2023 New Mexico Statutes › Chapter 26 - Drugs and Cosmetics › Article 1 - General Provisions › Section 26-1-16 - Dangerous drugs; conditions for sale; prescription refilling; limitations.

A. It is unlawful for a person to sell, dispose of or possess any dangerous drugs, except:
(1) manufacturers, wholesalers or distributors, their agents or employees licensed by the board to ship dangerous drugs into the state; or
(2) distributors, wholesalers, hospitals, nursing homes, clinics or pharmacies and other authorized retailers of dangerous drugs in this state licensed by the board, and appropriate records of dangerous drugs receipt and disposition are kept. These records shall be open to inspection by any enforcement officer of this state.
B. Practitioners licensed in this state may prescribe, provide samples of and dispense any dangerous drug to a patient where there is a valid practitioner-patient relationship. A record of all such dispensing shall be kept showing the date the drug was dispensed and bearing the name and address of the patient to whom dispensed. It is the duty of every licensed physician, dentist, veterinarian, pharmacist or person holding a limited license issued under Subsection B of Section 61-11-14 NMSA 1978, when dispensing any dangerous drug, to mark on the dispensing container the name of the patient, the date dispensed, the name and address of the person dispensing the drug, the name and strength of the drug, expiration date where applicable, adequate directions for use and the prescription number when applicable. All official compendium requirements for the preservation, packaging, labeling and storage of dangerous drugs are applicable where drugs are held for dispensing to the public, whether by a pharmacy, clinic, hospital or practitioner.
C. Pharmacists are prohibited from selling or dispensing a dangerous drug except on prescription or drug order of a practitioner and except as such sale or possession is authorized under Subsection A of this section. It is the duty of all pharmacists to keep an accurate record of all disposals, which record shall be open to inspection by an enforcement officer of this state.
D. No enforcement officer having knowledge by virtue of office of a prescription, order or record shall divulge such knowledge except in connection with a prosecution or proceeding in court or before a licensing or registration board or officer, to which prosecution or proceeding the person to whom such prescriptions, orders or records relate is a party.
E. It is unlawful, except as otherwise authorized under Subsection A of this section or the Controlled Substances Act [Chapter 30, Article 31 NMSA 1978] and except for the college of pharmacy of the university of New Mexico or a public health laboratory, for a person to possess any dangerous drug unless such substance has been dispensed to the person either directly by a practitioner or on a prescription.
F. All records required to be kept under the provisions of the New Mexico Drug, Device and Cosmetic Act shall be preserved for a period of three years, provided that records requirements do not apply to the administration of a drug to a patient upon whom the practitioner personally attends, and provided that records of controlled substances shall be kept in accordance with the provisions of the Controlled Substances Act.
G. A prescription shall not be filled:
(1) as a refill if it is marked by the issuing practitioner to indicate that the prescription is not to be refilled;
(2) except in compliance with the provisions of the Controlled Substances Act if the drug is a controlled substance;
(3) unless the fill is made in accordance with the provisions of this section; and
(4) when the practitioner does not indicate fill instructions on the original prescription calling for a dangerous drug, unless:
(a) the practitioner is contacted orally, by telephone or other means of communication for instruction; and
(b) if authorization to fill is given the pharmacist, the following information will be immediately transferred to the original prescription: 1) date; 2) name of person authorizing the fill; 3) pharmacist's initials; and 4) amount dispensed if different from the amount indicated on the original prescription.
H. Nothing in this section shall prevent the owner of livestock or the owner's consignee or their employees to be in possession of drugs for their use in performing routine, accepted livestock management practices in the care of livestock belonging to the owner, and the drugs are labeled as being restricted to animal use only; provided, that if such drugs bear the legend: "CAUTION: federal law restricts this drug to use by or on the order of a licensed veterinarian", the drugs may be used or distributed only as provided in Subsection A of Section 26-1-15 NMSA 1978.
I. When, on the original prescription calling for a dangerous drug that is not a controlled substance, a practitioner indicates a specific number of fills or a specific period of time during which a prescription may be filled, a drug may be filled the number of times or for the period of time that the prescription indicates if the following information is provided with the prescription:
(1) the date of fill;
(2) the initials of the pharmacist filling the prescription; and
(3) the amount of drug dispensed, if it differs from the amount called for on the original prescription.
J. A pharmacist may dispense a quantity not to exceed a ninety-day supply of a dangerous drug by combining valid fills when:
(1) an indication on the prescription or label does not specifically prohibit a combined fill; and
(2) the dangerous drug to be filled is not a controlled substance.
K. When the practitioner indicates on the original prescription calling for dangerous drugs that it may be filled "prn", the pharmacist may fill it within the limits of the dosage directions for a period of twelve months, provided the date of filling and the initials of the pharmacist are recorded on the original prescription. At the expiration of the twelve-month period, the practitioner must be contacted for a new prescription; provided that this is not to be construed to apply to those drugs regulated by the Controlled Substances Act.
L. The board may adopt and promulgate regulations to permit the use of computer systems for the storage and retrieval of prescriptions, records for the purpose of filling prescriptions, receipt records, drug distribution records, drug withdrawals from stock, drug compounding records, drug disposition records and drug disposal records.
M. As used in this section, "fill" means a dispensing of a drug for the first time or as a refill.
History:
1953 Comp., § 54-6-41, enacted by Laws 1967, ch. 23, § 16; 1972, ch. 84, § 49; 1973, ch. 217, § 2; 1979, ch. 41, § 1; 1987, ch. 270, § 6; 2005, ch. 152, § 3; 2013, ch. 157, § 2.
ANNOTATIONS
Cross references.
— For definition of "dangerous drugs",
see
26-1-2 NMSA 1978.
The 2013 amendment,
effective June 14, 2013, allowed pharmacists to fill a practitioner's drug order; in Subsection C, in the first sentence, after "prohibited from selling or", deleted "disposing of any" and added "dispensing a"; and added Subsections G through M.
The 2005 amendment,
effective June 17, 2005, added wholesalers to the list of persons who may lawfully sell, dispose of or possess dangerous drugs in Subsections A(1) and (2); changed "physician" to "practitioner" in Subsection B; and authorized the board to adopt rules and regulations to permit the use of computers for the storage and retrieval of receipt records, drug distribution records drug withdrawals from stock, drug compounding records drug disposition records and drug disposal records Subsection G(5).
The 1987 amendment,
effective June 19, 1987, rewrote Subsection B; deleted former Subsection F, relating to the duty of persons dispensing dangerous drugs to mark certain information on the dispensing container; redesignated subsequent subsections accordingly; in Subsection F inserted "Device" near the beginning and added the proviso at the end of the subsection; and made minor stylistic changes throughout the section.
Denial of equal protection not substantiated.
— Since there are no New Mexico drug manufacturers, there is no factual basis for the claim that Subsection A(1) denies state residents equal protection.
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.
Applicability of article.
— This article applies to legitimate handlers of controlled drugs, but also to others similarly situated who are not involved in the authorized use of such substances.
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.
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 this section 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.
Methaqualone.
— The legislature has not specifically designated methaqualone (the generic name for quaalude) 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.
Section 30-31-22 NMSA 1978, and not this section, is the appropriate legislation under which defendants are to be prosecuted for allegedly unauthorized distribution of quaalude.
State v. Reams
, 98 N.M. 215, 647 P.2d 417 (1982).
Requirements applicable to providing drug "samples".
— This section should not be construed as allowing a physician to provide a drug "sample" without complying with the recordkeeping and labeling requirements that apply to "dispensing". 1988 Op. Att'y Gen. No. 88-50.
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.
State law criminal liability of licensed physician for prescribing or dispensing drug or similar controlled substance, 13 A.L.R.5th 1.