Non-Prescription Access

This page summarizes conclusions from recent work on the legality of syringe exchange and retail sale of syringes to IDUs. Syringe access is regulated by state law. The legal regulation of syringe access varies from state to state but takes one or more of three forms: syringe prescription laws and regulations; other pharmacy regulations or miscellaneous statutes imposing a variety of restrictions on the sale of syringes by pharmacists or others; and drug paraphernalia laws prohibiting the sale or possession of items intended to be used to consume illegal drugs. (Laws on drug possession also may be applied in a manner that in practical terms regulates the possession of syringes, and so must also be considered for their possible effects on syringe access. For more on these laws, go to our page on disposal. Table I is a detailed summary of syringe prescription laws and pharmacy regulations.

Legal Framework


Syringe Laws and Regulations

Table I: State Syringe Statutes and Regulations (excluding paraphernalia laws)

State

Pharmacy Only

Prescription Required

Information on Purpose Required

Record Keeping by Pharmacists Required

Purchasers Required to Show ID

Display limits

CA

S

S (except for use with insulin or adrenaline, but local govt may authorize sale of <11 without prescription)

 

  

 

  

 

  

S

CT

S

S (for > than 10 only)

 

  

S (prescriptions must be retained on file for not less than 3 years)

 

  

S

 

DE

  

S

 

  

S (date of sale, description of instrument sold and prescription on file)

S (name, age and address of purchaser)

S

FL

  

S (sale to minors only)

  

  

  

  

GA

R

  

R (no sale if seller has reasonable cause to believe syringe will be used for an “unlawful purpose”)

  

  

R

IL

S

S (sale to minors, or for > 20 only)

  

  

  

  S

IN

R

 

  

  

R ( name and quantity of device, purchase date. and the name or initials of the pharmacist)

R (unknown purchasers must show ID)

  

KY

  

  

S (pharmacists must determine purchaser’s planned use of the syringes)

S (purchaser name and address. quantity of syringes purchased, date, purpose)

S ( ID)

S

LA

R

  

  

  

  

R

ME

S

  

 

  

 

  

S (purchaser must be >17 years old)

 

  

MD

R

  

R (sales shall be made in good faith by the pharmacists to purchasers showing indication of need)

  

R (patients must show proper identification)

  

MA

S

  

  

  

S (nonprescription purchaser must show proof > 18 years old)

MN

S

  S (for >10 only)

  

  

  

S

NV

S

S (exceptions: needles to treat diabetes or asthma, or for injecting prescribed medication, or for injecting animals or other commercial/indu strial use)

S (if prescribing without a prescription, only specific purposes are permitted)

S (records of refills must be kept)

  

R

NH

S

S (for > than 10 and minors only)

  

S (date of sale and number of instruments sold shall be recorded on the prescription)

  

  

NJ

S

S

  

 

  

  

NY

S

S (for > than 10 only)

  

S & R (date of sale and pharmacist’s signature for prescription sales)

  

  

OH

S (and authorized dealers)

  

S (Seller must know or reasonably believe that the purchaser is not an unauthorized user)

  

  

S

PA

  

R

  

  

  

  

RI

S

  

  

  

  

S

SC

S

  

R (pharmacists must obtain written or oral affirmation that the sale is for a legitimate medical use)

R (type and quantity of needles/syringes sold)

R (signature, address, sex, age and ID)

  

TN

R

  

R (proof of medical need)

  

  

R

VA

S

S (for minors <16 only)

S (purchaser must furnish written legitimate purpose)

S (date of sale and name, quantity and price of device)

S (name, address and ID, including proof of age)

R

VI

S

S

  

S (prescription must be retained for 2 years)

  

  

WA

  

  

S (pharmacist must be satisfied device is for a “legal use”)

  

  

  

WV

R

  

  

  

  

  

Total

21

13

9

10

8

13

R = requirement imposed by regulation; S = requirement imposed by statute

Paraphernalia Laws 

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

             

             

Exempts some or all syringes (10)

             

             

Exempts some types of sellers (9)

             

             

Omits reference to syringes or injection (5)

             

             

Other significant exemption (6)

             

CA (<10)

CT

IN (items customarily used to inject lawful substances)

IL (<21)

ME (<10)

MN (<10)

NH (<10)

NV (with prescription)

NY (syringes legally obtained from pharmacy or SEP)

OR

RI

WA (to reduce bloodborne

disease)

WI

             

GA (pharmacists)

HI (MDs, pharmacists & health care institutions)

MT (MDs & pharmacists)

NM (pharmacists)

OH (MDs & pharmacists)

TN (MDs & pharmacists)

VA (MDs & pharmacists)

WV (licensees such as pharmacists)

             

CO

MI

SC

WY

             

IA (syringes sold for “lawful purpose”)

LA (items for medical use)

NJ (with prescription for authorized use)

NM (those directly engaged in SEPs)

MA (does not criminalize simple  possession of paraphernalia)

MI (does not criminalize simple  possession of paraphernalia)

SC (does not cover items used with heroin)

VA (does not criminalize paraphernalia possession)

             

             

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.

 

 

Retail Non‑Prescription Syringe Sale Sale  

In states without a prescription requirement, the main legal influences on the retail sale of syringes are statutes or regulations requiring the buyer to demonstrate a legitimate medical purpose for the purchase, and drug paraphernalia laws. Legitimate-purpose rules place a duty on the seller (usually a pharmacist) to require the buyer to state the proper purpose; the seller is not obliged to independently verify its truth. Under a paraphernalia law, a seller who does not know of the intended use, and is not being willfully blind to clear indications of the user's intention, does not violate the law. It is likely that many IDUs obtain syringes from sellers who are not aware of the intended use. Table II addresses the harder legal question of whether it is legal to sell when the seller knows the purchaser will use the syringe for injecting illegal drugs.

 

Table IV. Retail Non-Prescription Sale of at Least Some Number of Syringes to an IDU, Knowing of the Intended Use

             

Clearly legal (22)

             

Reasonable claim to legality (22)

             

Clearly illegal (9)

             

AK, CA§, CT*, HI*, IL*, IN*, LA*, ME*, MA*,  MN*,  MT*, NH*, NM*,NY*, OH*, OR, PR, RI*, SC*, TN*,  WV*, WA*,  WI

             

AL*, AR, AZ, CO, FL, ID, IA, KY,  MD*, MI, MO, MS, NE, NV*,  NC, ND, OK, SD, TX, UT, VA*, WY

             

DE,  DC, GA,  KS, NJ, PA, VT, VI

(§ local governments may authorize pharmacy sale without prescription;* denotes sale clearly legal or has a reasonable claim to legality in pharmacy only)

             

Paraphernalia laws in some states explicitly exempt pharmacists or contain other exemptions that would allow at least some retail sales where the seller was aware that the syringes would be used for injecting illegal drugs. Moreover, nearly all state paraphernalia laws were passed before the HIV epidemic, and were aimed at the sale of non-medical equipment in stores catering to recreational drug users. In many of these states, it is reasonable to conclude that paraphernalia laws were not intended to prohibit sales of a medical device like a syringe in retail establishments not primarily catering to drug users, as part of an effort to reduce HIV transmission. This argument is generally not reasonable, however, where legislatures have subsequently amended paraphernalia laws to allow SEPs. Amending a paraphernalia law to allow SEPs would not be necessary unless the legislature believed that syringe sales were generally limited by the paraphernalia law.

             

Syringe Distribution by Syringe Exchange

               

                           Thirteen states and the District of Columbia have affirmatively authorized SEPs. The most recent state to do so was New Jersey, which authorized in up to six demonstration sites by statute passed at the end of 2006. Eleven jurisdictions (CT, DE, DC, HI, ME, MD, NH, NJ, NM, RI, VT) have done so by passing laws establishing programs. In Maryland, SEPs are authorized in Baltimore only. Similarly, in Delaware, SEPs are authorized in Wilmington only, and in New Hampshire, only one program is authorized. Two states -- California and Massachusetts - have delegated the decision to allow SEPs by passing legislation authorizing local governments to approve them. Currently in California, there are SEPs operating in Alameda, Contra Costa, Humboldt, Los Angeles, Marin, Mendocino, Monterey, San Francisco, San Luis Obispo, San Mateo, Santa Barbara, Santa Clara, Santa Cruz, Shasta, Sonoma, Ventura, and Yolo counties, along with the cities of Los Angeles, Sacramento, San Diego, and Berkeley. Massachusetts has syringe exchange programs operating in Boston, Cambridge, Northampton, and Provincetown. In New York, SEPs are authorized by the Commissioner of Health exercising power granted in the paraphernalia law to waive its application. In Washington state, local health officials secured a declaratory judgment from the state Supreme Court holding that the paraphernalia law did not prohibit them from authorizing SEPs. The legislature later codified the ruling.

 

SEPs in two states presently operate by authority of local government alone. In Philadelphia, Pittsburgh, Chicago, and Cleveland, local officials determined that their public health authority extended to authorizing SEPs, despite the existence of state laws otherwise limiting IDU access to syringes. In Chicago, local law enforcement and health officials determined that a "research" exemption from the paraphernalia law encompasses SEPs. While such interpretations are debatable, they lead to reasonable legal conclusions. They also function as a politically expedient way to operate SEPS in states unlikely to change their law. In five states, the law does not regulate the free distribution of syringes, and therefore does not prohibit SEPs.

 

In 2007, the Texas legislature authorized a pilot program in Bexar County, but the local district attorney threatened to prosecute anyone who actually distributed syringes under the state paraphernalia law. In an advisory opinion, the state Attorney General concluded that in passing the provision, the legislature did not intend to excuse individuals implementing exchange, or clients, from paraphernalia law liability. Tex. Atty. Gen. Op. GA-0622, 2008 WL 1972703 (Tex.A.G.). Because there are no plans to implement exchange under the circumstances, this law is not considered in the table below. Exchanges operating in Texas, including an unauthorized exchange in Bexar County, several of whose operators were arrested in 2007, are classified as operating without claim to legal authority.

 

SEPs in at least fifteen states operate without a specific claim to legality. The law in these states may or may not clearly forbid SEPs, but these SEPs nevertheless are able to operate through more or less tacit arrangements with law enforcement authorities. The fact that a given SEP operates without a clear legal basis does not necessarily mean that such a basis could not be identified. In Colorado, for example, local governments have substantial authority to deal with local health threats, and so a city would have a reasonable basis for authorizing an SEP under its own authority. There has been no published research on the legal authority of most cities to authorize syringe exchange.

             

             

Table V: Legal Status of Syringe Exchange Programs in the U.S.  (Some data from Centers for Disease Control and Prevention. 2007. Syringe Exchange Programs ‑‑‑ United States , 2005. MMWR ‑ Morbidity & Mortality Weekly Report 56 (44):1164‑1167.)   

             

             

             

SEP authorized by state law

(14)

             

             

SEP authorized by local government based on its interpretation of state law

(3)

             

             

Free distribution of syringes not restricted by state law

(5)

             

             

SEP(s) operating without specific claim to legality – 2008

(15)

             

CA, CT, DE, DC,  HI, ME, MA, MD, NH, NJ, NM, RI*, VT, WA

             

IL, OH, PA

             

AK, LA, OR, RI, WI

             

AZ, CO, GA, IN, KS, MI, MN, MT, NY, NC, OK, PR, TN, TX, UT


 

Note: There may be syringe exchange programs operating without authority within states with authorized programs. (For an example of this situation see Lake County Authorizes Syringe Exchange; Programs Still Unauthorized in Two-Thirds of State of California (2008), available at http://www.harmreduction.org/article.php?id=731 ). There may also be programs which did not respond to the CDC survey which are either authorized or unauthorized.


 

*State law no longer restricts free distribution

             

             

(page updated November 28, 2008)