New effort to fight meth comes under fire
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New effort to fight meth comes under fire

Date: October 14, 2009
By: Cheston McGuire
State Capitol Bureau
Links: HB 1592 & HB 496

JEFFERSON CITY - A Missouri branch of the American Civil Liberties Union threatened to file suit against two towns' efforts to crack down on production of methamphetamine.

Earlier this year, the eastern Missouri town of Washington adopted an ordinance requiring a prescription to purchase any cold medicine that contains pseudoephedrine -- a key ingredient in methamphetamine production. And on Tuesday, Union, also in Franklin County, adopted a similar ordinance.

Now these ordinances are under attack from the ACLU.

The legal director for the ACLU of Eastern Missouri, Anthony Rothert, said the recent actions taken by these cities to make pseudoephedrine only available by prescription are an "overreach of government power."

Pseudoephedrine is used in some over-the-counter cold medicines like Sudafed. 

Rothert said the newly enacted laws had "good intentions, but (the cities) have been given a lot of misinformation."

What they did was wrong, he said, because "municipalities do not have the authority under state law" to enact laws making certain drugs only available by prescription.

The two cities' ordinance is different from federal law, which limits the sale of products containing pseudoephedrine to three packages or nine grams in a single transaction. Missouri state law takes it further, limiting such sales to nine grams in a 30-day period for an individual.

According to Washington Mayor Dick Stratman and Union City Administrator Russell Rost, the cities had contacted the Missouri Attorney General's office and had gotten approval for the ordinances. They said the office was going to issue an official ruling later.

In response to the ACLU's claim that Washington acted in error and could face legal action, Union City Attorney Tim Melenbrink said, "Nothing prohibits cities from putting such an ordinance together." He said the rules say "if a city law does not contradict a state law, then it's OK."

Stratman said that he supports the ordinance's passage "100 percent" because by stopping easy access to the ingredients, the city can perhaps cut down on the number of labs.

"Meth labs are bad for your communities," Stratman said. "It's bad for the neighborhoods, children and the first responders that can be hurt by meth lab explosions."

Rost said he too is in support of his city's unanimous decision to pass the ordinance, but he has "mixed feelings" about the situation.

"I feels it's important to control pseudoephedrine to fight the meth problem, and we want to support our local drug task force, however we only had to step in because the state failed," Rost said. He said he wants the state to take the call to action and create a statewide law because municipal ordinances aren't as effective.

The chair of the House Crime Committee -- Rep. Scott Lipke, R-Jackson -- has proposed for the last two years a measure that would impose a prescription requirement. The measure cleared the Crime Committee this year but was rejected for full House consideration by the House Rules Committee.

"The cities are taking the first step, which is a good thing," Lipke said. "There is a benefit seeing on a smaller scale how it actually works in these communities," which will then create facts, and "if we use facts, we will win the debate. We just have to get the word out to the people."

The concern over the legality and ethics of these ordinances don't lie just with the ACLU. 

The CEO of the Missouri Pharmacy Association, Ron Fitzwater, said that he is "concerned about individual communities going around and doing this." The issue at hand, he said, is "patients access to legal products."

Fitzwater said he thinks there are better alternatives to controlling pseudoephedrine and should be tackled at the state level.

According to Fitzwater, the Consumer Health Products Association is offering to completely fund a statewide tracking database that will allow "pharmacists to have real time information and communicate with law enforcement."

He said that a large number of chain stores in the state use this system effectively and with a statewide program, it will be even better. A better database would be one, he said, that tracked beyond the Missouri borders, preventing people from just going to a neighboring state for pseudoephedrine.

Lipke argued that a database like that is not effective because it takes too many work hours to compile the database and is easily circumvented by buying products from multiple stores.

"Even if it's paid for by someone else, why do it if it doesn't work? By doing this, it will just get worse with time," he said.

City ordinances do not have to face as much investigation as legislation being passed at the state level, Rothert of the ACLU said.

"There is a lower level of investigation at the city than at the state legislature," he said. By not having all the information these ordinances "will cause a hardship for people that don't have access to a doctor or insurance.The federal and state governments have decided it's safe, so why don't the cities?"

Detective Scott Briggs of the Franklin County Drug Task Force -- the main contributor of information to the cities of Washington and Union that aided in the decision of passing the ordinances --  said they had the proper information.

"From our investigations we have watched people involved in the distribution and production going from store, called smurfing, we need to limit their ability to do that," Briggs said. He also said, "We have used tracking on a smaller scale, but that was ineffective. It's too time consuming."

Before making the decision, Union city staff contacted local physicians and asked them to adjust their method of issuing prescriptions under the new law, Rost said.

Not only is this the best method to control illegal uses of pseudoephedrine, Rost said, but it may also end up being cheaper for patients because there are no taxes on prescription medicine.