NH Rev Stat § 318-B:2 (2021)
2021 New Hampshire Revised Statutes|Title XXX - Occupations and Professions|Title 318-B - Controlled Drug Act|Section 318-B:2 - Acts Prohibited.

    318-B:2 Acts Prohibited. –||I. It shall be unlawful for any person to manufacture, possess, have under his control, sell, purchase, prescribe, administer, or transport or possess with intent to sell, dispense, or compound any controlled drug, or controlled drug analog, or any preparation containing a controlled drug, except as authorized in this chapter.||I-a. It shall be unlawful for any person to manufacture, sell, purchase, transport or possess with intent to sell, dispense, compound, package or repackage (1) any substance which he represents to be a controlled drug or controlled drug analog, or (2) any preparation containing a substance which he represents to be a controlled drug or controlled drug analog, except as authorized in this chapter.||I-b. It shall be unlawful for a qualifying patient or designated caregiver as defined under RSA 126-X:1 to sell cannabis to another person who is not a qualifying patient or designated caregiver. A conviction for the sale of cannabis to a person who is not a qualifying patient or designated caregiver shall not preclude or limit a prosecution or conviction of any person for sale of cannabis or any other offense defined in this chapter.||II. It shall be unlawful for any person to deliver, possess with intent to deliver, or manufacture with intent to deliver, drug paraphernalia, knowing that it will be used or is customarily intended to be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, ingest, inhale, or otherwise introduce into the human body a controlled substance.||II-a. It shall be unlawful for any person, at retail, to sell or offer for sale any drug paraphernalia listed in RSA 318-B:1, X-a.||III. It shall be unlawful for any person to place in any newspaper, magazine, handbill,or other publication any advertisement, knowing that the purpose of the advertisement, when viewed as a whole, is to promote the sale of objects intended for use or customarily intended for use as drug paraphernalia.||IV. In determining whether an object is drug paraphernalia under this chapter, a court or other authority should consider, in addition to all other logically relevant factors, the following:||(a) Statements by an owner or by anyone in control of the object concerning its use;||(b) Prior convictions, if any, of an owner, or of anyone in control of the object, under any state or federal law relating to any controlled substance;||(c) The proximity of the object, in time and space, to a direct violation of this chapter;||(d) The proximity of any residue of controlled substances;||(e) The existence of any residue of controlled substances on the object;||(f) Direct or circumstantial evidence of the intent of an owner, or of anyone in control of the object, to deliver it to persons whom he knows intend to use the object to facilitate a violation of this chapter; the innocence of an owner, or of anyone in control of the object, as to a direct violation of this chapter shall not prevent a finding that the object is intended for use as drug paraphernalia;||(g) Instructions, oral or written, provided with the object concerning its use;||(h) Descriptive materials accompanying the object which explain or depict its use;||(i) National and local advertising concerning its use;||(j) The manner in which the object is displayed for sale;||(k) Direct or circumstantial evidence of the ratio of sales of the objects to the total sales of the business enterprise;||(l) Whether the object is customarily intended for use as drug paraphernalia and the existence and scope of other legitimate uses for the object in the community; and||(m) Expert testimony concerning its use.||V. No person shall obtain or attempt to obtain a controlled drug:||(a) By fraud, deceit, misrepresentation, or subterfuge;||(b) By the forgery or alteration of a prescription or of any written order;||(c) By the concealment of a material fact;||(d) By the use of a false name or the giving of a false address; or||(e) By submission of an electronic or on-line medical history form that fails to establish a valid practitioner-patient relationship.||VI. No person shall willfully make a false statement in any prescription, order, report, or record required hereby.||VI-a. No person or entity shall issue clinical decision support alerts or similar notices, warnings, or announcements by means of electronic health record software or similar electronic means designed to increase prescriptions for scheduled drug products, in violation of the Anti-Kickback Statute 42 U.S.C. section 1320a-7b(b), or with the intent to defraud the United States pursuant to 18 U.S.C. section 371.||VII. No person shall, for the purpose of obtaining a controlled drug, falsely assume the title of, or represent himself to be, a manufacturer, wholesaler, pharmacist, practitioner, or other authorized person.||VIII. No person shall make or utter any false or forged prescription or false or forged written order.||IX. No person shall affix any false or forged label to a package or receptacle containing controlled drugs.||X. Possession of a false or forged prescription for a controlled drug by any person, other than a pharmacist in the pursuance of his profession, shall be prima facie evidence of his intent to use the same for the purpose of illegally obtaining a controlled drug.||XI. It shall be unlawful for any person 18 years of age or older to knowingly use, solicit, direct, hire or employ a person 17 years of age or younger to manufacture, sell, prescribe, administer, transport or possess with intent to sell, dispense or compound any controlled drug or any preparation containing a controlled drug, except as authorized in this chapter, or to manufacture, sell, transport or possess with intent to sell, transport or possess with intent to sell, dispense, compound, package or repackage (1) any substance which he represents to be a controlled drug or controlled drug analog, or (2) any preparation containing a substance which he represents to be a controlled drug or controlled drug analog, except as authorized in this chapter. It shall be no defense to a prosecution under this section that the actor mistakenly believed that the person who the actor used, solicited, directed, hired or employed was 18 years of age or older, even if such mistaken belief was reasonable. Nothing in this section shall be construed to preclude or limit a prosecution or conviction for a violation of any other offense defined in this chapter or any other provision of law governing an actor's liability for the conduct of another.||XII. A person is a drug enterprise leader if he conspires with one or more persons as an organizer, supervisor, financier, or manager to engage for profit in a scheme or course of conduct to unlawfully manufacture, sell, prescribe, administer, dispense, bring with or transport in this state methamphetamine, lysergic acid diethylamide, phencyclidine (PCP) or any controlled drug classified in schedule I or II, or any controlled drug analog thereof. A conviction as a drug enterprise leader shall not merge with the conviction for any offense which is the object of the conspiracy. Nothing in this section shall be construed to preclude or limit a prosecution or conviction of any person for conspiracy or any other offense defined in this chapter.||XII-a. It shall be unlawful for any person to knowingly acquire, obtain possession of or attempt to acquire or obtain possession of a controlled drug by misrepresentation, fraud, forgery, deception or subterfuge. This prohibition includes the situation in which a person independently consults 2 or more practitioners for treatment solely to obtain additional controlled drugs or prescriptions for controlled drugs.||XII-b. It shall be unlawful for any person to knowingly obtain, or attempt to obtain, or to assist a person in obtaining or attempting to obtain a prescription for a controlled substance without having formed a valid practitioner-patient relationship.||XII-c. It shall be unlawful for any person to, by written or electronic means, solicit, facilitate or enter into any agreement or contract to solicit or facilitate the dispensing of controlled substances pursuant to prescription orders that do not meet the federal and state requirements for a controlled drug prescription, and without an established valid practitioner-patient relationship.||XII-d. It shall be unlawful for any pharmacy to ship finished prescription products, containing controlled substances, to patients residing in the state of New Hampshire, pursuant to any oral, written or online prescription order that was generated based upon the patient's submission of an electronic or online medical history form. Such electronic or online medical questionnaires, even if followed by telephonic communication between practitioner and patient, shall not be deemed to form the basis of a valid practitioner-patient relationship.||XII-e. It shall be unlawful for any pharmacist to knowingly dispense a controlled substance pursuant to any oral, written, or electronic prescription order, which he or she knows or should have known, was generated based upon the patient's submission of an electronic or online medical history form. Such electronic or online medical questionnaires, even if followed by telephonic communication between practitioner and patient, shall not be deemed to form the basis of a valid practitioner-patient relationship.||XII-f. It shall be unlawful for any person to prescribe by means of telemedicine a controlled drug classified in schedule II through IV, except as provided in RSA 318-B:2, XVI, (a) and (b).||XIII. Nothing in this section shall be deemed to preclude or limit a prosecution for theft as defined in RSA 637.||XIV. It shall be an affirmative defense to prosecution for a possession offense under this chapter that the person charged had a lawful prescription for the controlled drug in question or was, at the time charged, acting as an authorized agent for a person holding a lawful prescription. An authorized agent shall mean any person, including but not limited to a family member or caregiver, who has the intent to deliver the controlled drug to the person for whom the drug was lawfully prescribed.||XV. Persons who have lawfully obtained a controlled substance in accordance with this chapter or a person acting as an authorized agent for a person holding a lawful prescription for a controlled substance may deliver any unwanted or unused controlled substances to law enforcement officers acting within the scope of their employment and official duties for the purpose of collection, storage, and disposal of such controlled drugs in conjunction with a pharmaceutical drug take-back program established pursuant to RSA 318-E.||XVI. (a)(1) The prescribing of a non-opioid controlled drug classified in schedule II through IV by means of telemedicine shall be limited to prescribers as defined in RSA 329:1-d, I and RSA 326-B:2, XII(a), who are treating a patient with whom the prescriber has an in-person practitioner-patient relationship, for purposes of monitoring or follow-up care. A provider shall not be required to establish care via face-to-face in-person service when:||(A) The provider is a Department of Veteran Affairs (VA) practitioner or VA-contracted practitioner not required to obtain a special registration pursuant to 21 U.S.C. section 831(h);||(B) The patient is being treated by, and is physically located in a correctional facility administered by the state of New Hampshire or a New Hampshire county;||(C) The patient is being treated by, and is physically located in a doorway as defined in RSA 167:4-d, II(c);||(D) The patient is being treated by and is physically located in a state designated community mental health center pursuant to RSA 135; or||(E) The patient is being treated by, and physically located in, a hospital or clinic registered in a manner fully consistent with 21 U.S.C. section 823(f).||(2) Subsequent in-person exams shall be by a practitioner licensed to prescribe the drug at intervals appropriate for the patient, medical condition, and drug, but not less than annually.||(b)(1) The prescribing of an opioid controlled drug classified in schedule II through IV by means of telemedicine shall be limited to prescribers as defined in RSA 329:1-d, I and RSA 326-B:2, XII(a). A provider shall not be required to establish care via face-to-face in-person service when:||(A) The provider is a Department of Veteran Affairs (VA) practitioner or VA-contracted practitioner not required to obtain a special registration pursuant to 21 U.S.C. section 831(h);||(B) The patient is being treated by, and is physically located in a correctional facility administered by the state of New Hampshire or a New Hampshire county;||(C) The patient is being treated by, and is physically located in a Doorway as defined in RSA 167:4-d, II(c);||(D) The patient is being treated by and is physically located in a state designated community mental health center pursuant to RSA 135; or||(E) The patient is being treated by, and physically located in, a hospital or clinic registered in a manner fully consistent with 21 U.S.C. section 823(f).||(2) Subsequent in-person exams shall be by a practitioner licensed to prescribe the drug at intervals appropriate for the patient, medical condition, and opioid, but not less than annually.||(c) The prescription authority under this paragraph shall be limited to a practitioner licensed to prescribe the drug and in compliance with all federal laws, including the United States Drug Enforcement Agency registration or waiver when required. An initial face-to-face in person exam shall be required with the exception of the locations enumerated in this paragraph.|||Source. 1969, 421:1. 1977, 547:5. 1981, 513:2. 1983, 36:1; 292:1, 2. 1988, 6:2, 3. 1989, 207:1; 361:2, 3. 1990, 129:2. 2000, 176:5. 2008, 145:1; 217:5, 6. 2011, 63:5. 2013, 242:3. 2015, 246:3, 4. 2016, 221:1, 2, eff. Aug. 8, 2016. 2020, 27:9, eff. July 21, 2020. 2021, 183:3, eff. Jan. 1, 2022.|