II 

111TH CONGRESS 

1ST SESSION S. 1383 

To amend the Controlled Substances Act to prevent the abuse of 

dextromethorphan, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

JUNE 25, 2009 

Mr. DURBIN (for himself and Mr. GRASSLEY) introduced the following bill; 

which was read twice and referred to the Committee on the Judiciary 

A BILL 

To amend the Controlled Substances Act to prevent the 

abuse of dextromethorphan, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Dextromethorphan 

5 Abuse Reduction Act of 2009’’. 

6 SEC. 2. FINDINGS. 

7 Congress finds the following: 

8 (1) When used properly, cough medicines that 

9 contain dextromethorphan have a long history of 

10 being safe and effective. But abuse of dextromethorVerDate Nov 24 2008 01:45 Jun 28, 2009 Jkt 079200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1383.IS S1383

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1 phan at doses that exceed the recommended levels 

2 can produce hallucinations, rapid heart beat, high 

3 blood pressure, loss of consciousness, and seizures. 

4 The dangers multiply when dextromethorphan is 

5 abused with alcohol, prescription drugs, or narcotics. 

6 (2) Dextromethorphan is inexpensive, legal, and 

7 readily accessible, which has contributed to the in8 creased abuse of the drug, particularly among teen9 agers. 

10 (3) Increasing numbers of teens and others are 

11 abusing dextromethorphan by ingesting it in exces12 sive quantities. Prolonged use at high doses can lead 

13 to psychological dependence on the drug. Abuse of 

14 dextromethorphan can also cause impaired judg15 ment, which can lead to injury or death. 

16 (4) An estimated 1,700,000 teenagers (7 per17 cent of teens) abused over-the-counter cough medi18 cines in 2008. 

19 (5) The Food and Drug Administration has 

20 called the abuse of dextromethorphan a ‘‘serious 

21 issue’’ and has said that while dextromethorphan, 

22 ‘‘when formulated properly and used in small 

23 amounts, can be safely used in cough suppressant 

24 medicines, abuse of the drug can cause death as well 

25 as other serious adverse events such as brain damVerDate Nov 24 2008 01:45 Jun 28, 2009 Jkt 079200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1383.IS S1383

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1 age, seizure, loss of consciousness, and irregular 

2 heart beat.’’ 

3 (6) In recognition of the problem, several retail4 ers have voluntarily implemented age restrictions on 

5 purchases of cough and cold medicines containing 

6 dextromethorphan, and several manufacturers have 

7 placed language on packaging of cough and cold 

8 medicines alerting parents to the dangers of medi9 cine abuse. 

10 (7) Prevention is a key component of the effort 

11 to address the rise in the abuse of dextromethorphan 

12 and other legal medications. Education campaigns 

13 teaching teens and parents about the dangers of 

14 these drugs are an important part of this effort. 

15 SEC. 3. SALES OF PRODUCTS CONTAINING DEXTROME16 THORPHAN. 

17 (a) SALES OF PRODUCTS CONTAINING

18 DEXTROMETHORPHAN.— 

19 (1) IN GENERAL.—Part D of title II of the 

20 Controlled Substances Act (21 U.S.C. 841 et seq.) 

21 is amended by adding at the end the following: 

22 ‘‘SEC. 424. CIVIL PENALTIES FOR CERTAIN DEXTROME23 THORPHAN SALES. 

24 ‘‘(a) IN GENERAL.— 

25 ‘‘(1) SALE.— 


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1 ‘‘(A) IN GENERAL.—Except as provided in 

2 paragraph (2), it shall be unlawful for any per3 son to knowingly or intentionally sell, cause an4 other to sell, or conspire to sell a product con5 taining dextromethorphan to an individual 

6 under 18 years of age, including any such sale 

7 using the Internet. 

8 ‘‘(B) FAILURE TO CHECK IDENTIFICA9 TION.—If a person fails to request identifica10 tion from an individual under 18 years of age 

11 and sells a product containing dextromethor12 phan to that individual, that person shall be 

13 deemed to have known that the individual was 

14 under 18 years of age. 

15 ‘‘(C) AFFIRMATIVE DEFENSE.—It shall be 

16 an affirmative defense to an alleged violation of 

17 subparagraph (A) that the person selling a 

18 product containing dextromethorphan examined 

19 the purchaser’s identification card and, based 

20 on that examination, that person reasonably 

21 concluded that the identification was valid and 

22 indicated that the purchaser was not less than 

23 18 years of age. 


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1 ‘‘(2) EXCEPTION.—This section shall not apply 

2 to any sale made pursuant to a validly issued pre3 scription. 

4 ‘‘(3) REGULATIONS.—Not later than 180 days 

5 after the date of enactment of this section, the At6 torney General shall promulgate regulations for 

7 Internet sales of products containing dextromethor8 phan to ensure compliance with this subsection. The 

9 Attorney General may issue interim rules as nec10 essary to ensure that such rules take effect not later 

11 than 180 days after the date of enactment of this 

12 section. 

13 ‘‘(b) CIVIL PENALTY.— 

14 ‘‘(1) IN GENERAL.—The Attorney General may 

15 file a civil action in an appropriate United States 

16 district court to enforce subsection (a). 

17 ‘‘(2) MAXIMUM AMOUNT.—Any person who vio18 lates subsection (a)(1)(A) shall be subject to a civil 

19 penalty in an amount— 

20 ‘‘(A) not more than $1,000 for the first 

21 violation of subsection (a)(1)(A) by a person; 

22 ‘‘(B) not more than $2,000 for the second 

23 violation of subsection (a)(1)(A) by a person; 

24 and 


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1 ‘‘(C) not more than $5,000 for the third 

2 violation, or a subsequent violation, of sub3 section (a)(1)(A) by a person. 

4 ‘‘(3) EMPLOYEE OR AGENT.—A violation of 

5 subsection (a)(1)(A) by an employee or agent of a 

6 person shall be deemed a violation by the person as 

7 well as a violation by the employee or agent. 

8 ‘‘(4) FACTORS.—In determining the amount of 

9 a civil penalty under this subsection for a person 

10 who is a retailer, a court may consider whether the 

11 retailer has taken appropriate steps to prevent sub12 sequent violations, such as— 

13 ‘‘(A) the establishment and administration 

14 of a documented employee training program to 

15 ensure all employees are familiar with and abid16 ing by the provisions of this section; or 

17 ‘‘(B) other actions taken by a retailer to 

18 ensure compliance with this section. 

19 ‘‘(c) DEFINITIONS.—In this section— 

20 ‘‘(1) the term ‘identification card’ means an 

21 identification card that— 

22 ‘‘(A) includes a photograph and the date of 

23 birth of the individual; and 

24 ‘‘(B) is— 


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1 ‘‘(i) issued by a State or the Federal 

2 Government; or 

3 ‘‘(ii) considered acceptable for pur4 poses of sections 274a.2(b)(1)(v)(A) and 

5 274a.2(b)(1)(v)(B)(1) of title 8, Code of 

6 Federal Regulations (as in effect on or 

7 after the date of the enactment of the 

8 Dextromethorphan Abuse Reduction Act of 

9 2009); and 

10 ‘‘(2) the term ‘retailer’ means a grocery store, 

11 general merchandise store, drug store, pharmacy, 

12 convenience store, or other entity or person whose 

13 activities as a distributor relating to products con14 taining dextromethorphan are limited almost exclu15 sively to sales for personal use, both in number of 

16 sales and volume of sales, either directly to walk-in 

17 customers or in face-to-face transactions by direct 

18 sales.’’. 

19 (2) SENSE OF THE SENATE.—It is the sense of 

20 the Senate that— 

21 (A) manufacturers of products containing 

22 dextromethorphan should continue the practice 

23 of including language on packages cautioning 

24 consumers about the dangers of dextromethor25 phan abuse; and 


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1 (B) retailers selling products containing 

2 dextromethorphan should implement appro3 priate safeguards to protect against the theft of 

4 such products. 

5 (b) PREVENTION FUNDING.— 

6 (1) PRESCRIPTION AND NONPRESCRIPTION

7 DRUG ABUSE PREVENTION GRANTS.— 

8 (A) IN GENERAL.—The Director of Na9 tional Drug Control Policy shall provide grants 

10 to one or more eligible entities for the creation 

11 and operation of a nationwide education cam12 paign directed at individuals under the age of 

13 18 years and their parents regarding the pre14 vention of abuse of prescription and non15 prescription drugs (including dextromethor16 phan). 

17 (B) ELIGIBLE ENTITY.—For purposes of 

18 subparagraph (A), the term ‘‘eligible entity’’ 

19 means an organization that— 

20 (i) is a not-for-profit organization; 

21 (ii) has broad national experience and 

22 a nationwide presence and capabilities; 

23 (iii) has specific expertise and experi24 ence in conducting nationwide education 

25 campaigns; 


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1 (iv) has experience working directly 

2 with parents, teens, people in recovery, ad3 diction scientists, and drug specialists to 

4 design drug education programs; 

5 (v) has conducted research upon 

6 which to base the campaign specified in 

7 subparagraph (A); 

8 (vi) has experience generating news 

9 media coverage related to drug prevention; 

10 (vii) is able to secure pro bono media 

11 time and space to support the campaign 

12 specified in subparagraph (A); and 

13 (viii) has a well-established national 

14 Internet presence targeting parents seeking 

15 information about drug prevention and 

16 intervention. 

17 (C) AUTHORIZATION OF APPROPRIA18 TIONS.—There are authorized to be appro19 priated $4,000,000, for each of fiscal years 

20 2010 through 2012 to carry out this paragraph. 

21 (D) SUPPLEMENT NOT SUPPLANT.—Grant 

22 funds provided under this subsection shall be 

23 used to supplement, not supplant, Federal and 

24 non-Federal funds available for carrying out the 

25 activities described in this subsection. 


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1 (2) GRANTS FOR EDUCATION, TRAINING AND

2 TECHNICAL ASSISTANCE TO COMMUNITY COALI3 TIONS.— 

4 (A) IN GENERAL.—The Director of Na5 tional Drug Control Policy shall award a grant 

6 to the entity created by section 4 of Public Law 

7 107–82, as amended by Public Law 109–469 

8 (21 U.S.C. 1521 note), for the development and 

9 provision of specially tailored education, train10 ing, and technical assistance to community coa11 litions throughout the nation regarding the pre12 vention of abuse of prescription and non13 prescription drugs (including dextromethor14 phan). 

15 (B) AUTHORIZATION OF APPROPRIA16 TIONS.—There are authorized to be appro17 priated $1,500,000, for each of fiscal years 

18 2010 through 2012 to carry out this paragraph. 

19 (C) SUPPLEMENT NOT SUPPLANT.—Grant 

20 funds provided under this subsection shall be 

21 used to supplement, not supplant, Federal and 

22 non-Federal funds available for carrying out the 

23 activities described in this subsection. 


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1 (c) SUPPLEMENTAL GRANTS FOR COMMUNITIES

2 WITH MAJOR PRESCRIPTION AND NONPRESCRIPTION

3 DRUG ISSUES.— 

4 (1) DEFINITIONS.—In this subsection— 

5 (A) the term ‘‘Administrator’’ means the 

6 Administrator of the Substance Abuse and 

7 Mental Health Services Administration; 

8 (B) the term ‘‘drug’’ has the meaning 

9 given that term in section 201 of the Federal 

10 Food, Drug, and Cosmetic Act (21 U.S.C. 

11 321); 

12 (C) the term ‘‘eligible entity’’ means an or13 ganization that— 

14 (i) before the date on which the orga15 nization submits an application for a grant 

16 under this subsection, has received a grant 

17 under the Drug-Free Communities Act of 

18 1997 (21 U.S.C. 1521 et seq.); and 

19 (ii) has documented, using local data, 

20 rates of prescription or nonprescription 

21 drug abuse above national averages for 

22 comparable time periods, as determined by 

23 the Administrator (including appropriate 

24 consideration of the Monitoring the Future 

25 Survey by the University of Michigan); 


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1 (D) the term ‘‘nonprescription drug’’ has 

2 the meaning given that term in section 760 of 

3 the Federal Food, Drug, and Cosmetic Act (21 

4 U.S.C. 379aa); and 

5 (E) the term ‘‘prescription drug’’ means a 

6 drug described in section 503(b)(1) of the Fed7 eral Food, Drug, and Cosmetic Act (21 U.S.C. 

8 353(b)(1)). 

9 (2) AUTHORIZATION OF PROGRAM.—From 

10 amounts made available to carry out this subsection, 

11 the Administrator, in consultation with the Director 

12 of the Office of National Drug Control Policy, shall 

13 make enhancement grants to eligible entities to im14 plement comprehensive community-wide strategies 

15 regarding the prevention of abuse of prescription 

16 and nonprescription drugs (including dextromethor17 phan). 

18 (3) APPLICATION.— 

19 (A) IN GENERAL.—An eligible entity seek20 ing an enhancement grant under this subsection 

21 shall submit an application to the Adminis22 trator at such time, in such manner, and ac23 companied by such information as the Adminis24 trator may require. 


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1 (B) CRITERIA.—As part of an application 

2 for a grant under this subsection, the Adminis3 trator shall require an eligible entity to submit 

4 a detailed, comprehensive, multisector plan for 

5 addressing abuse of prescription and non6 prescription drugs (including dextromethor7 phan). 

8 (4) USES OF FUNDS.—An eligible entity that 

9 receives a grant under this subsection shall use the 

10 grant funds for implementing a comprehensive, com11 munity-wide strategy that addresses abuse of pre12 scription and nonprescription drugs (including 

13 dextromethorphan) in that community, in accord14 ance with the plan submitted under paragraph 

15 (3)(B). 

16 (5) GRANT TERMS.—A grant under this sub17 section— 

18 (A) shall be made for a period of not more 

19 than 4 years; and 

20 (B) shall not be in an amount of more 

21 than $100,000 per year. 

22 (6) SUPPLEMENT NOT SUPPLANT.—Grant 

23 funds provided under this subsection shall be used to 

24 supplement, not supplant, Federal and non-Federal 


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1 funds available for carrying out the activities de2 scribed in this subsection. 

3 (7) EVALUATION.—A grant under this sub4 section shall be subject to the same evaluation re5 quirements and procedures as the evaluation re6 quirements and procedures required of the recipient 

7 of a grant under the Drug-Free Communities Act of 

8 1997 (21 U.S.C. 1521 et seq.). 

9 (8) ADMINISTRATIVE EXPENSES.—Not more 

10 than 6 percent of a grant under this subsection may 

11 be expended for administrative expenses. 

12 (9) AUTHORIZATION OF APPROPRIATIONS.— 

13 There are authorized to be appropriated $4,000,000 

14 for each of fiscal years 2010 through 2012 to carry 

15 out this subsection. 

16 (d) DATA COLLECTION.—It is the sense of the Senate 

17 that Federal agencies and grantees that collect data on 

18 drug use trends should ensure that the survey instruments 

19 used by such agencies and grantees include questions to 

20 ascertain changes in the trend of abuse of prescription and 

21 nonprescription drugs (including dextromethorphan). 

22 (e) TECHNICAL AND CONFORMING AMENDMENTS.— 

23 (1) IN GENERAL.—Section 201(g) of the Con24 trolled Substances Act (21 U.S.C. 811(g)) is amend25 ed— 


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1 (A) by striking paragraph (2); and 

2 (B) by redesignating paragraph (3) as 

3 paragraph (2). 

4 (2) TABLE OF CONTENTS.—The table of con5 tents for the Comprehensive Drug Abuse Prevention 

6 and Control Act of 1970 (Public Law 91–513; 84 

7 Stat. 1236) is amended by inserting after the item 

8 relating to section 423 the following: 

‘‘Sec. 424. Civil penalties for certain dextromethorphan sales.’’. 

Æ 


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