Drug Precursors

NMSA 1978 ch. 30, art. 31B

in effect

NMSA 1978, § 30-31B-1 Short title

30-31B-1. Short title Chapter 30, Article 31B NMSA 1978 may be cited as the "Drug Precursor Act". Laws 1989, ch. 177, § 1.; 2004, ch. 9, § 1; 2004, ch. 12 § 1.

NMSA 1978, § 30-31B-2 Definitions

30-31B-2. Definitions As used in the Drug Precursor Act: A. "administer" means the direct application of a controlled substance by any means to the body of a patient or research subject by a practitioner or the practitioner's agent; B. "agent" includes an authorized person who acts on behalf of a manufacturer, distributor or dispenser. "Agent" does not include a common or contract carrier, public warehouseperson or employee of the carrier or warehouseperson; C. "board" means the board of pharmacy; D. "bureau" means the bureau of narcotics and dangerous drugs of the United States department of justice or its successor agency; E. "controlled substance" means a drug or substance listed in Schedules I through V of the Controlled Substances Act [Chapter 30, Article 31 NMSA 1978] or regulations adopted thereto; F. "controlled substance analog" means a substance other than a controlled substance that has a chemical structure substantially similar to that of a controlled substance in Schedule I, II, III, IV or V or that was specifically designed to produce effects substantially similar to that of controlled substances in Schedule I, II, III, IV or V. Examples of chemical classes in which controlled substance analogs are found include, but are not limited to, the following: (1) phenethylamines; (2) N-substituted piperidines; (3) morphinans; (4) ecgonines; (5) quinazolinones; (6) substituted indoles; and (7) arylcycloalkylamines. Specifically excluded from the definition of "controlled substance analog" are those substances that are generally recognized as safe and effective within the meaning of the Federal Food, Drug and Cosmetic Act or have been manufactured, distributed or possessed in conformance with the provisions of an approved new drug application or an exemption for investigational use within the meaning of Section 505 of the Federal Food, Drug and Cosmetic Act; G. "deliver" means the actual, constructive or attempted transfer from one person to another of a controlled substance or controlled substance analog, whether or not there is an agency relationship; H. "dispense" means to deliver a controlled substance to an ultimate user or research subject pursuant to the lawful order of a practitioner, including the administering, prescribing, packaging, labeling or compounding necessary to prepare the controlled substance for that delivery; I. "dispenser" means a practitioner who dispenses and includes hospitals, pharmacies and clinics where controlled substances are dispensed; J. "distribute" means to deliver other than by administering or dispensing a controlled substance or controlled substance analog; K. "drug" means substances recognized as drugs in the official United States pharmacopoeia, official homeopathic pharmacopoeia of the United States, official national formulary or any respective supplement to these publications. "Drug" does not include devices or their components, parts or accessories; L. "drug precursor" means a substance, material, compound, mixture or preparation listed in Section 30-31B-3 NMSA 1978 or regulations adopted thereto or any of their salts or isomers. "Drug precursor" specifically excludes those substances, materials, compounds, mixtures or preparations that are prepared for dispensing pursuant to a prescription or over-the-counter distribution as a substance that is generally recognized as safe and effective within the meaning of the Federal Food, Drug and Cosmetic Act or have been manufactured, distributed or possessed in conformance with the provisions of an approved new drug application or an exemption for investigational use within the meaning of Section 505 of the Federal Food, Drug and Cosmetic Act, unless the board makes the findings required pursuant to Subsection B of Section 30-31B-4 NMSA 1978; M. "immediate precursor" means a substance that is a compound commonly used or produced primarily as an immediate chemical intermediary used in the manufacture of a controlled substance, the control of which is necessary to prevent, curtail or limit the manufacture of controlled substances; N. "license" means a license issued by the board to manufacture, possess, transfer or transport a drug precursor; O. "manufacture" means the production, preparation, compounding, conversion or processing of a drug precursor by extraction from substances of natural origin, independently by means of chemical synthesis or by a combination of extraction and chemical synthesis and includes any packaging or repackaging of the substance or labeling or relabeling of its container, except that this term does not include the preparation or compounding of a controlled substance by a practitioner: (1) as an incident to the practitioner's administering or dispensing of a controlled substance in the course of professional practice; or (2) by the practitioner's agent under the practitioner's supervision for the purpose of or as an incident to research, teaching or chemical analysis and not for sale; P. "person" includes an individual, sole proprietorship, partnership, corporation, association, the state or a political subdivision of the state or other legal entity; Q. "possession" means to actively or constructively exercise dominion over; R. "practitioner" means a physician, certified advanced practice chiropractic physician, dentist, veterinarian or other person licensed to prescribe and administer drugs that are subject to the Controlled Substances Act; S. "prescription" means an order given individually for the person for whom is prescribed a controlled substance, either directly from the prescriber to the pharmacist or indirectly by means of a written order signed by the prescriber and in accordance with the Controlled Substances Act or regulations adopted thereto; and T. "transfer" means the sale, possession with intent to sell, barter or giving away of a drug precursor. Laws 1989, ch. 177, § 2; 2004, ch. 9, § 2; 2004, ch. 12, § 2; 2008, ch. 44, § 6.

NMSA 1978, § 30-31B-3 Drug precursors list

30-31B-3. Drug precursors list Any substance, material, compound, mixture or preparation of the following substances or any of their salts or isomers are subject to regulation by the board and to the requirements of the Drug Precursor Act: A. 1-phenylcyclohexylamine; B. 1-piperidinocyclohexanecarbonitrile; C. ephedrine; D. psuedoephedrine; E. methylamine; F. methylformamide; G. phenylacetic acid; and H. phenylacetone. Laws 1989, ch. 177, § 3.

NMSA 1978, § 30-31B-4 Duty to administer

30-31B-4. Duty to administer A. The board shall administer the Drug Precursor Act and by regulation may add substances to the list of drug precursors enumerated in Section 30-31B-3 NMSA 1978. The board shall promulgate regulations pursuant to the procedures of the Uniform Licensing Act [61-1-1 NMSA 1978]. B. In determining whether to add to the list of drug precursors a substance, material, compound, mixture or preparation that is generally recognized as safe and effective within the meaning of the Federal Food, Drug and Cosmetic Act or that has been manufactured, distributed or possessed in conformance with the provisions of an approved new drug application or an exemption for investigational use within the meaning of Section 505 of the Federal Food, Drug and Cosmetic Act, the board shall consider: (1) whether the substance, material, compound, mixture or preparation is: (a) a source of a substance already controlled under the Controlled Substances Act [Chapter 30, Article 31 NMSA 1978 NMSA 1978]; or (b) subject to being easily converted to an immediate precursor of a substance already controlled under the Controlled Substances Act; (2) the relative ease by which use of the substance, material, compound, mixture or preparation can facilitate the manufacture of a controlled substance; (3) legitimate uses that would be unduly hampered by listing the substance, material, compound, mixture or preparation as a drug precursor; (4) whether the substance, material, compound, mixture or preparation is formulated to effectively prevent its conversion into an immediate precursor of a substance already controlled under the Controlled Substances Act; and (5) any other factors relevant to and consistent with the public health and safety. C. In determining whether a substance, material, compound, mixture or preparation should be added to the list of drug precursors, the board shall consider: (1) whether the substance, material, compound, mixture or preparation is an immediate precursor of a substance already controlled under the Controlled Substances Act; (2) the relative ease by which use of the substance, material, compound, mixture or preparation can facilitate the manufacture of a controlled substance; (3) legitimate uses which would be unduly hampered by listing the substance, material, compound, mixture or preparation as a drug precursor; and (4) any other factors relevant to and consistent with the public health and safety. D. After considering the factors enumerated in Subsection B or C of this section, the board shall make findings and issue regulations listing the substance, material, compound, mixture or preparation as a drug precursor if it finds that the substance, material, compound, mixture or preparation has a significant potential for use in the manufacture of controlled substances. E. If the board designates a substance, material, compound, mixture or preparation as a drug precursor, then substances, materials, compounds, mixtures or preparations which are precursors of the drug precursor so designated shall not be subject to control solely because they are precursors of a drug precursor. F. If any substance, material, compound, mixture or preparation is designated as controlled under federal law and notice is given to the board, the board may, by regulation, similarly control the substance under the Drug Precursor Act after providing for a hearing pursuant to the Uniform Licensing Act. G. Authority to control under this section does not extend to distilled spirits, wine, malt beverages, tobacco or pesticides as defined in the Pesticide Control Act [76-4-1 to 76-4-39 NMSA 1978]. Laws 1989, ch. 177, § 4; 2004, ch. 9, § 3; 2004, ch. 12, § 3.

NMSA 1978, § 30-31B-5 Nomenclature

30-31B-5. Nomenclature The drug precursors listed in Section 3 [30-31B-3 NMSA 1978] of the Drug Precursor Act are included by whatever official, common, usual, chemical or trade name designated. Laws 1989, ch. 177, § 5.

NMSA 1978, § 30-31B-6 Regulations

30-31B-6. Regulations A. The board may promulgate regulations and charge reasonable fees relating to the licensing and control of the manufacture, possession, transfer and transportation of drug precursors. The fees shall not be more than two hundred fifty dollars ($250) per license for a wholesaler's license, a distributor's license or a manufacturer's license. The fees shall not be more than fifty dollars ($50.00) per license for a retail distributor's license, when the retail distributor has ten or more employees. The fees shall not be more than twenty-five dollars ($25.00) per license for a retail distributor's license, when the retail distributor has fewer than ten employees. B. Every person who manufactures, possesses, transfers or transports any drug precursor or who proposes to engage in the manufacture, possession, transfer or transportation of any drug precursor shall obtain, annually, a license issued by the board. C. Persons licensed by the board to manufacture, possess, transfer or transport drug precursors may manufacture, possess, transfer or transport those substances to the extent authorized by their license and in conformity with the other provisions of the Drug Precursor Act. D. The following persons need not be licensed under the Drug Precursor Act and may lawfully possess drug precursors: (1) physicians; (2) an agent of any licensed manufacturer of any drug precursor if he is acting in the usual course of his principal's business or employment; (3) an employee of a licensed common or contract carrier or licensed warehouseman whose possession of any drug precursor is in the usual course of the licensed common or contract carrier or licensed warehouseman's business; (4) a student enrolled in a chemistry class for credit; provided, however, that the student's use of the drug precursor is for a bona fide educational purpose and that the chemistry department of the educational institution otherwise possesses all the necessary licenses required by the board; (5) a consumer who uses a drug precursor for its intended purpose and who does not use the drug precursor to manufacture a substance controlled under the Controlled Substances Act [Chapter 30, Article 31 NMSA 1978]; (6) a pharmacy, an agent or employee of a pharmacy or a contractor for a pharmacy; (7) a pharmacist, an agent or employee of a pharmacist or a contractor for a pharmacist; or (8) an agent or employee of a licensed retail establishment or a contractor for a licensed retail establishment. E. The board may waive by regulation the requirement for licensing of certain manufacturers if it is consistent with the public health and safety. F. The board may inspect the establishment of a licensee or applicant for license in accordance with the board's regulations. Laws 1989, ch. 177, § 6; 2004, ch. 9, § 4; 2004, ch. 12, § 4.

NMSA 1978, § 30-31B-7 Licenses

30-31B-7. Licenses A. The board shall license an applicant to manufacture, possess, transfer or transport drug precursors unless it determines that the issuance of that license would be inconsistent with the public interest. In determining the public interest, the board shall consider the following factors: (1) maintenance of effective controls against diversion of drug precursors into other than legitimate medical, scientific or industrial channels; (2) compliance with applicable state and local law; (3) any conviction of the applicant under federal or state laws relating to any controlled substance or drug precursor; (4) past experience in the manufacture, possession, transfer or transportation of drug precursors and the existence in the applicant's establishment of effective controls against diversion; (5) furnishing by the applicant of false or fraudulent material in any application filed under the Drug Precursor Act or the Controlled Substances Act [Chapter 30, Article 31 NMSA 1978]; (6) suspension or revocation of the applicant's federal registration to manufacture, distribute or dispense controlled substances or drug precursors as authorized by federal law; and (7) any other factors relevant to and consistent with the public health and safety. B. Licensing under this section does not entitle a licensee to manufacture, possess, transfer or transport drug precursors other than those allowed in the license. Laws 1989, ch. 177, § 7.

NMSA 1978, § 30-31B-8 Revocation and suspension of license

30-31B-8. Revocation and suspension of license A. A license to manufacture, possess, transfer or transport a drug precursor under Section 7 [30-31B-7 NMSA 1978] of the Drug Precursor Act may be suspended or revoked upon a finding that the registrant has: (1) furnished false or fraudulent material information in any application filed with the board; (2) been convicted of a felony under any state or federal law relating to a controlled substance or drug precursor; (3) had his federal registration to manufacture, distribute or dispense controlled substances or drug precursors suspended or revoked; or (4) violated any rule or regulation of the board with regard to drug precursors or controlled substances or any provision of the Drug Precursor Act or the Controlled Substances Act [Chapter 30, Article 31 NMSA 1978]. B. A hearing to revoke or suspend a license shall be held by a special hearing panel consisting of the board and two additional persons designated by the board to sit on the hearing panel. C. The special hearing panel may limit revocation or suspension of a license to the particular drug precursor if grounds for revocation or suspension exist. D. If the special hearing panel suspends or revokes a license, all drug precursors owned or possessed by the licensee at the time of suspension or the effective date of the revocation may be placed under seal. No disposition may be made of substances under seal until the time for taking an appeal has elapsed or until all appeals have been concluded, unless a court, upon application, orders the sale or destruction of perishable or dangerous substances and the deposit of the proceeds of any sale with the court. E. Upon a revocation order becoming final, the board may apply to the court for an order to sell or destroy all drug precursors under seal. The court shall order the sale or destruction of such drug precursors under such terms and conditions that the court deems appropriate. F. The board shall promptly notify the bureau of all orders suspending or revoking licenses. G. The standard of proof necessary to revoke or suspend a license under this section shall be a preponderance of the evidence. The rules of evidence are not strictly applicable to a hearing under this section and all evidentiary matters are to be finally determined by the special hearing panel. Laws 1989, ch. 177, § 8.

NMSA 1978, § 30-31B-9 Order to show cause

30-31B-9. Order to show cause A. Before denying, suspending or revoking a license or refusing a renewal of the license, the board shall serve upon the applicant or licensee an order to show cause why the license should not be denied, revoked or suspended or why the renewal should not be refused. The order to show cause shall contain a statement of the basis of the order and shall require the applicant or registrant to appear before the board not less than thirty days after the date of service of the order, but in the case of a denial of renewal of the license, the order shall be served not later than thirty days before the expiration of the license unless the proceedings relate to suspension or revocation of a license. These proceedings shall be conducted in accordance with the Uniform Licensing Act [61-1-1 NMSA 1978] without regard to any criminal prosecution or other proceeding. Proceedings to suspend or revoke a license or to refuse renewal of a license shall not abate the existing license which shall remain in effect pending the outcome of the proceeding. B. The board may suspend, without an order to show cause, any license simultaneously with the institution of proceedings to revoke or suspend a registration under Section 30-31-14 NMSA 1978 or where renewal of the license is refused if it finds that there is such a substantial and imminent danger to the public health or safety which warrants this action. The suspension shall continue in effect until the conclusion of the proceedings, including judicial review, unless sooner withdrawn by the board or dissolved by a court of competent jurisdiction. Laws 1989, ch. 177, § 9.

NMSA 1978, § 30-31B-10 Records of licensees

30-31B-10. Records of licensees Every licensee under the Drug Precursor Act manufacturing, possessing, transferring or transporting a drug precursor shall maintain, on a current basis, a complete and accurate record of each substance manufactured, possessed, transferred or transported by the licensee in accordance with regulations of the board. Laws 1989, ch. 177, § 10.

NMSA 1978, § 30-31B-11 Distribution by manufacturers

30-31B-11. Distribution by manufacturers A licensed manufacturer or transferer may transfer drug precursors to a licensed manufacturer, licensed possessor or licensed transporter. Laws 1989, ch. 177, § 11.

NMSA 1978, § 30-31B-12 Drug precursors; prohibited acts; penalties

30-31B-12. Drug precursors; prohibited acts; penalties A. It is unlawful for any person: (1) to transfer drug precursors except to an authorized licensee; (2) to intentionally use in the course of the manufacture or transfer of a drug precursor a license number which is fictitious, revoked, suspended or issued to another person; (3) to intentionally acquire or obtain, or attempt to acquire or obtain, possession of a drug precursor by misrepresentation, fraud, forgery, deception or subterfuge; (4) to intentionally furnish false or fraudulent material information in, or omit any material information from, any application, report or other document required to be kept or filed under the Drug Precursor Act or any record required to be kept by that act; (5) who is a licensee to intentionally manufacture a drug precursor not authorized by his license or to intentionally transfer a drug precursor not authorized by his license to another licensee or authorized person; (6) to intentionally refuse or fail to make, keep or furnish any record, notification, order form, statement, invoice or information required under the Drug Precursor Act; (7) to intentionally refuse an entry into any premises for any inspection authorized by the Drug Precursor Act; or (8) to manufacture, possess, transfer or transport a drug precursor without the appropriate license or in violation of any rule or regulation of the board. B. Any person who violates any provision of this section is guilty of a fourth degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978. C. When a person owns or operates a retail establishment where drug precursors are sold by an employee in violation of the provisions of this section, it is an affirmative defense to a prosecution of that owner or operator if he furnishes documentation that he provided the employee with a training program regarding state and federal laws and regulations regarding drug precursors; provided that, if the owner or operator knew or should have known of the employee's violation, the owner or operator shall also be in violation of the provisions of this section. D. When drug precursors are sold by an employee of a retail establishment in violation of the provisions of this section, it is an affirmative defense to a prosecution of that employee that he did not receive training from his employer regarding state and federal laws and regulations regarding drug precursors. Laws 1989, ch. 177, § 12; 2004, ch. 9, § 5; 2004, ch. 12, § 5.

NMSA 1978, § 30-31B-13 Powers of enforcement personnel

30-31B-13. Powers of enforcement personnel Any law enforcement officer: A. serve search warrants, arrest warrants and administrative inspection warrants; B. make arrests without a warrant for any offense under the Drug Precursor Act committed in his presence, or if he has probable cause to believe that the person to be arrested has committed or is committing a violation of the Drug Precursor Act which may constitute a felony; and C. make seizures of property pursuant to the Drug Precursor Act. Laws 1989, ch. 177, § 13.

NMSA 1978, § 30-31B-14 Administrative inspection warrants

30-31B-14. Administrative inspection warrants A. Issuance and execution of administrative inspection warrants shall be as follows: (1) a magistrate, within his jurisdiction and upon proper oath or affirmation showing probable cause, may issue warrants for the purpose of conducting administrative inspections and seizures of property authorized by the Drug Precursor Act. For purposes of the issuance of administrative inspection warrants, probable cause exists upon showing a valid public interest in the effective enforcement of the Drug Precursor Act sufficient to justify administrative inspection of the area, premises, building or conveyance in the circumstances specified in the application for the warrant; and (2) a warrant shall be issued only upon an affidavit of a law enforcement officer or employee of the board having actual knowledge of the alleged facts, sworn to before the magistrate and establishing the grounds for issuing the warrant. If the magistrate is satisfied that grounds for the warrant exist, he shall issue a warrant identifying the area, premises, building or conveyance to be inspected, the purpose of the inspection and, if appropriate, the type of property to be inspected, if any. B. The warrant shall: (1) state the grounds for its issuance and the name of the affiant; (2) be directed to a person authorized by this section to serve and carry out the warrant; (3) command the person to whom it is directed to inspect the area, premises, building or conveyance identified for the purpose specified and, if appropriate, direct the seizure of the property specified; (4) identify the items or types of property to be seized, if any; (5) allow the sale or destruction of perishable or dangerous substances or equipment and deposit the proceeds of any sale with the court; and (6) direct that it be served during normal business hours or other hours designated by the magistrate and designate the magistrate to whom it shall be returned. C. A warrant issued pursuant to this section must be served and returned within five days of its date of issue unless, upon a showing of a need for additional time, the court orders otherwise. If property is seized pursuant to a warrant, a copy of the warrant shall be given to the person from whom or from whose premises the property is taken, together with a receipt for the property taken. The return of the warrant shall be made promptly, accompanied by a written inventory of any property taken. The inventory shall be made in the presence of the person serving the warrant and of the person from whose possession or premises the property was taken, if present, or in the presence of at least one credible person other than the person serving the warrant. A copy of the inventory shall be delivered to the person from whom or from whose premises the property was taken and to the applicant for the warrant. D. The magistrate who has issued a warrant shall attach a copy of the return and all papers returnable in connection with it and file them with the clerk of the magistrate court. Laws 1989, ch. 177, § 14.

NMSA 1978, § 30-31B-15 Administrative inspections

30-31B-15. Administrative inspections A. When authorized by an administrative inspection warrant issued pursuant to the Drug Precursor Act, a law enforcement officer or employee of the board, upon presenting the warrant and appropriate credentials to the owner, operator or agent in charge, may enter the controlled premises for the purpose of conducting an administrative inspection. B. When authorized by an administrative inspection warrant, a law enforcement officer or employee of the board may: (1) inspect and copy records required to be kept by the Drug Precursor Act; (2) inspect and sample, within reasonable limits and in a reasonable manner, controlled premises and all pertinent equipment, finished and unfinished material, containers and labeling found therein, and, except as provided in Subsection D of this section, all other things bearing on violation of the Drug Precursor Act, including records, files, papers, processes, controls and facilities; and (3) inventory any stock of any drug precursor and obtain samples. C. This section does not prevent entries and administrative inspections, including seizures of property, without a warrant: (1) if the owner, operator or agent in charge of the controlled premises consents; (2) in situations presenting substantial imminent danger to health or safety; or (3) in all other situations in which a warrant is not constitutionally required. D. An inspection authorized by this section shall not extend to financial data, sales data other than shipment data or pricing data unless the owner, operator or agent in charge of the controlled premises consents in writing. E. When perishable or dangerous substances or equipment are seized pursuant to Subsection C of this section, the law enforcement officer or employee of the board may apply to the district court for an order to sell or destroy said property and deposit the proceeds of any sale with the court. F. For purposes of this section "controlled premises" means: (1) places where persons licensed or exempted from license requirements under the Drug Precursor Act are required to keep records; and (2) places, including factories, warehouses, establishments and conveyances in which persons licensed or exempted from license requirements under the Drug Precursor Act are permitted to hold, manufacture, compound, process, sell, deliver or otherwise dispose of any drug precursor. Laws 1989, ch. 177, § 15.

NMSA 1978, § 30-31B-16 Injunctions

30-31B-16. Injunctions A. The district courts may exercise jurisdiction to restrain or enjoin violations of the Drug Precursor Act. B. The defendant may demand trial by jury for an alleged violation of an injunction or restraining order under this section. Laws 1989, ch. 177, § 16.

NMSA 1978, § 30-31B-17 Summary forfeiture

30-31B-17. Summary forfeiture A. Drug precursors that are manufactured in violation of the Drug Precursor Act are contraband and shall be seized and summarily forfeited to the state. B. Drug precursors which are seized or come into the possession of the state, the owners of which are unknown, are contraband and shall be summarily forfeited to the state. Laws 1989, ch. 177, § 17.

NMSA 1978, § 30-31B-18 Burden of proof

30-31B-18. Burden of proof It is not necessary for the state to negate any exemption or exception in the Drug Precursor Act in any complaint, information, indictment or other pleading or in any trial, hearing or other proceeding under the Drug Precursor Act. The burden of proof of any exception or exemption is upon the person claiming it. Laws 1989, ch. 177, § 18.

Source: New Mexico Compilation Commission (nmonesource.com)URL: https://nmonesource.com/nmos/nmsa-unanno/en/item/18530/index.doFetched: 10/20/2026