LEGAL ISSUES AND DRUG PARAPHERNALIA



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Proceedings Workshop on Needle Exchange and Bleach Distribution Programs LEGAL ISSUES AND DRUG PARAPHERNALIA

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Proceedings Workshop on Needle Exchange and Bleach Distribution Programs This page in the original is blank.

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Proceedings Workshop on Needle Exchange and Bleach Distribution Programs LAW AND POLICY Lawrence Gostin, American Society of Law, Medicine, and Ethics, Boston, Massachusetts; and Georgetown University Law Center, Washington, D.C.* Few issues at the intersection of law, policy, and public health are as fraught with conflict as the distribution of sterile injection equipment to impede the spread of infection with the human immunodeficiency virus (HIV) among intravenous drug users. At the heart of the controversy is a fundamental conflict between deeply entrenched drug-control policies and newly emerging public health policies. Drug control policies are driven by the belief that if the supply of drugs and drug paraphernalia is aggressively cut off and if growers/manufacturers, sellers, and users are swiftly and severely punished, the result will be a reduction in drug abuse and the cycle of related violence.1 The essence of drug control policy, therefore, is to create a scarcity of drugs and drug injection equipment, and to punish users. The public health approach is markedly different from—and perhaps incompatible with—traditional drug control. Rather than creating a scarcity of sterile drug injection equipment, the public health approach makes it more readily available through bleach and syringe distribution programs. Rather than punishing users through the criminal justice system, the public health approach offers an array of educational and therapeutic interventions within the health system.2 Many people in government, criminal justice, and community groups believe that the public health approach cannot peacefully coexist with traditional drug control policies.3 They think needle and bleach distribution programs deliver a mixed message that results in greater drug use. In their view, the drug control policy of "zero tolerance" is undermined when the state is asked to repeal, relax, or not enforce laws prohibiting distribution or possession of drug paraphernalia. Public health officials, on the other hand, point to mounting evidence that bleach and needle distribution programs do not encourage people to begin or continue drug use, that such programs facilitate entry into drug treatment, and that the programs reduce transmission of HIV and other needle-borne infections.4, 5 This paper, which is based on a continuing series of essays,6, 7, 8, 9 seeks to demonstrate the importance of a public health approach to controlling the dual epidemics of drug dependency and the acquired immune deficiency syndrome (AIDS) in the United States. It describes the body of law that prohibits the distribution or possession of drug paraphernalia, and proposes reforms that are consistent with the public health approach. The paper then examines prevailing legislative and litigation strategies to promote that approach. *   This paper was published in J. Stryker and M. D. Smith, eds., Needle Exchange. Menlo Park, Calif.: The Henry J. Kaiser Foundation, 1993. Reprinted by permission.

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Proceedings Workshop on Needle Exchange and Bleach Distribution Programs The public health approach does not require legalization of drugs, and this paper does not support such a proposal. Regardless of whether society ultimately decides to relax or repeal criminal prohibitions on drug use, the morbidity and mortality associated with the drug and AIDS epidemics will continue to require carefully crafted, public health policies supported by adequate funding. Only those criminal prohibitions that impede public health efforts need to be reformed. If drug-control and public health approaches are properly conceived, they can exist in harmony, and even synergy. DRUG CONTROL POLICIES THAT LIMIT THE SUPPLY OF STERILE INJECTION EQUIPMENT Researchers have identified powerful social and cultural forces that create an environment for the sharing of drug injection equipment. However, such sharing is not merely a learned response or a function of the culture and routines of drug users. It also is the direct result of a limited supply of needles and syringes, which can deny drug users realistic opportunities to engage in safer behavior.10, 11 Most drug users report that the scarcity of injection equipment is an important reason for sharing. Rather than obtaining sterile syringes and needles from pharmacists, health care professionals, or public health departments, they get their injection equipment from street sellers and shooting galleries.12, 13, 14, 15, 16, 17 The limited supply of sterile injection equipment represents, in part, a conscious policy choice by the state. As long ago as 1921, the U.S. Supreme Court recognized the broad authority of the state to regulate the manufacture, sale, prescription, and use of dangerous drugs by exercising its police powers [Minnesota ex rel., Whipple v. Martinson, 256 U.S. 41 (1921)]. Later, the court made clear that the "range of valid choices which a state might make in this area is undoubtedly a wide one...." [Robinson v. California, 370 U.S. 660, 665 (1962)]. Pursuant to these broad powers, the states have long had a policy of limiting the supply of equipment needed for injecting illicit drugs. While the state cannot constitutionally penalize a person's drug-dependent status [Robinson v. California, 370 U.S. 660 (1962)], it undoubtedly has constitutional authority to control the instruments of drug use, even if the person has no control over his or her habit [Powell v. Texas, 392 U.S. 514, 532 (1968)]. Broadly speaking, two categories of legislation directly affect the supply of sterile drug injection equipment: drug paraphernalia laws and needle prescription laws. Drug Paraphernalia Laws At least forty-five states and the District of Columbia have drug paraphernalia laws. Most of these statutes are based on the Model Drug Paraphernalia Act formulated by the Drug Enforcement Administration in 1979. The act was designed as an amendment to the Uniform Controlled Substances Act.

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Proceedings Workshop on Needle Exchange and Bleach Distribution Programs The term "drug paraphernalia" is widely defined in these statues to include any equipment, product, or material of any kind that is primarily intended for use in introducing controlled substances into the human body. Clearly, hypodermic syringes and needles fall within this domain. Drug paraphernalia statues ban the manufacture, sale, distribution, or possession of a wide range of devices if the person knows that such devices may be used to introduce illicit substances into the body. Therefore, drug paraphernalia laws require the presence of criminal intent to supply or use the equipment for an unlawful purpose. Under these statutes, it is not illegal to sell or distribute hypodermic needles and syringes when there is no knowledge that they will be used to inject illicit drugs. A pharmacist who sells hypodermic syringes and needles over the counter believing they will be used for a lawful purpose—for example, by a diabetic to inject insulin—does not commit an offense under drug paraphernalia laws. The trend toward comprehensive drug paraphernalia laws was advanced by the U.S. Supreme Court's decision in Village of Hoffman Estates v. Flipside, Hoffman Estates Inc. [455 U.S. 489, rehearing den, 456 U.S. 950 (1982)]. The court held that broadly worded local laws not based on the Model Act were constitutionally valid. Many courts have followed Flipside and upheld statutes with broad definitions of drug paraphernalia [Camile Corp. v. Phares, 705 F.2d 223 (7th Cir. 1983); Garner v. White, 726 F.2d 1274 (8th Cir. 1984); Stoianoff v. Montana , 695 F.2d 1214 (9th Cir. 1983)]. In July 1984, the federal government further limited the supply of sterile injection equipment by enacting an umbrella statute to encompass any activity involving drug paraphernalia crossing interstate lines. The Mail Order Drug paraphernalia Control Act [Anti-Drug Abuse Act of 1986, ss. 1821-1823, PL 99-570, 21 U.S.C. 863 (Use of Postal Service for Sale of Drug Paraphernalia)] originally was designed to prohibit use of the U.S. Postal Service to send equipment to be used for drug injection [Cong. Rec. H665556 (daily ed. September 11, 1986)]. The plain language of the statute also covers "any offer for sale and transportation in interstate or foreign commerce," or import or export of drug paraphernalia [21 U.S.C. 857(a)]. Furthermore, it contains a similarly broad definition of drug paraphernalia [21 U.S.C. 857(d); the act also authorizes seizure and forfeiture of drug paraphernalia; 21 U.S.C. 857(c)], and has survived constitutional scrutiny [United States v. Main Street Distributing Inc., 700 F. Supp. 655 (E.D.N.Y. 1988)]. The importance of the federal statute is its introduction of federal jurisdiction in an area traditionally reserved for the states.18 There is wide discretion in enforcement and prosecution under federal and state statutes. A state that chooses not to repeal its drug paraphernalia law could decide not to enforce it based on the public health imperatives of the HIV epidemic. If a state did this, federal authorities conceivably would take a different view and rigorously enforce the Mail Order Drug Paraphernalia Control Act. This means that the objectives of law-enforcement and public health authorities, as well as those of federal and state agencies, must be harmonized. Drug paraphernalia laws, including the federal Mail Order Drug Paraphernalia Control Act and comprehensive state statutes, present formidable obstacles for the injection drug user who complies with public health advice to use sterile injection

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Proceedings Workshop on Needle Exchange and Bleach Distribution Programs equipment. Even if the user can buy a sterile hypodermic syringe over the counter, he or she still can be prosecuted for possessing it; the user must demonstrate a valid medical reason for possessing the equipment. Sometimes drug users are arrested for carrying syringes or even bottles of bleach.19 To arrest the user who, in abiding by safer practices that the health department encouraged and aided, carries a syringe or bleach defeats the purpose of public health. The impact of drug paraphernalia laws, therefore, is not simply the significant limit on the street supply of sterile injection equipment. The law also creates a marked disincentive for users to carry sterile equipment when they frequent a ''copping place." Yet drug users need to be carrying sterile injection equipment precisely at this time, when they are buying and/or injecting heroin or cocaine. PROPOSAL FOR REFORMING DRUG PARAPHERNALIA STATUTES Drug paraphernalia laws, if they are to be consistent with public health objectives, should focus on prohibiting the illicit sale, rental, or distribution of drug injection equipment. Such prohibitions would affect the drug dealer or proprietor of a shooting gallery but not the health care professional, pharmacist, or public health official. The law would regulate the sale of hypodermic syringes and needles in much the same way it does currently—by ensuring that they are sold only in appropriate places (for example, in pharmacies, not in candy stores) by trained and experienced professionals, and that the equipment is in safe, sterile condition. There would not be any pretense that the authorized seller is unaware of the intent of the buyer. More importantly, the drug-dependent buyer would not be deterred by the threat of criminal sanctions for buying, possessing, or using the sterile injection equipment. Any unauthorized person who sold or distributed the equipment still would be subject to criminal penalties. There are two justifications for these changes. First, the new law would focus its proscriptions precisely on those who endanger the public's health and well-being: illicit drug dealers and shooting-gallery or drug-hotel proprietors. These seller of hypodermics are unreliable distributors of sterile equipment, and are not subject to effective quality control or regulation. The probability that they will provide used, shared, and contaminated equipment justifies the criminal proscription. Second, just as society does not allow dealers to profit from the sale of drugs, so too should it forbid them to trade in drug paraphernalia. Drug paraphernalia laws applied to illicit sellers also would be an appropriate alternative for arrest or charge. If the police can demonstrate an intent to sell drug paraphernalia outside of a regulated pharmacy or other authorized location, that intent should be sufficient justification for prosecution, even if the dealer is not in possession of heroin or cocaine. A new law focusing on the illicit sale of hypodermics, not on authorized sales and purchases, would allow drug users to possess sterile equipment, thus encouraging safer injection practices. It also would dampen the thriving black market in hypodermic syringes and needles, which poses a significant danger to public health.

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Proceedings Workshop on Needle Exchange and Bleach Distribution Programs Needle Prescription Laws Drug paraphernalia laws do not prohibit or regulate the sale of hypodermics if the seller doesn't have any reason to believe that the equipment will be used for injecting illicit drugs. Accordingly, over-the-counter sales of hypodermic syringes and needles are permitted in most jurisdictions. Pharmacists are not obliged to question the buyer's intent when he or she purchases the equipment. Indeed, there aren't any professional guidelines for pharmacists in this respect. All of this leads in part to wide variations in sales practices.20 Racial and other biases can potentially limit the opportunities for drug users to purchase hypodermic syringes and needles at pharmacies.21 Some pharmacists sell to all buyers, while others do not sell to those who show visible signs of injection drug use or cannot offer a plausible medical justification.22, 23, 24 Over-the-counter sale of hypodermic needles and syringes is significantly restricted in ten states (California, Delaware, Illinois, Maine, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, and Rhode Island) and Puerto Rico25 (Table). These jurisdictions have needle prescription laws. Such laws date back to the New York Boylan Act of 1914 [People v. Gordon, 336 N.Y.S.2d 753 (1972)].26 The modern statutes prohibit the sale, distribution, or possession of hypodermic syringes or needles without a valid medical prescription. [See, for example, New York Consol. Laws, c. 40, para. 1747d(3) and LSA-RS 40:962 Subd. B; Massachusetts G.L.C. 94C, para.27 Authority to possess hypodermics can be granted under several of these laws by the state commissioner of health, as occurred in New York City.] Needle prescription laws are more onerous than drug paraphernalia laws because they do not require criminal intent. Needle prescription laws that are regulatory and do not impose criminal liability on the buyer have been upheld by the courts [People v. Bellfield, 230 N.Y.S.2D 79, aff, 183 N.E.2d 230 (1962); also see State v. Birdsell, 104 So.2d 148 (1958)]. Under needle prescription laws, physicians may write prescriptions for hypodermic syringes and needles for patients under their care only if there is a legitimate medical purpose. A pharmacist must keep careful records of the sale of syringes and needles. If an injection drug user is charged with illegal possession of paraphernalia, the user must prove that he or she has sufficient authority to possess them [Commonwealth v. Jefferson, 377 Mass. 716, 387 N.E.2d 579 (1979)]. The "legitimate medical purposes" doctrine strengthens the regulatory effect of needle prescription laws. The doctrine is intended to hold a prescription invalid unless it is prescribed in good faith for a therapeutic purpose. Physicians have had their licenses withdrawn or have been convicted for improperly prescribing drugs or drug paraphernalia [Minnesota ex. re. Whipple v. Martinson, 256 U.S. 41 (1921)]. It is not clear if a physician could be successfully prosecuted today for prescribing sterile injection equipment for a drug user. Faced with the exigencies of the HIV epidemic, physicians could claim a good-faith intention to prevent the patient from contracting or transmitting HIV infection. Prescribing a sterile needle and syringe in this situation would not necessarily comport with prevailing medical practice. Yet the consensus of public health opinion is that intravenous drug users should have access to

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Proceedings Workshop on Needle Exchange and Bleach Distribution Programs sterile injection equipment to impede the needle-borne transmission of disease.27 So courts might well sustain the legitimacy of a medical prescription for sterile injection equipment to safeguard the health of the patient and the patient's needle-sharing and sexual partners. Proposal for Repeal of Needle Prescription Statutes Repeal of needle prescription laws is supported by many respected public health and bar associations.27, 28, 29, 30 In effect, a repeal would allow pharmacists and other authorized retailers to sell hypodermics over the counter and without a medical prescription. Syringes and needles could be sold the same as other nonprescription medications and health materials. Because the state would not be instrumental in distributing drug injection equipment, the state would not be tacitly approving its use. Furthermore, repeal of these laws would not have a revenue impact on state legislatures. The only effect would be removal of the state as an obstacle to providing the sterile equipment that injection drug users need in order to comply with public health advice about protecting themselves and others from the needle-borne spread of HIV. Most states and virtually all of Western Europe do not have needle prescription laws. These and many other jurisdictions permit over-the-counter sales of hypodermic syringes and needles.31 Their experience has not shown any obvious adverse effects. They generally have a lower prevalence of HIV infection among drug users, and lower rates of drug use than states that do have such laws.26, 28 Though broad data of this kind do not provide scientific proof of a causal effect, they do supplement reports from drug users and researchers who say that sharing is related to the inaccessibility of sterile equipment.32 If a state were to repeal its needle prescription statutes, it would not necessarily have to abandon attempts to regulate the sale of hypodermic needles and syringes. Legislators concerned about the sensitivity of communities can require that sales take place only in certain locations, such as pharmacies, and that these items not be in view of customers. Social science research indicates that behavioral change is enhanced when people have full and accurate health information and the means to act on that information.33 In 1992, Connecticut gave policy makers and researchers their first opportunity to evaluate such proposals for reforming drug paraphernalia and needle prescription statutes. The legislature enacted a statute relaxing criminal prohibitions on the purchase and sale of hypodermic needles and syringes [Connecticut Public Act No. 92-185, as amended by May session, Public Act No. 92-11)]. The statute authorizes licensed manufacturers, wholesalers, and pharmacists to sell—and individuals to buy—ten or fewer hypodermic needles or syringes. The Centers for Disease Control plan to evaluate the impact of this law.

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Proceedings Workshop on Needle Exchange and Bleach Distribution Programs LEGAL BASIS OF SYRINGE EXCHANGE PROGRAMS Drug paraphernalia and needle prescription statutes not only enhance the scarcity of sterile injection equipment but also may pose a legal barrier to public health programs designed to promote safer injection behavior. Such statutes render needle-and-syringe exchange programs prima facie unlawful in many jurisdictions. Because these laws proscribe the distribution and possession of injection equipment with knowledge that those who receive the equipment intend to use it for drug injection and don't have a valid medical prescription, exchange programs can be challenged as unlawful. Moreover, clients risk criminal prosecution for participating in such exchanges. Even if police do not enforce these statutes, the laws may have a chilling effect on drug users' participation in public health programs. The hostility of legislators to needle and syringe exchanges is illustrated by a series of congressional bans on the use of federal funds for exchange programs. Since 1988, Congress has passed at least seven statutes that contain provisions prohibiting or restricting the use of federal funds for needle exchange programs and activities.34 For example, the Alcohol, Drug Abuse, and Mental Health Administration Reorganization Act of 1992 stipulates that: None of the funds provided under [the Public Health Service Act] shall be used to provide individuals with hypodermic needles or syringes so that such individuals may use illegal drugs, unless the Surgeon General of the Public Health Service determines that a demonstration project would be effective in reducing drug abuse and the risk that the public will become infected [with HIV]. [U.S.C.A. 300ee-5 (West 1991)] The ban applies regardless of the lawfulness of syringe programs in the states. The surgeon general has not yet decided whether to authorize federal funding. However, the U.S. General Accounting Office has found that exchange projects do provide possible public health benefits; it may be only a short time before the Clinton Administration repeals or loosens the ban. Because of the federal law, needle-and-syringe exchange programs must operate by means of state, municipal, or charitable funding. More importantly, these programs may have to defend their legal authority if they are challenged under state law. As of January 1993, more than thirty needle exchange programs in the United States and many more internationally were in some stage of implementation.31 Harmonizing the Objectives of Law Enforcement and Public Health In November 1988, a pilot needle and syringe exchange was established in New York City after two years of political debate.35 The mayor, acquiescing to pressure from neighborhood groups, declared that any exchange site within 1,000 feet of a school or day care center would be unsuitable. The program, therefore, was established on only

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Proceedings Workshop on Needle Exchange and Bleach Distribution Programs one site—at the city health department itself. The department is adjacent to a city jail, the courts, and central policy headquarters.5 The new mayor, David Dinkins, aborted the experimental program in early 1990 after only two years of operation because it had too few enrollees. (Another program has since been established.) This was not surprising, given the program's inaccessibility to most drug users and their fear of arrest and prosecution for possession of drug paraphernalia. Drug users, after all, would not have been expected to know that the state health commissioner had granted a waiver from the state needle-prescription law for the program. The failure of New York City's exchange program to recruit a significant number of clients illustrates the importance of harmonizing the objectives of law enforcement and public health. The probability of success of needle and syringe exchanges also depends on the cooperation of city and state law-enforcement officials. If a city of state attorney general challenges the legality of a program, as occurred in Washington state, or if police arrest clients or even visible survey a program, prospective clients are certain to be discouraged from using it. Clients have been arrested for violation of a municipal drug-loitering ordinance at exchanges, such as the one in Seattle, Wash., that are government sanctioned. In San Francisco, Calif., such arrests have taken place under drug paraphernalia laws despite a directive by the chief of police to make enforcement of these laws a low priority when it comes to exchange clients.36 Criminal justice officials have discretion not to arrest and prosecute persons who violate criminal laws. Officials might exercise their prosecutorial discretion to overlook violation of drug paraphernalia laws when public health officials are operating needle exchange programs, but this discretion is an imperfect tool at best. It can be revoked at any time, it may not prevent street arrests (as the experience in San Francisco illustrates), and drug users have no way of knowing they won't be prosecuted, so they are reluctant to carry sterile equipment. There needs to be a social contract among government departments that explicitly favors public health goals over law enforcement goals. This is justified by the seriousness of the needle-borne HIV epidemic. Law enforcement officers should not engage in surveillance or arrest any client of a needle-and-syringe exchange program sponsored or sanctioned by the public health department. The raison d'etre of drug control policies is to protect the health of the user and the public. When public health officials determine that exchange programs may serve as a bridge to treatment and reduce the spread of needle-based infection, the programs should take precedence over traditional law enforcement strategies. Drug control policies that fail to promote the health and safety of the community defeat their own purpose and lose legitimacy. Establishing Authority for Needle and Syringe Exchanges When legislators, public health officials, or community-based organizations set up needle and syringe exchanges, they may need to establish the legal authority for such programs. There are several legal strategies for bringing needle and syringe exchanges within the law:

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Proceedings Workshop on Needle Exchange and Bleach Distribution Programs By establishing a specific statutory authority for the program.  By obtaining a judicial declaration of lawfulness. By presenting a "necessity" defense against criminal prosecutions on a case-by-case basis. Statutory Authority for Exchanges Prior statutory authorization provides the most favorable legal environment for needle and syringe exchanges. It has been employed in Hawaii and Connecticut, which retained their state drug-paraphernalia laws but authorized the establishment of exchange projects. In 1990, Hawaii enacted the first state-endorsed, needle-and-syringe exchange program in the United States [Hawaii Sess. Law 602 (Relating to a Pilot Program to Reduce the Transmission of Infectious and Communicable Diseases)]. The program is privately funded and operated by The Life Foundation, a nonprofit AIDS group. The statute required that state director of health to establish a pilot exchange program that would:  Be designed to prevent transission of HIV and hepatitis.  Provide maximum security for sites and equipment.  Provide a one-for-one exchange.  Screen out non-injection drug users.  Provide drug treatment, counseling, and education to all participants.  Assess behavioral changes and enrollment in treatment. The law does not give clients immunity from prosecution for violating the state drug paraphernalia law. However, to date, no arrests have been reported. Also in 1990, the Connecticut General Assembly enacted legislation authorizing a demonstration needle-and-syringe exchange program in New Haven [Conn. Gen. Stat. section 19a-124 (An Act Concerning a Demonstration Needle and Syringe Program)]. Mayor John C. Daniels agreed to implement the program in August of that year, saying, "Needle exchanges may not work. But when you have a serious problem, you try to find serious solutions."37 Notably, the statute added the demonstration project to a list of exceptions to Connecticut's needle-prescription and drug-paraphernalia statutes. The exchanges cannot operate within 1,000 feet of schools, in deference to the state statute pertaining to illicit drug sale or use around school perimeters. The exchanges offer a full

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Proceedings Workshop on Needle Exchange and Bleach Distribution Programs Comparison of "Pharmacy Response" with "Requests to Sell" A comparison of the two graphs, requests to sell (Figure 5) and response to requests (Figure 6) does not show complete congruence between requests and response within all provincial jurisdictions. This comparison suggests that the decision to sell may relate to both policy and to discretionary factors. To assist in the interpretation of these data two analyses were conducted; one relating provincial/territorial policy to sale of needles and syringes, and another examining factors considered by pharmacists when exercising discretion. Pharmacy's Response to Requests to Purchase Nationally, 17.0% of the owner-managers indicated that they would not sell needles and syringes to non-diabetic drug users, 29.1% would sell in some cases, 29.2% would sell in most cases and 24.6% indicated that they would sell in all cases. Figure 7 shows the proportion of pharmacies within each province/territory agreeing to sell. The highest proportion reporting that they would not sell was 30.5% in British Columbia where sales are illegal. In that same province 31.4% would sell in some cases, 21% in most cases and 17.1% in all cases. The second highest proportion not selling was in Newfoundland (25.9%) where there was no policy. The highest proportion selling in all cases was in the Yukon and Northwest Territories (42.9%), followed by Manitoba (28.4%) and New Brunswick (27.1%). Provincial/Territorial Policy and Sale of Needles A significant association was found with needle and syringe sales and the actual provincial/territorial policy toward sales, shown in Figure 8 (X2 = 100.2 df = 9 p= 0.000). The lowest sales were reported in the province where sales are illegal. There was little difference between provinces with discretionary policies and those with self-selection. (An analysis not reported here suggests in fact that pharmacists know whether a policy exists but are not always clear what the policy is. The self-selection policy was instituted in Ontario, the province with the largest sample of respondents, only weeks before the study was conducted). A further analysis was conducted comparing actual provincial policy with availability of bleach kits and needle disposal. The availability of bleach kits and needle disposal were not significantly associated with the current provincial/territorial policy. Discretion in Sales Of the pharmacies that indicated that they would sell, 69.8% indicated that they would use some discretion in their decision to sell (i.e. would sell in some or most cases).

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Proceedings Workshop on Needle Exchange and Bleach Distribution Programs This subgroup were asked whether various aspects relating to the client and practice influenced their decision to sell. Figure 9 presents the proportion indicating each of five aspects to be a "very important" reason. In order of importance these were the sobriety of the client, characteristics of the client, familiarity with the client, presence of other customers and time of day. Professional Thinking and Potential Role for Pharmacies A number of questions were asked in order to examine the current thinking and roles that pharmacies might assume. Specifically these deal with willingness to provide and support services to injection drug users, perception of those factors that cause injection drug use, agreement with strategies for preventing the spread of HIV and future preventive interventions. As indicated earlier in this paper factor analyses were used to develop composite variables. The group mean scores for these composite variables are presented in the next four graphs. Pharmacy-Based Services for Injection Drug Users Figure 10 reflects the respondents' willingness and support for specific pharmacy-based services for injection drug users. The respondents were most willing to provide counselling and literature (including information on safer needle use) followed by sale of needle and syringes. They were least supportive of being part of a needle and syringe programme based in their pharmacy. Agreement with Interventions to Prevent the Spread of HIV With regard to various measures to prevent the spread of HIV, the respondents were most prepared to endorse control and compulsory measures (e.g., Compulsory HIV antibody testing), followed by punitive measures (e.g., abstinence should be goal of treatment, and possession of needles should be made a criminal offence) (see Figure 11). They were least likely to endorse to more relaxed legislation regarding drug use. Perceptions of Factors Contributing to Injection Drug Use The respondents perceived peer pressure to be the greatest contributing factor to injection drug use, followed by personal and social values and personal traits, as shown in Figure 12.

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Proceedings Workshop on Needle Exchange and Bleach Distribution Programs Endorsement of Future Preventive Interventions In order of preference respondents were prepared to endorse first, environmental and technological measures (e.g., disposal units in parks and non-reusable needle and syringe technologies); second, exchanges in selected pharmacies; third, mobile drug needle exchange units; and finally, the legalization (prescription) of illicit drugs and methadone (see Figure 13). Change in Professional Thinking About Non-Diabetic Injection of Drugs Figure 14 summarizes the respondents' subjective opinion about injection drug use since the threat of AIDS. Slightly over one quarter (27.3%) indicated that there was no change in their opinion. Almost half, 47.6%, indicated that they were more tolerant, 12.4% indicated that they were less tolerant, 9.7% indicated that they were confused, and 2.3% gave other explanations. SUMMARY AND CONCLUSIONS The high response to this survey reflects the professional interest in issues presented by HIV. HIV/AIDS has presented pharmacists with one of the largest challenges to their professional training, ethics and practice. In response to HIV there have been dramatic changes in pharmacy practices. In view of the recent introduction of many of these it is likely that change will continue to occur. Survey respondents were in general very comfortable with an expanded role involving counselling, health promotion and disease prevention consistent with an expanded role that has been advocated in recent years13. Safer needle use, as a part of a health promotion approach, is divergent from traditional practices. While major changes have occurred it also appears that there has been some polarization of attitudes and response. Explanation for this is not simple and in fact further analysis is required to determine the full impact from several ethical perspectives including: professional, business and public health. The study highlights the role that policy and education have in moving toward a harm reduction approach. From a policy perspective this study has borne out that government, regulatory body and professional association support may be an important catalyst to pharmacies' participation in programmes.14 Further, it does not appear to be possible to implement such policies without continuing education. Data on knowledge and educational need, not included in this report, suggests that the study population's lowest levels of information related to such areas as the role of methadone in HIV prevention, and availability of needle exchange programmes. As with other health promotion campaigns additional skills training may be important.15 Movement forward with harm reduction strategies by pharmacies will require careful planning. Incremental introduction of services into pharmacies appears to be

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Proceedings Workshop on Needle Exchange and Bleach Distribution Programs necessary. It is understandable that not all pharmacies, because of individual circumstance, may be expected to participate in a comprehensive needle sales or exchange programme. Successful implementation will require extensive community development and collaboration with other health professionals, public health officials, police, groups representing injection drug users, and Persons Living with HIV. Careful monitoring and evaluation of these programmes will be necessary to enhance their effectiveness. ACKNOWLEDGMENTS This project was funded by the AIDS Education and Prevention Unit, through the National AIDS Contribution Programme under the National AIDS Strategy, Health Canada. Appreciation is expressed to the Advisory Committee and to the Provincial Licensing Bodies. REFERENCES 1. HIV/AIDS Division, Laboratory Centre for Disease Control. (1993) Quarterly Surveillance Update: AIDS in Canada Ottawa: Health and Welfare Canada, July 2. Remis RS, Sutherland WD. (1993) The epidemiology of HIV and AIDS in Canada: current perspectives and future needs. CJPH; 84 (Supp1): 34-38. 3. Bardsley J, Turvey J, Blatherwick J. (1990) Vancouver's Needle Exchange Program CJPH 81 (1) 39-45. 4. Crichton A, Hsu D and Tsang S. (1990) Canada's Health Care System: It's Funding and Organization Ottawa:Canadian Hospital Association Press. 5. Single E, Erikson P, Skirrow J, and Solomon R. (1991) Policy Developments in Canada Paper presented at " The Window of Opportunity" congress Adelaide , Australia, December. 6. Usprich SJ and Solomon R (1990) Notes on the Potential Criminal Liability of a Needle Exchange Program Health Law in Canada. 42-48. 7. Riley D. (1990) The legality of syringe exchanges in Ontario: Report to the City of Toronto Board of Health October 4, 1990. 8. Health and Welfare Canada (1990) Building an Effective Partnership: the Federal Government's Commitment to Fighting AIDS. Ottawa: Ministry of Supply and Services Canada.

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Proceedings Workshop on Needle Exchange and Bleach Distribution Programs 9. Ontario College of Pharmacists Newsletters (June 22, 1987; April 18, 1988; April 1989; June 1992) 10. Millson M, Coates R, Rankin J, Myers T, McLaughlin B, Major C and Mindell W. The Evaluation of a Program to Prevent Human Immunodeficiency Virus in Injection Drug Users in Toronto. Final report presented to the City of Toronto Board of Health, September 1991. 11. Dillman DA. (1978) Mail and telephone surveys: the Total Design method. New York: Wiley and Sons. 12. Cockerill R and Williams P. (1989) Report on the 1989 survey of the dispensing practices and attitudes toward prescription drugs. Prepared for Pharmaceutical Inquiry of Ontario. 13. Fincham JE, Smith MC. (1988) Pharmacists' Views About Health Promotion Practices. Journal of Community Health 13 (2) 155-33. 14. Zulaica D, Menoyo C, Zubia I, Urcelay A, Linaza I and Elizada B. (1991) The anti-AIDS kit: a year's experience. VIIth International Conference of AIDS Florence, June. 15. Smith FJ, Salkind MR and Jolly BC (1990) Community Pharmacy: a Method for Assessing Quality of Care. Social Science and Medicine. 31 (5) 603-607.

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Proceedings Workshop on Needle Exchange and Bleach Distribution Programs Proportion of Reported AIDS Cases by Province/Territory in Canada Current Policy by Province/Territory to Sale of Needles and Syringes in Canada A=No sale B=Discretion C=Self-selection D=No Policy Response by Province/Territory to Survey

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Proceedings Workshop on Needle Exchange and Bleach Distribution Programs Proportion of Respondents Who Knew They Had Served A Person Living With HIV By Province/Territory REQUESTS FOR NEEDLES AND SYRINGE SALES BY PROVINCE/TERRITORY Pharmacies' Response to Requests to Purchase Needles and Syringes

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Proceedings Workshop on Needle Exchange and Bleach Distribution Programs RESPONSE TO REQUESTS TO PURCHASE BY PROVINCE/TERRITORY   Percent Who Sell Needles and Syringes by Provincial/Territorial Regulatory Policy % Using Discretion Who Consider Specific Aspects ''Very Important" in Decision to Sell Needles and Syringes  

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Proceedings Workshop on Needle Exchange and Bleach Distribution Programs "Willingness and Support" for Provision of Pharmacy-Based Services to Injection Drug Users Group mean for composite variables developed from factor analysis (1 = Not at all willing/supportive, 3 = Very willing/supportive) Agreement with Interventions to Prevent the Spread of HIV Group mean for composite variables developed from factor analysis) (1 = Strongly Disagree, 4 = Strongly Agree) Factors Perceived to Contribute to Injection Drug Use. Group mean for composite variables developed from factor analysis) (1 = Strongly Disagree, 4 = Strongly Agree)

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Proceedings Workshop on Needle Exchange and Bleach Distribution Programs Endorsement of Future Preventive Interventions Group mean for composite variables developed from factor analysis) (1 = Bad Idea, 2 = Neither Good nor Bad, 3 = Good Idea) Change in Professional Thinking About Non-Diabetic Injection Drug Use Since AIDS

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Proceedings Workshop on Needle Exchange and Bleach Distribution Programs DISCUSSION: LEGAL ISSUES AND DRUG PARAPHERNALIA LANE PORTER Lane Porter commented on a number of major points brought out in the presentations. First, he observed, drug paraphernalia and needle prescription laws are often confused with one another, and it is important to understand the specific elements of each and how they can affect needle exchange programs. Second, in considering changes in drug paraphernalia laws, one must be clear about the objective being sought. There may well be some question as to whether such laws should be repealed or whether some modification of them is needed. Third, the presentation on the change in Connecticut's drug laws suggests that, once legal restrictions on the nonprescription purchase and possession of needles are removed, pharmacies will sell nonprescription needles to drug injectors. Fourth, the presentations on Connecticut and Canada point to the opportunities for pharmacists and other outlets to undertake other activities besides the selling of needles, for example, counseling, education, and providing a bridge to other social services. During much of the workshop, Porter observed, there has been considerable discussion about the conflict between drug control strategies and efforts at harmonizing drug control and public health objectives. He said that consideration should be given to how the legal community can work with program planners in fashioning or enabling needle exchange programs that will be effective, well managed, and lawfully operated. In places in which needle exchange programs and pharmacy sale of needles are legal, it is important to consider experience in regard to the arrest of persons who supply needles on the grounds of aiding and abetting criminal activity. In New South Wales, for example, individuals must be affirmatively authorized to work in needle exchange programs, and such authorized persons are expressly exempt from the aiding and abetting provisions of the law. Porter observed that zoning laws may also have an impact on the potential for needle exchange programs. The zoning requirements of local jurisdictions will definitely affect whether certain types of outlets will be permitted in a community. Finally, accreditation and licensing bodies also have a role to play. For example, he said, they should be considered in any establishment of training requirements for personnel involved in the distribution or sale of needles.