GAO Report Assesses State Approaches to Control Pseudoephedrine

By Larry K. Houck –

The Government Accountability Office (“GAO”) has issued a report assessing the approaches states have taken to restrict the sales of pseudoephedrine (“PSE”), an ingredient commonly found in over-the-counter cold and allergy medications and a primary ingredient in clandestinely manufactured methamphetamine.  U.S. Gov’t Accountability Office, GAO-13-204, Drug Control: State Approaches to Control Access to Key Methamphetamine Ingredient Show Varied Impact on Domestic Drug Labs (2013).  The report concludes that electronic tracking systems help enforce sales limits but has not reduced “meth lab” incidents due to smurfing, the practice of recruiting individuals or groups to purchase up to the legal limit at multiple retailers, then aggregating quantities for meth production.  Meth lab incidents include law enforcement seizures of labs, dumpsites, chemicals and glassware.  The report finds that requiring PSE to be available by prescription appears to have helped reduce lab incidents but with unclear impact on consumers and limited impact on the health care system.

Beginning in about 2004, states and jurisdictions began taking efforts to regulate PSE at the point of sale.  Congress enacted the Combat Methamphetamine Epidemic Act of 2005 (“CMEA”), which set daily sales and monthly purchase limits, and requires retailers to keep PSE behind the counter and to maintain a written or electronic logbook of sales.  Nineteen states have implemented electronic reporting to track PSE sales and to determine if purchasers are in compliance with state purchase limits.  Two states, Oregon and Mississippi, and sixty-three Missouri cities and counties, require a prescription for PSE products.

The GAO analyzed data from the Drug Enforcement Administration’s (“DEA’s”) National Seizure System on lab seizure incidents from 2002 through 2011 to identify trends in domestic meth lab incidents.  To determine the impact of electronic tracking systems on meth lab incidents, the GAO analyzed data on the number of meth lab incidents reported in Kentucky, Missouri and Tennessee, where electronic tracking has been in place the longest.  The GAO assessed the impact of the prescription-only requirement in Oregon, Mississippi and their border states by analyzing data on meth lab incidents. 

Interestingly, as the GAO points out, meth lab incidents nationwide dropped to a low of 6,951 incidents in 2007, and has increased since, numbering 15,314 in 2010.  The 2010 incident total is more than twice the number of 2007 incidents.

Of the nineteen states that have implemented electronic reporting systems to track PSE sales, seventeen use the National Precursor Log Exchange (“NPLEx”) system and two states use a system developed in-house or by another vendor.  Under these systems, retailers report PSE sales to a centralized database that can determine whether a customer has or will exceed the federal or state PSE purchase limits.  Most of these systems query the database, notify the retailer if the sale would violate the daily or monthly limit and deny sales when a state or federal limit has been reached.  All sales in states using the NPLEx system are linked so the system blocks customers who try to purchase more than the permissible amount in another NPLEx state.  Electronic tracking systems make PSE sales information more accessible to law enforcement for investigation of potential PSE diversion, locating meth labs and prosecuting individuals.  Law enforcement officers in Indiana and Tennessee have noted that because NPLEx blocks customers from exceeding purchase limits, would-be purchasers associated with meth labs are not as readily identifiable and investigations take longer and are more labor intensive.

The GAO found that meth lab incidents in states that have implemented electronic tracking have not declined due in part to smurfing and the “one pot method” of methamphetamine manufacture.  Meth lab incidents in Oklahoma, Kentucky and Tennessee, the states that have been using electronic tracking the longest, are at their highest levels since implementation of federal and state PSE sales restrictions.  These states experienced initial declines in meth lab incidents from 2004 through 2006, but lab incidents have continued to rise since 2007.  While the systems block attempts by a customer with a single identification to purchase PSE in excess of the legal limits at one or more locations, smurfers have taken to using several different fake IDs to purchase above the legal limit without being detected or blocked. 

The number of reported meth lab incidents in Oregon and Mississippi declined followed by their prescription-only approach.  Reported meth lab incidents in Oregon had declined by 63 % in 2005 from 2004.  The number of reported meth lab incidents continued to decline in subsequent years after placement of PSE behind the counter and implementation of the CMEA and prescription requirements.  After adoption of the prescription requirements in Mississippi in 2010, the number of reported meth lab incidents declined by 66 % in 2011.  The report notes that declines were also observed in states neighboring Oregon and Mississippi because of regional or reporting factors.  State and local law enforcement officials in Oregon and Mississippi credited the reduction of meth lab incidents in those states to the prescription requirement.  Predictably, officials have reported observing related declines in the demand and utilization of law enforcement, child welfare and environmental cleanup services related to meth labs.

GAO notes that according to the Oregon High Intensity Drug Trafficking Area (“HIDTA”), while the number of reported meth labs there has declined, crystal meth remains “highly available” as Mexican traffickers import finished meth from labs outside the state.  The prescription-only approach in Oregon and Mississippi does not preclude residents from traveling to neighboring states to purchase PSE without a prescription.  However, in Arkansas it is now illegal to dispense PSE unless the customer presents a prescription or an Arkansas driver’s license or ID card, and Alabama requires individuals residing in a prescription-only state to provide a valid prescription for PSE.  Law enforcement officials in Oregon and Mississippi have reported no instances from their meth lab investigations in which PSE has been obtained through prescription forgery, illegal or improper prescribing or “doctor shopping” patients who obtain prescriptions from more than one doctor.  The prescription requirement appears to have reduced PSE sales in Mississippi (sales data is unavailable for Oregon), but the impact on customers is unknown.  Customers incur costs for traveling to and visiting a physician.  Customers may be able to obtain a PSE prescription via telephone.  The GAO observes that there has been no substantial healthcare workload increases required to issue PSE prescriptions and there has been no increase of medical appointments for patients seeking PSE products.  In addition, customers have not shifted from PSE to phenylephrine. 

The GAO report provides state lawmakers with a number of issues to consider about implementing electronic reporting systems, requiring a prescription to purchase PSE or weighing some other approach to further restrict sales of PSE used in the clandestine manufacture of methamphetamine.