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House File 296 - IntroducedA Bill ForAn Act 1relating to controlled substances, including by
2temporarily designating substances as controlled substances,
3modifying the penalties for imitation controlled substances
4and certain controlled substances, modifying the controlled
5substances listed in schedules I, III, and IV, and providing
6penalties.
7BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
1DIVISION I
2temporary controlled substances
3 Section 1. Section 124.201, subsection 4, Code 2017, is
4amended to read as follows:
54. If any new substance is designated as a controlled
6substance under federal law and notice of the designation is
7given to the board, the board shall similarly designate as
8controlled the new substance under this chapter after the
9expiration of thirty days from publication in the federal
10register of a final order designating a new substance as a
11controlled substance, unless within that thirty-day period
12the board objects to the new designation. In that case the
13board shall publish the reasons for objection and afford
14all interested parties an opportunity to be heard. At
15the conclusion of the hearing the board shall announce its
16decision. Upon publication of objection to a new substance
17being designated as a controlled substance under this chapter
18by the board, control under this chapter is stayed until the
19board publishes its decision. If a substance is designated
20as controlled by the board under this subsection the control
21shall be considered a temporary and if, within sixty days after
22the next regular session of the general assembly convenes,
23the general assembly has not made the corresponding changes
24in this chapter, the temporary designation of control of
25the substance by the board shall be nullified amendment to
26the schedules of controlled substances in this chapter. If
27the board so designates a substance as controlled, which
28is considered a temporary amendment to the schedules of
29controlled substances in this chapter, and if the general
30assembly does not amend this chapter to enact the temporary
31amendment and make the enactment effective within two years
32from the date the temporary amendment first became effective,
33the temporary amendment is repealed by operation of law two
34years from the effective date of the temporary amendment. A
35temporary amendment repealed by operation of law is subject to
-1-1section 4.13 relating to the construction of statutes and the
2application of a general savings provision.
3DIVISION II
4imitation controlled substances
5 Sec. 2. Section 124.101, Code 2017, is amended by adding the
6following new subsection:
7 NEW SUBSECTION. 15A. “Imitation controlled substance” means
8a substance which is not a controlled substance but which by
9color, shape, size, markings, and other aspects of dosage unit
10appearance, and packaging or other factors, appears to be or
11resembles a controlled substance. The board may designate a
12substance as an imitation controlled substance pursuant to the
13board’s rulemaking authority and in accordance with chapter
1417A. “Imitation controlled substance” also means any substance
15determined to be an imitation controlled substance pursuant to
16section 124.101B.
17 Sec. 3. NEW SECTION. 124.101B Factors indicating an
18imitation controlled substance.
19If a substance has not been designated as an imitation
20controlled substance by the board and if dosage unit appearance
21alone does not establish that a substance is an imitation
22controlled substance, the following factors may be considered
23in determining whether the substance is an imitation controlled
24substance:
251. The person in control of the substance expressly or
26impliedly represents that the substance has the effect of a
27controlled substance.
282. The person in control of the substance expressly
29or impliedly represents that the substance because of its
30nature or appearance can be sold or delivered as a controlled
31substance or as a substitute for a controlled substance.
323. The person in control of the substance either demands or
33receives money or other property having a value substantially
34greater than the actual value of the substance as consideration
35for delivery of the substance.
-2-1 Sec. 4. Section 124.401, subsection 1, unnumbered paragraph
21, Code 2017, is amended to read as follows:
3Except as authorized by this chapter, it is unlawful for any
4person to manufacture, deliver, or possess with the intent to
5manufacture or deliver, a controlled substance, a counterfeit
6substance, or a simulated controlled substance, or an imitation
7controlled substance, or to act with, enter into a common
8scheme or design with, or conspire with one or more other
9persons to manufacture, deliver, or possess with the intent to
10manufacture or deliver a controlled substance, a counterfeit
11substance, or a simulated controlled substance, or an imitation
12controlled substance.
13 Sec. 5. Section 124.401, subsection 1, paragraph a,
14unnumbered paragraph 1, Code 2017, is amended to read as
15follows:
16Violation of this subsection, with respect to the following
17controlled substances, counterfeit substances, or simulated
18controlled substances, or imitation controlled substances, is a
19class “B” felony, and notwithstanding section 902.9, subsection
201, paragraph “b”, shall be punished by confinement for no
21more than fifty years and a fine of not more than one million
22dollars:
23 Sec. 6. Section 124.401, subsection 1, paragraph b,
24unnumbered paragraph 1, Code 2017, is amended to read as
25follows:
26Violation of this subsection with respect to the following
27controlled substances, counterfeit substances, or simulated
28controlled substances, or imitation controlled substances is a
29class “B” felony, and in addition to the provisions of section
30902.9, subsection 1, paragraph “b”, shall be punished by a
31fine of not less than five thousand dollars nor more than one
32hundred thousand dollars:
33 Sec. 7. Section 124.401, subsection 1, paragraph c,
34unnumbered paragraph 1, Code 2017, is amended to read as
35follows:
-3- 1Violation of this subsection with respect to the following
2controlled substances, counterfeit substances, or simulated
3controlled substances, or imitation controlled substances is a
4class “C” felony, and in addition to the provisions of section
5902.9, subsection 1, paragraph “d”, shall be punished by a
6fine of not less than one thousand dollars nor more than fifty
7thousand dollars:
8 Sec. 8. Section 124.401, subsection 1, paragraph c,
9subparagraph (8), Code 2017, is amended to read as follows:
10(8) Any other controlled substance, counterfeit substance,
11or simulated controlled substance, or imitation controlled
12substance classified in schedule I, II, or III, except as
13provided in paragraph “d”.
14 Sec. 9. Section 124.401, subsection 2, Code 2017, is amended
15to read as follows:
162. If the same person commits two or more acts which are in
17violation of subsection 1 and the acts occur in approximately
18the same location or time period so that the acts can be
19attributed to a single scheme, plan, or conspiracy, the acts
20may be considered a single violation and the weight of the
21controlled substances, counterfeit substances, or simulated
22controlled substances, or imitation controlled substances
23 involved may be combined for purposes of charging the offender.
24 Sec. 10. Section 124.401, subsection 5, unnumbered
25paragraph 1, Code 2017, is amended to read as follows:
26It is unlawful for any person knowingly or intentionally
27to possess a controlled substance unless such substance was
28obtained directly from, or pursuant to, a valid prescription
29or order of a practitioner while acting in the course of the
30practitioner’s professional practice, or except as otherwise
31authorized by this chapter. Any person who violates this
32subsection is guilty of a serious misdemeanor for a first
33offense. A person who commits a violation of this subsection
34and who has previously been convicted of violating this chapter
35or chapter 124A, 124B, or 453B, or chapter 124A as it existed
-4-1prior to July 1, 2017, is guilty of an aggravated misdemeanor.
2A person who commits a violation of this subsection and has
3previously been convicted two or more times of violating this
4chapter or chapter 124A, 124B, or 453B, or chapter 124A as it
5existed prior to July 1, 2017, is guilty of a class “D” felony.
6 Sec. 11. Section 124.401A, Code 2017, is amended to read as
7follows:
8124.401A Enhanced penalty for manufacture or distribution to
9persons on certain real property.
10In addition to any other penalties provided in this chapter,
11a person who is eighteen years of age or older who unlawfully
12manufactures with intent to distribute, distributes, or
13possesses with intent to distribute a substance or counterfeit
14substance listed in schedule I, II, or III, or a simulated or
15imitation controlled substance represented to be a controlled
16substance classified in schedule I, II, or III, to another
17person who is eighteen years of age or older in or on, or within
18one thousand feet of the real property comprising a public or
19private elementary or secondary school, public park, public
20swimming pool, public recreation center, or on a marked school
21bus, may be sentenced up to an additional term of confinement
22of five years.
23 Sec. 12. Section 124.401B, Code 2017, is amended to read as
24follows:
25124.401B Possession of controlled substances on certain real
26property — additional penalty.
27In addition to any other penalties provided in this chapter
28or another chapter, a person who unlawfully possesses a
29substance listed in schedule I, II, or III, or a simulated or
30imitation controlled substance represented to be a controlled
31substance classified in schedule I, II, or III, in or on, or
32within one thousand feet of the real property comprising a
33public or private elementary or secondary school, public park,
34public swimming pool, public recreation center, or on a marked
35school bus, may be sentenced to one hundred hours of community
-5-1service work for a public agency or a nonprofit charitable
2organization. The court shall provide the offender with a
3written statement of the terms and monitoring provisions of the
4community service.
5 Sec. 13. Section 124.406, subsection 2, Code 2017, is
6amended to read as follows:
72. A person who is eighteen years of age or older who:
8a. Unlawfully distributes or possesses with the intent to
9distribute a counterfeit substance listed in schedule I or II,
10or a simulated or imitation controlled substance represented
11to be a substance classified in schedule I or II, to a person
12under eighteen years of age commits a class “B” felony.
13However, if the substance was distributed in or on, or within
14one thousand feet of, the real property comprising a public or
15private elementary or secondary school, public park, public
16swimming pool, public recreation center, or on a marked school
17bus, the person shall serve a minimum term of confinement of
18ten years.
19b. Unlawfully distributes or possesses with intent to
20distribute a counterfeit substance listed in schedule III, or
21a simulated or imitation controlled substance represented to
22be any substance listed in schedule III, to a person under
23eighteen years of age who is at least three years younger than
24the violator commits a class “C” felony.
25c. Unlawfully distributes a counterfeit substance listed
26in schedule IV or V, or a simulated or imitation controlled
27substance represented to be a substance listed in schedule IV
28or V, to a person under eighteen years of age who is at least
29three years younger than the violator commits an aggravated
30misdemeanor.
31 Sec. 14. Section 124.415, Code 2017, is amended to read as
32follows:
33124.415 Parental and school notification — persons under
34eighteen years of age.
35A peace officer shall make a reasonable effort to identify a
-6-1person under the age of eighteen discovered to be in possession
2of a controlled substance, counterfeit substance, or simulated
3controlled substance, or imitation controlled substance in
4violation of this chapter, and if the person is not referred
5to juvenile court, the law enforcement agency of which the
6peace officer is an employee shall make a reasonable attempt
7to notify the person’s custodial parent or legal guardian
8of such possession, whether or not the person is arrested,
9unless the officer has reasonable grounds to believe that such
10notification is not in the best interests of the person or will
11endanger that person. If the person is taken into custody,
12the peace officer shall notify a juvenile court officer who
13shall make a reasonable effort to identify the elementary or
14secondary school the person attends, if any, and to notify the
15superintendent of the school district, the superintendent’s
16designee, or the authorities in charge of the nonpublic school
17of the taking into custody. A reasonable attempt to notify
18the person includes but is not limited to a telephone call or
19notice by first-class mail.
20 Sec. 15. NEW SECTION. 124.417 Imitation controlled
21substances — exceptions.
22It is not unlawful under this chapter for a person registered
23under section 124.302, to manufacture, deliver, or possess with
24the intent to manufacture or deliver, or to act with, one or
25more other persons to manufacture, deliver, or possess with
26the intent to manufacture or deliver an imitation controlled
27substance for use as a placebo by a registered practitioner in
28the course of professional practice or research.
29 Sec. 16. Section 124.502, subsection 1, paragraph a, Code
302017, is amended to read as follows:
31a. A district judge or district associate judge, within
32the court’s jurisdiction, and upon proper oath or affirmation
33showing probable cause, may issue warrants for the purpose of
34conducting administrative inspections under this chapter or
35a related rule or under chapter 124A. The warrant may also
-7-1permit seizures of property appropriate to the inspections.
2For purposes of the issuance of administrative inspection
3warrants, probable cause exists upon showing a valid public
4interest in the effective enforcement of the statute or related
5rules, sufficient to justify administrative inspection of the
6area, premises, building, or conveyance in the circumstances
7specified in the application for the warrant.
8 Sec. 17. Section 155A.6, subsection 3, Code 2017, is amended
9to read as follows:
103. The board shall establish standards for
11pharmacist-intern registration and may deny, suspend,
12or revoke a pharmacist-intern registration for failure to meet
13the standards or for any violation of the laws of this state,
14another state, or the United States relating to prescription
15drugs, controlled substances, or nonprescription drugs, or for
16any violation of this chapter or chapter 124, 124A, 124B, 126,
17147, or 205, or any rule of the board.
18 Sec. 18. Section 155A.6A, subsection 5, Code 2017, is
19amended to read as follows:
205. The board may deny, suspend, or revoke the registration
21of, or otherwise discipline, a registered pharmacy technician
22for any violation of the laws of this state, another state, or
23the United States relating to prescription drugs, controlled
24substances, or nonprescription drugs, or for any violation of
25this chapter or chapter 124, 124A, 124B, 126, 147, 205, or
26272C, or any rule of the board.
27 Sec. 19. Section 155A.6B, subsection 5, Code 2017, is
28amended to read as follows:
295. The board may deny, suspend, or revoke the registration
30of a pharmacy support person or otherwise discipline the
31pharmacy support person for any violation of the laws of
32this state, another state, or the United States relating to
33prescription drugs, controlled substances, or nonprescription
34drugs, or for any violation of this chapter or chapter 124,
35124A, 124B, 126, 147, 205, or 272C, or any rule of the board.
-8-1 Sec. 20. Section 155A.13A, subsection 5, paragraph d, Code
22017, is amended to read as follows:
3d. Any violation of this chapter or chapter 124, 124A, 124B,
4126, or 205, or rule of the board.
5 Sec. 21. Section 155A.17, subsection 2, Code 2017, is
6amended to read as follows:
72. The board shall establish standards for drug wholesaler
8licensure and may define specific types of wholesaler licenses.
9The board may deny, suspend, or revoke a drug wholesale license
10for failure to meet the applicable standards or for a violation
11of the laws of this state, another state, or the United
12States relating to prescription drugs, devices, or controlled
13substances, or for a violation of this chapter, chapter 124,
14124A, 124B, 126, or 205, or a rule of the board.
15 Sec. 22. Section 155A.42, subsection 4, Code 2017, is
16amended to read as follows:
174. The board may deny, suspend, or revoke a limited drug and
18device distributor’s license for failure to meet the applicable
19standards or for a violation of the laws of this state, another
20state, or the United States relating to prescription drugs or
21controlled substances, or for a violation of this chapter,
22chapter 124, 124A, 124B, 126, 205, or 272C, or a rule of the
23board.
24 Sec. 23. REPEAL. Chapter 124A, Code 2017, is repealed.
25DIVISION III
26CONTROLLED SUBSTANCES — penalties
27 Sec. 24. Section 124.401, subsection 1, paragraph a, Code
282017, is amended by adding the following new subparagraph:
29 NEW SUBPARAGRAPH. (8) More than ten kilograms of a
30mixture or substance containing any detectable amount of those
31substances identified in section 124.204, subsection 9.
32 Sec. 25. Section 124.401, subsection 1, paragraph b, Code
332017, is amended by adding the following new subparagraph:
34 NEW SUBPARAGRAPH. (9) More than five kilograms but not
35more than ten kilograms of a mixture or substance containing
-9-1any detectable amount of those substances identified in section
2124.204, subsection 9.
3 Sec. 26. Section 124.401, subsection 1, paragraph c, Code
42017, is amended by adding the following new subparagraph:
5 NEW SUBPARAGRAPH. (7A) Five kilograms or less of a
6mixture or substance containing any detectable amount of those
7substances identified in section 124.204, subsection 9.
8 Sec. 27. Section 124.401, subsection 1, paragraph d, Code
92017, is amended to read as follows:
10d. Violation of this subsection, with respect to any other
11controlled substances, counterfeit substances, or simulated
12controlled substances classified in section 124.204, subsection
134, paragraph “ai”, or section 124.204, subsection 6, paragraph
14“i”, or, or imitation controlled substances classified in
15schedule IV or V is an aggravated misdemeanor. However,
16violation of this subsection involving fifty kilograms or less
17of marijuana or involving flunitrazepam is a class “D” felony.
18EXPLANATION
19The inclusion of this explanation does not constitute agreement with
20the explanation’s substance by the members of the general assembly.
21This bill relates to controlled substances, including by
22modifying procedures relating to the temporary designation
23of substances as controlled substances, and modifying the
24penalties for imitation controlled substances and certain
25controlled substances.
26TEMPORARY CONTROLLED SUBSTANCE DESIGNATION. Under current
27law and in the bill, the board of pharmacy may designate a new
28substance as a controlled substance, by administrative rule,
29without legislation amending Code chapter 124, only if the
30substance is designated as a controlled substance under federal
31law.
32If the board of pharmacy designates a substance as
33controlled, the bill specifies that the temporary designation
34is considered a temporary amendment to the schedules of
35controlled substances in Code chapter 124, and if the general
-10-1assembly does not amend Code chapter 124 to enact the temporary
2amendment and make the enactment effective within two years
3from the date the temporary amendment first became effective,
4the temporary amendment is repealed by operation of law two
5years from the effective date of the temporary amendment. A
6temporary amendment repealed by operation of law is subject to
7Code section 4.13 relating to the construction of statutes and
8the application of a general savings provision.
9Current law provides that if within 60 days after the next
10general assembly convenes the general assembly has not made
11the corresponding changes in Code chapter 124, the temporary
12designation of a substance as a controlled substance is
13nullified.
14IMITATION CONTROLLED SUBSTANCES. Under current law,
15imitation controlled substances are regulated under Code
16chapter 124A. The bill repeals Code chapter 124A and transfers
17the regulation of imitation controlled substances to Code
18chapter 124. The definition and designation of an imitation
19controlled substance in Code chapter 124 remains identical
20to the definition and designation of an imitation controlled
21substance under current law in Code chapter 124A.
22Under the bill and in current law, an imitation controlled
23substance means a substance which is not a controlled substance
24but by color, shape, size, markings, and other aspects of
25dosage unit appearance, and packaging or other factors, appears
26to be or resembles a controlled substance. The board of
27pharmacy may designate a substance as an imitation controlled
28substance pursuant to the board’s rulemaking authority and in
29accordance with Code chapter 17A.
30In addition, under current law and in the bill, if a
31substance has not been designated as an imitation controlled
32substance by the board of pharmacy and when dosage unit
33appearance alone does not establish that a substance is an
34imitation controlled substance, the following factors may
35be considered in determining whether the substance is an
-11-1imitation controlled substance: the substance is represented
2as having the effect of a controlled substance; the substance
3is represented as a controlled substance or as a substitute for
4a controlled substance because of its nature or appearance;
5or a person receives money or other property having a value
6substantially greater than the actual value of the substance
7when sold.
8Under the bill, if a person unlawfully manufactures,
9delivers, or possesses with the intent to deliver an imitation
10controlled substance containing any detectable amount of those
11substances identified in Code section 124.204(9), or unlawfully
12acts with, enters into a common scheme or design with, or
13conspires with one or more persons to manufacture, deliver,
14or possess such imitation controlled substances, the person
15commits the following offense: a class “B” felony punishable
16by confinement of no more than 50 years and a fine of not more
17than $1 million if the imitation controlled substance is more
18than 10 kilograms; a class “B” felony punishable by confinement
19of no more than 25 years and a fine of not less than $5,000 but
20not more than $100,000 if the imitation controlled substance
21is more than five kilograms but not more than 10 kilograms; a
22class “C” felony punishable by a fine of not less than $1,000
23but not more than $50,000 if the imitation controlled substance
24is five kilograms or less; or an aggravated misdemeanor if the
25imitation controlled substance is classified in schedule IV or
26V; or a serious misdemeanor for a first possession offense,
27an aggravated misdemeanor for a second possession offense,
28or a class “D” felony for two or more previous possession
29offenses. Current law in Code section 124A.4 provides that if
30a person unlawfully manufactures, delivers, or possesses with
31intent to deliver an imitation controlled substance, the person
32commits an aggravated misdemeanor, or if the person delivers
33to a person under 18 years of age who is at least three years
34younger than the violator, the person commits a class “D”
35felony. In addition, under current law, if a person unlawfully
-12-1and knowingly publishes an advertisement or distributes in a
2public place a promotion for an imitation controlled substance
3the person commits a serious misdemeanor.
4The bill provides that if the same person commits two or
5more acts which are in violation of Code section 124.401(1)
6and the acts occur in the same location or time period so the
7acts are attributable to a single scheme, the acts may be
8considered a single violation and the weights of the imitation
9controlled substance may be combined for purposes of charging
10the offender.
11The amendment to Code section 124.401A provides that
12a person who is 18 years of age or older who unlawfully
13manufactures with the intent to distribute, distributes,
14or possesses with the intent to distribute an imitation
15controlled substance to another person 18 years of age or older
16within 1,000 feet of the real property comprising a public or
17nonpublic school, may be sentenced up to an additional term of
18confinement of five years in addition to any other penalty.
19The amendment to Code section 124.401B provides that
20a person who unlawfully possesses an imitation controlled
21substance within 1,000 feet of the real property comprising a
22school, public park, public pool, public recreation center, or
23marked school bus may be sentenced up to 100 hours of community
24service.
25The amendments to Code section 124.406 relate to the
26distribution or possession with the intent to distribute an
27imitation controlled substance to a person under 18 years of
28age. A person who distributes or possesses with the intent to
29distribute an imitation controlled substance, represented to
30be a substance listed in schedule I or schedule II, to a person
31under 18 years of age commits a class “B” felony. The required
32penalty for such a violation is a minimum term of confinement
33of 10 years if the substance was distributed within 1,000
34feet of the real property comprising a public or nonpublic
35school, public park, public pool, or public recreation center.
-13-1A person who distributes or possesses with the intent to
2distribute an imitation controlled substance, represented to be
3a substance listed in schedule III, to a person under 18 years
4of age, who is at least three years younger than the violator,
5commits a class “C” felony. A person who distributes or
6possesses with the intent to distribute an imitation controlled
7substance, represented to be a substance listed in schedule
8IV or schedule V, to a person under 18 years of age, who is
9at least three years younger than the violator, commits an
10aggravated misdemeanor.
11The amendment to Code section 124.415 requires that a peace
12officer make a reasonable effort to identify a person under 18
13years of age discovered to be in possession of an imitation
14controlled substance, and if the person is not referred to
15juvenile court, the peace officer shall make a reasonable
16effort to notify the person’s custodial parent of the
17possession unless the officer has reasonable grounds to believe
18such notification is not in the best interests of the person.
19The bill specifies that if the person is taken into custody
20the juvenile court officer shall make a reasonable effort to
21identify the school of attendance and to notify the school or
22nonpublic school of the taking into custody of the person.
23The bill creates Code section 124.417, which is similar to
24Code section 124A.5 repealed by the bill. A person registered
25under Code section 124.302 does not violate the bill if the
26person manufactures, delivers, possesses, or possesses with the
27intent to manufacture or deliver, or acts with others to do
28such activities, if the person uses the imitation controlled
29substance for use as a placebo by a registered practitioner in
30the court of professional practice or research.
31CONTROLLED SUBSTANCES — PENALTIES. The bill enhances the
32criminal penalties for controlled substances classified in Code
33sections 124.204(4)(ai) and 124.204(6)(i) from an aggravated
34misdemeanor to a class “C” felony punishable pursuant to Code
35section 124.401(1)(c)(8). This change equalizes the criminal
-14-1penalties with violations involving other schedule I controlled
2substances.
3The bill enhances the criminal penalties for a schedule I
4controlled substance identified in Code section 124.204(9).
5Under the bill, a person commits a class “B” felony punishable
6by confinement for no more than 50 years and a fine of not more
7than $1 million for a violation of Code section 124.401(1)(a)
8involving more than 10 kilograms of a mixture or substance
9containing any detectable amount of those substances identified
10in Code section 124.204(9). A person commits a class “B”
11felony punishable by confinement for no more than 25 years and
12a fine of not less than $5,000 but not more than $100,000 for
13a violation of Code section 124.401(1)(b) involving more than
14five kilograms but not more than 10 kilograms of a mixture or
15substance containing any detectable amount of those substances
16identified in Code section 124.204(9). A person commits a
17class “C” felony punishable by confinement for no more than
1810 years and a fine of not less than $1,000 but not more than
19$50,000 for a violation of Code section 124.401(1)(c) involving
20five kilograms or less of a mixture or substance containing
21any detectable amount of those substances identified in Code
22section 124.204(9). Currently, all violations involving a
23schedule I controlled substance identified in Code section
24124.204(9) are punishable under Code section 124.401(1)(c)(8)
25as a class “C” felony by confinement for no more than 10 years
26and a fine of at least $1,000 but not more than $10,000,
27regardless of the amount of the controlled substance involved.
28A person who illegally possesses a controlled substance
29commits a criminal violation which ranges in punishment from a
30serious misdemeanor to a class “D” felony under Code section
31124.401(5).
-15-jm/nh
2temporarily designating substances as controlled substances,
3modifying the penalties for imitation controlled substances
4and certain controlled substances, modifying the controlled
5substances listed in schedules I, III, and IV, and providing
6penalties.
7BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
1DIVISION I
2temporary controlled substances
3 Section 1. Section 124.201, subsection 4, Code 2017, is
4amended to read as follows:
54. If any new substance is designated as a controlled
6substance under federal law and notice of the designation is
7given to the board, the board shall similarly designate as
8controlled the new substance under this chapter after the
9expiration of thirty days from publication in the federal
10register of a final order designating a new substance as a
11controlled substance, unless within that thirty-day period
12the board objects to the new designation. In that case the
13board shall publish the reasons for objection and afford
14all interested parties an opportunity to be heard. At
15the conclusion of the hearing the board shall announce its
16decision. Upon publication of objection to a new substance
17being designated as a controlled substance under this chapter
18by the board, control under this chapter is stayed until the
19board publishes its decision. If a substance is designated
20as controlled by the board under this subsection the control
21shall be considered a temporary and if, within sixty days after
22the next regular session of the general assembly convenes,
23the general assembly has not made the corresponding changes
24in this chapter, the temporary designation of control of
25the substance by the board shall be nullified amendment to
26the schedules of controlled substances in this chapter. If
27the board so designates a substance as controlled, which
28is considered a temporary amendment to the schedules of
29controlled substances in this chapter, and if the general
30assembly does not amend this chapter to enact the temporary
31amendment and make the enactment effective within two years
32from the date the temporary amendment first became effective,
33the temporary amendment is repealed by operation of law two
34years from the effective date of the temporary amendment. A
35temporary amendment repealed by operation of law is subject to
-1-1section 4.13 relating to the construction of statutes and the
2application of a general savings provision.
3DIVISION II
4imitation controlled substances
5 Sec. 2. Section 124.101, Code 2017, is amended by adding the
6following new subsection:
7 NEW SUBSECTION. 15A. “Imitation controlled substance” means
8a substance which is not a controlled substance but which by
9color, shape, size, markings, and other aspects of dosage unit
10appearance, and packaging or other factors, appears to be or
11resembles a controlled substance. The board may designate a
12substance as an imitation controlled substance pursuant to the
13board’s rulemaking authority and in accordance with chapter
1417A. “Imitation controlled substance” also means any substance
15determined to be an imitation controlled substance pursuant to
16section 124.101B.
17 Sec. 3. NEW SECTION. 124.101B Factors indicating an
18imitation controlled substance.
19If a substance has not been designated as an imitation
20controlled substance by the board and if dosage unit appearance
21alone does not establish that a substance is an imitation
22controlled substance, the following factors may be considered
23in determining whether the substance is an imitation controlled
24substance:
251. The person in control of the substance expressly or
26impliedly represents that the substance has the effect of a
27controlled substance.
282. The person in control of the substance expressly
29or impliedly represents that the substance because of its
30nature or appearance can be sold or delivered as a controlled
31substance or as a substitute for a controlled substance.
323. The person in control of the substance either demands or
33receives money or other property having a value substantially
34greater than the actual value of the substance as consideration
35for delivery of the substance.
-2-1 Sec. 4. Section 124.401, subsection 1, unnumbered paragraph
21, Code 2017, is amended to read as follows:
3Except as authorized by this chapter, it is unlawful for any
4person to manufacture, deliver, or possess with the intent to
5manufacture or deliver, a controlled substance, a counterfeit
6substance, or a simulated controlled substance, or an imitation
7controlled substance, or to act with, enter into a common
8scheme or design with, or conspire with one or more other
9persons to manufacture, deliver, or possess with the intent to
10manufacture or deliver a controlled substance, a counterfeit
11substance, or a simulated controlled substance, or an imitation
12controlled substance.
13 Sec. 5. Section 124.401, subsection 1, paragraph a,
14unnumbered paragraph 1, Code 2017, is amended to read as
15follows:
16Violation of this subsection, with respect to the following
17controlled substances, counterfeit substances, or simulated
18controlled substances, or imitation controlled substances, is a
19class “B” felony, and notwithstanding section 902.9, subsection
201, paragraph “b”, shall be punished by confinement for no
21more than fifty years and a fine of not more than one million
22dollars:
23 Sec. 6. Section 124.401, subsection 1, paragraph b,
24unnumbered paragraph 1, Code 2017, is amended to read as
25follows:
26Violation of this subsection with respect to the following
27controlled substances, counterfeit substances, or simulated
28controlled substances, or imitation controlled substances is a
29class “B” felony, and in addition to the provisions of section
30902.9, subsection 1, paragraph “b”, shall be punished by a
31fine of not less than five thousand dollars nor more than one
32hundred thousand dollars:
33 Sec. 7. Section 124.401, subsection 1, paragraph c,
34unnumbered paragraph 1, Code 2017, is amended to read as
35follows:
-3- 1Violation of this subsection with respect to the following
2controlled substances, counterfeit substances, or simulated
3controlled substances, or imitation controlled substances is a
4class “C” felony, and in addition to the provisions of section
5902.9, subsection 1, paragraph “d”, shall be punished by a
6fine of not less than one thousand dollars nor more than fifty
7thousand dollars:
8 Sec. 8. Section 124.401, subsection 1, paragraph c,
9subparagraph (8), Code 2017, is amended to read as follows:
10(8) Any other controlled substance, counterfeit substance,
11or simulated controlled substance, or imitation controlled
12substance classified in schedule I, II, or III, except as
13provided in paragraph “d”.
14 Sec. 9. Section 124.401, subsection 2, Code 2017, is amended
15to read as follows:
162. If the same person commits two or more acts which are in
17violation of subsection 1 and the acts occur in approximately
18the same location or time period so that the acts can be
19attributed to a single scheme, plan, or conspiracy, the acts
20may be considered a single violation and the weight of the
21controlled substances, counterfeit substances, or simulated
22controlled substances, or imitation controlled substances
23 involved may be combined for purposes of charging the offender.
24 Sec. 10. Section 124.401, subsection 5, unnumbered
25paragraph 1, Code 2017, is amended to read as follows:
26It is unlawful for any person knowingly or intentionally
27to possess a controlled substance unless such substance was
28obtained directly from, or pursuant to, a valid prescription
29or order of a practitioner while acting in the course of the
30practitioner’s professional practice, or except as otherwise
31authorized by this chapter. Any person who violates this
32subsection is guilty of a serious misdemeanor for a first
33offense. A person who commits a violation of this subsection
34and who has previously been convicted of violating this chapter
35or chapter 124A, 124B, or 453B, or chapter 124A as it existed
-4-1prior to July 1, 2017, is guilty of an aggravated misdemeanor.
2A person who commits a violation of this subsection and has
3previously been convicted two or more times of violating this
4chapter or chapter 124A, 124B, or 453B, or chapter 124A as it
5existed prior to July 1, 2017, is guilty of a class “D” felony.
6 Sec. 11. Section 124.401A, Code 2017, is amended to read as
7follows:
8124.401A Enhanced penalty for manufacture or distribution to
9persons on certain real property.
10In addition to any other penalties provided in this chapter,
11a person who is eighteen years of age or older who unlawfully
12manufactures with intent to distribute, distributes, or
13possesses with intent to distribute a substance or counterfeit
14substance listed in schedule I, II, or III, or a simulated or
15imitation controlled substance represented to be a controlled
16substance classified in schedule I, II, or III, to another
17person who is eighteen years of age or older in or on, or within
18one thousand feet of the real property comprising a public or
19private elementary or secondary school, public park, public
20swimming pool, public recreation center, or on a marked school
21bus, may be sentenced up to an additional term of confinement
22of five years.
23 Sec. 12. Section 124.401B, Code 2017, is amended to read as
24follows:
25124.401B Possession of controlled substances on certain real
26property — additional penalty.
27In addition to any other penalties provided in this chapter
28or another chapter, a person who unlawfully possesses a
29substance listed in schedule I, II, or III, or a simulated or
30imitation controlled substance represented to be a controlled
31substance classified in schedule I, II, or III, in or on, or
32within one thousand feet of the real property comprising a
33public or private elementary or secondary school, public park,
34public swimming pool, public recreation center, or on a marked
35school bus, may be sentenced to one hundred hours of community
-5-1service work for a public agency or a nonprofit charitable
2organization. The court shall provide the offender with a
3written statement of the terms and monitoring provisions of the
4community service.
5 Sec. 13. Section 124.406, subsection 2, Code 2017, is
6amended to read as follows:
72. A person who is eighteen years of age or older who:
8a. Unlawfully distributes or possesses with the intent to
9distribute a counterfeit substance listed in schedule I or II,
10or a simulated or imitation controlled substance represented
11to be a substance classified in schedule I or II, to a person
12under eighteen years of age commits a class “B” felony.
13However, if the substance was distributed in or on, or within
14one thousand feet of, the real property comprising a public or
15private elementary or secondary school, public park, public
16swimming pool, public recreation center, or on a marked school
17bus, the person shall serve a minimum term of confinement of
18ten years.
19b. Unlawfully distributes or possesses with intent to
20distribute a counterfeit substance listed in schedule III, or
21a simulated or imitation controlled substance represented to
22be any substance listed in schedule III, to a person under
23eighteen years of age who is at least three years younger than
24the violator commits a class “C” felony.
25c. Unlawfully distributes a counterfeit substance listed
26in schedule IV or V, or a simulated or imitation controlled
27substance represented to be a substance listed in schedule IV
28or V, to a person under eighteen years of age who is at least
29three years younger than the violator commits an aggravated
30misdemeanor.
31 Sec. 14. Section 124.415, Code 2017, is amended to read as
32follows:
33124.415 Parental and school notification — persons under
34eighteen years of age.
35A peace officer shall make a reasonable effort to identify a
-6-1person under the age of eighteen discovered to be in possession
2of a controlled substance, counterfeit substance, or simulated
3controlled substance, or imitation controlled substance in
4violation of this chapter, and if the person is not referred
5to juvenile court, the law enforcement agency of which the
6peace officer is an employee shall make a reasonable attempt
7to notify the person’s custodial parent or legal guardian
8of such possession, whether or not the person is arrested,
9unless the officer has reasonable grounds to believe that such
10notification is not in the best interests of the person or will
11endanger that person. If the person is taken into custody,
12the peace officer shall notify a juvenile court officer who
13shall make a reasonable effort to identify the elementary or
14secondary school the person attends, if any, and to notify the
15superintendent of the school district, the superintendent’s
16designee, or the authorities in charge of the nonpublic school
17of the taking into custody. A reasonable attempt to notify
18the person includes but is not limited to a telephone call or
19notice by first-class mail.
20 Sec. 15. NEW SECTION. 124.417 Imitation controlled
21substances — exceptions.
22It is not unlawful under this chapter for a person registered
23under section 124.302, to manufacture, deliver, or possess with
24the intent to manufacture or deliver, or to act with, one or
25more other persons to manufacture, deliver, or possess with
26the intent to manufacture or deliver an imitation controlled
27substance for use as a placebo by a registered practitioner in
28the course of professional practice or research.
29 Sec. 16. Section 124.502, subsection 1, paragraph a, Code
302017, is amended to read as follows:
31a. A district judge or district associate judge, within
32the court’s jurisdiction, and upon proper oath or affirmation
33showing probable cause, may issue warrants for the purpose of
34conducting administrative inspections under this chapter or
35a related rule or under chapter 124A. The warrant may also
-7-1permit seizures of property appropriate to the inspections.
2For purposes of the issuance of administrative inspection
3warrants, probable cause exists upon showing a valid public
4interest in the effective enforcement of the statute or related
5rules, sufficient to justify administrative inspection of the
6area, premises, building, or conveyance in the circumstances
7specified in the application for the warrant.
8 Sec. 17. Section 155A.6, subsection 3, Code 2017, is amended
9to read as follows:
103. The board shall establish standards for
11pharmacist-intern registration and may deny, suspend,
12or revoke a pharmacist-intern registration for failure to meet
13the standards or for any violation of the laws of this state,
14another state, or the United States relating to prescription
15drugs, controlled substances, or nonprescription drugs, or for
16any violation of this chapter or chapter 124, 124A, 124B, 126,
17147, or 205, or any rule of the board.
18 Sec. 18. Section 155A.6A, subsection 5, Code 2017, is
19amended to read as follows:
205. The board may deny, suspend, or revoke the registration
21of, or otherwise discipline, a registered pharmacy technician
22for any violation of the laws of this state, another state, or
23the United States relating to prescription drugs, controlled
24substances, or nonprescription drugs, or for any violation of
25this chapter or chapter 124, 124A, 124B, 126, 147, 205, or
26272C, or any rule of the board.
27 Sec. 19. Section 155A.6B, subsection 5, Code 2017, is
28amended to read as follows:
295. The board may deny, suspend, or revoke the registration
30of a pharmacy support person or otherwise discipline the
31pharmacy support person for any violation of the laws of
32this state, another state, or the United States relating to
33prescription drugs, controlled substances, or nonprescription
34drugs, or for any violation of this chapter or chapter 124,
35124A, 124B, 126, 147, 205, or 272C, or any rule of the board.
-8-1 Sec. 20. Section 155A.13A, subsection 5, paragraph d, Code
22017, is amended to read as follows:
3d. Any violation of this chapter or chapter 124, 124A, 124B,
4126, or 205, or rule of the board.
5 Sec. 21. Section 155A.17, subsection 2, Code 2017, is
6amended to read as follows:
72. The board shall establish standards for drug wholesaler
8licensure and may define specific types of wholesaler licenses.
9The board may deny, suspend, or revoke a drug wholesale license
10for failure to meet the applicable standards or for a violation
11of the laws of this state, another state, or the United
12States relating to prescription drugs, devices, or controlled
13substances, or for a violation of this chapter, chapter 124,
14124A, 124B, 126, or 205, or a rule of the board.
15 Sec. 22. Section 155A.42, subsection 4, Code 2017, is
16amended to read as follows:
174. The board may deny, suspend, or revoke a limited drug and
18device distributor’s license for failure to meet the applicable
19standards or for a violation of the laws of this state, another
20state, or the United States relating to prescription drugs or
21controlled substances, or for a violation of this chapter,
22chapter 124, 124A, 124B, 126, 205, or 272C, or a rule of the
23board.
24 Sec. 23. REPEAL. Chapter 124A, Code 2017, is repealed.
25DIVISION III
26CONTROLLED SUBSTANCES — penalties
27 Sec. 24. Section 124.401, subsection 1, paragraph a, Code
282017, is amended by adding the following new subparagraph:
29 NEW SUBPARAGRAPH. (8) More than ten kilograms of a
30mixture or substance containing any detectable amount of those
31substances identified in section 124.204, subsection 9.
32 Sec. 25. Section 124.401, subsection 1, paragraph b, Code
332017, is amended by adding the following new subparagraph:
34 NEW SUBPARAGRAPH. (9) More than five kilograms but not
35more than ten kilograms of a mixture or substance containing
-9-1any detectable amount of those substances identified in section
2124.204, subsection 9.
3 Sec. 26. Section 124.401, subsection 1, paragraph c, Code
42017, is amended by adding the following new subparagraph:
5 NEW SUBPARAGRAPH. (7A) Five kilograms or less of a
6mixture or substance containing any detectable amount of those
7substances identified in section 124.204, subsection 9.
8 Sec. 27. Section 124.401, subsection 1, paragraph d, Code
92017, is amended to read as follows:
10d. Violation of this subsection, with respect to any other
11controlled substances, counterfeit substances, or simulated
12controlled substances classified in section 124.204, subsection
134, paragraph “ai”, or section 124.204, subsection 6, paragraph
14“i”, or, or imitation controlled substances classified in
15schedule IV or V is an aggravated misdemeanor. However,
16violation of this subsection involving fifty kilograms or less
17of marijuana or involving flunitrazepam is a class “D” felony.
18EXPLANATION
19The inclusion of this explanation does not constitute agreement with
20the explanation’s substance by the members of the general assembly.
21This bill relates to controlled substances, including by
22modifying procedures relating to the temporary designation
23of substances as controlled substances, and modifying the
24penalties for imitation controlled substances and certain
25controlled substances.
26TEMPORARY CONTROLLED SUBSTANCE DESIGNATION. Under current
27law and in the bill, the board of pharmacy may designate a new
28substance as a controlled substance, by administrative rule,
29without legislation amending Code chapter 124, only if the
30substance is designated as a controlled substance under federal
31law.
32If the board of pharmacy designates a substance as
33controlled, the bill specifies that the temporary designation
34is considered a temporary amendment to the schedules of
35controlled substances in Code chapter 124, and if the general
-10-1assembly does not amend Code chapter 124 to enact the temporary
2amendment and make the enactment effective within two years
3from the date the temporary amendment first became effective,
4the temporary amendment is repealed by operation of law two
5years from the effective date of the temporary amendment. A
6temporary amendment repealed by operation of law is subject to
7Code section 4.13 relating to the construction of statutes and
8the application of a general savings provision.
9Current law provides that if within 60 days after the next
10general assembly convenes the general assembly has not made
11the corresponding changes in Code chapter 124, the temporary
12designation of a substance as a controlled substance is
13nullified.
14IMITATION CONTROLLED SUBSTANCES. Under current law,
15imitation controlled substances are regulated under Code
16chapter 124A. The bill repeals Code chapter 124A and transfers
17the regulation of imitation controlled substances to Code
18chapter 124. The definition and designation of an imitation
19controlled substance in Code chapter 124 remains identical
20to the definition and designation of an imitation controlled
21substance under current law in Code chapter 124A.
22Under the bill and in current law, an imitation controlled
23substance means a substance which is not a controlled substance
24but by color, shape, size, markings, and other aspects of
25dosage unit appearance, and packaging or other factors, appears
26to be or resembles a controlled substance. The board of
27pharmacy may designate a substance as an imitation controlled
28substance pursuant to the board’s rulemaking authority and in
29accordance with Code chapter 17A.
30In addition, under current law and in the bill, if a
31substance has not been designated as an imitation controlled
32substance by the board of pharmacy and when dosage unit
33appearance alone does not establish that a substance is an
34imitation controlled substance, the following factors may
35be considered in determining whether the substance is an
-11-1imitation controlled substance: the substance is represented
2as having the effect of a controlled substance; the substance
3is represented as a controlled substance or as a substitute for
4a controlled substance because of its nature or appearance;
5or a person receives money or other property having a value
6substantially greater than the actual value of the substance
7when sold.
8Under the bill, if a person unlawfully manufactures,
9delivers, or possesses with the intent to deliver an imitation
10controlled substance containing any detectable amount of those
11substances identified in Code section 124.204(9), or unlawfully
12acts with, enters into a common scheme or design with, or
13conspires with one or more persons to manufacture, deliver,
14or possess such imitation controlled substances, the person
15commits the following offense: a class “B” felony punishable
16by confinement of no more than 50 years and a fine of not more
17than $1 million if the imitation controlled substance is more
18than 10 kilograms; a class “B” felony punishable by confinement
19of no more than 25 years and a fine of not less than $5,000 but
20not more than $100,000 if the imitation controlled substance
21is more than five kilograms but not more than 10 kilograms; a
22class “C” felony punishable by a fine of not less than $1,000
23but not more than $50,000 if the imitation controlled substance
24is five kilograms or less; or an aggravated misdemeanor if the
25imitation controlled substance is classified in schedule IV or
26V; or a serious misdemeanor for a first possession offense,
27an aggravated misdemeanor for a second possession offense,
28or a class “D” felony for two or more previous possession
29offenses. Current law in Code section 124A.4 provides that if
30a person unlawfully manufactures, delivers, or possesses with
31intent to deliver an imitation controlled substance, the person
32commits an aggravated misdemeanor, or if the person delivers
33to a person under 18 years of age who is at least three years
34younger than the violator, the person commits a class “D”
35felony. In addition, under current law, if a person unlawfully
-12-1and knowingly publishes an advertisement or distributes in a
2public place a promotion for an imitation controlled substance
3the person commits a serious misdemeanor.
4The bill provides that if the same person commits two or
5more acts which are in violation of Code section 124.401(1)
6and the acts occur in the same location or time period so the
7acts are attributable to a single scheme, the acts may be
8considered a single violation and the weights of the imitation
9controlled substance may be combined for purposes of charging
10the offender.
11The amendment to Code section 124.401A provides that
12a person who is 18 years of age or older who unlawfully
13manufactures with the intent to distribute, distributes,
14or possesses with the intent to distribute an imitation
15controlled substance to another person 18 years of age or older
16within 1,000 feet of the real property comprising a public or
17nonpublic school, may be sentenced up to an additional term of
18confinement of five years in addition to any other penalty.
19The amendment to Code section 124.401B provides that
20a person who unlawfully possesses an imitation controlled
21substance within 1,000 feet of the real property comprising a
22school, public park, public pool, public recreation center, or
23marked school bus may be sentenced up to 100 hours of community
24service.
25The amendments to Code section 124.406 relate to the
26distribution or possession with the intent to distribute an
27imitation controlled substance to a person under 18 years of
28age. A person who distributes or possesses with the intent to
29distribute an imitation controlled substance, represented to
30be a substance listed in schedule I or schedule II, to a person
31under 18 years of age commits a class “B” felony. The required
32penalty for such a violation is a minimum term of confinement
33of 10 years if the substance was distributed within 1,000
34feet of the real property comprising a public or nonpublic
35school, public park, public pool, or public recreation center.
-13-1A person who distributes or possesses with the intent to
2distribute an imitation controlled substance, represented to be
3a substance listed in schedule III, to a person under 18 years
4of age, who is at least three years younger than the violator,
5commits a class “C” felony. A person who distributes or
6possesses with the intent to distribute an imitation controlled
7substance, represented to be a substance listed in schedule
8IV or schedule V, to a person under 18 years of age, who is
9at least three years younger than the violator, commits an
10aggravated misdemeanor.
11The amendment to Code section 124.415 requires that a peace
12officer make a reasonable effort to identify a person under 18
13years of age discovered to be in possession of an imitation
14controlled substance, and if the person is not referred to
15juvenile court, the peace officer shall make a reasonable
16effort to notify the person’s custodial parent of the
17possession unless the officer has reasonable grounds to believe
18such notification is not in the best interests of the person.
19The bill specifies that if the person is taken into custody
20the juvenile court officer shall make a reasonable effort to
21identify the school of attendance and to notify the school or
22nonpublic school of the taking into custody of the person.
23The bill creates Code section 124.417, which is similar to
24Code section 124A.5 repealed by the bill. A person registered
25under Code section 124.302 does not violate the bill if the
26person manufactures, delivers, possesses, or possesses with the
27intent to manufacture or deliver, or acts with others to do
28such activities, if the person uses the imitation controlled
29substance for use as a placebo by a registered practitioner in
30the court of professional practice or research.
31CONTROLLED SUBSTANCES — PENALTIES. The bill enhances the
32criminal penalties for controlled substances classified in Code
33sections 124.204(4)(ai) and 124.204(6)(i) from an aggravated
34misdemeanor to a class “C” felony punishable pursuant to Code
35section 124.401(1)(c)(8). This change equalizes the criminal
-14-1penalties with violations involving other schedule I controlled
2substances.
3The bill enhances the criminal penalties for a schedule I
4controlled substance identified in Code section 124.204(9).
5Under the bill, a person commits a class “B” felony punishable
6by confinement for no more than 50 years and a fine of not more
7than $1 million for a violation of Code section 124.401(1)(a)
8involving more than 10 kilograms of a mixture or substance
9containing any detectable amount of those substances identified
10in Code section 124.204(9). A person commits a class “B”
11felony punishable by confinement for no more than 25 years and
12a fine of not less than $5,000 but not more than $100,000 for
13a violation of Code section 124.401(1)(b) involving more than
14five kilograms but not more than 10 kilograms of a mixture or
15substance containing any detectable amount of those substances
16identified in Code section 124.204(9). A person commits a
17class “C” felony punishable by confinement for no more than
1810 years and a fine of not less than $1,000 but not more than
19$50,000 for a violation of Code section 124.401(1)(c) involving
20five kilograms or less of a mixture or substance containing
21any detectable amount of those substances identified in Code
22section 124.204(9). Currently, all violations involving a
23schedule I controlled substance identified in Code section
24124.204(9) are punishable under Code section 124.401(1)(c)(8)
25as a class “C” felony by confinement for no more than 10 years
26and a fine of at least $1,000 but not more than $10,000,
27regardless of the amount of the controlled substance involved.
28A person who illegally possesses a controlled substance
29commits a criminal violation which ranges in punishment from a
30serious misdemeanor to a class “D” felony under Code section
31124.401(5).
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