published Wednesday, December 11th, 2013

Winchester, Tenn., police chief to enforce city's meth ordinance despite state law conflict

NASHVILLE -- The Winchester, Tenn., police chief says he plans to keep enforcing his city's ordinance requiring a doctor's prescription for pseudophedrine-based cold medications despite Tennessee Attorney General Robert Cooper's new legal opinion that the local anti-meth measure violates state law.

Chief Dennis Young said in an interview Tuesday that he believes the city's ordinance is on solid ground, regardless of Cooper's opinion.

"Our ordinance is in effect and it has not been challenged [in court], and as of right now we're leaving our ordinance in effect," Young said. "We have multiple legal opinions. ... Until we get challenged on this and it's adjudicated, it's the law of Winchester."

Winchester is among 18 towns and cities that have enacted ordinances since June in an effort to combat growing methamphetamine abuse in their communities. Frustrated law enforcement officials say the local anti-meth moves are necessary because of what they argue are inadequate efforts by the state Legislature to address problems.

"It's been very successful," Young said of the local ordinance, adding Winchester police have seen a 70 percent drop in meth production labs in the community since the ordinance was enacted. He said it's also dramatically cut the number of "smurfs" -- people who buy pseudophedrine-based cold medicines from pharmacies for illegal meth production.

However, Young said that given Cooper's legal opinion he plans to stop traveling to other cities to describe Winchester's success to communities looking at taking similar actions. Most of the ordinances call for a $50 civil penalty against anyone selling pseudophedrine to a person who doesn't have a valid prescription.

Current state law requires buyers of cold and allergy medicines containing the precursor chemical to show a photo ID and sign a logbook with names going into a database. People can't buy more than 3.6 grams of pseudoephedrine per day or more than 9 grams over 30 days. Law enforcement officials say smurfs easily evade the law by traveling to different towns and states to thwart record-keeping and evade purchase limits.

In his legal opinion, Cooper said "enactment by a Tennessee county or municipality of a local ordinance that prohibits the sale, delivery or distribution of over-the-counter products containing ephedrine or pseudoephedrine without a valid prescription from a health care professional licensed in Tennessee would violate [the "Meth-Free Tennessee Act of 2005] as it was amended in 2011."

The last section of the 2011 changes say the section "shall supercede any local laws or ordinances currently regulating sales of products containing any immediate methamphetamine precursor," the attorney general's opinion notes.

Cooper says the section of law "demonstrates the General Assembly's intent to occupy the entire field of regulation of immediate methamphetamine precursors such as ephedrine or pseudoephedrine, so as to permit no local enactments."

But Young argued that provision came about through an amendment about which most lawmakers were unaware.

The Cooper opinion was requested by Rep. Judd Matheny, R-Tullahoma.

State Sen. Mae Beavers, R-Mt. Juliet, who authored what she calls the state's "real-time" pseudophedrine-tracking technology, said in a statement that she has "long maintained that local prescription-only measures run counter to the spirit of that law. Attorney General Cooper's opinion demonstrates that these local ordinances do indeed run afoul of the law."

Beavers said "there is no question that there remains much work to be done to address the illegal manufacture of methamphetamine" and continues to look for "balanced solutions that target criminals, not law-abiding Tennesseans."

The Consumer Healthcare Products Association, which has heavily lobbied against prescription-only approaches to Tennessee's meth epidemic, lauded Cooper's opinion.

"We have always maintained that a prescription mandate for pseudophedrine is a state issue. Local city and countywide mandates are not effective solutions to address the illegal purchase of pseudoephedrine-containing medicines," the group said in a statement.

The association added that drug manufacturers "look forward to working with the Tennessee legislature to find effective solutions to the illegal sales of PSE."

Sen. Randy McNally, R-Oak Ridge, a retired pharmacist and proponent of tougher pseudophedrine regulations, said lawmakers definitely have more work to do when it comes to the law. He said Cooper's opinion likely will bring new life to a proposal by Sen. Ferrell Haile, R-Gallatin, also a pharmacist.

  • photo
    A number of Tennessee municipalities now require people who want to buy products containing pseudoephedrine to first get a prescription. Sudafed and other common nasal decongestants contain pseudoephedrine, which methamphetamine makers use.
    Photo by Associated Press /Chattanooga Times Free Press.

Haile's proposal would require pseudophedrine and ephedrine be prescribed either by a physician or a pharmacist. It's aimed at addressing arguments advanced by some lawmakers and drug manufacturers that a physician prescription is too burdensome for consumers.

McNally said Cooper's opinion gives that idea a "better chance now. I've seen the meth figures [statewide] and they're not improving that much."

In 2012, about 748,000 of Tennessee's 6.4 million residents bought a product that contains pseudoephedrine, state records show. About half those purchases were diverted to make meth, officials have said.

McNally said the "industry-backed method is not working all that well."

Young said "we felt the law was very clear ... and we researched the intent of the Legislature and and interviewed a lot of people who were involved."

The chief said cities find themselves in a fight with what he called "Big Pharma," noting drug manufacturers "fought us tooth and nail everywhere we go in the state" with a platoon of lobbyists and public relations efforts including newspaper ads and "robo calls" attacking proposed restrictions.

Contact staff writer Andy Sher at 615-255-0550 or asher@timesfreepress.com.

about Andy Sher...

Andy Sher is a Nashville-based staff writer covering Tennessee state government and politics for the Times Free Press. A Washington correspondent from 1999-2005 for the Times Free Press, Andy previously headed up state Capitol coverage for The Chattanooga Times, worked as a state Capitol reporter for The Nashville Banner and was a contributor to The Tennessee Journal, among other publications. Andy worked for 17 years at The Chattanooga Times covering police, health care, county government, ...

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