HB-5338, As Passed Senate, June 12, 2012

SUBSTITUTE FOR

HOUSE BILL NO. 5338

     A bill to amend 1978 PA 368, entitled

"Public health code,"

by amending sections 2251 and 7341 (MCL 333.2251 and 333.7341),

section 7341 as added by 1984 PA 347.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

     Sec. 2251. (1) Upon a determination that an imminent danger to

the health or lives of individuals exists in this state, the

director immediately shall inform the individuals affected by the

imminent danger and issue an order which that shall be delivered to

a person , authorized to avoid, correct, or remove the imminent

danger or be posted at or near the imminent danger. The order shall

incorporate the director's findings and require immediate action

necessary to avoid, correct, or remove the imminent danger. The

order may specify action to be taken or prohibit the presence of

individuals in locations or under conditions where the imminent

danger exists, except individuals whose presence is necessary to

avoid, correct, or remove the imminent danger.

     (2) Upon failure of a person to comply promptly with a

department order issued under this section, the department may

petition the circuit court having jurisdiction to restrain a

condition or practice which the director determines causes the

imminent danger or to require action to avoid, correct, or remove

the imminent danger.

     (3) If the director determines that conditions anywhere in

this state constitute a menace to the public health, the director

may take full charge of the administration of applicable state and

local health laws, rules, regulations, and ordinances applicable

thereto. in addressing that menace.

     (4) If the director determines that an imminent danger to the

health or lives of individuals in this state can be prevented or

controlled by the promulgation of an emergency rule under section

48(2) of the administrative procedures act of 1969, 1969 PA 306,

MCL 24.248, to schedule or reschedule a substance as a controlled

substance as provided in part 72, the director shall notify the

director of the department of licensing and regulatory affairs and

the administrator of his or her determination in writing. The

notification shall include a description of the substance to be

scheduled or rescheduled and the grounds for his or her

determination. The director may provide copies of police, hospital,

and laboratory reports and other information to the director of the

department of licensing and regulatory affairs and the

administrator as considered appropriate by the director.

(5) (4) As used in this section:

     (a) "Administrator" means that term as defined in section

7103.

(b) (a) "Imminent danger" means a condition or practice exists

which that could reasonably be expected to cause death, disease, or

serious physical harm immediately or before the imminence of the

danger can be eliminated through enforcement procedures otherwise

provided.

(c) (b) "Person" means a person as defined in section 1106 or

a governmental entity.

     Sec. 7341. (1) As used in this section:

     (a) "Distribute" means the actual, constructive, or attempted

transfer, sale, delivery, or dispensing from one person to another

of an imitation controlled substance.

     (b) "Imitation controlled substance" means a substance that is

not a controlled substance or is not a drug for which a

prescription is required under federal or state law, which by

dosage unit appearance including color, shape, size, or markings,

and/or by representations made, would lead a reasonable person to

believe that the substance is a controlled substance. However, this

subsection does not apply to a drug that is not a controlled

substance if it was marketed before the controlled substance that

it physically resembles. An imitation controlled substance does not

include a placebo or registered investigational drug that was

manufactured, distributed, possessed, or delivered in the ordinary

course of professional practice or research. All of the following

factors shall be considered in determining whether a substance is

an imitation controlled substance:

     (i) Whether the substance was approved by the federal food and

drug administration for over-the-counter sales and was sold in the

federal food and drug administration approved packaging along with

the federal food and drug administration approved labeling

information.

     (ii) Any statements made by an owner or another person in

control of the substance concerning the nature, use, or effect of

the substance.

     (iii) Whether the substance is packaged in a manner normally

used for illicit controlled substances.

     (iv) Whether the owner or another person in control of the

substance has any prior convictions under state or federal law

related to controlled substances or fraud.

     (v) The proximity of the substance to controlled substances.

     (vi) Whether the consideration tendered in exchange for the

substance substantially exceeds the reasonable value of the

substance considering the actual chemical composition of the

substance and, if applicable, the price at which the over-the-

counter substances of like chemical composition sell.

     (c) "Manufacture" means the production, preparation,

compounding, conversion, encapsulating, packaging, repackaging,

labeling, relabeling, or processing of an imitation controlled

substance, directly or indirectly.

     (2) In addition to all logically relevant factors, the

following factors as related to "representations made" shall be

considered in determining whether a substance is an imitation

controlled substance:

     (a) Any express or implied representation made that the nature

of the substance or its use or effect is similar to that of a

controlled substance.

     (b) Any express or implied representation made that the

substance may be resold for an amount considerably in excess of the

reasonable value of the composite ingredients and the cost of

processing.

     (c) Any express or implied representation made that the

substance is a controlled substance.

     (d) Any express or implied representation that the substance

is of a nature or appearance that the recipient of the substance

will be able to distribute the substance as a controlled substance.

     (e) That the substance's package, label, or name is

substantially similar to that of a controlled substance.

     (f) The proximity of the substance to a controlled substance.

     (g) That the physical appearance of the substance is

substantially identical to a specific controlled substance,

including any numbers or codes thereon, and the shape, size,

markings, or color.

     (3) Except as provided in subsection (7), a person shall not

manufacture, distribute, or possess with intent to distribute, an

imitation controlled substance.

     (4) A person shall not use, or possess with intent to use, an

imitation controlled substance, except under the direction of a

person authorized pursuant to subsection (7). A person who violates

this subsection is subject to a civil fine of not more than $100.00

and costs. Upon a second or subsequent violation of this

subsection, a person is guilty of a misdemeanor punishable by

imprisonment for not more than 90 days, or a fine of not more than

$100.00, or both.

     (5) A default in the payment of a civil fine or costs ordered

under subsection (4) or an installment thereof may be collected by

any means authorized for the enforcement of a judgment under

chapter 40 or chapter 60 of the revised judicature act of 1961, Act

No. 236 of the Public Acts of 1961, being sections 600.4001 to

600.4065 of the Michigan Compiled Laws, or under chapter 60 of Act

No. 236 of the Public Acts of 1961, being sections 600.6001 to

600.6097 of the Michigan Compiled Laws.1961 PA 236, MCL 600.4001 to

600.4065 and 600.6001 to 600.6098.

     (6) A person shall not place an advertisement or solicitation

in this state to be distributed by any electronic media in this

state, or place an advertisement or solicitation in this state in

any newspaper, magazine, handbill, or other publication; or post or

distribute an advertisement or solicitation in any public place in

this state, knowing or having reason to know that the purpose of

the advertisement or solicitation is to promote the distribution of

an imitation controlled substance. A person who violates this

subsection is guilty of a misdemeanor, punishable by imprisonment

for not more than 1 year, or a fine of not more than $5,000.00, or

both.

     (7) This section does not apply to any person who is

authorized by the administrator or the federal food and drug

administration to manufacture, distribute, prescribe, or possess an

imitation controlled substance for use as a placebo for legitimate

medical, therapeutic, or research purposes.

     (8) Except as provided in subsections (4) and (6), a person

who violates this section is guilty of a felony, punishable by

imprisonment for not more than 2 years, or by a fine of not more

than $10,000.00, or both.

     Enacting section 1. This amendatory act does not take effect

unless all of the following bills of the 96th Legislature are

enacted into law:

     (a) Senate Bill No. 789.

     (b) House Bill No. 5714.