NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A5471A
SPONSOR: Gottfried TITLE OF BILL: An act to amend the penal law, in relation to criminal
possession of a controlled substance in the seventh degree; to amend the
general business law, in relation to drug-related paraphernalia; to
amend the public health law, in relation to the sale and possession of
hypodermic syringes and needles; and to repeal section 220.45 of the
penal law relating to criminally possessing a hypodermic instrument
PURPOSE: To provide expanded access to the possession and sale of
hypodermic syringes and needles and to allow pharmacies and healthcare
agencies registered under ESAP to remove the limit on the sale of hypo-
dermic syringes and needles per transaction and the ban on program
advertising.
SUMMARY OF PROVISIONS: Section 1 amends Penal Law sec. 220.03 in
relation to residual amounts of a controlled substance in or on a hypo-
dermic syringe or needle.
Section 2 repeals Penal Law sec. 220.45.
Section 3 amends General Business Law sec. 850 (2) by adding a new
subparagraph (b) excluding hypodermic needles and syringes from the
definition of "Drug-related paraphernalia".
Section 4 amends Public Health Law sec. 3381 to decriminalize the sale
of a hypodermic syringe or needle by an organization authorized by the
Commissioner to conduct a syringe exchange program; omitting the cap on
sale of ten syringes per individual; and, adds subparagraph (i) to
subdivision 4(e) requiring the Commissioner of Health to develop stand-
ards for advertising availability for retail sale or furnishing of hypo-
dermic syringes or needles.
JUSTIFICATION: Syringe access programs across NYS have proven to be
highly effective public health measures in helping to reduce the rate of
HIV and hepatitis transmissions. Current state law prevents individuals
from accessing harm reduction services, in turn contributing to the
spread of these epidemics. While the state funds the distribution of
millions of syringes per year as a public health measure, police in some
jurisdictions continue to arrest thousands of people each year for
syringe possession. This deters people from accessing services and from
returning used syringes for safe disposal. The decriminalizing the
possession and sale of hypodermic needles and syringes has the potential
to stop the counterproductive use of law enforcement resources and ulti-
mately lower the spread of HIV/AIDS and hepatitis infections. This bill
strengthens and expands syringe access by allowing pharmacies and
healthcare agencies, registered with the NYS ESAP program, to provide
syringes without a cap. It also allows these entities to promote this
program abiding by the Commissioner of Health's rules and regulations.
This would allow individuals with HIV/AIDS and Hepatitis who are unfa-
miliar with ESAP to enroll and stop the potential spread of these
epidemics.
LEGISLATIVE HISTORY: 2015: A5471 advanced to third reading cal. 490;
also included in A6007, Assembly one-house budget proposal.
FISCAL IMPLICATIONS: Negligible.
EFFECTIVE DATE: Immediately.
STATE OF NEW YORK
________________________________________________________________________
5471--A
2015-2016 Regular Sessions
IN ASSEMBLY
February 24, 2015
___________
Introduced by M. of A. GOTTFRIED, ROSENTHAL, WALKER, WEPRIN, DINOWITZ,
BRONSON, ABINANTI, SEPULVEDA -- Multi-Sponsored by -- M. of A. HEVESI
-- read once and referred to the Committee on Codes -- recommitted to
the Committee on Codes in accordance with Assembly Rule 3, sec. 2 --
committee discharged, bill amended, ordered reprinted as amended and
recommitted to said committee
AN ACT to amend the penal law, in relation to criminal possession of a
controlled substance in the seventh degree; to amend the general busi-
ness law, in relation to drug-related paraphernalia; to amend the
public health law, in relation to the sale and possession of hypoderm-
ic syringes and needles; and to repeal section 220.45 of the penal law
relating to criminally possessing a hypodermic instrument
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The opening paragraph of section 220.03 of the penal law,
2 as amended by section 4 of part I of chapter 57 of the laws of 2015, is
3 amended to read as follows:
4 A person is guilty of criminal possession of a controlled substance in
5 the seventh degree when he or she knowingly and unlawfully possesses a
6 controlled substance; provided, however, that it shall not be a
7 violation of this section when a person possesses a residual amount of a
8 controlled substance and that residual amount is in or on a hypodermic
9 syringe or hypodermic needle [obtained and possessed pursuant to section
10 thirty-three hundred eighty-one of the public health law, which includes
11 the state's syringe exchange and pharmacy and medical provider-based
12 expanded syringe access programs]; nor shall it be a violation of this
13 section when a person's unlawful possession of a controlled substance is
14 discovered as a result of seeking immediate health care as defined in
15 paragraph (b) of subdivision three of section 220.78 of [the penal law]
16 this article, for either another person or him or herself because such
17 person is experiencing a drug or alcohol overdose or other life threat-
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD06211-05-6
A. 5471--A 2
1 ening medical emergency as defined in paragraph (a) of subdivision three
2 of section 220.78 of the [penal law] this article.
3 § 2. Section 220.45 of the penal law is REPEALED.
4 § 3. Subdivision 2 of section 850 of the general business law, as
5 amended by chapter 812 of the laws of 1980, is amended to read as
6 follows:
7 2. (a) "Drug-related paraphernalia" consists of the following objects
8 used for the following purposes:
9 [(a)] (i) Kits, used or designed for the purpose of planting, propa-
10 gating, cultivating, growing or harvesting of any species of plant which
11 is a controlled substance or from which a controlled substance can be
12 derived;
13 [(b)] (ii) Kits, used or designed for the purpose of manufacturing,
14 compounding, converting, producing, or preparing controlled substances;
15 [(c)] (iii) Isomerization devices, used or designed for the purpose of
16 increasing the potency of any species of plant which is a controlled
17 substance;
18 [(d)] (iv) Scales and balances, used or designed for the purpose of
19 weighing or measuring controlled substances;
20 [(e)] (v) Diluents and adulterants, including but not limited to
21 quinine hydrochloride, mannitol, mannite, dextrose and lactose, used or
22 designed for the purpose of cutting controlled substances;
23 [(f)] (vi) Separation gins, used or designed for the purpose of remov-
24 ing twigs and seeds in order to clean or refine marihuana;
25 [(g) Hypodermic syringes, needles and other objects, used or designed
26 for the purpose of parenterally injecting controlled substances into the
27 human body;
28 (h)] and
29 (vii) Objects, used or designed for the purpose of ingesting, inhal-
30 ing, or otherwise introducing marihuana, cocaine, hashish, or hashish
31 oil into the human body.
32 (b) "Drug-related paraphernalia" shall not include hypodermic needles,
33 hypodermic syringes and other objects used for the purpose of parenter-
34 ally injecting controlled substances into the human body.
35 § 4. Section 3381 of the public health law, as amended by section 9-a
36 of part B of chapter 58 of the laws of 2007, subdivisions 1, 2 and 3 as
37 amended by chapter 178 of the laws of 2010, is amended to read as
38 follows:
39 § 3381. Sale and possession of hypodermic syringes and hypodermic
40 needles. 1. It shall be unlawful for any person to sell or furnish to
41 another person or persons, a hypodermic syringe or hypodermic needle
42 except:
43 (a) pursuant to a prescription of a practitioner, which for the
44 purposes of this section shall include a patient specific prescription
45 form as provided for in the education law; or
46 (b) to persons who have been authorized by the commissioner to obtain
47 and possess such instruments; or
48 (c) by a pharmacy licensed under article one hundred thirty-seven of
49 the education law, health care facility licensed under article twenty-
50 eight of this chapter or a health care practitioner who is otherwise
51 authorized to prescribe the use of hypodermic needles or syringes within
52 his or her scope of practice; provided, however, that such sale or
53 furnishing: (i) shall only be to a person eighteen years of age or
54 older; and (ii) [shall be limited to a quantity of ten or less hypoderm-
55 ic needles or syringes; and (iii)] shall be in accordance with subdivi-
56 sion [five] four of this section[.] ; or
A. 5471--A 3
1 (d) under subdivision three of this section.
2 2. [It shall be unlawful for any person to obtain or possess a hypo-
3 dermic syringe or hypodermic needle unless such possession has been
4 authorized by the commissioner or is pursuant to a prescription, or is
5 pursuant to subdivision five of this section.
6 3.] Any person selling or furnishing a hypodermic syringe or hypoderm-
7 ic needle pursuant to a prescription shall record upon the prescription,
8 his or her signature or electronic signature, and the date of the sale
9 or furnishing of the hypodermic syringe or hypodermic needle. Such
10 prescription shall be retained on file for a period of five years and be
11 readily accessible for inspection by any public officer or employee
12 engaged in the enforcement of this section. Such prescription may be
13 refilled not more than the number of times specifically authorized by
14 the prescriber upon the prescription, provided however no such authori-
15 zation shall be effective for a period greater than two years from the
16 date the prescription is signed.
17 [4] 3. The commissioner shall, subject to subdivision [five] four of
18 this section, designate persons, or by regulation, classes of persons
19 who may obtain hypodermic syringes and hypodermic needles without
20 prescription and the manner in which such transactions may take place
21 and the records thereof which shall be maintained.
22 [5] 4. (a) A person eighteen years of age or older may obtain and
23 possess a hypodermic syringe or hypodermic needle pursuant to paragraph
24 (c) of subdivision one of this section.
25 (b) Subject to regulations of the commissioner, a pharmacy licensed
26 under article one hundred thirty-seven of the education law, a health
27 care facility licensed under article twenty-eight of this chapter or a
28 health care practitioner who is otherwise authorized to prescribe the
29 use of hypodermic needles or syringes within his or her scope of prac-
30 tice, may obtain and possess hypodermic needles or syringes for the
31 purpose of selling or furnishing them pursuant to paragraph (c) of
32 subdivision one of this section or for the purpose of disposing of
33 them[, provided that such pharmacy, health care facility or health care
34 practitioner has registered with the department].
35 (c) Sale or furnishing of hypodermic syringes or hypodermic needles to
36 direct consumers pursuant to this subdivision by a pharmacy, health care
37 facility, or health care practitioner shall be accompanied by a safety
38 insert. Such safety insert shall be developed or approved by the commis-
39 sioner and shall include, but not be limited to, (i) information on the
40 proper use of hypodermic syringes and hypodermic needles; (ii) the risk
41 of blood borne diseases that may result from the use of hypodermic
42 syringes and hypodermic needles; (iii) methods for preventing the trans-
43 mission or contraction of blood borne diseases; (iv) proper hypodermic
44 syringe and hypodermic needle disposal practices; (v) information on the
45 dangers of injection drug use, and how to access drug treatment; (vi) a
46 toll-free phone number for information on the human immunodeficiency
47 virus; and (vii) information on the safe disposal of hypodermic syringes
48 and hypodermic needles including the relevant provisions of the environ-
49 mental conservation law relating to the unlawful release of regulated
50 medical waste. The safety insert shall be attached to or included in the
51 hypodermic syringe and hypodermic needle packaging, or shall be given to
52 the purchaser at the point of sale or furnishing in brochure form.
53 (d) In addition to the requirements of paragraph (c) of subdivision
54 one of this section, a pharmacy licensed under article one hundred thir-
55 ty-seven of the education law may sell or furnish hypodermic needles or
56 syringes only if such pharmacy[: (i) does not advertise to the public
A. 5471--A 4
1 the availability for retail sale or furnishing of hypodermic needles or
2 syringes without a prescription; and (ii) at any location where hypo-
3 dermic needles or syringes are kept for retail sale or furnishing,]
4 stores such needles and syringes in a manner that makes them available
5 only to authorized personnel and not openly available to customers.
6 (e) The commissioner shall promulgate rules and regulations necessary
7 to implement the provisions of this subdivision which shall include: (i)
8 standards for advertising to the public the availability for retail sale
9 or furnishing of hypodermic syringes or needles; and (ii) a requirement
10 that such pharmacies, health care facilities and health care practition-
11 ers cooperate in a safe disposal of used hypodermic needles or syringes.
12 (f) The commissioner may, upon the finding of a violation of this
13 section, suspend for a determinate period of time the sale or furnishing
14 of syringes by a specific entity.
15 [6] 5. The provisions of this section shall not apply to farmers
16 engaged in livestock production or to those persons supplying farmers
17 engaged in livestock production, provided that:
18 (a) Hypodermic syringes and needles shall be stored in a secure,
19 locked storage container.
20 (b) At any time the department may request a document outlining:
21 (i) the number of hypodermic needles and syringes purchased over the
22 past calendar year;
23 (ii) a record of all hypodermic needles used over the past calendar
24 year; and
25 (iii) a record of all hypodermic needles and syringes destroyed over
26 the past calendar year.
27 (c) Hypodermic needles and syringes shall be destroyed in a manner
28 consistent with the provisions set forth in section thirty-three hundred
29 eighty-one-a of this article.
30 § 5. This act shall take effect immediately.
