State law enforcement officials asked Congress to require prescriptions for pseudoephedrine-containing drugs, testifying that purchase limits and sales-tracking systems are not stopping the diversion of nonprescription PSE products to methamphetamine production.

The officials, from Mississippi, Missouri, Oregon and South Carolina and the National Narcotics Officers Associations Coalition testified at a House Oversight and Government Reform subcommittee July 24, urging Congress to pass an Rx-only law for PSE products.

“The meth lab problem – independent of, but along with, the meth abuse and addiction nightmare – must be controlled. And the best way to do this while preventing relatively easy [evasion of purchase limits and sales-tracking] is to make pseudoephedrine products available only by prescription,” said Ronald Brooks, NNOAC president.

But they acknowledged the drug industry lobby limits the chances of requiring prescriptions for all PSE-containing drugs.

Oregon and Mississippi are the only states to require prescriptions for all PSE drugs. Rob Bovett, Lincoln County, Ore., district attorney and the Oregon Narcotics Enforcement Association legal counsel, said while the state passed the law in 2005 despite drug manufacturers’ resistance, lawmakers are being swayed against the change in other states.

“The industry is very successful in lobbying and preventing this legislation from moving forward,” Bovett said.

He pointed out the industry lobby spent a state-record amount during the Kentucky legislature’s 2012 session, when Rx-only legislation for PSE drugs failed.

“The industry is very successful in lobbying and preventing this legislation from moving forward.”

– Rob Bovett, Lincoln County, Ore., district attorney

“That doesn’t even include their public campaign in terms of advertising. Massive amounts of money they spent to kill the bill in Kentucky this year. We simply can’t compete with that,” he said.

According to Kentucky Ethics Commission data, the Consumer Healthcare Products Association spent $486,000 on lobbying in the state this year, surpassing the record of nearly $308,000 the trade group spent during the legislature’s 2010 session.

The commission’s records show three other lobby groups, among the more than 350 registered, spent more than $100,000 this year: the Kentucky Hospital Association – $134,473; the state Chamber of Commerce –$121,525; and Altria Client Services Inc., the government relations arm of the parent firm of tobacco product giant Phillip Morris – $104,729.

In Missouri, lawmakers have not passed an Rx-only law for PSE products even though 90% of sales of nonprescription drugs with the ingredient are diverted to meth labs, said Jason Grellner, task force commander in the Franklin County Narcotics Enforcement unit.

“Since 1999, I have been pushed back by industry with a solution that doesn’t work,” Grellner said.

The National Association of Drug Diversion Investigators, a nonprofit that facilitates cooperation among law enforcement, health care professionals, state regulators, and pharmaceutical manufacturers in the investigation and prevention of Rx drug abuse and diversion, recently reported that the National Precursor Log Exchange network stopped sales of more than 1 million grams of PSE in OTC drugs during the first half of the year in 16 states linked to the network ([A#05120716012]).

The industry-funded NPLEx system blocks sales when a purchase goes beyond the Combat Methamphetamine Epidemic Act limit – 3.6 grams per day and 9 grams in 30 days. For states hooked up to the system, NPLEx also shows when consumers attempt to exceed the limits by purchasing PSE-containing OTCs in multiple states Also see "Electronic Tracking Success Could End Rx-Only Pseudoephedrine In Mississippi" - Pink Sheet, 19 March, 2012..

Exhibit A: Rx-Only States

In prepared testimony before the Health Care, District of Columbia, Census and the National Archives Subcommittee, Bovett and Marshall Fisher, executive director of the Mississippi Bureau of Narcotics, said the PSE-diversion problem decreased substantially after each state passed laws making all drugs with the ingredient prescription-only Also see "Mississippi PSE Prescription Switch Will Not Start An Avalanche - CHPA" - Pink Sheet, 8 February, 2010..

Fisher testified that PSE sale-tracking requirements Mississippi implemented in 2005 and the sales limits Congress imposed in the Combat Meth Act did not slow the spread of the state’s meth problem. But two years after Mississippi lawmakers passed an Rx-only law in 2010, the number of meth arrests is down more than 70% and the number of meth labs in the state is down more than 90%, he said.

According to Fisher’s submitted testimony, the total number of meth-related incidents in the state decreased from 546 in the first half of 2010 to 162 in the first half of 2012 and the number of meth labs dropped from 252 in the first half of 2010 to 17 in the same period this year.

“Our state narcotic agents are no longer chasing, seizing and prosecuting the tremendous number of labs, which created a severe drain on manpower and resources. They are now able to focus their efforts and resources on wide-ranging narcotics investigations,” Fisher said.

“We cannot and will not arrest ourselves out of this self-created public health issue,” he added.

The law enforcement officials were critical of NPLEx, saying the system generates information about the problem without contributing to solving it. “It’s an investigational tool. That’s all it is,” Bovett said.

South Carolina connected to NPLEx in January 2011, but the state’s meth problem increased that year, according to Donald Dorsey, a lieutenant in the state’s Law Enforcement Division.

“Despite the good intentions of NPLEx to better track and limit illicit EPH/PSE purchases, it has not stopped domestic meth manufacturing in South Carolina. NPLEx is not limiting illicit purchases,” Dorsey said.

“Any legislation that seeks to merely lower the purchase limit or track purchases does not effectively combat domestic meth production” he added.

Qualified Support From Members

Subcommittee members acknowledged law enforcement’s difficult and dangerous challenge in stopping meth production. But only one, ranking minority member Danny Davis, unequivocally supported an Rx-only law, and he alluded to the steep odds legislation would face.

“It’s as clear as day that we need to move in the direction that you suggested. No matter what the opposition might be, you certainly have one vote in the House.”

– Illinois Democrat Danny Davis

“It’s difficult for me to think of any reason that we couldn’t duplicate [the results of Mississippi and Oregon] throughout the country,” said Davis, D-Ill. “I for one would be prepared to support at this moment national legislation,” he said.

“It’s as clear as day that we need to move in the direction that you suggested. No matter what the opposition might be, you certainly have one vote in the House of Representatives in favor,” Davis added.

Tennessee Republican Scott Desjarlais explained that as a physician, he considers phenylephrine an effective replacement for PSE in OTC allergy drugs. He also said he “can guarantee” that no physician wants to treat patients injured in meth lab explosions or with problems caused by meth use.

But Desjarlais did not go so far to state that he backs making all PSE products Rx-only. “We need to find a better way to deal with this,” he said.

Subcommittee Chairman Trey Gowdy, R-S.C., reminded the witnesses that in addition to industry opposition, most consumers would question an Rx-only law for PSE products.

“The public is tired of having its behavior changed because a certain percentage of the people will not or just cannot comply with the law,” Gowdy said. “There is a frustration in the general public that, ‘It’s always us who are inconvenienced because of the criminal element,’” he added.

CHPA, in testimony submitted to the subcommittee, maintained the drug industry argument that Combat Meth Act purchase limits and NPLEx address the PSE-diversion problem without blocking consumers’ access to nonprescription drugs or increasing health care costs with an Rx requirement.

CHPA, however, also is aware that some consumers attempt to circumvent PSE purchase limits and sales-tracking networks by buying the products in multiple stores. “We realize that NPLEx is one piece of the puzzle,” CHPA President and CEO Scott Melville said in the submitted testimony.

Melville said the trade group is working with retail organizations and community leaders in several states on an initiative to educate consumers about regulations against purchasing PSE products in multiple stores, or “smurfing.” CHPA is providing posters to retailers to inform customers that if they purchase PSE on behalf of strangers or persons linked to meth labs, they are committing a crime.

“These materials make it clear that buying precursors for a meth cook is illegal and an integral part of a criminal process that can ruin lives and families,” according to CHPA’s testimony.

Oregon Sen. Ron Wyden supports a nationwide Rx-only requirement for PSE products and in 2010 circulated draft legislation, but the Democrat has not introduced a bill for that purpose. Congress in 2010 passed the Combat Meth Enhancement Act, authored by Sen. Dianne Feinstein, D-Calif., to tighten enforcement by requiring retailers to self-certify their compliance with Drug Enforcement Administration regulations under the 2006 act Also see "Congress, Missouri Enhance Meth Enforcement" - Pink Sheet, 4 October, 2010..

State Officials Urging Rx Pseudoephedrine Face Strong Lobby

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