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Proceedings--Workshop on Needle Exchange and Bleach Distribution Programs (1994)

Chapter: LEGAL ISSUES AND DRUG PARAPHERNALIA

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Suggested Citation:"LEGAL ISSUES AND DRUG PARAPHERNALIA." Institute of Medicine and National Research Council. 1994. Proceedings--Workshop on Needle Exchange and Bleach Distribution Programs. Washington, DC: The National Academies Press. doi: 10.17226/4552.
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LEGAL ISSUES AND DRUG PARAPHERNALIA

Suggested Citation:"LEGAL ISSUES AND DRUG PARAPHERNALIA." Institute of Medicine and National Research Council. 1994. Proceedings--Workshop on Needle Exchange and Bleach Distribution Programs. Washington, DC: The National Academies Press. doi: 10.17226/4552.
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Suggested Citation:"LEGAL ISSUES AND DRUG PARAPHERNALIA." Institute of Medicine and National Research Council. 1994. Proceedings--Workshop on Needle Exchange and Bleach Distribution Programs. Washington, DC: The National Academies Press. doi: 10.17226/4552.
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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.

Suggested Citation:"LEGAL ISSUES AND DRUG PARAPHERNALIA." Institute of Medicine and National Research Council. 1994. Proceedings--Workshop on Needle Exchange and Bleach Distribution Programs. Washington, DC: The National Academies Press. doi: 10.17226/4552.
×

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.

Suggested Citation:"LEGAL ISSUES AND DRUG PARAPHERNALIA." Institute of Medicine and National Research Council. 1994. Proceedings--Workshop on Needle Exchange and Bleach Distribution Programs. Washington, DC: The National Academies Press. doi: 10.17226/4552.
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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

Suggested Citation:"LEGAL ISSUES AND DRUG PARAPHERNALIA." Institute of Medicine and National Research Council. 1994. Proceedings--Workshop on Needle Exchange and Bleach Distribution Programs. Washington, DC: The National Academies Press. doi: 10.17226/4552.
×

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.

Suggested Citation:"LEGAL ISSUES AND DRUG PARAPHERNALIA." Institute of Medicine and National Research Council. 1994. Proceedings--Workshop on Needle Exchange and Bleach Distribution Programs. Washington, DC: The National Academies Press. doi: 10.17226/4552.
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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

Suggested Citation:"LEGAL ISSUES AND DRUG PARAPHERNALIA." Institute of Medicine and National Research Council. 1994. Proceedings--Workshop on Needle Exchange and Bleach Distribution Programs. Washington, DC: The National Academies Press. doi: 10.17226/4552.
×

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.

Suggested Citation:"LEGAL ISSUES AND DRUG PARAPHERNALIA." Institute of Medicine and National Research Council. 1994. Proceedings--Workshop on Needle Exchange and Bleach Distribution Programs. Washington, DC: The National Academies Press. doi: 10.17226/4552.
×

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

Suggested Citation:"LEGAL ISSUES AND DRUG PARAPHERNALIA." Institute of Medicine and National Research Council. 1994. Proceedings--Workshop on Needle Exchange and Bleach Distribution Programs. Washington, DC: The National Academies Press. doi: 10.17226/4552.
×

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:

Suggested Citation:"LEGAL ISSUES AND DRUG PARAPHERNALIA." Institute of Medicine and National Research Council. 1994. Proceedings--Workshop on Needle Exchange and Bleach Distribution Programs. Washington, DC: The National Academies Press. doi: 10.17226/4552.
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  • 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

Suggested Citation:"LEGAL ISSUES AND DRUG PARAPHERNALIA." Institute of Medicine and National Research Council. 1994. Proceedings--Workshop on Needle Exchange and Bleach Distribution Programs. Washington, DC: The National Academies Press. doi: 10.17226/4552.
×

range of prevention services: AIDS education, condoms and bleach packets, drug treatment, counseling and advocacy, and referrals for treatment of communicable and sexually transmitted diseases.38 In January 1990, the New Haven Board of Health Commissioners passed a detailed resolution promoting a comprehensive strategy to curb the spread of HIV infection among intravenous drug users and their sexual partners and children [City of New Haven Board of Health Commissioners. A resolution in support of a comprehensive strategy to curb the spread of HIV among IVDUs, their sex partners, and children (January 17, 1990)].

The Connecticut Legislature expanded the statutory authority for needle and syringe exchanges beginning on July 1, 1992. The state department of health services was authorized to establish needle-and-syringe exchange programs in the three cities with the highest number of AIDS cases among injection drug users [Connecticut Public Act No. 92-3, as amended by May Session, Public Act No. 92-11)].

Similar bills to establish the lawfulness of needle-and-syringe exchange programs have been introduced in other jurisdictions. Gov. Pete Wilson vetoed legislation in California, saying, "Without clear and convincing evidence that these projects will successfully reduce the AIDS epidemic, we cannot afford to threaten the credibility of our ongoing antidrug efforts."

Judicial Declaration

Public health departments may have general authority to establish needle and syringe exchanges even in the absence of specific legislative approval. State and municipal public health statutes and regulations mandate that the spread of disease shall be impeded. These provisions may authorize or obligate state or city officers to create effective public health programs, including needle and syringe exchanges. Interesting jurisprudential issues emerge when public health and criminal laws conflict. Public health laws may take precedence over criminal laws when the former provide more recent and more specific authority to protect community health. The National Lawyers Guild AIDS Network reasons that "acts which would be criminal if engaged in without legal authority, such as forced inoculations and quarantine, are lawful if ordered in accordance with public health laws."36 In a sharp conflict between law enforcement and public health in Washington state, courts affirmed the power of health officials to set up exchanges. That experience demonstrates how litigation, by means of a judicial declaration, can facilitate needle and syringe exchanges.

In 1988, David Purchase, a former drug counselor, began a needle-and-syringe exchange program in Tacoma, Wash., in violation of state law but with the support of the chief of police. In January 1989, the Tacoma County Board of Health voted to institute the program formally and to pay Purchase a salary.39 In July of that year, the state attorney general issued an opinion that the program violated the state's drug paraphernalia act. The county public health commissioner filed suit seeking a declaratory judgment that the exchange program was lawful. The court held that the program did not violate the act [Allen v. City of Tacoma, No. 89-2-09067-3 (Wash. Super.

Suggested Citation:"LEGAL ISSUES AND DRUG PARAPHERNALIA." Institute of Medicine and National Research Council. 1994. Proceedings--Workshop on Needle Exchange and Bleach Distribution Programs. Washington, DC: The National Academies Press. doi: 10.17226/4552.
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Ct., Pierce County, May 9, 1990)], as that statute provides an exemption from liability for government officials who are engaged in the lawful performance of their duties. The court also noted that Washington's AIDS law [Wash. Rev. Code para. 70.24.400 (Supp. 1990)] authorizes locally developed public health programs that are designed to control the needle-borne spread of HIV.

In July 1990, the Spokane County Health District Board of Health, like the Tacoma board, adopted a resolution directing its health officer to set up a needle-and-syringe exchange program as part of an overall intervention to slow the spread of needle-borne infection. The board directed that the program be included in the Regional AIDS Network Plan authorized by the State Omnibus AIDS Act [RCW 70.24]. However, Washington's prosecuting attorney stated that, given the attorney general's opinion, he would authorize the arrest and prosecution of clients of the Spokane program. The board of health then brought action in Spokane County Superior Court seeking a declaratory judgment that the exchange program was lawful. The court issued a declaratory judgment in favor of the public health department, and the case was appealed to the Supreme Court of Washington.

In November 1992, the Supreme Court unanimously declared that the state's exchange programs were lawful:

The Legislature has not explicitly directed regional AIDS services networks to develop needle exchange programs. However, the allowances for "needle sterilization" and "the use of appropriate materials" to combat the spread of AIDS can and should be liberally construed to include needle exchange. Moreover, we are persuaded that the broad powers given local health boards and officers under [the state Constitution] authorize them to institute needle exchange programs in an effort to stop the spread of HIV and AIDS. [Spokane County Health District and Beare v. Brockett, 1992. Wash. LEXIS 257, November 5, 1992).]

The Necessity Defense

Like Purchase, many community-based organizers and activities have distributed sterile injection equipment in the absence of a government-sanctioned program. They act in the good-faith belief that a public health emergency exists and that their efforts are necessary to save human life. More than twenty prosecutions have been brought against such individuals for violating state drug-paraphernalia and/or needle-prescription laws. In one case, prosecution was based on the state's business and professional code.40 Many more volunteers have been arrested but not prosecuted. A volunteer in Worcester, Mass., and one in Peabody, Mass., are the only persons known to have been convicted; their cases are on appeal.

Some acquittals of exchange volunteers have been based on the fact that defendants lacked the requisite intent under a state's drug paraphernalia statute. More often, the acquittals have been based on the necessity defense, which has evolved under common law and varies among jurisdictions. Necessity is founded on the theory that conduct that would otherwise constitute a criminal offense is justified in extraordinary

Suggested Citation:"LEGAL ISSUES AND DRUG PARAPHERNALIA." Institute of Medicine and National Research Council. 1994. Proceedings--Workshop on Needle Exchange and Bleach Distribution Programs. Washington, DC: The National Academies Press. doi: 10.17226/4552.
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circumstances. The necessity defense applies to circumstances in which:

  •  The conduct was, through no fault of the defendant, necessary to avoid an imminent harm to a person or the public.

  • No adequate alternative to avert the harm was available.

  • The harm caused by the act was not disproportionate to the harm avoided.

  • The defendant entertained a good-faith belief that the act was necessary to prevent a greater harm.

  • The defendant believed that his or her behavior was reasonable in all circumstances.

The defense in needle exchange prosecutions usually has relied on a mass of public health evidence and testimony on each element of necessity: the rapid spread of needle-borne infection locally, the absence of government-sanctioned exchanges, the scarcity of treatment, and research data showing the effect that official exchanges in other jurisdiction have on seroprevalence and drug use.

Most acquittals, particularly in the following cases, suggest that courts are likely to be sympathetic to this defense.

The Criminal Court of the City of New York acquitted eight syringe exchange volunteers on June 25, 1991. It noted: "The distinction, in broadest terms, during this age of the AIDS crisis is death by using dirty needles versus drug addiction by using clean needles. The defendants' actions sought to avoid the greater harm" [Decision and Order, New York v. Bordowitz, Criminal Ct. of City and County of New York, No. 90N028423 (June 25, 1991)].

The drafters of the New York necessity statute specifically referred to the "forcible confinement of a person ill with a highly contagious disease for the purpose of preventing him from going to a city and possibly starting an epidemic" [Commission staff notes, proposed N.Y. penal law (1964), para. 65.00, p. 317]. In Doe v. Bolton, the U.S. Supreme Court recognized that the right to protect a person's body could outweigh the interest of the government in guarding the health and morals of the public. "The significance of these decisions," said the court, "lies in the revelation of how far-reaching is the right of an individual to preserve his (or her) health and bodily integrity" [Doe v. Bolton, 410 U.S. 179 (1973)].

In Commonwealth v. Parker [Order and Findings, Boston Municipal Criminal Court, No. 89-0123 (January 23, 1991); Bench Ruling No. 89-01213, January 9, 1990)], the Boston Municipal Court acquitted Jon C. Parker because he lacked the intent needed under the state drug paraphernalia law and because he acted out of necessity.

In Commonwealth v. Corbett, the Massachusetts Supreme Judicial Court relied on the necessity defense in an analogous case from 1940. The court did not find that there had been a violation of a statute prohibiting the sale of contraceptives when the

Suggested Citation:"LEGAL ISSUES AND DRUG PARAPHERNALIA." Institute of Medicine and National Research Council. 1994. Proceedings--Workshop on Needle Exchange and Bleach Distribution Programs. Washington, DC: The National Academies Press. doi: 10.17226/4552.
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defendant sold condoms for the purposed of preventing the spread of sexually transmitted disease. The court stated that the public policy of the Commonwealth was to prevent the use of contraception but not "to permit venereal disease to spread unchecked" [Commonwealth v. Corbett, 307 Mass. 7 (1940)].

The Parker court found that the value protected by the law prohibiting possession of hypodermic needles and syringes is "as a matter of public policy eclipsed by a superseding value"—namely, AIDS prevention.

The Massachusetts Supreme Judicial Court was the first state supreme court to consider whether necessity could be raised as a defense to a charge of violating state criminal proscriptions against distributing drug injection equipment. In Commonwealth v. Leno and Ingalls, two men were convicted of possessing and distributing needles and syringes in an unofficial exchange program. The trial judge refused to give the jury an instruction that the defendants could be found not guilty if they had presented evidence on each element of the necessity defense. The defendants testified that they had conducted the exchange program solely for the purpose of saving lives.

One of the central elements of the necessity defense is that there was not an adequate alternative to avert the harm. In Leno and Ingalls , the Commonwealth of Massachusetts argued in its brief that sterilization with bleach was a viable alternative to distributing sterile injection equipment. However, a recent Community Alert Bulletin issued by the National Institute on Drug Abuse pointed out that bleach may not be as effective against HIV in blood (particularly clotted blood) as it is in a cell-free state. In a six-second cleaning, a 10% dilution of household bleach was not routinely effective in removing blood from syringes. These data reinforce the reasonable belief of the defendants that a distribution program was necessary to preserve the health and lives of two injection drug users.

Balancing Governmental Interests

The systematic refusal of courts to convict needle-and-syringe exchange volunteers under drug-paraphernalia or needle-prescription laws raises the question of the validity of these statutes. If the judicial system remains largely unconvinced that prosecution under these laws creates a greater public good than the breach thereof, can their continuation be justified as a matter of public policy? The reasoning of courts that public health exigencies of the needle-borne HIV epidemic outweigh the value of restricting the availability of drug injection equipment warrants consideration by legislatures. Legislative responses could include authorization of needle-and-syringe exchange programs, together with specific exemptions under existing criminal laws, or reform or repeal of drug-paraphernalia and needle-prescription statutes.

State-authorized exchanges have clear advantages over underground programs. Official exchanges can be designed to promote the public health and be established under carefully defined circumstances. These circumstances might include:

  •  Restricting exchanges to particular pilot sites.

Suggested Citation:"LEGAL ISSUES AND DRUG PARAPHERNALIA." Institute of Medicine and National Research Council. 1994. Proceedings--Workshop on Needle Exchange and Bleach Distribution Programs. Washington, DC: The National Academies Press. doi: 10.17226/4552.
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  • Requiring one-for-one exchanges.

  • Mandating the provision of a full array of services and referrals, including diagnosis and treatment for drug dependency, HIV disease, sexually transmitted disease, and tuberculosis.

  • Bleach and condom distribution.

  •  Carefully designed research.

CONCLUSION

Continued reliance on unofficial programs risks escalating the nonproductive struggle between public health and drug-control objectives. Exchange volunteers and clients should not have to worry about informal arrangements whereby law enforcement officials don't arrest, district attorneys don't prosecute, and courts don't convict. A New Jersey Municipal Court judge, like the judges in the New York and Boston cases, said each ease has its own set of facts, that the court would not allow its decision to be viewed as ''a license for other well-meaning groups or individuals to canvass this community and engage in a needle exchange program" [State of New Jersey v. Carl Sigmon, Rodney Sorge, Brad Taylor, and Jon Parker, Municipal Court, Hudson County, Jersey City, N.J., Docket No. V70 to V81, November 6, 1991].

After years of experience and sound research involving needle-and-syringe exchange programs in the United States and abroad, it is time for federal, state, and local governments to create their own programs to combat the dual epidemics of drug abuse and HIV infection. If policy makers view the growing body of data with objectivity and without attaching any political symbolism to it, they will conclude that well-designed exchange programs should be part of a comprehensive range of health and social services for drug users. Merely distributing injection equipment to drug users is not an inspiring public health goal, and no careful observer should be surprised by the intensity of political and community resistance to such distribution. However, if those programs can foster a measure of trust among drug users, promote greater use of sterile injection equipment and less sharing, provide counseling and education about safer drug injection and safer sexual intercourse,41 and provide a bridge to an array of treatment services for drug dependency, HIV disease, sexually transmitted disease, and tuberculosis, then American society would be short-sighted if it rejected this potentially effective public health strategy.

Suggested Citation:"LEGAL ISSUES AND DRUG PARAPHERNALIA." Institute of Medicine and National Research Council. 1994. Proceedings--Workshop on Needle Exchange and Bleach Distribution Programs. Washington, DC: The National Academies Press. doi: 10.17226/4552.
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REFERENCES

1. The White House. National Drug Control Strategy. Washington, D.C.: Government Printing Office, 1989.

2. National Commission on AIDS. The Twin Epidemics of Substance Use and HIV. Washington, D.C.: National Commission on AIDS, 1991.

3. Executive Office of the President, Office of National Drug Control Policy. Needle Exchange Programs: Are they Effective? ONDCP Bulletin 1992;7:1-9.

4. Kaplan E. H., O'Keefe, E. Let the needles do the talking! Evaluating the New Haven needle exchange. Interfaces 1993. In press.

5. New York City Department of Health. The Pilot Needle Exchange Study in New York City: A Bridge to Treatment. A Report on the First Ten Months of Operation. New York, N.Y.: New York City Department of Health, 1989.

6. Gostin, L. The interconnected epidemics of drug dependency and AIDS. Harvard Civil Rights-Civil Liberties Law Review 1991;26:113-184.

7. Gostin, L. An alternative public health vision for a national drug control strategy: "Treatment works." University of Houston Law Review 1991;28:285-308.

8. Gostin, L. The needle-borne HIV epidemic: Causes and public health responses. Behavioral Sciences and the Law 1991;9:287-304.

9. Gostin, L. Compulsory treatment for drug-dependent persons: Justification for a public health approach to drug dependency. Milbank Quarterly 1992;69:561-593.

10. National Institute on Drug Abuse. Needle Sharing Among Intravenous Drug Abusers: National and International Perspectives. Monograph No. 80. Washington, D.C.: NIDA, 1988.

11. Nelson, K.E., Vlahov, D., Cohn, S., et al. Human immunodeficiency virus infection in diabetic intravenous drug users. Journal of the American Medical Association 1991;266:2259-2261.

12. O'Keefe, E., Kaplan, E., Khoshnood, K. Preliminary Report: City of New Haven Needle Exchange Program. New Haven, Conn: New Haven Health Department, 1991.

13. D'Aguila, R. T., Williams, A. B. Epidemic of human immunodeficiency virus (HIV) infection among intravenous drug users. Yale Journal of Biology and Medicine 1987;60:545-567.

Suggested Citation:"LEGAL ISSUES AND DRUG PARAPHERNALIA." Institute of Medicine and National Research Council. 1994. Proceedings--Workshop on Needle Exchange and Bleach Distribution Programs. Washington, DC: The National Academies Press. doi: 10.17226/4552.
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14. Murphy, S. Intravenous drug use and AIDS: Notes on the social economy of needle sharing. Contemporary Drug Problems 1987;14:373-396.

15. Des Jarlais, D. C., Friedman, S., Hopkins, W. Risk reduction for acquired immune deficiency syndrome among intravenous drug users. Annals of Internal Medicine 1985;103:755.

16. Des Jarlais, D. C., Hopkins, W. Free needles for intravenous drug users at risk for AIDS: Current developments in New York City. New England Journal of Medicine 1985;313:23.

17. Chitwood, D. D., McCoy, C. B., Inciardi, J. A., et al. HIV seropositivity of needles from shooting galleries in South Florida. American Journal of Public Health 1990;80:150-152.

18. Pascal, C. "Intravenous Drug Abuse and AIDS Transmission: Federal and State Laws Regulating Needle Availability." In Needle Sharing Among Intravenous Drug Abusers: National and International Perspectives, edited by R. J. Battjes, R. W. Pickens. Rockville, Md.: National Institute on Drug Abuse, 1988.

19. Stryker, J. IV drug use and AIDS: Public policies and dirty needles. Journal of Health Policy, Politics and Law 1989;14:719-740.

20. Ettelson, R. Sell needles & syringes to IV drug abusers? Pharmacy Times 1991;57:107-114.

21. Compton III, W. M, Cottler, L. B., Decker, S. H., et al. Legal needle buying in St. Louis. American Journal of Public Health 1992;82:595-596.

22. Goldberg, D. J. AIDS and intravenous drug use. British Medical Journal 1987;294:906.

23. Croatto, J. P., Ewart, F. J., Hage, B. H., et al. The role of the pharmacist in preventing a 'second wave' of the HIV epidemic among IV drug users. Australian Journal of Pharmacy 1987;68:602-604.

24. Glantz, A., Byrne, C., Jackson, P. Role of community pharmacies in prevention of AIDS among injecting drug misusers: Findings of a survey in England and Wales. British Medical Journal 1989;299:1076-1079.

25. National Association of Boards of Pharmacy. 1991-92 National Association of Boards of Pharmacy Survey of Pharmacy Law. Park Ridge, Ill.: National Association of Boards of Pharmacy, 1991.

Suggested Citation:"LEGAL ISSUES AND DRUG PARAPHERNALIA." Institute of Medicine and National Research Council. 1994. Proceedings--Workshop on Needle Exchange and Bleach Distribution Programs. Washington, DC: The National Academies Press. doi: 10.17226/4552.
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26. The Association of the Bar of the City of New York. Committee on Law and Medicine. Legalization of non-prescription sale of hypodermic needles: A response to the AIDS crisis. The Record 1986;41:809, 811.

27. Friedman, S. R., Des Jarlais, D. C., Sterk, D. E., et al. AIDS and the social relations of intravenous drug users. Milbank Quarterly 1990;68 (suppl 1):85-110.

28. The New York County Lawyers Association. Committee on Law and Reform. Report of Drug-Related AIDS and the Legal Ban on Over-the-Counter Hypodermic Needle Sales, 1988.

29. American Bar Association. AIDS Coordinating Committee.AIDS: The Legal Issues, 1988.

30. Des Jarlais, D. C., Friedman, S. R. AIDS and legal access to sterile drug injection equipment. Annals of the American Academy of Political and Social Science 1992;521:42-65.

31. Porter, L., Gostin, L. Legal Environment Surrounding the Availability of Sterile Needles and Syringes to Injecting Drug Users. Geneva, Switzerland: World Health Organization. In press.

32. Des Jarlais, D. C. The first and second decades of AIDS among injecting drug users. British Journal of Addiction 1992;87:347-353.

33. Becker, M., Joseph, J. AIDS and behavioral change to reduce risk: A review. American Journal of Public Health 1988; 78:403.

34. U.S. General Accounting Office. Needle Exchange Programs: Research Suggests Promise as an AIDS Strategy. Washington, D.C.: U.S. General Accounting Office, 1993.

35. Anderson, W. The New York needle trial: The politics of public health in the age of AIDS. American Journal of Public Health 1991;81:1506-1517.

36. Keller, I. Needle exchange: HIV prevention takes on the law. The Exchange [National Lawyers Guild AIDS Network] 1992;17:1-7.

37. Jackson, P. Ugly reality convinces mayor to try needle exchange. New Haven Register August 1, 1990.

38. New Haven Health Department. Needle Exchange Program Protocol: Executive Summary, 1990.

39. Gross, J. Needle exchange for addicts wins foothold against AIDS in Tacoma . New York Times January 23, 1988:A8.

Suggested Citation:"LEGAL ISSUES AND DRUG PARAPHERNALIA." Institute of Medicine and National Research Council. 1994. Proceedings--Workshop on Needle Exchange and Bleach Distribution Programs. Washington, DC: The National Academies Press. doi: 10.17226/4552.
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40. Trachina, J. Forcing Needle Exchange Through the Courts: A Citizen's Approach to Syringe Exchange. San Mateo, Calif.: AIDS Prevention Action Network, 1991.

41. Van den Hoek, A. J, Van Haastrecht, H. J., Coutinho, R. A. Little change in sexual behavior in injecting users in Amsterdam. Journal of AIDS 1992;5:518-522.

Suggested Citation:"LEGAL ISSUES AND DRUG PARAPHERNALIA." Institute of Medicine and National Research Council. 1994. Proceedings--Workshop on Needle Exchange and Bleach Distribution Programs. Washington, DC: The National Academies Press. doi: 10.17226/4552.
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Table. States that Require a Prescription to Buy Syringes/Needles

California*

New Hampshire

Connecticut**

New Jersey

Delaware

New York

Illinois

Pennsylvania

Maine

Puerto Rico***

Massachusetts

Rhode Island        

* Prescription not necessary if the equipment is to he used to inject insulin or adrenaline, and if the seller can identify the buyer and records the purchase.

** Necessary only if the transaction involves more than ten needles/syringes.

*** If the pharmacist knows the buyer, insulin syringes may be sold.

Source: 1991-92 National Association of Boards of Pharmacy Survey of Pharmacy Law

Suggested Citation:"LEGAL ISSUES AND DRUG PARAPHERNALIA." Institute of Medicine and National Research Council. 1994. Proceedings--Workshop on Needle Exchange and Bleach Distribution Programs. Washington, DC: The National Academies Press. doi: 10.17226/4552.
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NEW CONNECTICUT LAWS TO IMPROVE ACCESS TO NEEDLES AND SYRINGES: WHAT IS THEIR IMPACT?

SAMUEL L. GROSECLOSE and LINDA A. VALLEROY, Centers for Disease Control and Prevention, Atlanta, GEORGIA B. WEINSTEIN, Connecticut Department of Public Health and Addiction Services, Hartford, CT; and T. STEPHEN JONES, W. J. KASSLER, L. J. FEHRS, AND R. T. ROLFS, Centers for Disease Control and Prevention, Atlanta, GA

INTRODUCTION

Human immunodeficiency virus (HIV) can be transmitted among injecting-drug users (IDUs) through the multi-person use (sharing) of HIV-contaminated needles and syringes. Increasing IDUs' access to and use of sterile needles and syringes may reduce HIV transmission. To help reduce IDUs' use of HIV-contaminated needles and syringes, Connecticut enacted new laws that took effect on July 1, 1992. One of the new laws permits, but does not require, pharmacists to sell up to 10 needles and syringes to individuals who do not have medical prescriptions. Another new law makes it legal for individuals to possess up to 10 clean needles and syringes. Prior to this, purchase and possession of needles and syringes without a prescription had been illegal in Connecticut. From July 1, 1992 through June 30, 1993, we conducted an evaluation to determine whether the changes in the needle prescription and drug paraphernalia laws were associated with changes in pharmacies' needle and syringe sales practices and needle and syringe sales, IDUs' needle and syringe-related purchasing and usage, and police officers' practices and risk of needlestick injuries.

EVALUATION FINDINGS

  • Through a surveillance system monitoring needle and syringe sales at selected Connecticut pharmacies, we found that most, but not all, pharmacies sold nonprescription needles and syringes after the new laws.

  • In pharmacies in neighborhoods where there was a high prevalence of injecting drug use, numbers of nonprescription needles and syringes sold and needle and syringe transactions increased steadily from July 1992 through June 1993.

  • The percentage of IDUs who were aware of both new laws increased during the first 12 months after the new laws. Nine to 12 months after the new laws, over two-thirds of the IDUs interviewed knew about both new laws.

Suggested Citation:"LEGAL ISSUES AND DRUG PARAPHERNALIA." Institute of Medicine and National Research Council. 1994. Proceedings--Workshop on Needle Exchange and Bleach Distribution Programs. Washington, DC: The National Academies Press. doi: 10.17226/4552.
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  • After the new laws went into effect, IDUs reported more pharmacy purchasing of needles and syringes and less street purchasing. And, there was a shift from street purchasing to pharmacy purchasing as the most frequently reported source of needles and syringes.

  • The percentage of IDUs who reported sharing needles and syringes decreased after the new laws.

  • While law enforcement officers in Hartford were less likely to arrest persons for paraphernalia possession after the new laws were enacted, there was no difference in the percentage of IDUs who reported that they were hassled by police for possession of clean needles and syringes.

  • And, while IDUs reported changes in needle and syringe possession, Occupational Safety and Health Administration reports of needlestick injuries among Hartford police decreased after the new laws.

POLICY RECOMMENDATIONS

As a first step, state and local public health officials, in collaboration with law enforcement officers, addiction services personnel, pharmacy and medical associations, and members of affected communities should review the laws limiting access to sterile needles and syringes in their jurisdictions.

Our data suggest that once legal restrictions on the purchase and possession of needles and syringes are removed, pharmacies will sell nonprescription needles and syringes, and IDUs will shift their needle and syringe purchasing from illegal "street" sources to pharmacies and reduce their needle sharing behaviors.

Therefore, policy-makers should consider:

  • the repeal of needle prescription laws—allowing increased availability of sterile needles and syringes, and

  • the modification of drug paraphernalia laws—specifically, decriminalizing the possession of needles and syringes.

The pivotal role of pharmacists and police officers in increased sterile needle and syringe availability for IDUs who will not or cannot stop injecting must be emphasized. Pharmacists and police officers should be brought into the discussions of this public health action and should be encouraged to take a more active public health role.

Public health officials should work with IDUs, pharmacists, and police officers to determine their needs and concerns related to HIV infection, addictions, and access to sterile needles and syringes and should educate them as necessary.

Suggested Citation:"LEGAL ISSUES AND DRUG PARAPHERNALIA." Institute of Medicine and National Research Council. 1994. Proceedings--Workshop on Needle Exchange and Bleach Distribution Programs. Washington, DC: The National Academies Press. doi: 10.17226/4552.
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Knowledge of the new laws among IDUs was not complete. We would recommend that IDUs be given more information about what the new laws allow in practical terms.

COMMENT

We recognize that increasing sterile needle and syringe availability for IDUs who cannot or will not enter drug treatment programs requires the consideration of a variety of options including increased pharmacy sales and needle exchange programs. However, among these options, pharmacy sale of sterile needles and syringes offers an intervention that can be implemented with minimal, or no, public funding.

We recognize that HIV prevention efforts directed toward injecting-drug users must be comprehensive and should include drug treatment, and addiction and risk reduction counseling, in addition to the specific interventions to increase IDUs' access to and ability to possess sterile needles and syringes.

Suggested Citation:"LEGAL ISSUES AND DRUG PARAPHERNALIA." Institute of Medicine and National Research Council. 1994. Proceedings--Workshop on Needle Exchange and Bleach Distribution Programs. Washington, DC: The National Academies Press. doi: 10.17226/4552.
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CANADIAN PHARMACIES' RESPONSE TO HIV AND HARM REDUCTION STRATEGIES: A REPORT FROM THE NATIONAL SURVEY ON COMMUNITY PHARMACIES AND HIV/AIDS PREVENTION

TED MYERS, Department of Health Administration, University of Toronto, and Department of Public Health, City of Toronto, Canada; RHONDA COCKERILL, Department of Health Administration, University of Toronto; MARGARET MILLSON, Department of Public Health, City of Toronto, and Department of Preventive Medicine and Biostatistics, University of Toronto, Canada JAMES RANKIN, Addiction Research Foundation, and Department of Preventive Medicine and Biostatistics, University of Toronto, Canada; and CATHERINE WORTHINGTON, Department of Health Administration, University of Toronto, Canada

INTRODUCTION

This paper is a brief report on the Canadian Survey of Community Pharmacies and HIV/AIDS Prevention. It will focus on the policies and practices related to HIV of community pharmacies in order to (a) highlight this group's response to harm reduction strategies and its potential role in HIV prevention, and to (b) explore ethical issues that surround harm reduction for pharmacies.

BACKGROUND

Prior to describing the study results some background information for Canada will be provided in order to highlight possible differences from the United States with regard to the epidemiology of HIV/AIDS, the national response to injection drug use in relation to HIV/AIDS and factors that may influence this response.

Epidemiology of AIDS/HIV

Canada's first case of AIDS was diagnosed in 1979. Adult males comprise 93.8% of the 8,148 AIDS cases reported to date. Of the adult cases, injection drug use is known to be a possible factor in the risk of transmission in 5.9%.1 (For males the rate is 5.6% and for females 9.4%.)

Eighty-nine percent of all AIDS cases (adult and pediatric) reported to date occur in three provinces, (British Columbia, 18%, Ontario, 41%, and Quebec, 30%), as may be seen in the Figure 1. Across Canada, there is variation in the known risk factors associated with HIV transmission. For example, injection drug use as a known risk factor ranges from 5% of cases in Quebec to 8% of cases in Alberta.

Suggested Citation:"LEGAL ISSUES AND DRUG PARAPHERNALIA." Institute of Medicine and National Research Council. 1994. Proceedings--Workshop on Needle Exchange and Bleach Distribution Programs. Washington, DC: The National Academies Press. doi: 10.17226/4552.
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As in most countries, true estimates of the incidence of the HIV antibody in Canada's population are not possible because of difficulties in conducting broad-based HIV serostatus studies. For estimates of incidence of the HIV antibody in the Canadian population we rely predominantly on reports compiled from voluntary testing. These are incomplete because of variation across the country in methods of recording cases. It is assumed that the sharing of needles as a potential risk factor is underreported because injection drug users have fear of exposing this illegal activity. Some of the best estimates for HIV prevalence come from studies of convenience samples of injection drug users. In the period between 1985 and 1992 such studies report that between 1% to 25% are infected, depending upon the year, region of the country and target population.2

Canadian Response to HIV and Injection Drug Use

Prior to 1988, in response to concern about the spread of HIV among injection drug users, it was reported that a number of physicians across the country provided needles and syringes to their drug injecting patients. The need for greater action was highlighted at the Fourth International Conference on AIDS in Stockholm, in 1988. Simultaneously, Health and Welfare Canada and NAC-AIDS (National Advisory Committee on AIDS) subcommittee on injection drug use assumed leadership in response to the evidence for potential spread of HIV through injection drug use. The concern led to the establishment of a number of Injection Drug Use Pilot Outreach Programmes. The first outreach programme/needle and syringe exchange was reportedly established in 1989.3 This programme, and others soon to follow, were multifaceted projects with various components including: risk and risk reduction education; provision of condoms, bleach kits, needle exchange; and addiction treatment referrals. Within the communities where these projects were successful extensive community-development work was undertaken. Further, there was general endorsement by three levels of government (Federal, Provincial and Municipal or City). To date, approximately 37 such community outreach programmes for injection drug users are in operation across the country. They operate out of a variety of locations including community social service agencies, street outreach agencies, departments of public health, hospital outpatient clinics and community-based AIDS organizations. The programmes that exist include mobile unit, ambassador outreach and fixed site models (and others). Variation also is found in the management and funding. Many are under the direction of medical and public health services, others are directly managed by community social service agencies and networks. Programmes continue to develop at a fairly rapid rate and there is a trend to more focussed programmes for specific population groups such as First Nations People (aboriginal) and sex trade workers, as only two examples.

Suggested Citation:"LEGAL ISSUES AND DRUG PARAPHERNALIA." Institute of Medicine and National Research Council. 1994. Proceedings--Workshop on Needle Exchange and Bleach Distribution Programs. Washington, DC: The National Academies Press. doi: 10.17226/4552.
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Factors Influencing Canada's Response

Several organizational and policy aspects have influenced Canada's response to HIV in relation to the Injection Drug User.

Canada's Health Case System: Its Funding and Organization

The Canada Health Act of 1984 set out an agreement between the provinces and the federal government that emphasized five basic principles for health services: universality, comprehensiveness, portability, public administration and accessibility.4 This may be seen to have influenced Canada's response in two ways. First, in principle, injection drug users are linked into the Health Care System. Second, in Canada there is a will and an interest in protecting this system, and prevention of hospitalizations is a major component. This is seen further in a general trend to conceptualize drug problems in terms of lifestyle rather than as a disease.

Canada's Drug Strategy

In 1987 Canada's Drug Strategy was inaugurated with new funding allocated in roughly equal amounts to a wide variety of enforcement, treatment and prevention activities. Although the overall predominant focus on illicit drugs might have been criminal prohibition, in fact, the philosophy behind the Canadian Drug strategy represented a tentative first step toward a harm minimization approach, and an increase in emphasis on demand (the user) versus supply reduction (the seller) strategies.5 The national focus provided a catalyst for programme action at the provincial level where the expertise and jurisdictional authority exist. While the Canadian Drug strategy was influenced by the American ''War on Drugs", it attempts to achieve a balance between the supply and the demand sides. Although smaller in scope, the Canadian strategy was more comprehensive than the American in terms of substances targeted (i.e. alcohol is included), and further, placed greater emphasis on prevention and treatment.5

Canadian Drug Laws

In Canada the most important legislation dealing with illicit drugs are within the federal governments' jurisdiction, namely, The Narcotic Control Act and The Food and Drugs Act. In brief, these acts deal with possession, trafficking, importing and exporting and "prescription shopping." Further, in 1989 amendments were made to the Criminal Code to make it illegal to knowingly import, export, manufacture, promote, or sell illicit drug paraphernalia or literature. (Bill-264 , September, 1988). The provision or distribution of needles by the medical profession as a "medical device" as opposed to an "instrument for use" is not an offence under the criminal code. Interestingly, the

Suggested Citation:"LEGAL ISSUES AND DRUG PARAPHERNALIA." Institute of Medicine and National Research Council. 1994. Proceedings--Workshop on Needle Exchange and Bleach Distribution Programs. Washington, DC: The National Academies Press. doi: 10.17226/4552.
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amendment is generally interpreted to suggest that the supplying of needles and syringes for safer injection is not illegal.6,7

Canada's National AIDS Strategy (1990)

In 1990 the Federal government provided funding and a comprehensive statement of need and directions that should be taken which encompassed AIDS prevention, treatment and research. This National AIDS Strategy committed to support research initiatives to address the issue of HIV infection among people who use injection drugs.8 It is through these initiatives that many of the early outreach programmes for injection drug users were funded.

Pharmacy Accreditations and Pharmacists Licensing

In the absence paraphernalia laws, provincial pharmaceutical associations and colleges (regulatory of and licensing bodies) have been largely responsible for setting policies that govern the actions of the pharmacists and the operations of pharmacies in their jurisdictions. For the most part, the sale of needles and syringes for illicit drug use has been discouraged by licensing bodies and in the professional education of pharmacists until recently. Yet, individual pharmacists in some jurisdictions have for some time sold needles and syringes in packages of one to non-diabetic drug users. During the AIDS epidemic the "no sale" policy has been repeatedly examined and an incremental change in policy has occurred. For example in the Province of Ontario in 1987 the sale of needles and syringes to injection drug users was opposed (although recognized as both a moral and public health issue), in 1988 sales were permitted with "professional discretion" because it was seen to be a public health issue and in 1992 the policy was further changed to promote sales of needles by permitting the open display and self-selection of needles and syringes, with professional discretion.9 In all provinces except British Columbia there has been movement towards more liberal practices. In British Columbia a policy was embedded in Bylaw B19(9) which indicates ''that no pharmacist shall (a) store hypodermic syringes and needles in an area of the pharmacy accessible to the public, (b) sell hypodermic syringes and needles unless he has established to his reasonable satisfaction that they are required for a lawful purpose, and (c) advertise, by any means, hypodermic syringes and needles." In 1988 the British Columbia Council of the College of Pharmacists recommended to the Provincial Ministry of Health that this bylaw be amended by the deletion of paragraph (b). However, the amendment has never been promulgated.

To summarize for the purposes of this paper, the current provincial regulatory body policies regarding sale of needles and syringes to non-diabetic drug users fall into four categories:

Suggested Citation:"LEGAL ISSUES AND DRUG PARAPHERNALIA." Institute of Medicine and National Research Council. 1994. Proceedings--Workshop on Needle Exchange and Bleach Distribution Programs. Washington, DC: The National Academies Press. doi: 10.17226/4552.
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  1. No Sale (Illegal)

  2. Sale with Professional Discretion

  3. Sale with Self-selection possible. (Open display with discretion)

  4. No written policy.

The current policies of the provinces/territories are shown in Figure 2.

Rationale for the Canadian Pharmacy Survey

This study was designed to describe the variations in current practice in pharmacies across Canada with respect to HIV prevention and to explore the factors that influence these. A related purpose was to assess whether the role of pharmacists might be expanded, and to determine what organizational, educational, or policy changes might be required to accompany any change in role. This study was modelled on an earlier study conducted as part of the evaluation of the City of Toronto's Injection Drug Use Programme. For the 1989 study the sampling unit was the pharmacist rather than the pharmacy. Results were difficult to analyze because of this sampling frame and inability to determine the denominator (number of pharmacists in full-time and part-time employment was unknown, and several pharmacists may have worked in several pharmacies). As well, a low response was obtained. The study responses received reflected that there was a potential role for pharmacies. Data from interviews with injection drug users, another aspect of the evaluation, suggest that 30% of injection drug users experienced difficulty obtaining needles and 47% indicated that pharmacies and drug stores were their most important source of needles and syringes.10

METHOD

To conduct this cross-sectional, nation-wide survey of community pharmacies a mailed questionnaire was directed to owner-managers in all Canadian provinces and Territories. A random sample of owner-managers was selected from mailing lists provided by the provincial regulatory bodies. To ensure the sample chosen was of sufficient size to permit the analysis to be performed the minimum targeted size within each province/territory was 150 or a 25% sample of all community pharmacies, which ever was greater. Therefore, the sampling ratio varied from 25% in some provinces to 100% in others (e.g., Prince Edward Island). The survey was mailed to 2,017 pharmacies and an eventual 1,976 were assessed to be eligible for inclusion as a result of updating of addresses.

The survey strategy used was the Dillman Total Design Method.11 Two full mailings and two reminder card mailings plus a final telephone call were used to boost response. Letters of endorsement were provided by the regulatory body in each province

Suggested Citation:"LEGAL ISSUES AND DRUG PARAPHERNALIA." Institute of Medicine and National Research Council. 1994. Proceedings--Workshop on Needle Exchange and Bleach Distribution Programs. Washington, DC: The National Academies Press. doi: 10.17226/4552.
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(except British Columbia) and the Canadian Pharmaceutical Association, (the professional association for pharmacists).

The survey instrument was based on one used for the City of Toronto Survey of Pharmacists and the format followed that used for the Ontario Pharmaceutical Enquiry.12 The survey instrument was finalized after an extensive literature review, focus group discussion and pilot study. It included sections on (a) Current Practices in Pharmacies, (b) Professional Practice (willingness of individual pharmacists to provide specific services), (c) Information Needs, (d) Issues and Attitudes, and (e) Practice Characteristics. The instrument was available in both of Canada's Official languages.

Analysis

The analysis presented in this paper will be primarily descriptive. Although the number of pharmacies in some of the provinces are small, to reflect upon the provincial policy this report retains each province as a unit of analysis. To simplify several questions relating to (1) willingness and support for provision of specific services to non-diabetic injecting drug users, (2) attitudes regarding the prevention of HIV, (3) perceived cause of injection drug use and (4) future roles for pharmacies, factor analyses with orthogonal rotation were executed. In this paper the results of these factor analyses are not presented. However, group means for composite variables developed from each of the factors are presented in graphic form.

RESULTS

Response

The overall response rate to the survey was high (84.6%). As may be seen in Figure 3 this ranged from a low of 71.4% in Quebec to the high of 96.6% in Prince Edward Island. Only 12% refused to participate. This ranged from 3.7% in the Yukon and North West Territories to a high of 22.4% in Quebec.

Characteristics

The majority of pharmacies represented in the study were independently run businesses [(54.6%) were independently owned, 20.5% were chain, 20.5% were franchises and 3.4% were co-operatives]. These proportions varied across the country. The majority, 50.4%, of respondents were owner-managers, just under a third were non-owner managers, and 29.7% were franchisees. Further, the majority of respondents, 60.8%, had been in pharmacy practice for longer than 10 years.

Suggested Citation:"LEGAL ISSUES AND DRUG PARAPHERNALIA." Institute of Medicine and National Research Council. 1994. Proceedings--Workshop on Needle Exchange and Bleach Distribution Programs. Washington, DC: The National Academies Press. doi: 10.17226/4552.
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Current Practices
Knowingly Served a Person with HIV

Nationally, 29.5% of the respondents indicated that they had served a client who was HIV antibody positive or who had AIDS. Twenty-two percent indicated that they did not know if they had served a person who had tested positive for the HIV antibody. Across the country this ranged from a high of 49.5% in British Columbia to a low of 14.8% in Saskatchewan as shown in Figure 4. The three provinces with the greatest proportion of respondents reporting that they had served an HIV positive individual were British Columbia, Quebec and Ontario which corresponds to the known prevalence of AIDS.

Requests to Sell Needles and Syringes

Nationally, 7.9% indicated that they had received no requests to sell needles or syringes (in the past year); 33.8% estimated that they received 20 or fewer requests a year, 18.9% reported receiving 21-100 requests and 21.9% reported more than 100 requests. These rates varied across the country as shown in Figure 5. The provinces receiving the greatest proportion of requests were British Columbia, Ontario, Prince Edward Island and the territories. (Note: As the number of respondents in the eastern provinces and territories are small the graph may misrepresent. Many of the community pharmacists in smaller communities may know their drug using clientele and be prepared to sell. A single user who regularly obtains needles or syringes may inflate this. Further, because of the knowledge a pharmacist may have of their customers in smaller communities they may be prepared to sell needles and syringes for many uses-from basting food to injecting earthworms to keep them buoyant for fishing!)

Comparison of Requests for Needles and Syringe Sales to Knowledge of Serving Persons Living With HIV

Comparison of the proportion of respondents within each province/territory who knowingly have served a person living with HIV as shown in Figure 4 with Figure 5 reflecting requests to sell needles and syringes, shows that there is considerable correspondence between these two variables, except in the provinces with smaller populations. The province of Quebec shows a further variation. This may be a result of the fact that in Quebec many of the pharmacy services may be provided through specific community pharmacies designated as serving injection drug users and through community health centres.

Suggested Citation:"LEGAL ISSUES AND DRUG PARAPHERNALIA." Institute of Medicine and National Research Council. 1994. Proceedings--Workshop on Needle Exchange and Bleach Distribution Programs. Washington, DC: The National Academies Press. doi: 10.17226/4552.
×
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).

Suggested Citation:"LEGAL ISSUES AND DRUG PARAPHERNALIA." Institute of Medicine and National Research Council. 1994. Proceedings--Workshop on Needle Exchange and Bleach Distribution Programs. Washington, DC: The National Academies Press. doi: 10.17226/4552.
×

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.

Suggested Citation:"LEGAL ISSUES AND DRUG PARAPHERNALIA." Institute of Medicine and National Research Council. 1994. Proceedings--Workshop on Needle Exchange and Bleach Distribution Programs. Washington, DC: The National Academies Press. doi: 10.17226/4552.
×
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

Suggested Citation:"LEGAL ISSUES AND DRUG PARAPHERNALIA." Institute of Medicine and National Research Council. 1994. Proceedings--Workshop on Needle Exchange and Bleach Distribution Programs. Washington, DC: The National Academies Press. doi: 10.17226/4552.
×

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.

Suggested Citation:"LEGAL ISSUES AND DRUG PARAPHERNALIA." Institute of Medicine and National Research Council. 1994. Proceedings--Workshop on Needle Exchange and Bleach Distribution Programs. Washington, DC: The National Academies Press. doi: 10.17226/4552.
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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.

Suggested Citation:"LEGAL ISSUES AND DRUG PARAPHERNALIA." Institute of Medicine and National Research Council. 1994. Proceedings--Workshop on Needle Exchange and Bleach Distribution Programs. Washington, DC: The National Academies Press. doi: 10.17226/4552.
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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

Suggested Citation:"LEGAL ISSUES AND DRUG PARAPHERNALIA." Institute of Medicine and National Research Council. 1994. Proceedings--Workshop on Needle Exchange and Bleach Distribution Programs. Washington, DC: The National Academies Press. doi: 10.17226/4552.
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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

Suggested Citation:"LEGAL ISSUES AND DRUG PARAPHERNALIA." Institute of Medicine and National Research Council. 1994. Proceedings--Workshop on Needle Exchange and Bleach Distribution Programs. Washington, DC: The National Academies Press. doi: 10.17226/4552.
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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  

Suggested Citation:"LEGAL ISSUES AND DRUG PARAPHERNALIA." Institute of Medicine and National Research Council. 1994. Proceedings--Workshop on Needle Exchange and Bleach Distribution Programs. Washington, DC: The National Academies Press. doi: 10.17226/4552.
×

"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)

Suggested Citation:"LEGAL ISSUES AND DRUG PARAPHERNALIA." Institute of Medicine and National Research Council. 1994. Proceedings--Workshop on Needle Exchange and Bleach Distribution Programs. Washington, DC: The National Academies Press. doi: 10.17226/4552.
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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

Suggested Citation:"LEGAL ISSUES AND DRUG PARAPHERNALIA." Institute of Medicine and National Research Council. 1994. Proceedings--Workshop on Needle Exchange and Bleach Distribution Programs. Washington, DC: The National Academies Press. doi: 10.17226/4552.
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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.

Suggested Citation:"LEGAL ISSUES AND DRUG PARAPHERNALIA." Institute of Medicine and National Research Council. 1994. Proceedings--Workshop on Needle Exchange and Bleach Distribution Programs. Washington, DC: The National Academies Press. doi: 10.17226/4552.
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This book reports on research on and experience with needle exchange and bleach distribution programs and their effects on rates of drug use, the behavior of injection drug users, and the spread of HIV and other infectious diseases among injection drug users. It discusses U.S. needle exchange data, international evaluations of needle exchange programs, legal issues and drug paraphernalia laws, evaluation methods, and bleach distribution programs.

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