3.3Dispensing or Selling a Food Product or Dietary Supplement Containing Ephedrine
“A person shall not dispense, sell, or otherwise give a product described in [MCL 333.7220(1)(c)(ii)1] to an individual less than 18 years of age.” MCL 333.7339(1).
“In the course of selling, offering for sale, or otherwise distributing a product described in [MCL 333.7220(1)(c)(ii)], a person shall not advertise or represent in any manner that the product causes euphoria, ecstasy, a ‘buzz’ or ‘high’, or an altered mental state, heightens sexual performance, or, because it contains ephedrine alkaloids, increases muscle mass.” MCL 333.7339(2).
MCL 333.7339 “does not apply to a physician or pharmacist who prescribes, dispenses, administers, or delivers a product described in [MCL 333.7220(1)(c)(ii)] to an individual less than 18 years of age, to a parent or guardian of an individual less than 18 years of age who delivers the product to the individual, or to a person authorized by the individual’s parent or legal guardian who dispenses or delivers the product to the individual.” MCL 333.7339(1).
Violation of MCL 333.7339 is a misdemeanor punishable by:
•imprisonment for not more than 93 days; or
•a fine of not more than $100; or
•both. MCL 333.7339(3).
Where a defendant argues that he or she was authorized to prescribe, dispense, administer, or deliver the product at issue, he or she bears the burden of proving that his or her conduct was authorized.2 MCL 333.7531(1). In the absence of proof, there is a rebuttable presumption that the defendant was not authorized to prescribe, dispense, administer, or deliver the product at issue. MCL 333.7531(2). See M Crim JI 12.4a.
2.The Methamphetamine Abuse Reporting Act
Under the Methamphetamine Abuse Reporting Act, MCL 28.121 et seq., the department must notify NADDI of convictions upon notification by a court3 that an individual has been convicted of a methamphetamine-related offense. It is unclear whether violation of MCL 333.7339 constitutes a methamphetamine-related offense because it does not directly reference methamphetamine but does reference ephedrine, an ingredient in methamphetamine. See MCL 28.122(b) (defining methamphetamine-related offense as a violation of Article 7 of the PHC that involves methamphetamine). For more information on the Methamphetamine Abuse Reporting Act, see Section 1.6.
1 MCL 333.7220(1)(c)(ii) describes the following schedule 5 controlled substances:
“(ii) A food product or a dietary supplement containing ephedrine, if the food product or dietary supplement meets all of the following criteria:
(A) It contains, per dosage unit or serving, not more than the lesser of 25 milligrams of ephedrine alkaloids or the maximum amount of ephedrine alkaloids provided in applicable regulations adopted by the United States food and drug administration and contains no other controlled substance.
(B) It contains no hydrochloride or sulfate salts of ephedrine alkaloids.
(C) It is packaged with a prominent label securely affixed to each package that states the amount in milligrams of ephedrine in a serving or dosage unit; the amount of the food product or dietary supplement that constitutes a serving or dosage unit; that the maximum recommended dosage of ephedrine for a healthy adult human is the lesser of 100 milligrams in a 24-hour period or the maximum recommended dosage or period of use provided in applicable regulations adopted by the United States food and drug administration; and that improper use of the product may be hazardous to a person’s health.”
2 For a more detailed discussion of authorization as a defense, see Chapter 7.
3 See e.g., MCL 333.7340c(3), as added by 2014 PA 217, effective January 1, 2015, which requires the court to report to the state police when a person is convicted under MCL 333.7340c (soliciting another person to purchase/obtain ephedrine or pseudoephedrine knowing that it is to be used in the illegal manufacture of methamphetamine).