On Wednesday, March 2, 2011, the West Virginia House of Delegates passed House Bill 2946, which would require a person to obtain a doctor’s prescription before a person could purchase numerous over-the-counter medications that contain pseudoephedrine or certain other drugs that are associated with the manufacture of methamphetamine.  The vote to pass HB 2946 in the House of Delegates was 77-23 (Dems 53-12; Reps 24-11).

HB 2946 is set for a hearing this Monday, March 7, 2011, at 10 AM in the West Virginia Senate Judiciary Committee. This is the last stop before HB 2946 goes to the Senate floor.

Supports of HB 2946 claim that methamphetamine manufacturers have been able to effectively circumvent current state laws regulating these drugs by constantly going from one pharmacy to another and accumulating the extremely large quantities of regulated drugs necessary to engage in the extremely dangerous process of manufacturing meth.

HB 2946 is entirely unnecessary and will only burden frequent cold & allergy sufferers who will be forced in many cases to switch to less-effective medications when less-restrictive alternatives exist.

In 2005, the Legislature passed the Methamphetamine Laboratory Eradication Act.  As part of this law, the Legislature extensively regulated the sale of numerous over-the-counter cold medicines.  These regulations simply are not being enforced.  Instead of enforcing the current law, our public servants who have the legal responsibility to enforce the law have instead chosen to seek new, more restrictive laws rather than make the current laws work.

West Virginia Code § 60A-10-4(a) provides that “[a]ny person who within any thirty-day period knowingly purchases, receives or otherwise possesses more than three packages of” certain regulated drugs is guilty of a misdemeanor punishable by up to a year in jail and/or a $1,000 fine. A second or subsequent offense is a felony.

The same section also provides that “any person who knowingly possesses any amount of” any of the same regulated drugs “with the intent to use it in the manufacture of methamphetamine or who knowingly possesses a substance containing” any of the same regulated drugs “in a state or form which is, or has been altered or converted from the state or form in which these chemicals are, or were, commercially distributed” is guilty of a felony punishable by up to 10 years in prison and/or a $25,000 fine.

West Virginia Code § 60A-10-5 requires the same regulated drugs to be kept behind a pharmacy counter, prohibits their sale to minors, and requires a person purchasing any of them to show a photo ID and sign a sale registration form. West Virginia Code § 60A-10-8 requires each registration form to include the date of the transaction; the name, address, and driver’s license number of the purchaser; and the name, quantity of packages, and total gram weight of the regulated drugs purchased. Moreover, that section requires this information to be regularly reported to and retained by the state Board of Pharmacy.

There is simply no good reason why the state Board of Pharmacy should not have created and maintained a fully-functional database of the information collected on the same of the regulated drugs, as required by the Legislature in 2005. The Legislature intended for the Board of Pharmacy to create and maintain this database for use by the Board and local law-enforcement agencies, prosecuting attorneys, and responsible pharmacies to detect and apprehend individuals illegally stockpiling regulated drugs.  The information in this database should be able to alert the appropriate agencies when certain individuals have purchased large amounts of regulated drugs. In turn, this information should be used by law-enforcement officials to obtain video surveillance from each pharmacy confirming the identity of the individual(s) involved, which should lead to criminal prosecutions under the current law.

So far, I have discussed only state law.  In 2006, Congress passed the Combat Methamphetamine Epidemic Act of 2005, which enacted many of these same regulations under federal law.  Unlike West Virginia’s law, the federal law did not mandate the maintenance of centralized electronic tracking databases.  However, unlike state law, the federal law contains far more severe penalties for individuals who knowingly make false statements when purchasing one of the regulated drugs: a felony punishable by up to 5 years in federal prison and/or a $250,000 fine.

The federal law does not preempt more restrictive state laws or more aggressive means of enforcing parallel state laws. In many cases-as already happens with other crimes where both state law and federal law are involved-there could be collaboration among federal, state, and local officials to use federal law enforcement, judicial, and corrections resources to partially relieve our state of the burden of dealing with the meth problem alone.

For these reasons, I believe the Legislature must avoid the easy way out and instead demand that the laws on the books now be enforced before new, more restrictive laws are passed.  Over the course of many years, I have personally lobbied the Legislature on behalf of various pro-freedom causes where individual rights have faced opposition from well-meaning but misguided opposition that has sought to combat various social and public safety problems with laws that do more to restrict the personal freedom of honest, decent, law-abiding individuals rather than focus the efforts of government more closely upon the sources of the problems at hand.

Before the Legislature drops a sledgehammer on lawful users of regulated cold medicines, fellow West Virginians need to know whether the state Board of Pharmacy has complied with the Legislature’s 6-year-old mandate to create an electronic tracking database. If not, why not? If this database is being operated in compliance with the Legislature’s mandate, why is it not being used to identify the individuals who are allegedly driving from one pharmacy to another, amassing large quantities if regulated drugs for making meth?

No one should deny that effective enforcement of the current law may well be a time-consuming task that will require more financial resources and personnel to effectively combat the current meth problem.  The alternatives are to either tolerate a further breakdown in law and order or pass new, more restrictive laws that will severely inconvenience legitimate users of the regulated medications and whose enforcement simply cannot be taken credibly in light of apparent lack of enforcement of what I believe are more than adequate state and federal laws. If, in fact, aggressive enforcement of the existing state laws would be too great a burden on state and local law enforcement and judicial resources, why has there not been sufficient collaboration with federal law enforcement agencies to seek federal prosecution of individuals who are violating largely identical federal laws?

The state Senate has a choice: it can do the seemingly easy thing and pass HB 2946 and the Legislature can bask in self-congratulatory praise for “doing something” or they can do the right thing and insist upon the enforcement of a good law passed 6 years ago that seems to have been all but ignored if we are to believe all the hype surrounding HB 2946.  Our fellow West Virginians deserve better.

Montani Semper Liberi!