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Federal Combat Meth Act - April 8th Implementation Date - Retailer Responsibilities
At this point, FMI and other associations have exhausted all legislative and administrative options to harmonize the April 8 implementation date with the September 30 requested extension.  Key Members of Congress cannot reach agreement sufficient to amend the statute itself and DEA feels that their hands are tied with respect to regulatory options.  As they put it during a meeting that FMI and others held with the Agency last week, DEA cannot issue a regulation delaying the effective date in the face of a clear congressional mandate starting implementation of some provisions on April 8.  Nonetheless, the Agency pointed out that their goal is really to bring criminal actions and that they "will not be sending out the threshold police" on April 8 to see "whether a retailer sold 3.9 g/day instead of 3.6 g/day" to a given customer.  Along these lines, DEA also indicated that they have been working with their field offices to help them understand the statute and its requirements and would be attempting to control those folks from DC.  Following is a discussion of some of the other important elements of the Combat Meth Act (click on the underlined Combat Meth Act to read the full trext of the bill) and DEA's interpretation thereof. 
 
 9 g/30 Day Purchase Limitation:  DEA opened the meeting by noting that concern had been raised about the 9 g/30 day limitation.  The officials were quite clear that this is a purchase limitation to be enforced by DEA, and not a sales restriction to be enforced by retailers.  In particular, DEA views this as a provision that law enforcement can use when they pick up someone "with a carload" of cough and cold products.  According to DEA, law enforcement feels this is an important tool in their arsenal and is not intended to be enforced by retailers through logbooks or any other means.  The officials at the meeting (which included the reg writers) were very amenable to including language in the preamble to this effect.  
 
FMI has taken this view of the 9 g/30 day limit since the statute was passed for the following reasons.  First, the statutory language is clear on its face.  Section 711(e) of the Combat Meth Act amends Section 404(a) of the Controlled Substances Act by adding the following prohibition: "It shall be unlawful for any person to knowingly or intentionally purchase at retail during a 30 day period more than 9 grams...."  Clearly, the language restricts purchases, not sales.  Second, Section 404, the provision of the Controlled Substances Act that is amended here, is entitled "Penalties for Simple Possession," which, basically, criminalizes the knowing and intentional possession of a controlled substance without a prescription.  Nowhere does the lengthy provision address or criminalize the general sale of such products.   
 
3.6 g/Day Sales Limitation:  We also discussed the 3.6 g/day sales limitation, which DEA expects to interpret as a calendar day rather than a 24 hour period, which will be helpful to retailers from an operational perspective.   
 
 We also asked DEA to reflect in the regulations the statutory language, which clearly states that retailers are not required to consult the logbook to verify that the sales limit is not exceeded in any particular case.  Although DEA demurred until they could discuss with counsel, we have just received a copy of a letter that Rep. Barton (R-TX) sent to DEA (attached) that is very helpful in this regard.  Specifically, Rep. Barton explains the history of the limit, which began as a more easily implemented transaction limit and was changed to a daily sales limit to accomodate those who were concerned that an individual would simply make multiple trips to the cash register to purchase excessive amounts without violating the proposed transaction limit.  According to Rep. Barton, although the limit ultimately adopted was a sales limit, "the authors of the provision were deliberate in avoiding legislative language that would result in employees examining the logbook to determine whether an individual had exceeded the daily sales limit." (emphasis added) The Congressman further states that "the statutory construction of the Act is clear that a violation occurs only if the individual conducting the transaction on behalf of the regulated seller has actual knowledge, independent of consulting a logbook, at the time of sale that the purchaser has exceeded the daily sales limit of 3.6 grams."   
 
 FMI agrees with and has championed this interpretation since the statute's passage based on the language regarding retailer liability, which states as follows: "It shall be unlawful for any person...who is a regulated seller...to sell at retail a scheduled listed chemical product in violation of paragraph (1) of subsection (d) of such section [the 3.6 g/day sales limit], knowing at the time of the transaction involved (independent of consulting the logbook under subsection (e)(1)(A)(iii) of such section) that the transaction is a violation..." (emphasis added).  To help our members with respect to both of the gram limitations in the statute, we have retained outside counsel to prepare a memorandum setting forth the legal basis for this interpretation.  We hope to have this memorandum available for you by the end of this week. 
 
 18 USC 1001 Logbook Statement:  The Act requires retailers to include a statement that entering false information in the logbook is a violation of 18 USC 1001.  DEA seemed willing to include the exact language that retailers should use in the regulations that the Agency will be promulgating. 
 
Identification: The statute allows a broad range of acceptable identification and DEA will reflect that in the regulations.  Perhaps more importantly, DEA confirmed that retailers are not responsible for ensuring that one person is not using different forms of identification to foil the daily limit.  As DEA said, "it is not the retailer's job to know that Bob Smith is Robert Smith is Bobby Smith" if the purchaser in question is presenting different types of identification with slightly different names.  Of course, if the person at the register knows without checking the logbook that the purchaser is exceeding the sales limit, then that would be a violation. 
 
Electronic Logbooks: DEA was amenable to allowing either the retailer or the purchaser to enter the required information on the purchaser by swiping the purchaser's identification card that is read by the electronic logbook and then populates the appropriate fields.  Retailers are still required to verify the information that appears in the logbook against the identification presented by the purchaser.   
 
Preemption:  DEA is apparently doing a fair amount of work to interpret the interaction of the federal law with the state laws that have already been enacted.  DEA would like to take the position that in each circumstance either the federal law or a given state law is more stringent and therefore will control, rather than looking at the individual elements required by each and picking the more stringent of each of those (e.g., state logbook provision + federal sales limit).  The approach suggested by DEA would certainly make the best of a difficult situation, although it would not guarantee that states wouldn't take a different interpretation.  DEA was also amenable to posting its findings with respect to the relative stringency of the state laws in a publicly available document, although the Agency recognized that its counsel might not agree. 
 
We hope the foregoing will be of assistance and will keep you posted as we obtain further information.  In the interim, if you have any questions on the foregoing or if we may be of assistance in any way, please do not hesitate to contact Ty Kelley at tkelley@fmi.org or dwhite@fmi.org.   
 
 
Deborah White 
Associate General Counsel 
 & Vice President, Reg. Affairs 
 Food Marketing Institute 
655 15th Street, NW 
Washington, DC  20005 
202 220 0614 
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