2023 New Mexico Statutes › Chapter 26 - Drugs and Cosmetics › Article 1 - General Provisions › Section 26-1-18 - Promulgating regulations; procedure.

A. The board may promulgate regulations for the efficient enforcement of the New Mexico Drug, Device and Cosmetic Act. The board shall conform the regulations promulgated under the New Mexico Drug, Device and Cosmetic Act, insofar as practical, with regulations promulgated under the federal act as defined in Section 26-1-2 NMSA 1978.
B. The board shall, by regulation, declare a substance a "dangerous drug" when necessary, and notification shall be sent to all registered pharmacies in the state within sixty days of the adoption of the regulation.
C. The board shall promulgate the requirements for a pedigree.
D. All regulations promulgated by the board shall be in accordance with the Uniform Licensing Act.
History:
1953 Comp., § 54-6-43, enacted by Laws 1972, ch. 84, § 50; 2005, ch. 152, § 6.
ANNOTATIONS
Repeals and reenactments.
— Laws 1972, ch. 84, § 50, repealed 54-6-43, 1953 Comp., relating to procedure for promulgating regulations, and enacted a new section.
Cross references.
— For the definition of federal act,
see
26-1-2 NMSA 1978 and notes thereto.
For the definition of "dangerous drug",
see
26-1-2 NMSA 1978.
The 2005 amendment,
effective June 17, 2005, added Subsection C to require the board to promulgate requirement for pedigree as defined in Section 26-1-2AA NMSA 1978.
Due process not violated.
— The regulations propounded under this section and Section 30-31-11 NMSA 1978 of the Controlled Substances Act do not violate due process since New Mexico has a legitimate interest in the control of dangerous drugs sold or distributed in the state and New Mexico has not brought within the orbit of state power matters unrelated to any local interests.
Pharmaceutical Mfrs. Ass'n v. N.M. Bd. of Pharmacy
, 1974-NMCA-038, 86 N.M. 571, 525 P.2d 931, cert. quashed, 86 N.M. 657, 526 P.2d 799.
Commerce clause not violated.
— Although the regulations adopted pursuant to this section and Section 30-31-11 NMSA 1978 of the Controlled Substances Act include a license fee to cover administrative costs, their primary purpose is the protection of the public from dangerous drugs, a purpose within the traditional definition of police power; and where the burden of a small fee does not outweigh the substantial state benefit derived from the control, and the regulations do not discriminate against interstate commerce since there are no drug manufacturers within the state, there is no violation of the commerce clause.
Pharmaceutical Mfrs. Ass'n v. N.M. Bd. of Pharmacy
, 1974-NMCA-038, 86 N.M. 571, 525 P.2d 931, cert. quashed, 86 N.M. 657, 526 P.2d 799.
Licensing of detailmen allowed.
— Reviewing courts overturn the administrative interpretation of statute by appropriate agencies only if they are clearly incorrect. Since detailmen handle controlled drugs and are part of the interstate drug shipment operation, even though they do not ship drugs themselves, the interpretation by the board of pharmacy of Section 26-1-16 NMSA 1978 to allow licensing of detailmen is not clearly erroneous and will not be overturned by a reviewing court.
Pharmaceutical Mfrs. Ass'n v. N.M. Bd. of Pharmacy
, 1974-NMCA-038, 86 N.M. 571, 525 P.2d 931, cert. quashed, 86 N.M. 657, 526 P.2d 799.
In propounding regulations board of pharmacy need not make formal findings.
The only requirements which it must meet are that the public and the reviewing courts are informed as to the reasoning behind the regulation. The comments of the one board member suffice in this regard.
Pharmaceutical Mfrs. Ass'n v. N.M. Bd. of Pharmacy
, 1974-NMCA-038, 86 N.M. 571, 525 P.2d 931, cert. quashed, 86 N.M. 657, 526 P.2d 799.
Methaqualone.
— The legislature has not specifically designated methaqualone as a "controlled substance" or "dangerous drug" under either the Controlled Substances Act or this article, but has authorized the board of pharmacy to add this substance by administrative regulation to the list of substances controlled under these acts.
State v. Reams
, 1981-NMCA-158, 98 N.M. 372, 648 P.2d 1185,
aff'd in part, rev'd in part
, 1982-NMSC-075, 98 N.M. 215, 647 P.2d 417.
Am. Jur. 2d, A.L.R. and C.J.S. references. —
Right of medical patient to obtain, or physician to prescribe, laetrile for treatment of illness - State cases, 5 A.L.R.4th 219.