A lawmaker says that the city of Phoenix’s recent approval of an ordinance aimed at curtailing methamphetamine production by limiting access to over-the-counter medicines with the drug’s key ingredient is illegal because it is stricter than state statute.

Sen. Barbara Leff, R-11, says other municipalities that have enacted similar ordinances more restrictive than state law, like Camp Verde and Cottonwood, are also violating the law.

“They’ve broken the law by creating these ordinances,” she said.

The law in question governs how much pseudoephedrine someone can purchase at one time and legally possess. It was passed in 1999. ARS § 13-3404.01 (G) reads: “Notwithstanding any other law, a county, city or town shall not enact an ordinance that is more restrictive than the requirements of this section.”

However, Paul Badalucco, a deputy city prosecutor with the city of Phoenix, says it is debatable whether the state statute preempts what the city recently enacted.

“We think we have solid legal arguments against preemption,” he said. “It’s not a broad-based preemption provision.”

The portion of statute that prevents cities from making stricter laws, he said, has a narrow scope and applies only to the section of state law it is in. The city ordinance does not alter that section of law, Mr. Badalucco said.

He also said it “is likely something that will be litigated” in the future, especially as more cities begin to enact their own pseudoephedrine ordinances.

Rep. O’Halleran Applauds Move

Rep. Tom O’Halleran, R-1, says cities are instituting restrictions that the Legislature should have passed last session. He sponsored a measure that would have required all medications with pseudoephedrine as the only active ingredient be kept behind the counter of a pharmacy. Customers would have had to show identification and sign a log book before purchasing the medicines. His proposal was modeled after one that was adopted by Oklahoma in 2004.

“I think it’s great that they’re taking the leadership role the Legislature should have taken last session,” Mr. O’Halleran said. “The lobbying interests for retail and pharmacies do not have as much sway with cities as with the Legislature.”

Last session, Ms. Leff successfully sponsored S1473 (Laws 2005, Chapter 327), which created additional penalties for people making meth in the presence of children and increased the penalties for those caught making, carrying or distributing the drug in any circumstance.

The legislation also requires all retailers to store over-the-counter medicines in which pseudoephedrine is the sole active ingredient in a locked case or behind the counter in an effort to reduce theft. The provisions of the law take effect in November.

Ms. Leff’s and Mr. O’Halleran’s proposals were in direct competition with each other for much of the session. When the more restrictive Oklahoma plan Mr. O’Halleran endorsed was held in the House Rules Committee, he was able to amend many of its provisions onto Ms. Leff’s S1473, though they were later removed during a conference committee.

Phoenix Ordinance Passed Sept. 7

The Phoenix ordinance — which was passed Sept. 7 and takes effect in 90 days — is stricter than even Mr. O’Halleran’s proposal, in that it requires all products containing pseudoephedrine as an active ingredient be kept behind the counter of a retailer, in addition to requiring purchasers to sign the log book. Customers will have to provide their names, address and date of birth, and that information will be turned over to police each month.

Unlike the laws approved in Cottonwood and Camp Verde, the Phoenix ordinance also includes a forfeiture clause. In essence, if police spot products with pseudoephedrine on open shelves, police can take those medications and destroy them.

Ms. Leff is critical of the Phoenix law and says the money spent on inspecting stores and tracking those who buy cold medications would be better spent arresting meth dealers and stopping the influx of the drug and pseudoephedrine from Mexico. She says the ordinance is also burdensome to the general public.

“I don’t understand what Phoenix is trying to gain, except to make life difficult for everyone,” she said. “I think people are going to be really upset when they find out they can’t get their medication without giving lots of personal information.”

Mr. O’Halleran says the cities are likely breaking the law but he does not fault them for doing so. The fact that they are willing to flout state statute indicates to the Legislature the law needs to be changed, he says.

“Let’s change the law,” he said. “If we need to change it this coming session, let’s change it. We can’t sit back and do nothing.”

The Oklahoma plan, which has been adopted in several other states, will once again be introduced in the Arizona Legislature next session, Mr. O’Halleran said, though he is unsure what level of support it will receive from leadership or from lawmakers as a whole. —