Sale of Sudafed Behind the Counter Starts Jan. 1: Yes and No
As you most likely know by now, since I was first elected to the Oregon Legislature in 2015, one of my passions has been to remove the prescription requirement to purchase pseudoephedrine (pse or sudafed type products) behind the counter with a photo ID as is the case in over 40 states in the US. As you may also know, finally in 2021, we were able to pass HB 2648 and the behind the counter sales starting January 1, 2022. BUT as always, nothing is easy in Oregon.
Here is the bill from the 2021 session: https://olis.oregonlegislature.gov/liz/2021R1/Measures/Overview/HB2648
As you can see from the summary on the front page, the purchase involves gathering information to make sure that the buyer isn’t “over purchasing” pse products.
“Requires pharmacist or pharmacy technician, prior to transfer, to submit specified information into electronic system designed to prevent illegal transfer of drugs containing pseudoephedrine. Requires pharmacist or pharmacy technician to record specified information about transfer of drug containing pseudoephedrine. Specifies maximum amount of pseudoephedrine that person may receive without prescription.”
The idea is that the pharmacist or tech would “swipe” your driver’s license or other appropriate photo ID and get your name and address to make sure that you are not purchasing more pse than allowed by law. This was to discourage “smurfing” where meth manufacturers send people out to buy sudafed products to make meth.
We addressed this in testimony before the committees in both the House and Senate and in debate on the House floor. We made it clear that Oregon would be joining at least 40 other states in the nPLEX electronic tracking system. You can read the testimony from the company that operates nPLEX here: https://olis.oregonlegislature.gov/liz/2021R1/Downloads/PublicTestimonyDocument/22461
We made it VERY clear in testimony that we would be joining the nPLEX system. I begged the drafter of the language to include that, as Mississippi did in their bill that passed earlier this year, but was told that Oregon law prohibits using “brand names” in a bill. Sigh.
As you can see, it’s a very simple system to implement. It’s quite efficient, I’ve used it myself in many other states. Here was my testimony in the House Health Care Committee: https://olis.oregonlegislature.gov/liz/2021R1/Downloads/CommitteeMeetingDocument/240692
The problem is that we did not apparently look at ALL of the laws in Oregon. You see, when the Legislature passes 500-800 new laws every other year, there are a lot of laws to watch out for (story for another day). It was brought to my attention by a representative of a large chain pharmacy that we cannot “swipe” the ID’s in Oregon because of ORS 807.750 (read here: https://oregon.public.law/statutes/ors_807.750 )
Now I believe that the original drafter of the bill, the Legislative Counsel writer, should have caught this. Still, I am the chief sponsor of the bill and I should have done a deeper dive into the laws. So what does this mean for Sudafed on January 1st?
The law will go into effect and you will be able to purchase without a prescription but, the larger chain pharmacies may not want to allow this if it means entering the information manually which by all that I have been told, can take up to 3 minutes. With the shortage of pharmacists and techs, this is a problem. We have to add “new exemption in ORS 807.750 that allows swiping drivers licenses / ID cards and the sharing of that data (with NPLEX) within the guidelines established in HB 2648” as a bill to amend that statute, and since I only have two weeks left as State Representative and won’t be in office when the short session of 2022 takes place, I am having a draft written now that I HOPE my successor or another legislator will drop as a bill in 2022 and make it retroactive to January 1.
Lastly, a little known fact to most: a bill does not necessarily become law as it’s written. The state agency tasked with the rulemaking for a bill, actually writes what will become the “law” or statute. In this case the agency is the Board of Pharmacy. November 23rd is the date that the Board meets to finalize the language for this new statute. If you should find the time to attend virtually, here is the link: Board of Pharmacy Rulemaking Hearing