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19 March 2000
To the Alabama Senate Committee on the Judiciary
re: Further difficulties with the new SB 305.
Dear Senate Judiciary members,
The new SB 305 is much improved. Attorney General Bill Pryor has done a creditable job in responding to issues raised in your committee and drafting language to resolve some of these difficulties. Allowing physicians to prescribe GHB and excepting food-based GHB are steps in the right direction. However, some of the language is overtly problematic. In addition, I still have some concerns that the extremely tortuous syntax and convoluted language in that section make the bill vague, difficult to understand, and open to misinterpretation.
For example, if a physician makes a simple procedural mistake while prescribing GHB, is that physician thereby guilty of trafficking in illegal drugs? It would appear so, by my reading. Similarly, if a physician makes a compassionate (ethically compelling) exception to a protocol, are they guilty of trafficking in illegal drugs? Again, it would appear so. If a doctor fails to make a notation in a medical chart, which might be considered a professional deficiency subject to disciplinary action by the medical board, would that trivial violation of regulations render an erring physician liable to felony prosecution in situations where GHB is being prescribed? There are no shades of gray in SB 305.
A more obvious and far more serious deficiency in the bill is the inclusion of any substance for which gamma-hydroxybutyrate is an immediate precursor. GHB is an immediate precursor to:
The levels of some of the above GHB metabolites are enhanced above their natural endogenous concentrations by cooking and food processing. Consequently, Alabama citizens and businesses may accidentally and/or inadvertent violate the new SB 305. There is some evidence that suggests that the aging of meat might actually increase GHB concentrations. This has not been clearly established, but it is another potential problem with the endogenous concentrations language.
Why would Alabama want to criminalize metabolites of GHB, anyway? I cannot think of a single reason. However, it does seem likely that Bill Pryor meant to write any substance which is an immediate precursor to gamma-hydroxybutyrate. This alternate language would refer to substances that would produce GHB, not result from GHB.
Despite any strategic improvement from this change, this alternate language would still be troublesome. Immediate precursors to GHB include:
It seems reasonable that MSG-fortified foods could not be considered naturally occurring unadulterated biological tissues. The act of making vegetable and meat broths dramatically enhances the amount of free MSG in foods (hydrolysis of proteins releases MSG). This, also, would appear to violate the new SB 305 by increasing the levels of an immediate precursor of GHB beyond endogenous concentrations. Furthermore, since MSG is almost exclusively intended for human consumption, imports of MSG into Alabama would become illegal. The standard, commercial, hundred-pound bag of MSG would invoke a mandatory minimum term of imprisonment of 25 calendar years and a half-million dollar fine.
My final objection is easily fixed. Add or pharmacist after physician when addressing medical exemptions for GHB. Or change it to duly licensed medical professionals to include everybody who is authorized to dispense or prescribe GHB.
Steven Wm. Fowkes
cc: Bill Pryor
Ward Dean, M.D.