New Combat Meth Act Increases Retailer Self Certification

By John A. Gilbert & Karla L. Palmer –

On October 12th, President Obama signed into law the “Combat Methamphetamine Enhancement Act of 2010” (Public Law No: 111-268) (“Enhancement Act”).  The Enhancement Act amends the Controlled Substances Act by requiring all regulated retail sellers of certain types of scheduled listed chemical products (“SLCPs”) such as pseudoephedrine, ephedrine and phenylpropanolamine (precursor chemicals that can be used for illicit production of methamphetamine) to submit to the Attorney General an additional self-certification prior to selling at retail any SLCP. 

This “enhanced” certification requires the regulated retailer to self-certify that it understands and agrees to comply with the statutory requirements set forth in 21 U.S.C § 830(d).  These statutory requirements include the following: (1) the retailer must adhere to specific daily purchaser limits on retail sales (i.e., a regulated retailer may not sell to any purchaser amounts that exceed a daily amount of 3.6 grams of ephedrine, pseudoephedrine or phenylpropanolamine) regardless of the number of transactions; (2) the retailer may not sell the non-liquid form of the product unless the product is packaged in a blister pack; and, (3) the retailer must submit regular reports of sales activity to the government. 

Regulations (to be promulgated within 180 days of enactment of the legislation) will also establish criteria for certification of mail-order distributors that will be consistent with criteria established for the certification of other regulated sellers.  Note that regulations issued in 2009 already require a regulated retailer or seller to self-certify that it: (1) trains its employees with DEA training materials (which materials are available on the DEA website); (2) maintains training records; (3) enforces sales limits; (4) keeps scheduled products behind the counter or in a locked cabinet; and (5) maintains a written or electronic log book. 
 
Importantly, however, the new Enhancement Act provides that the Attorney General will develop and make available on the DEA website the list of all self-certified retailers or persons.  The Enhancement Act requires that all distributors of listed chemicals sell listed chemicals only to those that are registered with the DEA or those that are included on the self-certification list.  Non-compliance will subject the wrongdoer to civil penalties: A negligent failure to self-certify could be punishable by a civil fine of up to $10,000 per violation under 21 U.S.C. § 830.  Note that if a distributor is unable to access the list of self-certified entities on the DEA website, then the distributor may rely on a “written, faxed or electronic copy of a certificate of self-certification submitted by the regulated seller or regulated persons,” provided that the distributor confirms within seven business days of the sale that the seller is in fact “on the list.”

The Enhancement Act is effective 180 days after its enactment, and will be enforced pursuant to regulations to be promulgated by the Attorney General.