5-64-1103. Sales limits.

5-64-1103. Sales limits. (a) It is unlawful for any person, other than a person or entity described in § 5-64-1101(a)(3) and (4), to knowingly sell, transfer, or otherwise furnish in a single transaction a product containing ephedrine, pseudoephedrine, or phenylpropanolamine except in a licensed pharmacy by a licensed pharmacist or a registered pharmacy technician. (b) Unless the product has been rescheduled pursuant to § 5-64-212(c), this section does not apply to a retail distributor sale for personal use of a product: (1) That the Department of Health, in collaboration with the Arkansas State Board of Pharmacy, upon application of a manufacturer, exempts by rule from this section because the product has been formulated in such a way as to effectively prevent the conversion of the active ingredient into methamphetamine or its salts or precursors; or (2) Containing ephedrine or pseudoephedrine in liquid, liquid capsule, or liquid gel capsule form if the drug is dispensed, sold, transferred, or otherwise furnished in a single transaction limited to no more than three (3) packages, with any single package containing not more than ninety-six (96) liquid capsules or liquid gel capsules or not more than three grams (3g) of ephedrine or pseudoephedrine base. (c)(1)(A) Except under a valid prescription, before dispensing a product containing ephedrine, pseudoephedrine, or phenylpropanolamine that is not exempt under subdivision (b)(1) or subdivision (b)(2) of this section, a pharmacist shall make a professional determination as to whether or not there is a legitimate medical and pharmaceutical need for the product containing ephedrine, pseudoephedrine, or phenylpropanolamine. (B) The determination under subdivision (c)(1)(A) of this section may be based on factors, including without limitation: (i) Prior medication-filling history; (ii) Patient screening; and (iii) Other tools that provide professional reassurance to the pharmacist that a legitimate medical and pharmaceutical need exists. (2) The board may: (A) Adopt rules regarding determinations made under subdivision (c)(1) of this section; (B) Review determinations made under subdivision (c)(1) of this section; and (C) Take appropriate disciplinary action as required. (3) This subsection does not prohibit a pharmacist from dispensing a product containing ephedrine, pseudoephedrine, or phenylpropanolamine to a person who: (A) Has not utilized the services of the pharmacist frequently; or (B) Has not established a pharmacist-patient relationship with the pharmacist before the instance of dispensing. (d) Except under a valid prescription, it is unlawful for a licensed pharmacist to dispense or a registered pharmacy technician to knowingly sell, transfer, or otherwise furnish in a single transaction: (1) More than three (3) packages of one (1) or more products that contain ephedrine, pseudoephedrine, or phenylpropanolamine, or their salts, isomers, or salts of isomers; (2) Any single package of any product that contains ephedrine, pseudoephedrine, or phenylpropanolamine, that contains more than ninety-six (96) pills, tablets, gelcaps, capsules, or other individual units or more than three grams (3g) of ephedrine, pseudoephedrine, or phenylpropanolamine, or their salts, isomers, or salts of isomers, or a combination of any of these substances, whichever is smaller; (3) Any product containing ephedrine, pseudoephedrine, or phenylpropanolamine, unless: (A) The product is sold in a package size of not more than three grams (3g) of ephedrine, pseudoephedrine, or phenylpropanolamine base and is packaged in a blister pack, each blister containing not more than two (2) dosage units; (B) When the use of a blister pack is technically infeasible, that is packaged in a unit dose packet or pouch; or (C) In the case of a liquid, the drug is sold in a package size of not more than three grams (3g) of ephedrine, pseudoephedrine, or phenylpropanolamine base; or (4)(A) Any product containing ephedrine, pseudoephedrine, or phenylpropanolamine to any person under eighteen (18) years of age, unless the person is purchasing an exempt product under subdivision (b)(1) or subdivision (b)(2) of this section. (B) The person making the sale shall require proof of age from the purchaser. (e)(1)(A) A person who violates subsection (a) or subsection (d) of this section for a first or second offense upon conviction is guilty of a Class A misdemeanor and also may be subject to a civil fine not to exceed five thousand dollars ($5,000). (B) A person who violates subsection (a) or subsection (d) of this section for a third offense upon conviction is guilty of a Class D felony and also may be subject to a civil fine not to exceed five thousand dollars ($5,000). (C) A person who violates subsection (a) or subsection (d) of this section for a fourth or subsequent offense upon conviction is guilty of a Class C felony and also may be subject to a civil fine not to exceed ten thousand dollars ($10,000). (2) A plea of guilty or nolo contendere to or a finding of guilt under a penal law of the United States or another state that is equivalent to subsection (a) or subsection (d) of this section is considered a previous offense for purposes of this subsection. (3)(A) The prosecuting attorney may waive any civil penalty under this section if a person establishes that he or she acted in good faith to prevent a violation of this section, and the violation occurred despite the exercise of due diligence. (B) In making this determination, the prosecuting attorney may consider evidence that an employer trained employees how to sell, transfer, or otherwise furnish substances specified in this subchapter in accordance with applicable laws. (f)(1)(A) It is unlawful for any person, other than a person or entity described in § 5-64-1101(a), to knowingly purchase, acquire, or otherwise receive in a single transaction: (i) More than three (3) packages of one (1) or more products that the person knows to contain ephedrine, pseudoephedrine, or phenylpropanolamine, or their salts, isomers, or salts of isomers; or (ii) Any single package of any product that the person knows to contain ephedrine, pseudoephedrine, or phenylpropanolamine, that contains more than ninety-six (96) pills, tablets, gelcaps, capsules, or other individual units or more than three grams (3g) of ephedrine, pseudoephedrine, or phenylpropanolamine, or their salts, isomers, or salts of isomers, or a combination of any of these substances, whichever is smaller. (B) It is unlawful for any person, other than a person or entity described in § 5-64-1101(a), to knowingly purchase, acquire, or otherwise receive more than five grams (5g) of ephedrine or nine grams (9g) of pseudoephedrine or phenylpropanolamine within any thirty-day period. (2)(A) A person who violates subdivision (f)(1)(A) or subdivision (f)(1)(B) of this section for a first or second offense upon conviction is guilty of a Class A misdemeanor. (B) A person who violates subdivision (f)(1)(A) or subdivision (f)(1)(B) of this section for a third offense upon conviction is guilty of a Class D felony. (C) A person who violates subdivision (f)(1)(A) or subdivision (f)(1)(B) of this section for a fourth or subsequent offense upon conviction is guilty of a Class C felony. (3) A plea of guilty or nolo contendere to or a finding of guilt under a penal law of the United States or another state that is equivalent to subdivision (f)(1)(A) or subdivision (f)(1)(B) of this section is considered a previous offense for the purposes of this subsection. (g) This section does not prohibit a person under eighteen (18) years of age from possessing and selling a product described in subsections (a) and (b) of this section as an agent of the minor's employer acting within the scope of the minor's employment.