Following Oklahoma's Lead, States Target Cold Remedies in Fight Against Methamphetamine 1/21/05

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Across the Midwest and from Montana to Mississippi, lawmakers and law enforcement are making a concerted push this year to restrict consumer access to legal over-the-counter (OTC) cold and allergy medications, such as Sudafed, which are used by tens of millions of people every year. The cold and allergy remedies are in the sights of lawmakers because they contain either ephedrine or pseudoephedrine, key precursor chemicals used in the home manufacture of methamphetamines.

Probably the most demonized drug in America today, methamphetamine is a stimulant that initially produces feelings of alertness and well-being, but when abused can cause psychological disorders, such as obsessive-compulsive behavior, paranoia and violent outbursts. (Never mind for now that speed freaks have reason to be paranoid: The cops ARE after them.) Long-term abusers of the drug can also suffer physical ailments, including cardiac arrhythmias, seizures, and convulsions, as well as possible long-term changes in brain chemistry.

But while some law enforcement officials and anti-drug "educators" portray methamphetamine as a singularly dangerous substance, it is a member of the amphetamine family of stimulants, the same drugs that were used as diet pills by housewives in the 1970s ("mother's little helpers"), as "stay awake" pills by US Air Force pilots flying long missions in the Afghan War, and, paradoxically, as medications (Ritalin, Adderal) used to tranquilize millions of American children diagnosed with hyperactivity or attention deficit disorders. In other words, it's all speed -- there is nothing intrinsically radioactive about meth. The problems that occur from meth abuse derive not from some properties of the drug alone, but from the way in which some drug users interact with it.

Such nuances are lost in the midst of the frenzy and hyperbole surrounding the drug. As usual, law enforcement officials are wont to make extreme claims about the drug's dangers that go beyond the facts. A common canard heard from cops across the land is that 90% -- or 95% or 98% -- of meth users become addicts. Similarly, police are quick to point to horrendous acts of violence committed by meth users, such as the man in New Mexico who cut off his son's head a few years ago. But as Jacob Sullum, author of "Saying Yes: In Defense of Drug Use," pointed out in that particular case, the man in question had a long history of anti-social violence predating his adventures with meth.

Be that as it may, the war on methamphetamines is raging across the land, with state after state passing harsh new laws aimed not only at cooks and dealers but users themselves. In Oklahoma, for instance, under a package of laws passed last year, simple possession of meth is now punishable by a mandatory minimum seven-year prison sentence, with no possibility of probation or a suspended sentence.

Some states are following the model of Oklahoma, which in addition to ratcheting up penalties for users, cooks, and dealers, last year also imposed tight restrictions on OTC cold and allergy remedies as part of its effort to reduce the number of meth labs, including making such products Schedule V drugs, which can only be dispensed by a pharmacist. Oklahoma law enforcement and political figures are touting the move as a great success to be emulated elsewhere, citing a 50% reduction in meth lab busts since the law went into effect last spring.

Those numbers are being cited by lawmakers and law enforcement officials across the country as a reason to emulate Oklahoma, although trade associations representing OTC manufacturers, pharmacies, and convenience stores are quick to point out that such reductions have not been independently verified. They also note that the apparent reduction in meth lab activity in Oklahoma could be a function of harsher penalties, not restrictions on Sudafed and similar substances.

In an issue brief produced last fall, the National Association of Chain Drug Stores (NACDS) said that the Oklahoma law "appears to be working not because it makes pseudoephedrine a Schedule V controlled substance, but because of other provisions in the bill," namely the harsh criminal penalties, including the denial of bond to persons charged with meth offenses, that are part of the law. "Undoubtedly," said NACDS, "these enhanced law enforcement provisions are an important reason why the Oklahoma law appears to be working."

The Consumer Health Products Association (CHPA), the trade group representing manufacturers of Sudafed and other cold and allergy remedies containing the precursor drugs, supports some restrictions on the sales of such products, along with harsher meth penalties, but like the NACDS does not support making Sudafed and the like Schedule V drugs, as Oklahoma did. "While clandestine labs produce very little meth, they create hazardous problems for local law enforcement, communities, children, and the environment," noted the CHPA in a position statement on the subject last fall. "CHPA feels strongly that the only way to significantly address methamphetamine production and abuse is through a multi-faceted approach that includes retail sales limits, strong law enforcement, treatment, and demand reduction initiatives that promote cooperation within communities to stem the production of meth locally."

The Oklahoma approach is "overly restrictive and misguided," CHPA said. "In many parts of the state, Schedule V restricts families' timely access to important medicines they need, particularly consumers living in rural communities and other areas without 24 hour pharmacies who can only obtain these medicines from the pharmacist during pharmacy hours." The association also complained that reclassifying such products as Schedule V drugs "conveys a false sense of comfort in communities and does nothing to address the vast majority of meth used in Oklahoma or the US." Indeed, according to the Drug Enforcement Administration (DEA), roughly 80% of all methamphetamine consumed in the US is produced not in home meth labs but in "super labs" run by drug trafficking organizations in California and Mexico. Restrictions on OTC cold and allergy medications would have absolutely no impact on these operations, which are not going down to the local 7-11 to buy truckloads of Sudafed.

"By only focusing on the identification and elimination of meth labs, law- and policy-makers are only addressing one of the key issues," said Mary AnnWagner, vice-president for pharmacy and regulatory affairs for NACDS. "There needs to be an inclusive approach when creating solutions, such as increased law enforcement measures, cutting off illegal supply chains and funding for prevention and treatment," she told a congressional committee in November.

Taking an aggressively proactive approach to protect its products, CHPA is working with elected officials to draft comprehensive state and federal legislation to attack the problem of methamphetamine use and home production. It has also established a national Meth Watch program designed to curtail the sales and theft of pseudoephedrine and ephedrine products and to encourage cooperation between retailers and law enforcement. It also noisily supports programs by the Partnership for a Drug-Free America and physicians' groups to undertake meth prevention and education programs aimed at youth.

But while the industry associations have decided they can live with some restrictions on their products, they find themselves up against a coordinated effort to move beyond limits on quantities that could be legally purchased and actually make such products Schedule V drugs, as was done in Oklahoma.

A December meeting in St. Louis brought together law enforcement and elected officials from 12 states across the Midwest and as far away as Louisiana and Ohio to plot a lobbying effort to push for Schedule V designations for OTC cold and allergy medications. Led by Franklin County, MO, Sheriff's Department Detective Jason Grellner, the cabal is seeking Schedule V laws across the land and is confident that can be achieved despite the opposition of the trade associations, which are keeping a close eye on their $3 billion a year market in OTC remedies.

"To say that we're excited is an understatement... 2005 is going to be our year," Grellner told the St. Louis Post Dispatch. Grellner, who supervises a local anti-drug unit that has become a state leader in shutting down meth labs, has become a national spokesman for cops and politicians waging war against what he calls the "cold pills connection." He is fond of comparing the meth problem to a serpent. "What we've been doing for years is slapping at the snake's tail with a shovel. We might be fighting it, but it doesn't do any good," he said. "But if you cut off the head, the snake dies. It's that simple."

And other states need to climb aboard the Schedule V train, he said. "What states need to decide now is whether to get on the train that Oklahoma let out of the station, or get run over by it," Grellner said. "There's 12 states that are going to try for Schedule 5 next year. Whoever doesn't pass it is going to be stuck with a lot of meth cooks."

Missouri is one of a number of states that have already passed laws restricting the sales of OTC cold and allergy remedies, but Grellner has yet to succeed in winning a Schedule V vote. Oregon is another. There the state Board of Pharmacy, acting at the request of Gov. Ted Kulongoski, adopted an emergency six-month restriction on the sales of Sudafed and other over-the-counter decongestants in October 2004. Chances are that the restrictions will be extended later this year.

In Texas, federal drug enforcement officials are waging "a crackdown" on Sudafed and other over-the-counter medications as part of their war on methamphetamine. The US Attorney's Office for the Eastern District of Texas has created Operation Meth Busters, designed to help state, local, and federal law enforcement officials build cases against methamphetamine cooks and users so prosecutors can aggressively prosecute them. Meth Busters is also planning civil cases against retailers who "improperly" sell products containing pseudoephedrine and wholesalers who falsify records to sell the stuff in bulk.

Ironically, Texas law enforcement reports an unlikely ally of its efforts to crack down on small-scale meth labs: Mexican drug trafficking organizations. According to Plano-based FBI agent Greg Whitten, the Mexican traffickers are marketing "ice," a potent, smokable version of the drug, which has already taken over the market in cities such as Houston and Dallas. Whitten suggested to the Longview News-Journal that small-scale meth labs are already on their way out regardless of restrictions on non-prescription cold and allergy medications. "Over the next year or two, you'll see less and less manufacturing," he predicted.

It's not just Houston and Dallas. According to one meth user in Austin, ice is not only prevalent there, it is preferred. "Who wants to do that crap the tweakers cook up?" she told DRCNet. "You never know what you're getting, and sometimes it makes you sick. Ice is much better and it's much cleaner," she said.

Other anti-meth lab measures are sprouting across the country, from city and county ordinances in Minnesota to laws criminalizing meth manufacture in homes where children are present in Colorado, Illinois and other states.

There is another solution to the meth lab problem, but given the overheated atmosphere surrounding the issue, no one dares speak it aloud: Make methamphetamines available through regulated commercial or medical channels to those who wish to use them. If this were to occur, home meth labs would disappear virtually overnight, as consumers seek safe, reliable outlets for the product, and the millions of non-meth users who seek Sudafed or similar products only to relieve a cold or other complaint would not be forced to ID themselves, sign registries, and end up in government databases just because they wanted a cold pill.

But that isn't going to happen this year. Instead, numerous states are moving ahead with efforts to fight meth labs through restricting the sales of OTC cold and allergy medicines. According to a by no means comprehensive list compiled by DRCNet, while the advocates of the Schedule V approach have not yet prevailed, legislation to restrict Sudafed and the like in the name of the war on meth is pending in the following states:

ARKANSAS: State Attorney General Mike Beebe announced last month an initiative to limit access to pseudoephedrine and ephedrine. Under Beebe's proposal, non-prescription medicines that contain those substances could be purchased only from a registered pharmacist and would require buyers to show proof of identity. Pharmacists would be required to keep a log of purchases that could be audited by state investigators. Like most advocates of restrictions on cold medicines, Beebe cited the Oklahoma experience. The Oklahoma law has had "a huge chilling effect" on meth labs, he told the Arkansas Press-Gazette. "Oklahoma is doing this now, and they've had a huge impact," Beebe said. Two years ago, Arkansas passed a law limiting the quantity of medicines containing those substances that a person could buy, but that hasn't worked, he said. "They're just going from retailer to retailer," Beebe said. "They're defeating the law."

INDIANA: In November, a state task force proposed tight restrictions on the purchase of Sudafed and similar products. Customers would have to go to the pharmacist's window, sign their names in a log, and present valid photo identification before being allowed to treat their cold symptoms. The number of packages a customer could buy in a month could also be restricted. One member of the Methamphetamine Abuse Task Force, Rep. Trent Van Haaften (D-Mt. Vernon), told the Evansville Courier & Press such inconveniences to consumers were a small price to pay. "Without pseudoephedrine, you're not going to end up with the final product of meth," he explained. "If you restrict that, the end product is going to be reduced."

KANSAS: Citing an alleged increase in Oklahoma speed freaks coming across the state line to score Sudafed and other cold and allergy medications, Kansas officials are also considering restrictions on the non-prescription drugs, the Kansas City Star reported last month. The Kansas proposal would limit the sales of such medications and require that they be purchased directly from a pharmacist. Kyle Smith, a spokesman for the Kansas Bureau of Investigation, told the Star the number of meth labs could decrease by 50% if such measures were adopted. But meth labs may already be on the decline in the Sunflower State. According to the KBI, there were 649 meth lab busts in 2003, and only 529 last year.

MINNESOTA: Republican Gov. Tim Pawlenty is pushing for a state law limiting access to over-the-counter drugs with meth components. The proposal would make state-wide restrictions already imposed by some cities and counties in the state. In Austin, MN, customers may only purchase two Sudafed packages at a time and must be at least 18 years old. The law includes other medications containing meth precursors as well.

MISSOURI: Grellner and his friends at the statehouse plan to push again this year for a Schedule V designation for Sudafed and the like, he told the St. Louis Post-Dispatch.

MONTANA: Sens. Rick Laible (R-Victor) and Trudi Schmidt (D-Great Falls) will sponsor a joint bill that would limit purchases of Sudafed and similar substances to two packages at a time and limit purchases to persons over 18 years of age. Sen. Jerry Black (R-Shelby) has another idea: Make possession of less than 1,000 pounds of anyhdrous ammonia -- another meth precursor -- a felony. Farmers would be excluded.

NEBRASKA: In late December, Gov. Mike Johanns (R) unveiled an anti-meth legislative package that would require people buying Sudafed and similar medications to prove their identities and sign a register. Under Johanns' proposal, such products must be sold only at pharmacies and kept in a locked case behind the counter. "Meth is a serious problem in our state and, for that matter, across the country, and this bill continues a longstanding commitment to combat the problem from a number of different angles," Johanns said during a new conference with Lt. Gov. Dave Heineman and Attorney General Jon Bruning. "This legislation will make it harder for meth manufacturers to get their supplies," he said. Johanns' package would also increase meth penalties to be in line with those for cocaine and would designate meth "an especially hazardous drug. Like other Midwest states, Nebraska is following Oklahoma's example and is fearful that if it doesn't, it will attract speed freaks. "It only intensifies the need to do so in Nebraska," he said. "We must not allow our state to become a magnet for meth labs."

TEXAS: Rep. Leo Berman (R-Tyler) has vowed to propose statewide restrictions on Sudafed and other non-prescription cold and allergy medicines this year.

Of course, pseudoephedrine and ephedrine are not the only common household products used in home meth manufacture. No word yet on moves to criminalize or otherwise restrict the possession of match heads, lithium batteries, or ether-containing engine cleaners.

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Issue #371 -- 1/21/05

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Editorial: Unfortunate Bedfellows | Following Oklahoma's Lead, States Target Cold Remedies in Fight Against Methamphetamine | Mexican Stand-Off: Government Sends in Tanks, Soldiers in Effort to Retake Prisons from Narcos | Blogging: A Stunning Admission by Baltimore Police Officials, and More | This Week's Corrupt Cops Stories | Newsbrief: German Supreme Court Rejects "Zero Tolerance" Drugged Driving Law in Cannabis Case | Newsbrief: Mass Arrests of Drug Users in Iran | Newsbrief: Marijuana Bills Filed -- Medical Marijuana in New Jersey, Decriminalization in New Hampshire | Newsbrief: Resistance to Methadone Clinics Rears Head in Virginia, Washington State | Newsbrief: King County Bar Association (Seattle) Calls for Legal, Regulated Drug Markets | Newsbrief: Texas Bill Would Ban Drug Offenders from Entering Certain San Antonio Neighborhoods | Newsbrief: Last Week's Supreme Court Ruling Pays Off for New York Woman | Newsbrief: Martha Stewart, Prisoner Advocate | Newsbrief: MPP Assists Poor Montana Medical Marijuana Patients | Newsbrief: Maine Activist Providing Medical Marijuana Indicted for Trafficking and Cultivation | This Week in History | The Reformer's Calendar

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