; Costco; CVS/Caremark; H-E-B Grocery Stores; Kerr Drug; Kmart; Kroger; Meijer; Raley's; Rite-Aid; Target; Walgreens and Wal-Mart.

Nicholson said the association does not advise members on DXM age restrictions or other business decisions. "We don't get involved in how they should be conducting their operations, but legislatively ... we do support a federal age restriction," he said.

While a federal DXM retail sales bill has not been introduced, Reps. Fred Upton, R-Mich., and Rick Larsen, D-Wash., have reintroduced legislation to restrict online sales of bulk dextromethorphan to entities registered with FDA.

The Dextromethorphan Distribution Act of 2007 (H.R. 970) aims to curb purchases of the raw ingredient in bulk powdered form, specifically targeting preventing teens from making online purchases, but does not propose methods of preventing abuse of OTC cough medicines. (⁴ Also see "Bill To Restrict Bulk DXM Sales Reintroduced In House" - Pink Sheet, 19 February, 2007., p. 12).

The Upton-Larsen measure, which has CHPA's support, has been referred to the Committee on Energy and Commerce, but has not been set for a hearing. Washington Democrat Patty Murray introduced a companion bill, S.378, in the Senate May 14, according to her office.

State Action Slowing?

State bills on DXM sales restrictions generally have received little attention this year. Although the Oklahoma Senate in early March passed S.B. 951 to prohibit sales to minors, the bill has languished in the House as the end of the legislature's 2007 session approaches May 25.

In New York, where the legislature is scheduled to adjourn in late June, S. 3444 was introduced in March to limit minors' purchases of DXM products to one bottle per transaction, while allowing minors to make purchases for legitimate purposes. It has not been addressed in a hearing since being referred to the Senate Codes Committee after its introduction (⁵ Also see "As Dextromethorphan Age Restriction Bills Proliferate, NY Bill Tightens Limit" - Pink Sheet, 16 April, 2007., p. 11).

In Georgia, H.B. 739 proposed banning sales of DXM products to minors, but was not moved out of committee before the legislature's 2007 session ended April 20. Similar bills introduced in Maryland (S.B. 939) and in Virginia (H. 875) also stalled before each state's legislature adjourned for the year.

NADCS's Nicholson said it is likely state lawmakers will not stop introducing DXM sales bills, but with little action on the bills so far it appears most of them prefer an industry solution combined with consumer education over a legislative remedy.

"I think maybe legislators do see it's a problem of teens abusing commonly available household products - teens kind of experimenting with things that are available around the house and are available in stores - and maybe it's just a passing fad," Nicholson said.

- Malcolm Spicer (m.spicer@elsevier.com)

First DXM Age Law Passes While Voluntary Restrictions Increase

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