[Congressional Record Volume 155, Number 97 (Thursday, June 25, 2009)]
[Senate]
[Pages S7097-S7099]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. DURBIN (for himself and Mr. Grassley):
  S. 1383. A bill to amend the Controlled Substances Act to prevent the 
abuse of dextromethorphan, and for other purposes; to the Committee on 
the Judiciary.
  Mr. DURBIN. I rise to introduce the Dextromethorphan Abuse Reduction 
Act of 2009. This legislation will help prevent the dangerous abuse by 
minors of cough medicines containing the ingredient dextromethorphan, 
and will also help education and prevention efforts regarding teen 
abuse of prescription and nonprescription drugs. I am pleased to be 
joined by my colleague Senator Grassley of Iowa in sponsoring this 
legislation, and I look forward to working with him to see it enacted 
into law.
  Dextromethorphan, or DXM, is a cough suppressant commonly found in 
over-the-counter cold medicines. These medicines are safe and effective 
when taken in their recommended dosage, but when consumed in large 
amounts, medicines containing DXM can produce a hallucinogenic high. 
Teens who abuse cough medicines often refer to the practice as 
``Robotripping,'' a term derived from the cough medicine Robitussin 
which contains DXM. When abused, cold medicines containing DXM can 
cause a variety of harmful physical effects, including disorientation, 
impaired physical coordination, abdominal pain, nausea, rapid 
heartbeat, and seizures. However, medicines containing DXM are legal, 
inexpensive, and sold at retail stores and over the Internet.
  Studies show that teenagers are abusing cough medicines at an 
alarming rate. A recent study by the Partnership for a Drug-Free 
America revealed that about 7 percent of teens--or 1.7 million--
reported abusing cough medicine in the year 2008. This study also found 
high rates of teen abuse of other prescription drugs, with 2.5 million 
teens reporting having abused a prescription pain reliever in 2008. 
Experts say that cough syrup and prescription drug abuse is 
significantly underreported.
  The Dextromethorphan Abuse Reduction Act would take significant steps 
to reduce and prevent teen abuse of DXM and other over-the-counter 
drugs. First, the bill prohibits the sale of products containing DXM to 
a buyer who is under 18 years old. Several major retailers, including 
Walgreens, Rite-Aid, and Giant, have already voluntarily agreed not to 
sell products that contain DXM to purchasers who are under 18, and 
their retail clerks check IDs to verify the purchaser's age. The 
legislation would codify these voluntary steps, and would also direct 
the Justice Department to promulgate regulations ensuring that Internet 
sales of DXM-containing products comply with these age restrictions. 
Notably, the legislation prohibits the sale to minors of any product 
containing DXM, including not just over-the-counter cough medicines but 
also products containing DXM in its raw, unfinished form. This is 
important since the abuse of unfinished DXM products has been 
responsible for several deaths in my home State of Illinois and 
elsewhere.
  Second, this legislation would fund prevention and educational 
programs

[[Page S7098]]

to combat over-the-counter and prescription drug abuse. The bill 
authorizes the Director of National Drug Control Policy to provide 
money for the creation of a nationwide education campaign directed at 
teens and their parents regarding the prevention of abuse of 
prescription and nonprescription drugs. It also authorizes grants to 
communities for over-the-counter drug abuse awareness and prevention 
efforts, and provides increased funding to the National Community Anti-
drug Coalition Institute to provide training and technical assistance 
to boost those community-level efforts.
  I am pleased that drug manufacturers and drug prevention groups have 
joined together in support of this legislation. The bill is supported 
by the Consumer Healthcare Products Association, the Partnership for a 
Drug-Free America, and the Community Anti-Drug Coalitions of America.
  Restricting access by minors to DXM-containing products and 
increasing awareness for teens and their parents of the potential harms 
of cough syrup and other over-the-counter drugs will help combat the 
high rates of teen abuse of these products. I urge my colleagues to 
support this important legislation.
  Mr. President, 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. 1383

       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 ``Dextromethorphan Abuse 
     Reduction Act of 2009''.

     SEC. 2. FINDINGS.

       Congress finds the following:
       (1) When used properly, cough medicines that contain 
     dextromethorphan have a long history of being safe and 
     effective. But abuse of dextromethorphan at doses that exceed 
     the recommended levels can produce hallucinations, rapid 
     heart beat, high blood pressure, loss of consciousness, and 
     seizures. The dangers multiply when dextromethorphan is 
     abused with alcohol, prescription drugs, or narcotics.
       (2) Dextromethorphan is inexpensive, legal, and readily 
     accessible, which has contributed to the increased abuse of 
     the drug, particularly among teenagers.
       (3) Increasing numbers of teens and others are abusing 
     dextromethorphan by ingesting it in excessive quantities. 
     Prolonged use at high doses can lead to psychological 
     dependence on the drug. Abuse of dextromethorphan can also 
     cause impaired judgment, which can lead to injury or death.
       (4) An estimated 1,700,000 teenagers (7 percent of teens) 
     abused over-the-counter cough medicines in 2008.
       (5) The Food and Drug Administration has called the abuse 
     of dextromethorphan a ``serious issue'' and has said that 
     while dextromethorphan, ``when formulated properly and used 
     in small amounts, can be safely used in cough suppressant 
     medicines, abuse of the drug can cause death as well as other 
     serious adverse events such as brain damage, seizure, loss of 
     consciousness, and irregular heart beat.''
       (6) In recognition of the problem, several retailers have 
     voluntarily implemented age restrictions on purchases of 
     cough and cold medicines containing dextromethorphan, and 
     several manufacturers have placed language on packaging of 
     cough and cold medicines alerting parents to the dangers of 
     medicine abuse.
       (7) Prevention is a key component of the effort to address 
     the rise in the abuse of dextromethorphan and other legal 
     medications. Education campaigns teaching teens and parents 
     about the dangers of these drugs are an important part of 
     this effort.

     SEC. 3. SALES OF PRODUCTS CONTAINING DEXTROMETHORPHAN.

       (a) Sales of Products Containing Dextromethorphan.--
       (1) In general.--Part D of title II of the Controlled 
     Substances Act (21 U.S.C. 841 et seq.) is amended by adding 
     at the end the following:

     ``SEC. 424. CIVIL PENALTIES FOR CERTAIN DEXTROMETHORPHAN 
                   SALES.

       ``(a) In General.--
       ``(1) Sale.--
       ``(A) In general.--Except as provided in paragraph (2), it 
     shall be unlawful for any person to knowingly or 
     intentionally sell, cause another to sell, or conspire to 
     sell a product containing dextromethorphan to an individual 
     under 18 years of age, including any such sale using the 
     Internet.
       ``(B) Failure to check identification.--If a person fails 
     to request identification from an individual under 18 years 
     of age and sells a product containing dextromethorphan to 
     that individual, that person shall be deemed to have known 
     that the individual was under 18 years of age.
       ``(C) Affirmative defense.--It shall be an affirmative 
     defense to an alleged violation of subparagraph (A) that the 
     person selling a product containing dextromethorphan examined 
     the purchaser's identification card and, based on that 
     examination, that person reasonably concluded that the 
     identification was valid and indicated that the purchaser was 
     not less than 18 years of age.
       ``(2) Exception.--This section shall not apply to any sale 
     made pursuant to a validly issued prescription.
       ``(3) Regulations.--Not later than 180 days after the date 
     of enactment of this section, the Attorney General shall 
     promulgate regulations for Internet sales of products 
     containing dextromethorphan to ensure compliance with this 
     subsection. The Attorney General may issue interim rules as 
     necessary to ensure that such rules take effect not later 
     than 180 days after the date of enactment of this section.
       ``(b) Civil Penalty.--
       ``(1) In general.--The Attorney General may file a civil 
     action in an appropriate United States district court to 
     enforce subsection (a).
       ``(2) Maximum amount.--Any person who violates subsection 
     (a)(1)(A) shall be subject to a civil penalty in an amount--
       ``(A) not more than $1,000 for the first violation of 
     subsection (a)(1)(A) by a person;
       ``(B) not more than $2,000 for the second violation of 
     subsection (a)(1)(A) by a person; and
       ``(C) not more than $5,000 for the third violation, or a 
     subsequent violation, of subsection (a)(1)(A) by a person.
       ``(3) Employee or agent.--A violation of subsection 
     (a)(1)(A) by an employee or agent of a person shall be deemed 
     a violation by the person as well as a violation by the 
     employee or agent.
       ``(4) Factors.--In determining the amount of a civil 
     penalty under this subsection for a person who is a retailer, 
     a court may consider whether the retailer has taken 
     appropriate steps to prevent subsequent violations, such as--
       ``(A) the establishment and administration of a documented 
     employee training program to ensure all employees are 
     familiar with and abiding by the provisions of this section; 
     or
       ``(B) other actions taken by a retailer to ensure 
     compliance with this section.
       ``(c) Definitions.--In this section--
       ``(1) the term `identification card' means an 
     identification card that--
       ``(A) includes a photograph and the date of birth of the 
     individual; and
       ``(B) is--
       ``(i) issued by a State or the Federal Government; or
       ``(ii) considered acceptable for purposes of sections 
     274a.2(b)(1)(v)(A) and 274a.2(b)(1)(v)(B)(1) of title 8, Code 
     of Federal Regulations (as in effect on or after the date of 
     the enactment of the Dextromethorphan Abuse Reduction Act of 
     2009); and
       ``(2) the term `retailer' means a grocery store, general 
     merchandise store, drug store, pharmacy, convenience store, 
     or other entity or person whose activities as a distributor 
     relating to products containing dextromethorphan are limited 
     almost exclusively to sales for personal use, both in number 
     of sales and volume of sales, either directly to walk-in 
     customers or in face-to-face transactions by direct sales.''.
       (2) Sense of the senate.--It is the sense of the Senate 
     that--
       (A) manufacturers of products containing dextromethorphan 
     should continue the practice of including language on 
     packages cautioning consumers about the dangers of 
     dextromethorphan abuse; and
       (B) retailers selling products containing dextromethorphan 
     should implement appropriate safeguards to protect against 
     the theft of such products.
       (b) Prevention Funding.--
       (1) Prescription and nonprescription drug abuse prevention 
     grants.--
       (A) In general.--The Director of National Drug Control 
     Policy shall provide grants to one or more eligible entities 
     for the creation and operation of a nationwide education 
     campaign directed at individuals under the age of 18 years 
     and their parents regarding the prevention of abuse of 
     prescription and nonprescription drugs (including 
     dextromethorphan).
       (B) Eligible entity.--For purposes of subparagraph (A), the 
     term ``eligible entity'' means an organization that--
       (i) is a not-for-profit organization;
       (ii) has broad national experience and a nationwide 
     presence and capabilities;
       (iii) has specific expertise and experience in conducting 
     nationwide education campaigns;
       (iv) has experience working directly with parents, teens, 
     people in recovery, addiction scientists, and drug 
     specialists to design drug education programs;
       (v) has conducted research upon which to base the campaign 
     specified in subparagraph (A);
       (vi) has experience generating news media coverage related 
     to drug prevention;
       (vii) is able to secure pro bono media time and space to 
     support the campaign specified in subparagraph (A); and
       (viii) has a well-established national Internet presence 
     targeting parents seeking information about drug prevention 
     and intervention.
       (C) Authorization of appropriations.--There are authorized 
     to be appropriated $4,000,000, for each of fiscal years 2010 
     through 2012 to carry out this paragraph.
       (D) Supplement not supplant.--Grant funds provided under 
     this subsection shall be used to supplement, not supplant, 
     Federal

[[Page S7099]]

     and non-Federal funds available for carrying out the 
     activities described in this subsection.
       (2) Grants for education, training and technical assistance 
     to community coalitions.--
       (A) In general.--The Director of National Drug Control 
     Policy shall award a grant to the entity created by section 4 
     of Public Law 107-82, as amended by Public Law 109-469 (21 
     U.S.C. 1521 note), for the development and provision of 
     specially tailored education, training, and technical 
     assistance to community coalitions throughout the nation 
     regarding the prevention of abuse of prescription and 
     nonprescription drugs (including dextromethorphan).
       (B) Authorization of appropriations.--There are authorized 
     to be appropriated $1,500,000, for each of fiscal years 2010 
     through 2012 to carry out this paragraph.
       (C) Supplement not supplant.--Grant funds provided under 
     this subsection shall be used to supplement, not supplant, 
     Federal and non-Federal funds available for carrying out the 
     activities described in this subsection.
       (c) Supplemental Grants for Communities With Major 
     Prescription and Nonprescription Drug Issues.--
       (1) Definitions.--In this subsection--
       (A) the term ``Administrator'' means the Administrator of 
     the Substance Abuse and Mental Health Services 
     Administration;
       (B) the term ``drug'' has the meaning given that term in 
     section 201 of the Federal Food, Drug, and Cosmetic Act (21 
     U.S.C. 321);
       (C) the term ``eligible entity'' means an organization 
     that--
       (i) before the date on which the organization submits an 
     application for a grant under this subsection, has received a 
     grant under the Drug-Free Communities Act of 1997 (21 U.S.C. 
     1521 et seq.); and
       (ii) has documented, using local data, rates of 
     prescription or nonprescription drug abuse above national 
     averages for comparable time periods, as determined by the 
     Administrator (including appropriate consideration of the 
     Monitoring the Future Survey by the University of Michigan);
       (D) the term ``nonprescription drug'' has the meaning given 
     that term in section 760 of the Federal Food, Drug, and 
     Cosmetic Act (21 U.S.C. 379aa); and
       (E) the term ``prescription drug'' means a drug described 
     in section 503(b)(1) of the Federal Food, Drug, and Cosmetic 
     Act (21 U.S.C. 353(b)(1)).
       (2) Authorization of program.--From amounts made available 
     to carry out this subsection, the Administrator, in 
     consultation with the Director of the Office of National Drug 
     Control Policy, shall make enhancement grants to eligible 
     entities to implement comprehensive community-wide strategies 
     regarding the prevention of abuse of prescription and 
     nonprescription drugs (including dextromethorphan).
       (3) Application.--
       (A) In general.--An eligible entity seeking an enhancement 
     grant under this subsection shall submit an application to 
     the Administrator at such time, in such manner, and 
     accompanied by such information as the Administrator may 
     require.
       (B) Criteria.--As part of an application for a grant under 
     this subsection, the Administrator shall require an eligible 
     entity to submit a detailed, comprehensive, multisector plan 
     for addressing abuse of prescription and nonprescription 
     drugs (including dextromethorphan).
       (4) Uses of funds.--An eligible entity that receives a 
     grant under this subsection shall use the grant funds for 
     implementing a comprehensive, community-wide strategy that 
     addresses abuse of prescription and nonprescription drugs 
     (including dextromethorphan) in that community, in accordance 
     with the plan submitted under paragraph (3)(B).
       (5) Grant terms.--A grant under this subsection--
       (A) shall be made for a period of not more than 4 years; 
     and
       (B) shall not be in an amount of more than $100,000 per 
     year.
       (6) Supplement not supplant.--Grant funds provided under 
     this subsection shall be used to supplement, not supplant, 
     Federal and non-Federal funds available for carrying out the 
     activities described in this subsection.
       (7) Evaluation.--A grant under this subsection shall be 
     subject to the same evaluation requirements and procedures as 
     the evaluation requirements and procedures required of the 
     recipient of a grant under the Drug-Free Communities Act of 
     1997 (21 U.S.C. 1521 et seq.).
       (8) Administrative expenses.--Not more than 6 percent of a 
     grant under this subsection may be expended for 
     administrative expenses.
       (9) Authorization of appropriations.--There are authorized 
     to be appropriated $4,000,000 for each of fiscal years 2010 
     through 2012 to carry out this subsection.
       (d) Data Collection.--It is the sense of the Senate that 
     Federal agencies and grantees that collect data on drug use 
     trends should ensure that the survey instruments used by such 
     agencies and grantees include questions to ascertain changes 
     in the trend of abuse of prescription and nonprescription 
     drugs (including dextromethorphan).
       (e) Technical and Conforming Amendments.--
       (1) In general.--Section 201(g) of the Controlled 
     Substances Act (21 U.S.C. 811(g)) is amended--
       (A) by striking paragraph (2); and
       (B) by redesignating paragraph (3) as paragraph (2).
       (2) Table of contents.--The table of contents for the 
     Comprehensive Drug Abuse Prevention and Control Act of 1970 
     (Public Law 91-513; 84 Stat. 1236) is amended by inserting 
     after the item relating to section 423 the following:

       ``Sec. 424. Civil penalties for certain dextromethorphan 
           sales.''
                                 ______