Table II: Syringe-Related Exemptions in State Drug Paraphernalia Laws (excludes SEP provisions)

             

             

Syringe Access Deregulation

             

A number of states have substantially changed their regulation of syringe access in response to the public health threat of injection-related diseases. What is often referred to as "deregulation" is the removal of the state as a barrier to syringe access. It has taken a variety of forms, which are summarized in the Deregulation Table.

Oregon was the first state to squarely face the question of syringe access as a public health measure. Prior to 1987, syringe sales were not regulated. In that year, the state legislature passed a paraphernalia law based on the model statute but heeded the advice of state health officials to explicitly exclude syringes from the definition of paraphernalia. In Oregon, it is therefore legal to sell needles not only in pharmacies but also in other retail outlets, possibly even vending machines, and to distribute them free through SEPs or other mechanisms. This approach can be described as "complete deregulation" and minimizes the legal barriers to syringe access.

Wisconsin followed Oregon's approach in 1989, but the next state to act adopted a rather different model. Connecticut, which had been the first state to legislatively authorize an SEP, took on the issue of wider retail access in 1992. The legislature elected to allow retail sale of syringes without a prescription, but only in pharmacies and only in an amount of ten or fewer. At the same time, the paraphernalia law was amended to exclude hypodermic syringes and needles sold or possessed in an amount of ten or fewer. In 1999, the possession, but not the purchase, limit was raised to thirty. The numbers, and indeed the entire approach, were born of politics rather than health concerns. The "ten-and-under" approach, in which sale and/or possession is legalized only in a specified number of syringes, has been followed Maine, Minnesota, New Hampshire, New York, Illinois and California (in 2006, Connecticut took a further step toward deregulation by amending its drug paraphernalia law to exclude all equipment intended for use in injecting controlled substances regardless of the quantity possessed).

In 2003, Illinois amended the paraphernalia and prescription law as it applied to hypodermic syringes and needles. Pharmacies were permitted to sell up to 20 hypodermic syringes or needles without a prescription. Accordingly, the possession of up to 20 hypodermic syringes or needles was exempted from the paraphernalia law.

In 2004, California also amended the paraphernalia and prescription laws. California passed legislation allowing local governments to allow the sale of up to 10 hypodermic needles or syringes without a prescription. The paraphernalia law then created an exemption for “possession solely for personal use of 10 or fewer hypodermic needles or syringes if acquired from an authorized source.”

The ten-and-under approach appears to cause some confusion or conflict over the legality of particular syringes. Because the legality of a syringe depends, in a partial deregulation system, on factors including where it was obtained and how many others are in the possessor's control, some police officers continue to regard a syringe as illegal unless proven otherwise. In Connecticut, the ambiguous legal status of needles led to continuing reports from SEPs, IDUs and public health officials that police officers were continuing to stop drug users and arrest them for needle possession. The problem eventually came to federal court. In Doe v. Bridgeport Police Dept., 198 F.R.D. 325 (D. Conn., 2001), a federal judge prohibited the Bridgeport Police Department from stopping, searching, arresting, or threatening any person in possession of less than thirty-one sterile or previously-used needles. Connecticut has since deleted statutory reference to the thirty syringe cap, and these amendments indicate that hypodermic syringes and needles no longer qualify as drug paraphernalia in Connecticut regardless of the quantity possessed.

Unrestricted pharmacy sales -- a third variation on deregulation -- emerged in 2000-2002 in Rhode Island, New Mexico, Hawaii and Washington, and in 2006 in Massachusetts. The Rhode Island legislature repealed its prescription law and eliminated all criminal penalties for syringe possession. The legislature also amended its paraphernalia law to make clear that syringes were not covered by removing its reference to "[h]ypodermic syringes, needles, and other objects intended for use or designed for use in parenterally injecting controlled substances into the human body." The deregulation act requires pharmacists to provide information on drug treatment, HIV prevention and safe disposal practices to purchasers.

By regulating only sales, Rhode Island provides more options for public health distribution of needles at no charge. Thus the Rhode Island law effectively legalizes syringe exchange altogether and could allow other, less formal modes of distribution. (In Rhode Island, syringe exchange programs were previously allowed under a separate provision, R.I. Gen. Laws § 23-11-19, which places the department of health in charge of operating or supervising the program(s).) It should be noted that a deregulation law that confined all delivery of syringes to pharmacies would not liberalize free distribution as Rhode Island's law has done, because that term usually embraces all transfers, not just sales. Because it eliminates all criminal penalties for syringe access, Rhode Island's model, like Oregon's, substantially reduces the role of law enforcement as a deterrent to sterile injection.

New Mexico's new policy was less sweeping. It exempted from the paraphernalia law only "the sale or distribution of hypodermic syringes and needles by pharmacists licensed pursuant to the Pharmacy Act." Because it mentioned both sale and distribution, the statute could not reasonably be read to follow Rhode Island in deregulating free distribution. Passed in haste at the end of the legislative session, the law did not as clearly as possible decriminalize the possession of syringes by IDUs, though this appears to have been the intent.

In 2001, the Hawaii legislature passed an act that allows a physician, pharmacist or institutional health care employee acting under the supervision of a physician or pharmacist to sell "sterile hypodermic syringes in a pharmacy, physician's office, or health care institution for the purpose of preventing the transmission of dangerous blood-borne diseases." The law also legalizes possession by the IDU. In contrast to Rhode Island, its language seems by implication to forbid free distribution.

Washington's legislature passed, in 2002, an amendment to the state paraphernalia law exempting syringes distributed through pharmacies (free or for a price) from the paraphernalia law, and stating that "[i]t is lawful for any person over the age of eighteen to posses sterile hypodermic syringes and needles for the purpose of reducing bloodborne diseases." The law also specified, however, that no pharmacist is required to sell syringes. A section of the bill mandating the provision of materials about drug treatment and proper syringe disposal, and setting other limits on pharmacy sales, was vetoed by the Governor.

In 2006, the Massachusetts legislature passed an amendment to its Controlled Substances Act, allowing pharmacies to sell non-prescription “[h]ypodermic syringes or hypodermic needles for the administration of controlled substances by injection ... to persons who have attained 18 years...” The amendment also struck from the definition of paraphernalia “hypodermic syringes, needles and other objects used, primarily intended for use or designed for use in parenterally injected controlled substances into the human body,” and added the clause “[t] his section shall not apply to the sale of hypodermic syringes or hypodermic needles to persons over the age of 18 pursuant to section 27.”

  

 

 

Table III: Syringe Deregulation in the United States

State	Year	Prior Law(s)	Change
OR	1987	Paraphernalia law	Syringes explicitly excluded from paraphernalia law
WI	1989	Paraphernalia law	Syringes explicitly excluded from paraphernalia law
CT	1992	Prescription law	Allowed purchase of 10 or fewer syringes without prescription
		Paraphernalia law	Allowed possession of 10 or fewer syringes without a prescription (raised to 30 or fewer in 1999 amendment)
	2005 2006	P Paraphernalia law	Redefined paraphernalia to exclude syringes. Redefined paraphernalia to exclude syringes.
ME	1993	Prescription law	Allowed the sale of 10 or fewer syringes without a prescription
	1997	Paraphernalia law	Allowed possession of 10 or fewer syringes
MN	1997	Paraphernalia law	Allowed pharmacy sale of up to 10 syringes without a prescription and the possession of up to 10 unused syringes at a time
NY	2000	Prescription law	Allowed the sale of 10 or fewer syringes without a prescription (during two-year experiment)

		Paraphernalia law	Allowed the possession of legally obtained syringes (during two-year experiment)
NH	2000	Prescription law	Allowed the purchase of 10 or fewer needles in a pharmacy without a prescription
		Paraphernalia law	Syringes excluded from paraphernalia law
RI	2000	Prescription law	Repealed
		Paraphernalia law	Syringes excluded from paraphernalia law
NM	2001	Paraphernalia law	Allowed the sale of syringes by licensed pharmacists
HI	2001	Paraphernalia law	Exempts sale by medical professionals to IDU for disease control purposes; exempts possession by IDU
WA	2002	Paraphernalia law	Allows pharmacy sale and IDU possession “for the purpose of reducing the transmission of bloodborne diseases”
IL	2003	Prescription law	Allowed pharmacy purchase and subsequent possession of up to 20 syringes without a prescription
		Paraphernalia law	Allowed the possession of legally obtained syringes
CA	2004	Prescription law	Authorized local governments to permit pharmacy sales
		Paraphernalia law	Allowed the possession of legally obtained syringes
MA	2006	Prescription Law	Allowed non-prescription pharmacy purchase by purchasers >18
		Paraphernalia law	Syringe sales explicitly excluded from the paraphernalia law

             

             

             

Legal Analysis

             

The determination of the legality of a mode of syringe access in a particular state is ultimately a matter of professional legal judgment taking into consideration statutory language, legislative intent, case decisions, and social factors. Although generally similar, the various types of paraphernalia and syringe laws often differ from state to state in their specific wording. Moreover, with the exception of syringe exchange and syringe deregulation laws, syringe and drug paraphernalia laws were not written with disease prevention in mind, nor clearly intended to apply to pharmacists or others who are distributing syringes to IDUs for public health reasons. Even laws that unambiguously prohibit some forms of syringe access may authorize others: syringe prescription laws generally prohibit sales without a prescription, but do not in most instances prohibit physicians from prescribing syringes to IDUs or pharmacists from filling those prescriptions. The legality of syringe distribution to IDUs to prevent disease therefore differs depending upon the specific wording of the law, the legal status of the person providing the syringe (e.g., pharmacist or unlicensed person), the location of distribution (e.g., SEP or pharmacy) and whether the syringe is being sold or given away. The conclusions below should be understood as professionally defensible predictions about how a judge -- the legal official ultimately empowered to say what the law is -- would interpret the law in a state. This is reflected by our use of three categories of legality: "clearly legal" and "clearly illegal" -- both indicating that the plain text of laws or case decisions would be deemed by most lawyers to authorize or bar the activity -- and "reasonable claim to legality," indicating that an attorney could ethically advise a client that the law, while unclear, could be interpreted to allow the conduct at issue. This legal uncertainty is a characteristic and important aspect of syringe access policy and practice.