Bill to allow easier access to cold, allergy medicines fails fourth year in a row

Correction:House Bill 2303, which would allow behind-the-counter sales of pseudoephedrine without a prescription, passed both the Oregon House and Senate, but died after both houses made amendments. Rep. Andrea Salinas is a Democrat from Lake Oswego.

Rep. Bill Post, R-Keizer, has tried four times to bring back non-prescription purchases of pseudoephedrine in Oregon, but each year the legislation has died.

This year it made it through the House and Senate, the best showing so far. But not good enough, as the bill was significantly amended to make concurrence unlikely. 

Post is advocating for a system that tracks sales of the popular decongestant, rather than requiring prescriptions. "It's a bullet proof system," said Post. "It works in 37 states. Why not here?" 

But after moving though the House 33-22, the bill reached significant privacy and safety concerns in the Senate Judiciary Committee.

In 2005, the federal government banned the over the counter sale of pseudoephedrine, an ingredient in many cold medicines, during the peak of an epidemic in which bulk purchases of cold medicines were used to make meth, in a practice called "smurfing."

To comply, Oregon passed a law to make pseudophedrine a prescription, and meth lab seizures plummeted throughout the state. But, consequently, Oregonians experience difficulty buying simple cold and allergy medicines, especially with high deductible insurance policies.

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In 2018, over 55,000 Oregonians crossed state lines to purchase pseudoephedrine. Oregon and Mississippi are the only states that require a prescription to make the purchase. 

Both physicians and citizens have complained prescribing cold medicine is expensive and a waste of time, so after three failed attempts, Post again introduced a bill to make cold and allergy medicine more accessible.

Post's bill suggested a well-known alternative to prescription pseudoephedrine: place the medicine behind the counter and track purchase limits with the National Precursor Log Exchange (NPLEx), a technology that many believe has led to similar meth lab declines in other states.

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Privacy issues raised in Oregon

NPLEx provides real-time electronic logging to recommend to a pharmacy whether to allow someone to purchase pseudoephedrine.

 For example, under the NPLEx system, if someone buys the medicine in New York and flies back to Oregon, they would be denied by the pharmacist. 

The American Civil Liberties Union testified in committee that the NPLEx database violates Oregonian's privacy rights, as law enforcement has access to the information without a warrant. And although NPLEx is used in 37 other states, Kimberly McCullough of the American Civil Liberties Union says that Oregon has higher standards. 

"In Oregon, we really are the trailblazers when it comes to privacy," said McCullough, who says other states don't have better options to offer, like Oregon's existing drug tracking system: the Prescription Drug Monitoring Program (PDMP).  

Oregon law enforcement and the American Civil Liberties Union have spent years negotiating the PDMP so that purchases are tracked in a database but not available to third parties. 

The bill also had significant hang-ups with law enforcement, who deny that any tracking system could prevent smurfing, as numerous people can purchase the limited amount and pool their purchases together.

Woodburn Police Chief Jim Ferraris testified in committee that removing pseudoephedrine as a controlled substance would eventually allow the return of toxic meth labs. He says their disappearance is only due to the availability of cheap, pure meth on the streets right now, not a tracking system. 

In an attempt to compromise vastly different viewpoints, the amended bill that came out of the Senate Judiciary Committee ended up looking nothing like the original. 

The amended bill recommends using PDMP, rather than the NPLEx system, and moves the point of prescription from a physician to a pharmacist, meaning if someone wanted cold or allergy medicine, they would go speak to their pharmacist.

The amendment also included a nine-gram per month state limit, which mirrors federal limits.

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Pharmacists' ability to comply debated

But, Jim Acquisto of Appris, the vendor that operates both NPLEx and PDMP, says because PDMP doesn't allow real-time tracking, pharmacists would be unable comply with the daily and monthly limits on the number of grams sold to an individual.  

Purchases would only be updated in the PDMP within 24-72 hours, and there is no requirement to submit the gram amount within a medicine. 

If the data was available to a pharmacist, they would have to manually add up the amounts for the most recent 30 days. 

"I don't think the pharmacists could comply," Acquisto said. "There is no way for them to comply." 

Acquisto testified in committee before the Senate amendment was introduced, so he was unable to explain the specific limitations of the proposal. But after learning about the amendment, Acquisto sent a letter to the committee. 

"PDMP could not do what the bill asks it to do," Post said. "NPLEx is literally the only software in America that can do it." 

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With House concurrence unlikely, the bill could have gone to a conference committee to work out the differences, but with a number of other pressing healthcare bills on the table, Rep. Andrea Salinas, D- Lake Oswego, said that the two very different proposals were going to be hard to negotiate.

"It was going to take a lot of capacity and resources and time to get to an agreement, and time we just didn't have this session," said Salinas who chairs the House Committee on Health Care where the bill originated.

"I think he would need to start working now to figure out how to get to some common ground with the Senate," Salinas said about Post bringing back the bill next session.

But for Post, there is no common ground, as the Senate proposal operates in a way that makes pharmacist compliance next to impossible. 

"It's frustrating," Post said. "Here was a very simple, simple fix. It wasn't for me, it was for Oregonians."

Reach the reporter at shawkins@gannett.com or 503-798-1623