(a) Unlawful Purchases.
(1) For the purpose of divisions (a) through (d) of this section, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
A. “Consumer product.” Any food or drink that is consumed or used by humans and any drug, including a drug that may be provided legally only pursuant to a prescription, that is intended to be consumed or used by humans.
B. “Pseudoephedrine.” Any material, compound, mixture, or preparation that contains any quantity of pseudoephedrine, any of its salts, optical isomers, or salts of optical isomers.
C. “Pseudoephedrine product.” A consumer product consisting of a single-ingredient preparation of pseudoephedrine in which pseudoephedrine is the active ingredient. “Pseudoephedrine product” does not include either of the following:
1. A consumer product containing pseudoephedrine that is in a liquid, liquid capsule or gel capsule form;
2. A consumer product primarily intended for administration to children under 12 years of age, according to the label instructions, in solid dosage form, including chewable tablets, when individual dosage units do not exceed 15 milligrams of pseudoephedrine.
D. “Retailer.” A place of business that offers consumer products for sale to the general public.
E. “Single-ingredient preparation.” A compound, mixture, preparation or substance that contains a single active ingredient.
F. “Terminal distributor of dangerous drugs.” Has the same meaning as in Ohio R.C. 4729.01.
(2) A. No individual shall knowingly purchase, receive or otherwise acquire more than nine grams of any pseudoephedrine product within a period of 30 consecutive days, unless the pseudoephedrine product is dispensed by a pharmacist pursuant to a valid prescription issued by a licensed health professional authorized to prescribe drugs and the conduct of the pharmacist and the licensed health professional authorized to prescribe drugs is in accordance with Ohio R.C. Chapter 3719, Chapter 4715, Chapter 4723, Chapter 4729, Chapter 4731 or Chapter 4741.
B. It is not a violation of division (a)(2)A. of this section for an individual to receive or accept more than nine grams of any pseudoephedrine product within a period of 30 consecutive days if the individual is an employee of a retailer or terminal distributor of dangerous drugs, and the employee receives or accepts from the retailer or terminal distributor of dangerous drugs the pseudoephedrine product in a sealed container in connection with manufacturing, warehousing, placement, stocking, bagging, loading or unloading of the product.
(3) A. No individual under 18 years of age shall knowingly purchase, receive or otherwise acquire a pseudoephedrine product, unless the pseudoephedrine product is dispensed by a pharmacist pursuant to a valid prescription issued by a licensed health professional authorized to prescribe drugs and the conduct of the pharmacist and the licensed health professional authorized to prescribe drugs is in accordance with Ohio R.C. Chapter 3719, Chapter 4715, Chapter 4723, Chapter 4729, Chapter 4731 or Chapter 4741.
B. Division (a)(3)A. of this section does not apply to an individual under 18 years of age who purchases, receives or otherwise acquires a pseudoephedrine product from any of the following:
1. A licensed health professional authorized to prescribe drugs or pharmacist who dispenses, sells or otherwise provides the pseudoephedrine product to that individual and whose conduct is in accordance with Ohio R.C. Chapter 3719, Chapter 4715, Chapter 4723, Chapter 4729, Chapter 4731 or Chapter 4741;
2. A parent or guardian of that individual who provides the pseudoephedrine product to the individual;
3. A person, as authorized by that individual's parent or guardian, who dispenses, sells or otherwise provides the pseudoephedrine product to the individual;
4. A retailer or terminal distributor of dangerous drugs who provides the pseudoephedrine product to that individual if the individual is an employee of the retailer or terminal distributor of dangerous drugs and the individual receives or accepts from the retailer or terminal distributor of dangerous drugs the pseudoephedrine product in a sealed container in connection with manufacturing, warehousing, placement, stocking, bagging, loading or unloading of the product.
(4) No individual under eighteen years of age shall knowingly show or give false information concerning the individual's name, age or other identification for the purpose of purchasing, receiving or otherwise acquiring a pseudoephedrine product.
(5) No individual shall knowingly fail to comply with the requirements of division (e)(3)C. of this section.
(6) Whoever violates division (a)(2)A. of this section is guilty of unlawful purchase of a pseudoephedrine product, a misdemeanor of the first degree.
(7) Whoever violates division (a)(3)A. of this section is guilty of underage purchase of a pseudoephedrine product, a delinquent act that would be a misdemeanor of the fourth degree if it could be committed by an adult.
(8) Whoever violates division (a)(4) of this section is guilty of using false information to purchase a pseudoephedrine product, a delinquent act that would be a misdemeanor of the first degree if it could be committed by an adult.
(9) Whoever violates division (a)(5) of this section is guilty of improper purchase of a pseudoephedrine product, a misdemeanor of the fourth degree.
(ORC 2925.55)
(b) Unlawful Retail Sales.
(1) A. Except as provided in division (b)(1)B. of this section, no retailer or terminal distributor of dangerous drugs or an employee of a retailer or terminal distributor of dangerous drugs shall knowingly sell, offer to sell, hold for sale, deliver or otherwise provide to any individual within a period of thirty consecutive days an amount of pseudoephedrine product that is greater than nine grams.
B. Division (b)(1)A. of this section does not apply to any quantity of pseudoephedrine product dispensed by a pharmacist pursuant to a valid prescription issued by a licensed health professional authorized to prescribe drugs if the conduct of the pharmacist and the licensed health professional authorized to prescribe drugs is in accordance with Ohio R.C. Chapter 3719, Chapter 4715, Chapter 4723, Chapter 4729, Chapter 4731 or Chapter 4741.
C. It is not a violation of division (b)(1)A. of this section for a retailer, terminal distributor of dangerous drugs or employee of either to provide to an individual more than nine grams of any pseudoephedrine product within a period of thirty consecutive days if the individual is an employee of the retailer or terminal distributor of dangerous drugs, and the employee receives or accepts from the retailer, terminal distributor of dangerous drugs or employee the pseudoephedrine product in a sealed container in connection with manufacturing, warehousing, placement, stocking, bagging, loading or unloading of the product.
(2) A. Except as provided in division (b)(2)B. of this section, no retailer or terminal distributor of dangerous drugs or an employee of a retailer or terminal distributor of dangerous drugs shall sell, offer to sell, hold for sale, deliver or otherwise provide a pseudoephedrine product to an individual who is under eighteen years of age.
B. Division (b)(2)A. of this section does not apply to any of the following:
1. A licensed health professional authorized to prescribe drugs or pharmacist who dispenses, sells or otherwise provides a pseudoephedrine product to an individual under eighteen years of age and whose conduct is in accordance with Ohio R.C. Chapter 3719, Chapter 4715, Chapter 4723, Chapter 4729, Chapter 4731 or Chapter 4741;
2. A parent or guardian of an individual under eighteen years of age who provides a pseudoephedrine product to the individual;
3. A person who, as authorized by the individual's parent or guardian, dispenses, sells or otherwise provides a pseudoephedrine product to an individual under eighteen years of age;
4. The provision by a retailer, terminal distributor of dangerous drugs, or employee of either of a pseudoephedrine product in a sealed container to an employee of the retailer or terminal distributor of dangerous drugs who is under eighteen years of age in connection with manufacturing, warehousing, placement, stocking, bagging, loading or unloading of the product.
(3) No retailer or terminal distributor of dangerous drugs shall fail to comply with the requirements of division (e)(3)B. of this section.
(4) Whoever violates division (b)(1)A. of this section is guilty of unlawfully selling a pseudoephedrine product, a misdemeanor of the first degree.
(5) Whoever violates division (b)(2)A. of this section is guilty of unlawfully selling a pseudoephedrine product to a minor, a misdemeanor of the fourth degree.
(6) Whoever violates division (b)(3) of this section is guilty of improper sale of a pseudoephedrine product, a misdemeanor of the second degree.
(ORC 2925.56)
(c) Transaction Scans.
(1) For the purpose of this division and division (d) of this section, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
A. “Card holder.” Any person who presents a driver's or commercial driver's license or an identification card to a seller, or an agent or employee of a seller, to purchase or receive any pseudoephedrine product from the seller, agent or employee.
B. Identification card” and “transaction scan device.” Have the same meanings as in Ohio R.C. 2927.021.
C. “Seller.” A retailer or terminal distributor of dangerous drugs.
D. “Transaction scan.” The process by which a seller or an agent or employee of a seller checks by means of a transaction scan device the validity of a driver's or commercial driver's license or an identification card that is presented as a condition for purchasing or receiving any pseudoephedrine product.
(2) A. A seller or an agent or employee of a seller may perform a transaction scan by means of a transaction scan device to check the validity of a driver's or commercial driver's license or identification card presented by a card holder as a condition for selling, giving away or otherwise distributing to the card holder a pseudoephedrine product.
B. If the information deciphered by the transaction scan performed under division (c)(2)A. of this section fails to match the information printed on the driver's or commercial driver's license or identification card presented by the card holder, or if the transaction scan indicates that the information so printed is false or fraudulent, neither the seller nor any agent or employee of the seller shall sell, give away or otherwise distribute any pseudoephedrine product to the card holder.
C. Division (c)(2)A. of this section does not preclude a seller or an agent or employee of a seller as a condition for selling, giving away or otherwise distributing a pseudoephedrine product to the person presenting the document from using a transaction scan device to check the validity of a document other than a driver's or commercial driver's license or an identification card if the document includes a bar code or magnetic strip that may be scanned by the device.
(3) Rules adopted by the Registrar of Motor Vehicles under Ohio R.C. 4301.61(C) apply to the use of transaction scan devices for purposes of this division (c) and division (d) of this section.
(4) A. No seller or agent or employee of a seller shall electronically or mechanically record or maintain any information derived from a transaction scan, except the following:
1. The name and date of birth of the person listed on the driver's or commercial driver's license or identification card presented by a card holder;
2. The expiration date and identification number of the driver's or commercial driver's license or identification card presented by a card holder.
B. No seller or agent or employee of a seller shall use the information that is derived from a transaction scan or that is permitted to be recorded and maintained under division (c)(4)A. of this section except for purposes of division (d) of this section, R.C. § 2925.58, or R.C. § 3715.052(A)(1).
C. No seller or agent or employee of a seller shall use a transaction scan device for a purpose other than the purpose specified in division (c)(2)A. of this section.
D. No seller or agent or employee of a seller shall sell or otherwise disseminate the information derived from a transaction scan to any third party, including but not limited to selling or otherwise disseminating that information for any marketing, advertising or promotional activities, but a seller or agent or employee of a seller may release that information pursuant to a court order or as specifically authorized by division (d) of this section or any other section of the Ohio Revised Code.
(5) Nothing in this division (c) or division (d) of this section relieves a seller or an agent or employee of a seller of any responsibility to comply with any other applicable state or federal laws or rules governing the sale, giving away or other distribution of pseudoephedrine products.
(6) Whoever violates division (c)(2)B. or (c)(4) of this section is guilty of engaging in an illegal pseudoephedrine product transaction scan, and the court may impose upon the offender a civil penalty of up to $1,000 for each violation. The Clerk of the Court shall pay each collected civil penalty to the County Treasurer for deposit into the County Treasury.
(ORC 2925.57)
(d) Affirmative Defenses.
(1) A seller or an agent or employee of a seller may not be found guilty of a charge of a violation of division (b) of this section in which the age of the purchaser or other recipient of a pseudoephedrine product is an element of the alleged violation if the seller, agent or employee raises and proves as an affirmative defense that all of the following occurred:
A. A card holder attempting to purchase or receive a pseudoephedrine product presented a driver's or commercial driver's license or an identification card.
B. A transaction scan of the driver's or commercial driver's license or identification card that the card holder presented indicated that the license or card was valid.
C. The pseudoephedrine product was sold, given away or otherwise distributed to the card holder in reasonable reliance upon the identification presented and the completed transaction scan.
(2) In determining whether a seller or an agent or employee of a seller has proven the affirmative defense provided by division (d)(1) of this section, the trier of fact in the action for the alleged violation of division (b) of this section shall consider any written policy that the seller has adopted and implemented and that is intended to prevent violations of division (b) of this section. For purposes of division (d)(1)C. of this section, the trier of fact shall consider that reasonable reliance upon the identification presented and the completed transaction scan may require a seller or an agent or employee of a seller to exercise reasonable diligence to determine, and that the use of a transaction scan device does not excuse a seller or an agent or employee of a seller from exercising reasonable diligence to determine, the following:
A. Whether a person to whom the seller or agent or employee of a seller sells, gives away or otherwise distributes a pseudoephedrine product is eighteen years of age or older;
B. Whether the description and picture appearing on the driver's or commercial driver's license or identification card presented by a card holder is that of the card holder.
(3) In any criminal action in which the affirmative defense provided by division (d)(1) of this section is raised, the Registrar of Motor Vehicles or a Deputy Registrar who issued an identification card under Ohio R.C. 4507.50 through 4507.52 shall be permitted to submit certified copies of the records of that issuance in lieu of the testimony of the personnel of or contractors with the Bureau of Motor Vehicles in the action.
(ORC 2925.58)
(e) Retailer's Duties.
(1) For the purpose of this division and division (f) of this section, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
A. “Drug,” “licensed health professional authorized to prescribe drugs,” “pharmacy,” “prescriber,” “prescription,” and “terminal distributor of dangerous drugs.” Have the same meanings as in Ohio R.C. 4729.01.
B. “Pharmacist.” A person licensed under Ohio R.C. Chapter 4729 to engage in the practice of pharmacy.
C. “Proof of age.” A driver's license, a commercial driver's license, a military identification card, a passport or an identification card issued under Ohio R.C. 4507.50 through 4507.52 that shows a person is eighteen years of age or older.
D. “Wholesaler.” Has the same meaning as in Ohio R.C. 3719.01.
(2) A retailer or terminal distributor of dangerous drugs that sells, offers to sell, holds for sale, delivers or otherwise provides a pseudoephedrine product to the public shall do all of the following:
A. Segregate pseudoephedrine products from other merchandise so that no member of the public may procure or purchase the products without the direct assistance of a pharmacist or other authorized employee of the retailer or terminal distributor of dangerous drugs;
B. With regard to each time a pseudoephedrine product is sold or otherwise provided:
1. Determine, by examination of a valid proof of age, that the purchaser or recipient is at least eighteen years of age;
2. Make a reasonable attempt to ensure that no individual purchases or receives more than nine grams of pseudoephedrine products within a period of thirty consecutive days.
C. Maintain a log book of pseudoephedrine product purchases, in accordance with division (e)(3) of this section.
(3) A. As used in this division (e)(3), “law enforcement official” means an officer or employee of any agency or authority of the United States, a state, a territory, a political division of a state or territory, or an Indian tribe, who is empowered by the law to investigate or conduct an official inquiry into a potential violation of law or prosecute or otherwise conduct a criminal, civil or administrative proceeding arising from an alleged violation of law.
B. A retailer or terminal distributor of dangerous drugs that sells, offers to sell, holds for sale, delivers or otherwise provides a pseudoephedrine product to the public shall maintain a log book of all purchases of pseudoephedrine products. The log book may be maintained in a tangible format, in an electronic format, or in both a tangible format and an electronic format. As part of this requirement, the retailer or terminal distributor of dangerous drugs shall do all of the following:
1. Require each purchaser to sign an entry in the log book that is maintained in the electronic or tangible format;
2. Determine whether the name signed in the entry in the log book corresponds with the name on a government-issued identification card;
3. Retain the log book in a tangible format, in an electronic format, or in both a tangible format and an electronic format for a minimum of one year after the date of the last purchase recorded in the log book;
4. Include in the log book in the manner described in division (e)(3)E. of this section or, in the alternative, post, in a conspicuous location, the following statement: “Ohio law prohibits the over-the-counter purchase within any period of thirty consecutive days of more than nine grams of any consumer product in which pseudoephedrine is the only active ingredient. If you purchase a consumer product in which pseudoephedrine is the only active ingredient, you are required to sign a log book that may be accessible to law enforcement officers and to provide a government-issued identification card to verify your identity. Except in limited circumstances, the purchase within any period of thirty consecutive days of more than nine grams of any consumer product in which pseudoephedrine is the only active ingredient, and the purchase by any individual under eighteen years of age of any consumer product in which pseudoephedrine is the only active ingredient, are subject to criminal prosecution or delinquency proceedings in accordance with Ohio law. Also, the provision of false information concerning an individual's name, age or other identification for the purpose of acquiring any consumer product in which pseudoephedrine is the only active ingredient is subject to criminal prosecution or delinquency proceedings in accordance with Ohio law.”
C. Each purchaser of a pseudoephedrine product shall do all of the following:
1. Sign and print the purchaser's name and address in the log book;
2. Provide a government-issued identification card to the retailer or terminal distributor of dangerous drugs to verify the purchaser's identity.
D. Information contained in the log book may not be used or disclosed except in the following circumstances:
1. In response to a court order or subpoena;
2. In response to a request from a law enforcement official to be used for law enforcement purposes.
E. If a retailer or terminal distributor of dangerous drugs chooses to include the statement set forth in division (e)(3)B.4. of this section in the log book maintained under division (e)(3)B. of this section, the statement shall be set forth in the following manner:
1. If the log book is maintained in an electronic format, the statement shall be set forth in such a manner that it is presented on the viewing screen to each purchaser who is signing an entry in the log book before the purchaser may sign the entry.
2. If the log book is maintained in a tangible format, the statement shall be set forth on the cover of the log book and on each page of the log book.
(4) Prescriptions, orders and records maintained pursuant to this section and stocks of pseudoephedrine products shall be open for inspection to federal, state, county and municipal officers and employees of the State Board of Pharmacy whose duty it is to enforce the laws of this state or of the United States relating to controlled substances. Such prescriptions, orders, records and stocks shall be open for inspection by the State Medical Board and its employees for purposes of enforcing Ohio R.C. Chapter 4731.
(ORC 3715.05)
(f) Theft or Loss; Reporting Requirements.
(1) Each retailer, terminal distributor of dangerous drugs, pharmacy, prescriber or wholesaler that sells, offers to sell, holds for sale, delivers or otherwise provides any pseudoephedrine product and that discovers the theft or loss of any pseudoephedrine product in an amount of more than nine grams per incident of theft or loss shall notify all of the following upon discovery of the theft or loss:
A. The State Board of Pharmacy, by telephone immediately upon discovery of the theft or loss;
B. Law enforcement authorities. If the incident is a theft and the theft constitutes a felony, the retailer, terminal distributor of dangerous drugs, pharmacy, prescriber or wholesaler shall report the theft to the law enforcement authorities in accordance with Ohio R.C. 2921.22.
(2) Within thirty days after making a report by telephone to the State Board of Pharmacy pursuant to division (f)(1)A. of this section, a retailer, terminal distributor of dangerous drugs, pharmacy, prescriber or wholesaler shall send a written report to the State Board of Pharmacy.
(3) The reports required under this section shall identify the product that was stolen or lost, the amount of the product stolen or lost, and the date and time of discovery of the theft or loss.
(ORC 3715.06)