S614 CONGRESSIONAL RECORD — SENATE January 15, 2009 

(1) the benefit is practical and workable 

with minimal administrative burden for 

beneficiaries, qualified home infusion therapy providers, physicians, prescription drug 

plans, MA–PD plans, and Medicare Advantage plans, and the Secretary shall consider 

the use of consolidated claims encompassing 

covered part D drugs and part B services, 

supplies, and equipment under such part B to 

ensure the efficient operation of this benefit; 

(2) any prior authorization or utilization 

review process is expeditious, allowing Medicare beneficiaries meaningful access to home 

infusion therapy; 

(3) medical necessity determinations for 

home infusion therapy will be made— 

(A) except as provided in subparagraph (B), 

by medicare administrative contractors 

under such part B and communicated to the 

appropriate prescription drug plans; or 

(B) in the case of an individual enrolled in 

a Medicare Advantage plan, by the Medicare 

Advantage organization offering the plan; 

and an individual may be initially qualified 

for coverage for such benefit for a 90-day period and subsequent 90-day periods thereafter; 

(4) the benefit is modeled on current private sector coverage and coding for home infusion therapy; and 

(5) prescription drug plans and MA–PD 

plans structure their formularies, utilization 

review protocols, and policies in a manner 

that ensures that Medicare beneficiaries 

have timely and appropriate access to infusion therapy in their homes. 

(b) HOME INFUSION THERAPY ADVISORY

PANEL.—In implementing such home infusion therapy benefit and meeting the objectives specified in subsection (a), the Secretary shall establish an advisory panel to 

provide advice and recommendations. Such 

panel shall— 

(1) be comprised primarily of qualified 

home infusion therapy providers and their 

representative organizations; 

(2) also include representatives of the following: 

(1) Patient organizations. 

(2) Hospital discharge planners, care coordinators, or social workers. 

(3) Prescription drug plan sponsors and 

Medicare Advantage organizations. 

(c) REPORT.—Not later than January 1, 

2012, and every 2 years thereafter, the Comptroller General of the United States shall 

submit a report to Congress on Medicare 

beneficiary access to home infusion therapy. 

Each such report shall specifically address 

whether the objectives specified in subsection (a) have been met and shall make 

recommendations to Congress and the Secretary on how to improve the benefit and 

better ensure that Medicare beneficiaries 

have timely and appropriate access to infusion therapy in their homes. 

SEC. 5. EFFECTIVE DATE. 

The amendments made by this Act shall 

apply to home infusion therapy furnished on 

or after January 1, 2010. 

By Mrs. FEINSTEIN (for herself, 

Mr. KYL, Mr. REID, Mr. DURBIN, 

Mr. MCCONNELL, Mr. BINGAMAN, 

Mr. ENSIGN, Mr. SCHUMER, Mr. 

INHOFE, Mrs. MCCASKILL, Mr. 

KERRY, Mr. BAYH, Mr. ALEXANDER, Mr. GRASSLEY, Mr. NELSON of Florida, Mr. JOHNSON, 

and Ms. CANTWELL): 

S. 256. A bill to enhance the ability 

to combat methamphetamine; to the 

Committee on the Judiciary. 

Mrs. FEINSTEIN. Mr. President, I 

am pleased to introduce, along with 

Senators KYL, REID, DURBIN, MCCONNELL, BINGAMAN, ENSIGN, SCHUMER, 

INHOFE, MCCASKILL, KERRY, BAYH, ALEXANDER, GRASSLEY, NELSON of Florida, JOHNSON, and CANTWELL the Combat Methamphetamine Enhancement 

Act of 2009. 

This Act is designed to address problems that the Drug Enforcement Administration, DEA, has identified in 

the implementation of the Combat 

Methamphetamine Epidemic Act of 

2005. I was pleased to join former Senator Talent in drafting, introducing, 

and securing the passage of the original bill. I am pleased to introduce this 

legislation today to ensure that it operates as Congress intended. 

The bill that I introduce today would 

clarify that all retailers, including 

mail order retailers, who sell products 

that contain chemicals often used to 

make methamphetamine—like ephedrine, pseudoepedrine and phenylpropanolamine—must self-certify that 

they have trained their personnel and 

will comply with the Combat Meth 

Act’s requirements; require distributors to sell these products only to retailers who have certified that they 

will comply with the law; require the 

DEA to publish the list of all retailers 

who have filed self-certifications, on 

the DEA’s website; and clarify that any 

retailer who negligently fails to file 

self-certification as required, may be 

subject to civil fines and penalties. 

The Combat Methamphetamine Epidemic Act that we passed in 2006 has 

been a resounding success. The number 

of methamphetamine labs in the 

United States has declined dramatically now that the ingredients used to 

make methamphetamine are harder to 

get. 

The Combat Meth Act that became 

effective in September 2006 included 

important new provisions for retailer 

self-certification, employee training, 

requiring products to be placed behind 

counters, packaging requirements, required sales logbooks, and limits on 

the amounts that a person can purchase in a given day and over a 30-day 

period. 

Now, because of that law’s implementation, the number of methamphetamine labs decreased from about 12,000 

labs to about 7,300 labs a 41 percent decrease in just 1 year. Once the bill was 

enacted into law, the number of meth 

‘‘super labs’’ in my home State of California declined from 30 in 2005 to only 

17 in 2006. 

Fewer meth labs means more than 

just less illegal drug production. According to the Fresno Bee, the DEA has 

noted that in 2003, 3,663 children were 

reported exposed to toxic meth labs nationwide but that number had been reduced to 319 in 2006. 

So things are moving in the right direction, and that is good news. But 

with more thousands of methamphetamine labs still operating in the U.S., 

and children still being exposed to 

their toxins, it is also clear that there 

is still work to be done. 

After the Combat Meth Act became 

law, DEA examined how the retailer 

self-certification process was working. 

On May 16, 2007, DEA sent letters to 

the 1,600 distributors who they believed 

were selling products that contained 

ephedrine or pseudoephedrine, asking 

them to turn over lists of the retail 

stores that they sell to, so that DEA 

could check to see how many of those 

retailers had self-certified as that law 

requires. 

Rather than actively assisting the 

DEA in its efforts, about 3⁄4 of the distributors failed or declined to provide 

any information about the retail 

stores. 

The distributors who did cooperate 

provided DEA with the names of 12,375 

retail customers. When DEA checked 

those out, it found that about 8,300 of 

those retail stores had never self-certified as the law requires. 

Based on these findings, the DEA estimates that nationwide, as many as 

30,000 additional retail sellers of products are not complying with the law. 

In short, retailers’ non-compliance 

with the self-certification requirement 

appears to be widespread, and undercuts the effectiveness of the Combat 

Meth Act. 

Unfortunately, there is no effective 

way for law enforcement to determine 

the universe of who is, and who is not, 

obeying the law. Currently, there is no 

requirement that retailers notify the 

DEA before they start selling products 

with these listed chemicals. 

Retailers can likely avoid negative 

consequences if they are ever confronted with their failure to self-certify. Currently, the law imposes sanctions only for willful and reckless refusals to self-certify. There is no punishment available if a retailer negligently fails to self-certify as required. 

Not even civil sanctions are available. 

In short, without distributors restricting the supply of these products 

to retailers who have self-certified, retailers may simply take their chances, 

rather than self-certifying as the law 

intended, figuring that they’ll never 

get caught, or if they do get caught, 

that they will never be punished. 

It is unacceptable that, over two 

years after the Combat Meth Act imposed this requirement and became 

fully effective, tens of thousands of retailers still are not following the law. 

It is unacceptable that distributors of 

these products can continue to profit 

off of their sales to retailers who are 

not complying, or are even refusing to 

comply with the law. 

So this bill is designed to make the 

Combat Meth Act more effective, by 

putting in place a process that will ensure that every retailer who orders 

these products that can be used to 

make methamphetamine must comply 

with the law before they can get and 

resell the products. 

First, it will require that all retail 

sellers of products with these listed 

chemicals must file self-certifications, 

closing a loophole that now exists for 

mail-order retailers. 

Second, the DEA will be required to 

post all self-certified retailers on its 


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January 15, 2009 CONGRESSIONAL RECORD — SENATE S615 

website, so that advocacy groups and 

others who are concerned about methamphetamine in their communities can 

identify retailers who are selling these 

products without complying with the 

law, and can notify the authorities. 

Third, distributors of these products 

will only be allowed to sell to retailers 

who have self-certified, which they will 

be able to verify by checking the DEA’s 

public website. Once recalcitrant retailers are faced with the real and immediate economic consequence of a 

possible cut-off of their desire to purchase these products, I am confident 

that most will file self-certifications as 

the law requires. 

Finally, the bill clarifies that even a 

negligent failure to self-certify, if proven, can give rise to civil sanctions. 

This is a common-sense bill, designed 

to strengthen the implementation of 

the Combat Methamphetamine Epidemic Act. This bill would create incentives to ensure that the self-certification process of the law is made both 

effective and enforceable. 

I urge my colleagues to support this 

legislation. 

Mr. Presdient, I ask unanimous consent that the text of the bill be printed 

in the RECORD. 

There being no objection, the text of 

the bill was ordered to be printed in 

the RECORD, as follows: 

S. 256 

Be it enacted by the Senate and House of Representatives of the United States of America in 

Congress assembled, 

SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘Combat 

Methamphetamine Enhancement Act of 

2009’’. 

SEC. 2. REQUIREMENT OF SELF-CERTIFICATION 

BY ALL REGULATED PERSONS SELLING SCHEDULED LISTED CHEMICALS. 

Section 310(e)(2) of the Controlled Substances Act (21 U.S.C. 830(e)(2)) is amended 

by inserting at the end the following: 

‘‘(C) Each regulated person who makes a 

sale at retail of a scheduled listed chemical 

product and is required under subsection 

(b)(3) to submit a report of the sales transaction to the Attorney General may not sell 

any scheduled listed chemical product at retail unless such regulated person has submitted to the Attorney General a self-certification including a statement that the seller 

understands each of the requirements that 

apply under this paragraph and under subsection (d) and agrees to comply with the requirements. The Attorney General shall by 

regulation establish criteria for certifications of mail-order distributors that are 

consistent with the criteria established for 

the certifications of regulated sellers under 

paragraph (1)(B).’’. 

SEC. 3. PUBLICATION OF SELF-CERTIFIED REGULATED SELLERS AND REGULATED 

PERSONS LISTS. 

Section 310(e)(1)(B) of the Controlled Substances Act (21 U.S.C. 830(e)(1)(B)) is amended by inserting at the end the following: 

‘‘(v) PUBLICATION OF LIST OF SELF-CERTIFIED

PERSONS.—The Attorney General shall develop and make available a list of all persons 

who are currently self-certified in accordance with this section. This list shall be 

made publicly available on the website of the 

Drug Enforcement Administration in an 

electronically downloadable format.’’. 

SEC. 4. REQUIREMENT THAT DISTRIBUTORS OF 

LISTED CHEMICALS SELL ONLY TO 

SELF-CERTIFIED REGULATED SELLERS AND REGULATED PERSONS. 

Section 402(a) of the Controlled Substances 

Act (21 U.S.C. 842(a)) is amended— 

(1) in paragraph (13), by striking ‘‘or’’ after 

the semicolon; 

(2) in paragraph (14), by striking the period 

and inserting ‘‘; or’’; 

(3) by inserting after paragraph (14) the following: 

‘‘(15) to distribute a scheduled listed chemical product to a regulated seller, or to a regulated person referred to in section 

310(b)(3)(B), unless such regulated seller or 

regulated person is, at the time of such distribution, currently registered with the Drug 

Enforcement Administration, or on the list 

of persons referred to under section 

310(e)(1)(B)(v).’’; and 

(4) inserting at the end the following: ‘‘For 

purposes of paragraph (15), if the distributor 

is temporarily unable to access the list of 

persons referred to under section 

310(e)(1)(B)(v), the distributor may rely on a 

written, faxed, or electronic copy of a certificate of self-certification submitted by the 

regulated seller or regulated person, provided the distributor confirms within 7 business days of the distribution that such regulated seller or regulated person is on the list 

referred to under section 310(e)(1)(B)(v).’’. 

SEC. 5. NEGLIGENT FAILURE TO SELF-CERTIFY 

AS REQUIRED. 

Section 402(a) of the Controlled Substances 

Act (21 U.S.C. 842(a)(10)) is amended by inserting before the semicolon the following: 

‘‘or negligently to fail to self-certify as required under section 310 (21 U.S.C. 830)’’. 

SEC. 6. EFFECTIVE DATE AND REGULATIONS. 

(a) EFFECTIVE DATE.—This Act and the 

amendments made by this Act shall take effect 180 days after the date of enactment of 

this Act. 

(b) REGULATIONS.—In promulgating the 

regulations authorized by section 2, the Attorney General may issue regulations on an 

interim basis as necessary to ensure the implementation of this Act by the effective 

date. 

By Mrs. FEINSTEIN (for herself, 

Mr. GRASSLEY, and Mr. BAYH): 

S. 258. A bill to amend the Controlled 

Substances Act to provide enhanced 

penalties for marketing controlled substances to minors; to the Committee 

on the Judiciary. 

Mrs. FEINSTEIN. Mr. President, I 

am pleased to introduce, along with 

Senators GRASSLEY and BAYH, the Saving Kids from Dangerous Drugs Act of 

2009. 

Over the last 2 years, Federal, State, 

and local law enforcement have increasingly seen drug dealers flavoring 

and marketing their illegal drugs to 

appeal to minors, using techniques like 

combing drugs with candy and other 

flavorings to entice younger users. 

This bill would increase the criminal 

penalties that apply when criminals do 

this. This bill will ensure these appalling tactics are criminalized and severely punished. 

The problem of flavoring illegal 

drugs to entice minors is well documented. A 2007 USA Today Article entitled ‘‘Flavored Meth Use on the Rise’’ 

stated that ‘‘reports of candy-flavored 

methamphetamine are emerging 

around the nation, stirring concern 

among police and abuse prevention experts that drug dealers are marketing 

the drug to younger people.’’ 

The flavoring of meth to appeal to 

minors is widespread across the Nation. In California, police have made 

repeated seizures of strawberry-flavored meth and local drug counselors 

warn that it also comes in cola, cherry, 

and orange flavors. 

Strawberry flavoring packets were 

found in a meth lab raid in Arkansas in 

May of 2007. Similar seizures of flavored meth have been made in Minnesota, Mississippi, Missouri, Nevada, 

North Carolina, Oregon, and Virginia. 

Two people were arrested for manufacturing cotton candy flavored meth in 

Colorado in March of 2008. 

The candying and flavoring of controlled substances is not limited to 

methamphetamine. As recently as 

March of this year, the DEA seized 11⁄2

pounds of strawberry flavored powdered cocaine in Modesto, CA. 

DEA agents in California have also 

purchased cocaine with lemon, coconut, and cinnamon flavoring. It has 

also documented other controlled substances like marijuana and hash oil infused into candy bars and soda pop. 

Drug dealers are even selling boxes of 

‘‘Pot Tarts’’ that look exactly like 

commercial available Pop Tarts. 

Federal, State and local law enforcement all agree that such flavoring is 

done to entice more minors to use 

these illegal drugs. 

This bill would help address this 

growing problem by criminalizing the 

flavoring, coloring and marketing of 

such drugs and would impose enhanced 

penalties for these offenses. 

Under current law, there is already 

an enhanced penalty if someone distributes drugs to a minor. The maximum sentence is doubled, and tripled 

for a repeat offense, and there is a minimum of at least a year in prison. But 

this enhancement only applies if there 

is an actual distribution of the drug to 

a minor. Even possession with intent 

to distribute flavored or candied drugs 

doesn’t qualify. 

This bill would fix this loophole. If 

someone manufactures, creates, distributes, or possesses with intent to 

distribute a schedule I or II controlled 

substance that is combined with a 

candy, marketed or packaged to appear 

similar to a candy product, or modified 

by flavoring or coloring with the intent 

to sell to a minor, they would face enhanced penalties. 

The bill sends a strong and clear message to drug dealers—if you flavor or 

candy up your drugs to make them 

more appealing to our children, there 

will be a very heavy price to pay. It 

will make drug dealers think twice before flavoring up their drugs, and punish them appropriately if they don’t. 

The bill is supported by the National 

Narcotics Officers Association Coalition, which is comprised of 44 State 

narcotics officers’ associations. 

I urge my colleagues to join me in 

supporting this bill. 

Mr. President, I ask unanimous consent that the text of the bill be printed 

in the RECORD. 


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