For Flu Season: Pseudoephedrine - Yes, Police Fishing Expeditions - No

Friday, September 16, 2011

As the flu season approaches, Washingtonians should be thankful that they can still purchase the highly effective decongestant pseudoephedrine over the counter and don’t need to get a prescription (which some states require). However, they should be dismayed that they must now have their personal information (name, address, amount purchased) submitted into a newly created database that will track their purchases. Since 2005, paper logs had to be maintained for pseudoephedrine sales in Washington, but there was no centrally housed electronic database.  

The new database (aka -Washington State Methamphetamine Precursor Electronic Tracking System) is another measure in the fight against methamphetamine. These laws are known as "precursor chemical regulations" and are designed to prevent people from buying large amounts of pseudoephedrine, which can easily be turned into methamphetamine. The first such law was passed in Oklahoma in 2004, and the federal Combat Methamphetamine Epidemic Act passed in 2006.

These laws mandate a monthly limit on the amount of pseudoephedrine someone can purchase, presentation of ID, and record-keeping requirements. The laws have been a success in terms of reducing the number of small-time meth labs (think trailer in the woods), which have gone down significantly in the last ten years. However, the laws really don’t put a huge dent in the overall supply of methamphetamine. According to the DEA, “the bulk is created in large, professional-style labs and smuggled into the country from Mexico and Canada. The DEA estimates that 80% to 90% of the meth in the USA is imported.”

Washington’s pseudoephedrine law and its database are important to the ACLU of Washington for two main reasons:

  • As a drug policy matter, the ACLU-WA believes that the response to meth abuse should be to invest in proven prevention and treatment programs that reduce demand for the drug; not to treat everyone like a suspected criminal by limiting the availability of meth’s precursors to the general public and requiring burdensome record keeping requirements.
  • As a privacy matter, requiring sensitive medical information to be stored in a database is bad policy. The ACLU-WA believes the pseudoephedrine database may infringe on individuals’ privacy, including their right to control the dissemination of their personal medical records. Fortunately, during the rule-making process for the database, the ACLU-WA successfully advocated to limit law enforcement access to the database. Under the new law, law enforcement may only access the database when they have an articulated individualized suspicion of wrong-doing (i.e., no fishing expeditions).

Washington’s pseudoephedrine database is a good example of the intersection of privacy rights, drug policy, and healthcare oversight. More and more, the government is turning to databases to keep an eye on the drug trade. For example, Washington’s is about to launch a prescription monitoring program to track opiate drugs. These systems should give us pause about the role of government and individuals sensitive health information. There is no doubt that drugs like meth are very harmful and society should be discouraged from their use. However, it’s unclear whether increased government oversight is the best way to stop the problem.