Secs. 17.05.010, 17.05.020. Sale of diseased, corrupted, or unwholesome provisions prohibited; adulteration prohibited. [Repealed, § 26 ch 72 SLA 1998.]

Sec. 17.05.030. Sale of dehydrated, powdered, or reconstituted milk. [Repealed, § 3 ch 193 SLA 1968.]

Sec. 17.05.040. Penalty for violation of AS 17.05.030. [Repealed, § 18 ch 94 SLA 1980.]

Sec. 17.05.050. Re-serving prohibited. [Repealed, § 26 ch 72 SLA 1998.]

Secs. 17.05.060 — 17.05.160. [Renumbered as AS 17.07.010 — 17.07.200.]

Sec. 17.06.010. Prohibition.

1. A person may not sell or offer for sale food represented as organic food if the person knows or has reason to know that the food has been grown, raised, or produced with the use of
   1. a fertilizer, except for manure and other natural fertilizers;
   2. a manufactured pesticide, hormone, antibiotic, or growth stimulant, except for Bacillus thuringensis and other natural pesticides;
   3. a substance listed by the department under AS 17.06.050 that is similar to a substance that is restricted with regard to organic food under (1) or (2) of this subsection.
2. In this section, “with the use of” means
   1. applied to the food before a retail sale;
   2. fed to the animal producing the food;
   3. unless the substance applied is a pesticide, applied to the soil or other growing medium within one year before seed planting or transplanting, or, if the crops are perennial, before the appearance of the flower bud; or
   4. in the case of pesticides, applied to the soil or other growing medium within two years before seed planting or transplanting, or, if the crops are perennial, before the appearance of the flower bud.

History. (§ 9 ch 72 SLA 1998)

Cross references. —

For violation of this section as an unlawful trade practice, see AS 45.50.471(b) .

Sec. 17.06.020. Disclosure.

1. Except as provided in (b) of this section, a person may not sell food represented as organic food unless the name and address of the producer of the food are displayed with the food. If the food is not displayed at the purchase site, a written statement with the name and address of the producer must be given to the purchaser unless the name and address are identified on a package containing the purchased food. This subsection does not apply to a sale for consumption on the premises.
2. Advertising for the mail order sale of food represented as organic food must include the name and address of the producer of the food.

History. (§ 9 ch 72 SLA 1998)

Sec. 17.06.030. Sworn statement of compliance.

1. A producer may not sell to a vendor food represented as organic food unless before the sale the producer provides the vendor with a sworn statement that the producer has grown, raised, or otherwise produced the food in compliance with AS 17.06.010 . If a producer sells the food to the same vendor more than one time during a calendar year, one statement for the calendar year is sufficient to comply with this section.
2. In this section, “vendor” means a person who sells food represented as organic food to another person for resale or to a consumer.

History. (§ 9 ch 72 SLA 1998)

Sec. 17.06.050. Regulations.

The department may adopt regulations under AS 44.62 (Administrative Procedure Act) to implement and interpret this chapter, including a regulation that lists and periodically updates substances under AS 17.06.010(a) .

History. (§ 9 ch 72 SLA 1998)

Sec. 17.06.060. Enforcement and penalties.

1. If the department determines that a person is violating a provision of this chapter, or a regulation adopted under this chapter, the department shall order the person to stop the violation and to refrain from future violations.
2. If a person violates this chapter, a regulation adopted under this chapter, or an order issued under (a) of this section, the person is liable to the state for
   1. a civil fine that does not exceed the total of $1,000 plus the state’s estimated costs of investigating and taking appropriate administrative and enforcement actions for the violation; and
   2. an additional civil penalty of three times the value of the product knowingly sold in violation of this chapter.
3. The provisions of this section are in addition to the remedies available under AS 45.50.471 — 45.50.561 .

History. (§ 9 ch 72 SLA 1998)

Sec. 17.06.070. Definitions.

In this chapter,

1. “department” means the Department of Environmental Conservation;
2. “food represented as organic food” means food, when the food is meat, fish, poultry, or processed, that is marketed using the term “organic” or a derivative of that term in the labeling or advertising;
3. “producer” means a person who grows, raises, or produces food.

History. (§ 9 ch 72 SLA 1998)

Sec. 17.20.005. Powers and duties of commissioner.

To carry out the requirements of this chapter, the commissioner may issue orders, regulations, permits, quarantines, and embargoes relating to

1. food offered to the public or sold, including
   1. inspection of meat, fish, poultry, and other food products;
   2. standards of sanitation and handling methods for all phases of slaughtering, processing, storing, transporting, displaying, and selling;
   3. labeling; and
   4. the training, testing, and certification requirements for individuals who handle or prepare food, their supervisors, and their employers to ensure their knowledge of food safety and sanitation principles and requirements;
2. control and eradication of pests;
3. enforcement of hazard analysis critical control point programs for seafood processing that are developed in cooperation with appropriate industry representatives or, to the extent not inconsistent with this chapter or regulations adopted under the authority of this chapter, that are established by regulations of the United States Food and Drug Administration as they may periodically be revised;
4. labeling, subject to AS 17.20.013 , and grading of milk and milk products and standards of sanitation for dairies offering to the public or selling milk or milk products to at least the minimum of current recommendations of the United States Public Health Service pasteurized milk ordinance as it may periodically be revised;
5. standards and conditions for the operation and siting of aquatic farms and related hatcheries, including
   1. restrictions on the use of chemicals; and
   2. requirements to protect the public from contaminated aquatic farm products that pose a risk to health;
6. monitoring aquatic farms and aquatic farm products to ensure compliance with this chapter and, to the extent not inconsistent with this chapter or regulations adopted under the authority of this chapter, with the requirements of the national shellfish sanitation program manual of operations published by the United States Food and Drug Administration as it may periodically be revised;
7. tests and analyses that may be made and hearings that may be held to determine whether the commissioner will issue a stop order or quarantine;
8. transportation of, use of, disposal of, recalls of, or warnings concerning quarantined or embargoed items;
9. cooperation with federal and other state agencies.

History. (§ 10 ch 72 SLA 1998; am § 1 ch 68 SLA 1999; am § 1 ch 151 SLA 2004)

Cross references. —

For federal regulations establishing requirements for hazard analysis and critical control point (HACCP) systems, see 9 C.F.R. Part 417.

Administrative Code. —

For food care, see 18 AAC 31, art. 2.

For management and personnel, see 18 AAC 31, art. 3.

For equipment and utensils, see 18 AAC 31, art. 4.

For sanitation and physical facilities, see 18 AAC 31, art. 5.

For temporary food service, limited food service, kiosks, mobile food units, see 18 AAC 31, art. 6.

For food processing, see 18 AAC 31, art. 7.

For markets, see 18 AAC 31, art. 8.

For milk and milk products, see 18 AAC 32, art. 1.

For reindeer slaughtering and processing, see 18 AAC 32, art. 3.

For seafood processing, see 18 AAC 34, art. 1.

For shellfish processing, see 18 AAC 34, art. 2.

For smoked or smoke-flavored seafood products processing, see 18 AAC 34, art. 3.

For thermal processing, see 18 AAC 34, art. 4.

For direct-market fishing vessels, see 18 AAC 34, art. 5.

For requirements for fishing vessels, tender vessels, buying stations, and processing facilities in response to oil contamination, see 18 AAC 34, art. 6.

For direct-market land-based facilities, see 18 AAC 34, art. 7.

Sec. 17.20.010. Definitions and standards for food.

When, in the judgment of the commissioner, honest and fair dealing in the interest of consumers will be promoted, the department shall adopt regulations fixing and establishing for food or class of food a reasonable definition and standard of identity, a reasonable standard of quality, and reasonable standards of fill of container. In prescribing a definition and standard of identity for food or class of food in which optional ingredients are permitted, the department shall, for the purpose of promoting honesty and fair dealing in the interest of consumers, designate the optional ingredients which shall be named on the label. The definitions and standards adopted shall conform as far as practicable to the definitions and standards adopted under authority of the federal act. The department shall establish a mobile canned food inspection service available upon request to food packers or processors inside the state.

History. (§ 9 ch 129 SLA 1949; am § 1 ch 125 SLA 1955)

Administrative Code. —

For food care, see 18 AAC 31, art. 2.

For sanitation and physical facilities, see 18 AAC 31, art. 5.

For food processing, see 18 AAC 31, art. 7.

For milk and milk products, see 18 AAC 32, art. 1.

For reindeer slaughtering and processing, see 18 AAC 32, art. 3.

For seafood processing, see 18 AAC 34, art. 1.

Sec. 17.20.013. Hormone labeling for milk products.

1. Products offered for wholesale or retail sale in this state that contain milk, cream, or any product or byproduct of milk or cream and that have been processed and handled under the requirements of this section may be labeled “Milk in this product is from cows not treated with rBGH” or “Milk in this product is from cows not treated with rBST.” Labeling of milk products under this section may also include an indication that the milk used is “farmer certified rBGH-free” or “farmer certified rBST-free.” If a milk product label contains the rBGH or rBST language allowed under this subsection, the label must also state “No significant difference has been shown between milk derived from rBST treated and non-rBST treated cows.” Milk products offered for wholesale or retail sale in this state are not required to contain any further label information related to the use of rBGH or rBST in milk products.
2. The labeling described in (a) of this section may appear on the principal display panel of a packaged milk product, may be conspicuously attached to the container of a bulk product, or may appear in an advertisement for a milk product, including media advertising or displays or placards posted in retail stores. In this subsection,
   1. “advertisement” means the representations disseminated in any manner or by any means, other than by labeling, for the purpose of inducing, or that are likely to induce, directly or indirectly, the purchase of the milk product;
   2. “principal display panel” means that part of a label that is most likely to be displayed, presented, shown, or examined under normal and customary conditions of display for sale.
3. A dairy plant that purchases milk or cream to be used in milk products labeled under (a) of this section shall require an affidavit from producers supplying the milk. The producer or authorized representative of the producer shall sign the affidavit, and the affidavit must state that all cows used in the producer’s dairy operations have not and will not be treated with rBGH without advance written notice to the dairy plant of at least 30 days.
4. The affidavit required under (c) of this section must contain
   1. the name and address of the producer;
   2. the grade A milk permit number of the producer;
   3. the name of the producer’s farm and its address if different from the address of the producer;
   4. the telephone number of the producer;
   5. the name of the dairy plant receiving the milk; and
   6. a statement in substantially the following form:
5. A dairy plant shall keep the original affidavit provided under (c) of this section on file for a period of not less than two years. The affidavit and corresponding records shall be made available for inspection by the commissioner. If the milk product is to be labeled under (a) of this section, dairy plants supplying milk or cream to a processor or to a manufacturer of a milk product for use in the milk product shall supply the processor or manufacturer with a certificate stating that the producers of the supplied milk or cream have executed and delivered the affidavits as required by (c) of this section.
6. All milk or cream from non-rBGH-treated cows used in the manufacturing or processing of milk products labeled under (a) of this section, and milk or cream supplied by a producer using an affidavit under (c) of this section, shall be kept completely separate from any other milk or cream throughout all stages of storage, transportation, and processing until the resulting milk products are in final packaged form in a properly labeled container. The dairy plant and the processor or manufacturer at each stage shall keep records of the separation and make them available to the commissioner for inspection.
7. In this section,
   1. “milk product” means any product that contains milk, cream, or any product or byproduct of milk or cream;
   2. “recombinant bovine growth hormone” or “rBGH” means a growth hormone that is intended for use in bovine animals and that has been produced through recombinant DNA techniques described as “recombinant bovine somatotropin” or “rBST.”

State of Alaska) ) ss: Judicial District ) I, , as the owner or permit holder responsible for the dairy farm operation identified above, hereby certify as follows: (A) that no animals on the above farm are currently being treated with recombinant bovine somatotropin (rBST), also known as recombinant bovine growth hormone (rBGH); (B) that no animals on the above farm have received rBST treatments within the past 30 days; (C) that I will provide written notice to the buyer of my milk at least thirty (30) days in advance if I intend to use rBST on my dairy cattle; and (D) that I will not sell milk from animals added to my herd if those animals may have received rBST treatment within the previous 30 days. I declare, under oath, that the above statement is true and correct to the best of my knowledge. Producer Signature Subscribed and sworn to or affirmed before me at on . (date) Notary Public My Commission Expires

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History. (§ 2 ch 68 SLA 1999)

Sec. 17.20.015 Shared ownership of milk-producing animals; raw milk.

1. An individual who has an ownership interest in a milk-producing animal may pay or reimburse another individual owner of the animal the costs incurred to
   1. board, milk, and care for the animal; and
   2. share raw milk and raw milk products produced from the milk with other owners of the animal.
2. A part owner of a shared milk-producing animal may share raw milk or a raw milk product produced from the milk of the animal only
   1. with another owner of the animal who has provided the part owner with at least two means of contacting the other owner in the event of a foodborne illness;
   2. if the raw milk or raw milk product is produced exclusively by the owners of the animal; and
   3. if the raw milk or raw milk product is provided directly from one owner to another owner.
3. The department may not restrict or impose a requirement on the sharing or transfer of raw milk or a raw milk product between the owners of a milk-producing animal that is in addition to the provisions of this section.
4. In this section,
   1. “raw milk” means milk that is not pasteurized;
   2. “raw milk product” means raw milk or a product or byproduct of raw milk.

History. (§ 1 ch 15 SLA 2021)

Effective dates. —

Section 1, ch. 15, SLA 2021, which enacted this section, took effect on September 29, 2021.

Sec. 17.20.020. Adulterated food.

1. Food is adulterated if
   1. it bears or contains a poisonous or deleterious substance that may render it injurious to health; but in case the substance is not an added substance the food is not considered adulterated under this paragraph if the quantity of the substance does not ordinarily render it injurious to health;
   2. it bears or contains added poisonous or added deleterious substance that is unsafe within the meaning of AS 17.20.030 ;
   3. it consists in whole or in part of a diseased, contaminated, filthy, putrid, or decomposed substance, or if it is otherwise unfit for food;
   4. it has been produced, prepared, packed, or held under insanitary conditions in which it may have become contaminated with filth, or in which it may have been rendered diseased, unwholesome, or injurious to health;
   5. it is, in whole or in part, the product of a diseased animal or an animal that has died otherwise than by slaughter, or that has been fed upon the uncooked offal from a slaughterhouse;
   6. its container is composed, in whole or in part, of a poisonous or deleterious substance that may render the contents injurious to health.
2. Food is adulterated if
   1. a valuable constituent has been omitted or abstracted in whole or part;
   2. a substance has been substituted in whole or part for a valuable constituent;
   3. damage or inferiority has been concealed;
   4. a substance has been added or mixed or packed with it to increase its bulk or weight, or reduce its quality or strength, or make it appear better or of greater value than it is.
3. Confectionery is adulterated if it bears or contains an alcohol or nonnutritive article or substance except harmless coloring, harmless flavoring, harmless resinous glaze not in excess of four-tenths of one percent, harmless natural wax not in excess of four-tenths of one percent, harmless natural gum, and pectin.  This subsection does not apply to confectionery containing less than one-half of one percent by volume of alcohol derived solely from the use of flavoring extracts, or to chewing gum containing harmless nonnutritive masticatory substances.
4. Food is adulterated if it bears or contains a coal tar color other than one from a batch which has been certified under authority of the federal act.
5. Food is not adulterated under this section solely because it contains industrial hemp, as defined in AS 03.05.100 , or an industrial hemp product.

History. (§ 10 ch 129 SLA 1949; am § 9 ch 5 SLA 2018)

Administrative Code. —

For food care, see 18 AAC 31, art. 2.

For management and personnel, see 18 AAC 31, art. 3.

For equipment and utensils, see 18 AAC 31, art. 4.

For sanitation and physical facilities, see 18 AAC 31, art. 5.

For temporary food service, limited food service, kiosks, mobile food units, see 18 AAC 31, art. 6.

For food processing, see 18 AAC 31, art. 7.

For markets, see 18 AAC 31, art. 8.

For milk and milk products, see 18 AAC 32, art. 1.

For reindeer slaughtering and processing, see 18 AAC 32, art. 3.

For seafood processing, see 18 AAC 34, art. 1.

For requirements for fishing vessels, tender vessels, buying stations, and processing facilities in response to oil contamination, see 18 AAC 34, art. 6.

Effect of amendments. —

The 2018 amendment, effective April 13. 2018, added (e).

Collateral references. —

Liability of packer, foodstore, or restaurant for causing trichinosis. 96 ALR3d 451.

Liability for injury or death allegedly caused by foreign substance in beverage. 90 ALR4th 12.

Liability for injury or death allegedly caused by foreign object in food or food product. 1 ALR5th 1.

Liability for injury or death allegedly caused by food product containing object related to, but not intended to be present in, product. 2 ALR5th 189.

Sec. 17.20.030. Tolerances for added poisonous ingredients.

A poisonous or deleterious substance added to food, except where the substance is required in the production of food or cannot be avoided by good manufacturing practice, is unsafe for purposes of the application of AS 17.20.020(a)(2) . When the substance is required or cannot be avoided, the department shall adopt regulations limiting the quantity of it to the extent necessary for the protection of public health. A quantity exceeding the limits fixed is unsafe for purposes of the application of AS 17.20.020(a)(2) . While a regulation limiting the quantity of a substance in the case of any food is in effect, the food is not, by reason of bearing or containing an added amount of the substance, adulterated within the meaning of AS 17.20.020(a)(1) . In determining the quantity of the added substance to be tolerated in or on food, the department shall consider the extent to which the use of the substance is required or cannot be avoided in the production of each article and the other ways in which the consumer may be affected by that or other poisonous or deleterious substances.

History. (§ 13 ch 129 SLA 1949)

Administrative Code. —

For food care, see 18 AAC 31, art. 2.

For milk and milk products, see 18 AAC 32, art. 1.

For seafood processing, see 18 AAC 34, art. 1.

Sec. 17.20.040. Misbranded foods.

1. Food is misbranded if
   1. its labeling is false or misleading in any particular;
   2. it is offered for sale under the name of another food;
   3. it is an imitation of another food, unless its label bears, in type of uniform size and prominence, the word “imitation” and, immediately thereafter, the name of the food imitated;
   4. its container is made, formed, or filled so as to be misleading;
   5. it is in package form unless it bears a label containing (A) the name and place of business of the manufacturer, packer, or distributor; and (B) an accurate statement of the quantity of the contents in terms of weight, measure, or numerical count; however, under (B) of this paragraph, reasonable variations are permitted, and exemptions for small packages shall be established by regulations prescribed by the department;
   6. a word, statement, or other information required by or under authority of this chapter to appear on the label or labeling is not prominently placed with the conspicuousness (as compared with other words, statements, designs, or devices in the labeling) and in terms that make it likely to be read and understood by the ordinary individual under customary conditions of purchase and use;
   7. it purports to be or is represented as a food for which a definition and standard of identity has been prescribed by regulations as provided by AS 17.20.010 , unless (A) it conforms to the definition and standard, and (B) its label bears the name of the food specified in the definition and standard and the common names of optional ingredients other than spices, flavoring, and coloring present in the food as required by regulation;
   8. it purports to be or is represented as (A) a food for which a standard of quality has been prescribed by regulations, and its quality falls below that standard, unless its label bears, in the manner and form the regulations specify, a statement that it falls below that standard; or (B) a food for which a standard of fill of container has been prescribed by regulation as provided by AS 17.20.010 and it falls below the applicable standard of fill of container, unless its label bears, in the manner and form as the regulations specify, a statement that it falls below that standard;
   9. it is not subject to the provisions of (7) of this subsection, unless it bears labeling clearly giving (A) the common or usual name of the food, if any, and (B) in case it is fabricated from two or more ingredients, the common or usual name of each ingredient; except that, however, spices, flavorings, and colorings, other than those sold as such, may be designated as spices, flavorings, and colorings, without naming each; however, to the extent that compliance with the requirements of (B) of this paragraph is impracticable, or results in deception or unfair competition, exemptions shall be established by regulations adopted by the department, but the requirements of (B) of this paragraph do not apply to food products that are packaged at the direction of purchasers at retail at the time of sale, the ingredients of which are disclosed to the purchasers by other means in accordance with regulations adopted by the department;
   10. it purports to be or is represented for special dietary uses, unless its label bears information concerning its vitamin, mineral, and other dietary properties the commissioner determines to be, and by regulations prescribes as, necessary in order fully to inform purchasers as to its value for those uses;
   11. it bears or contains artificial flavoring, artificial coloring, or chemical preservative, unless it bears labeling stating that fact; however, to the extent that compliance with the requirements of this paragraph is impracticable, exemption shall be established by regulations adopted by the department;
   12. the food is a farmed halibut, salmon, or sablefish product, unless
       1. the product is labeled to identify the product as farmed fish raised outside the state, if the product is sold in a packaged form; or
       2. the product is conspicuously identified as farmed fish raised outside the state, if the product is sold in an unpackaged form;
   13. the labeling, advertisement, or identification of the food is inconsistent with the labeling, advertisement, or identification provisions of AS 17.20.048 or 17.20.049 ;
   14. the food is a genetically modified fish or genetically modified fish product unless
       1. the food is conspicuously labeled to identify the fish or fish product as a genetically modified fish or fish product if the fish or fish product is sold in a packaged form; or
       2. the food is conspicuously identified as a genetically modified fish or fish product if the fish or fish product is sold in an unpackaged form.
2. In this section,
   1. “farmed halibut, salmon, or sablefish product” means a food product that contains halibut, salmon, or sablefish that is propagated, farmed, or cultivated in a facility that grows, farms, or cultivates finfish in captivity or under positive control but that is not a salmon hatchery that is owned by the state or that holds a salmon hatchery permit under AS 16.10.400 ; in this paragraph, “positive control” has the meaning given in AS 16.40.199 ;
   2. “genetically modified fish” means
      1. a finfish or shellfish whose genetic structure has been altered at the molecular level by means that are not possible under natural conditions or processes, including recombinant DNA and RNA techniques, cell fusion, gene deletion or doubling, introduction of exogenous genetic material, alteration of the position of a gene, or similar procedure;
      2. the progeny of a finfish or shellfish described in (A) of this paragraph;
   3. “genetically modified fish product” means a product prepared from a genetically modified fish.

History. (§ 11 ch 129 SLA 1949; am § 1 ch 164 SLA 1990; am §§ 1, 2 ch 8 SLA 2002; am § 1 ch 146 SLA 2004; am § 1 ch 26 SLA 2005)

Administrative Code. —

For food care, see 18 AAC 31, art. 2.

For food processing, see 18 AAC 31, art. 7.

For markets, see 18 AAC 31, art. 8.

For milk and milk products, see 18 AAC 32, art. 1.

For reindeer slaughtering and processing, see 18 AAC 32, art. 3.

For seafood processing, see 18 AAC 34, art. 1.

Collateral references. —

Validity and construction of regulations dealing with misrepresentation in the sale of kosher food. 52 ALR3d 959.

Pre-emption of state food labeling legislation or regulation. 79 ALR Fed. 181.

Validity, under Commerce Clause (Article I, Section 8, Clause 3), of state statutes regulating labeling of food. 79 ALR Fed. 246.

Sec. 17.20.044. Sale and labeling of frozen meat, fish, and poultry.

1. Meat, fish, or poultry that has been frozen may not be sold, represented, or advertised as a fresh food.
2. Meat, fish, and poultry that has been frozen must be labeled as a frozen food in accordance with regulations adopted by the commissioner.
3. The commissioner shall adopt regulations that
   1. require frozen food labels for meat, fish, and poultry that has been frozen; and
   2. provide for the examination and inspection of meat, fish, and poultry to ascertain whether it has been frozen.

History. (§ 11 ch 72 SLA 1998)

Cross references. —

For provision providing that “selling, falsely representing, or advertising meat, fish, or poultry that has been frozen as fresh food” is an unlawful trade practice, see AS 45.50.471(b) .

Administrative Code. —

For seafood processing, see 18 AAC 34, art. 1.

Sec. 17.20.045. Misbranding halibut.

No person may label or offer for sale any food fish product designated as halibut, with or without additional descriptive words, unless the food fish product is Hippoglossus or Hippoglossus stenolepsis. A person who violates this section is guilty of misbranding food under provisions of this chapter.

History. (§ 1 ch 59 SLA 1968)

Administrative Code. —

For seafood processing, see 18 AAC 34, art. 1.

Sec. 17.20.048. Labeling and advertisement of halibut, salmon, and sablefish products.

1. A person who sells halibut, salmon, or sablefish products at wholesale or retail in this state may label or advertise the product as being or containing a “wild” halibut, salmon, or sablefish product, an “antibiotic-free” halibut, salmon, or sablefish product, or a “hormone-free” halibut, salmon, or sablefish product, and may indicate that the product or the halibut, salmon, or sablefish in the product is free from added colors and additives, if the product or the halibut, salmon, or sablefish in the product
   1. is harvested from a river or an ocean;
   2. has not been raised in captivity under control for its entire life; and
   3. is free from added colors and additives.
2. The labeling or advertising allowed for a halibut, salmon, or sablefish product by (a) of this section may appear on the principal display panel of a packaged product, may be conspicuously attached to the container of a bulk product, or may appear in an advertisement for the product, including media advertising and displays or placards posted in retail stores. In this subsection, “principal display panel” means the part of a label that is most likely to be displayed, presented, shown, or examined under normal and customary conditions of display for sale.
3. In this section, “halibut, salmon, or sablefish product” means halibut, salmon, or sablefish, or a product made from halibut, salmon, or sablefish.

History. (§ 3 ch 8 SLA 2002)

Sec. 17.20.049. Required identification of fish by retail food establishment.

1. Notwithstanding AS 17.20.048 , a retail food establishment shall state on the menu of prepared food products that it is selling whether the fish in a prepared food product is wild fish or farmed fish.
2. In this section,
   1. “farmed fish” means fish that is propagated, farmed, or cultivated in a facility that grows, farms, or cultivates the fish in captivity or under positive control but that is not a salmon hatchery that is owned by the state or that holds a salmon hatchery permit under AS 16.10.400 ; in this paragraph, “positive control” has the meaning given in AS 16.40.199 ;
   2. “fish” means finfish;
   3. “prepared food product” means a food product that has been prepared by the retail food establishment selling the food product or by another person at the direction of the retail food establishment;
   4. “retail food establishment” means a business that sells prepared food products to the general public for consumption on or off the premises, and includes a business that is, or contains on its premises, a restaurant, a delicatessen, a salad bar, or a bakery; “retail food establishment” does not include an establishment that is provided by
      1. an employer primarily for the employees of the employer;
      2. a school primarily for the students and employees of the school; or
      3. a correctional facility primarily for persons held under official detention;
   5. “wild fish” means a fish that
      1. is harvested from a river, a lake, or an ocean;
      2. has not been raised in captivity under control for its entire life; and
      3. is free from added colors and additives.

History. (§ 2 ch 146 SLA 2004)

Sec. 17.20.050. Emergency permit control.

When the department finds after investigation that the distribution in the state of a class of food may, by reason of contamination with microorganisms during the manufacture, processing, or packing, be injurious to health, and that the injurious nature cannot be adequately determined after the articles have entered commerce, it, in that case only, shall adopt regulations providing for the issuance of permits to manufacturers, processors, or packers of that class of food, to which shall be attached the conditions governing the manufacture, processing, or packing of that class of food, for a temporary period of time as may be necessary to protect the public health. After the effective date of the regulations, and during the temporary period, no person may introduce or deliver for introduction into commerce the food so manufactured, processed, or packed by any manufacturer, processor, or packer unless the manufacturer, processor, or packer of it holds a permit issued by the commissioner.

History. (§ 12(a) ch 129 SLA 1949)

Sec. 17.20.060. Suspension and reinstatement of emergency permit.

The commissioner may suspend immediately upon notice a permit issued under AS 17.20.050 if it is found that the conditions of the permit have been violated. The holder of a suspended permit may apply for the reinstatement of the permit, and the commissioner, immediately after prompt hearing and an inspection of the establishment, shall reinstate the permit if it is found that adequate measures have been taken to comply with and maintain the conditions of the permit as originally issued or as amended.

History. (§ 12(b) ch 129 SLA 1949)

Sec. 17.20.065. Seafood processing permits and plans of operation.

1. A person may not operate a seafood processing establishment or seafood processing vessel without a seafood processing permit issued by the department. A seafood processing permit issued under this section must be renewed annually.
2. A person may not operate a seafood processing establishment or a seafood processing vessel without a written hazard analysis critical control point plan that explains the procedures used at each critical control point in the operation of the seafood processing establishment or the seafood processing vessel. The department may review, and comment on, the completeness of the hazard analysis critical control point plan prepared for a seafood processing establishment or a seafood processing vessel; however, the department may not require annual submission of the plan unless a change in operation, product, or process necessitates a change in the plan. In this subsection, “critical control point” means a point, step, or procedure in a food process at which control can be applied, and a food safety hazard can as a result be prevented, eliminated, or reduced to acceptable levels.

History. (§ 12 ch 72 SLA 1998)

Administrative Code. —

For seafood processing, see 18 AAC 34, art. 1.

For shellfish processing, see 18 AAC 34, art. 2.

For smoked or smoke-flavored seafood products processing, see 18 AAC 34, art. 3.

For thermal processing, see 18 AAC 34, art. 4.

For direct-market fishing vessels, see 18 AAC 34, art. 5.

For requirements for fishing vessels, tender vessels, buying stations, and processing facilities in response to oil contamination, see 18 AAC 34, art. 6.

For direct-market land-based facilities, see 18 AAC 34, art. 7.

Sec. 17.20.066. Seafood product quality standards and seals.

1. The Alaska Seafood Marketing Institute established in AS 16.51 shall design an “inspection” seal that may be used to signify that a seafood product has been packed in compliance with the requirements of a permit issued under AS 17.20.065 .
2. The Alaska Seafood Marketing Institute shall design a “premium quality” seal that may be used to signify that a seafood product has met the product specifications and standards under (d) of this section.
3. The commissioner shall authorize the use of an “inspection” seal for display on seafood products processed by a person who, at the time the products are processed, holds a permit to operate issued under AS 17.20.065 and who complies with regulations adopted under this chapter.
4. The commissioner, after consultation with the Alaska Seafood Marketing Institute, shall develop product specifications and standards for the use of the “premium quality” seal on Alaska seafood products. The commissioner shall authorize a seafood processor to display a “premium quality” seal on products that qualify for the seal if the processor meets the requirements of regulations adopted under this chapter and has been issued a permit to operate under AS 17.20.065 .
5. A person may not display a seal under this section without authorization from the commissioner.

History. (§ 13 ch 72 SLA 1998)

Administrative Code. —

For seafood processing, see 18 AAC 34, art. 1.

Sec. 17.20.067. Seafood processing research.

The commissioner may conduct studies, research, experiments, and demonstrations, directly or through grants to or contracts with public or private agencies, organizations, or individuals to

1. improve sanitation practices in the processing of fish and fisheries products; and
2. develop improved techniques for surveillance and inspection activities under this chapter.

History. (§ 13 ch 72 SLA 1998)

Sec. 17.20.070. Inspection by department.

An officer or employee designated by the commissioner shall have access to a factory, aquatic farm, or establishment, the operator of which holds a permit from the commissioner, for the purpose of ascertaining whether the conditions of the permit are being complied with. Denial of access for inspection is ground for suspension of the permit until access is freely given.

History. (§ 12(c) ch 129 SLA 1949; am § 14 ch 72 SLA 1998)

Administrative Code. —

For management and personnel, see 18 AAC 31, art. 3.

For food processing, see 18 AAC 31, art. 7.

For reindeer slaughtering and processing, see 18 AAC 32, art. 3.

For seafood processing, see 18 AAC 34, art. 1.

For smoked or smoke-flavored seafood products processing, see 18 AAC 34, art. 3.

For requirements for fishing vessels, tender vessels, buying stations, and processing facilities in response to oil contamination, see 18 AAC 34, art. 6.

Sec. 17.20.072. Enforcement authority.

The commissioner is responsible for enforcing AS 17.20.005 — 17.20.075 , and may delegate that authority as appropriate. This section does not limit the authority of peace officers.

History. (E.O. No. 51, § 19 (1981); am § 15 ch 72 SLA 1998)

Administrative Code. —

For food care, see 18 AAC 31, art. 2.

For management and personnel, see 18 AAC 31, art. 3.

For equipment and utensils, see 18 AAC 31, art. 4.

For sanitation and physical facilities, see 18 AAC 31, art. 5.

For temporary food service, limited food service, kiosks, mobile food units, see 18 AAC 31, art. 6.

For food processing, see 18 AAC 31, art. 7.

For markets, see 18 AAC 31, art. 8.

For reindeer slaughtering and processing, see 18 AAC 32, art. 3.

For seafood processing, see 18 AAC 34, art. 1.

For shellfish processing, see 18 AAC 34, art. 2.

For smoked or smoke-flavored seafood products processing, see 18 AAC 34, art. 3.

For thermal processing, see 18 AAC 34, art. 4.

For direct-market fishing vessels, see 18 AAC 34, art. 5.

For requirements for fishing vessels, tender vessels, buying stations, and processing facilities in response to oil contamination, see 18 AAC 34, art. 6.

For direct-market land-based facilities, see 18 AAC 34, art. 7.

Sec. 17.20.075. Definitions.

In AS 17.20.005 — 17.20.075 ,

1. “commissioner” means the commissioner of environmental conservation;
2. “department” means the Department of Environmental Conservation.

History. (E.O. No. 51, § 19 (1981); am § 16 ch 72 SLA 1998)

Sec. 17.20.080. Adulterated drugs and devices.

1. A drug or device is adulterated if
   1. it consists in whole or in part of a filthy, putrid, or decomposed substance;
   2. it has been produced, prepared, packed, or held under insanitary conditions in which it may have been contaminated with filth, or in which it may have been rendered injurious to health;
   3. it is a drug and its container is composed, in whole or in part, of poisonous or deleterious substance which may render the contents injurious to health; or
   4. it is a drug and it bears or contains, for purposes of coloring only, a coal tar other than one from a batch certified under the authority of the federal act.
2. A drug is adulterated if it purports to be or is represented as a drug the name of which is recognized in an official compendium, and its strength differs from, or its quality or purity falls below, the standard set forth in the compendium. The determination as to strength, quality, or purity shall be made in accordance with the tests or methods of assay set forth in the compendium, or in the absence or inadequacy of tests or methods of assay, those prescribed under authority of the federal act.  A drug defined in an official compendium is not adulterated under this subsection because it differs from the standard of strength, quality, or purity set forth in the compendium, if its difference in strength, quality, or purity is plainly stated on its label. When a drug is recognized in both the United States Pharmacopoeia and the Homeopathic Pharmacopoeia of the United States it is subject to the requirements of the United States Pharmacopoeia unless it is labeled and offered for sale as a homeopathic drug, in which case it is subject to the provisions of the Homeopathic Pharmacopoeia of the United States and not to those of the United States Pharmacopoeia.
3. A drug is adulterated if it is not subject to the provisions of (b) of this section and its strength differs from, or its purity or quality falls below, that which it purports or is represented to possess.
4. A drug is adulterated if a substance has been
   1. mixed or packed with it to reduce its quality or strength; or
   2. substituted wholly or in part for it.

History. (§ 14 ch 129 SLA 1949)

Sec. 17.20.085. Opioid overdose drugs.

1. Notwithstanding a provision or rule of law to the contrary, a health care provider authorized to prescribe an opioid overdose drug may prescribe an opioid overdose drug directly or by standing order or protocol to a person at risk of experiencing an opioid overdose or to a family member, friend, caregiver, or other person in a position to administer an opioid overdose drug to a person at risk of experiencing an opioid overdose.
2. An employee or volunteer of an opioid overdose program, if acting under a standing order or protocol under (a) of this section, notwithstanding a provision or rule of law to the contrary, may receive a supply of opioid overdose drugs, possess opioid overdose drugs, and provide an opioid overdose drug to a person at risk of experiencing an opioid overdose or to a family member, friend, caregiver, or other person in a position to administer an opioid overdose drug to a person at risk of experiencing an opioid overdose.
3. The chief medical officer of the department may issue a standing order, including a statewide standing order, for the prescription of an opioid overdose drug.
4. Annually, on or before October 1, the department shall complete a report describing activities and expenditures related to Substance Abuse and Mental Health Services Administration grants and opioid overdose drug distribution and shall submit the report to the senate secretary and chief clerk of the house of representatives and notify the legislature that the report is available.
5. In this section,
   1. “health care provider” means a licensed physician, osteopath, dentist, advanced nurse practitioner, physician assistant, nurse, village health aide, or pharmacist operating within the scope of the health care provider’s authority;
   2. “opioid” includes the opium and opiate substances and opium and opiate derivatives listed in AS 11.71.140 ;
   3. “opioid overdose drug” means a drug that reverses, in whole or in part, the pharmacological effects of an opioid overdose;
   4. “opioid overdose program” means a program that provides opioid overdose drugs to persons at risk of experiencing an opioid overdose or to a family member, friend, or other person in a position to assist a person at risk of experiencing an opioid overdose.

History. (§ 6 ch 2 SLA 2016; am § 1 ch 1 SLA 2017; am §§ 1, 2 ch 14 SLA 2021)

Revisor's notes. —

Subsections (c) and (d) were enacted as (d) and (e); relettered in 2017, at which time former subsection (c) was relettered as (e).

Section 2, ch. 1, SLA 2017, would have repealed subsection (c) effective June 30, 2021; however, sec. 2, ch. 1, SLA 2017, was subsequently repealed by sec. 3, ch. 14, SLA 2021, effective June 30, 2021, which had the effect of continuing subsection (c).

Cross references. —

For a provision relating to immunity from civil liability for prescribing, providing, or administering an opioid overdose drug, see AS 09.65.340 .

Effect of amendments. —

The 2017 amendment, effective March 15, 2017, added (d) and (e) [now (c) and (d)].

The 2021 amendment, effective June 30, 2021, in (c), deleted the second sentence, which read, “A standing order issued under this subsection must expire on or before June 30, 2021.”; in (d), substituted “opioid overdose drug distribution” for “the opioid epidemic” following “Mental Health Services Administration grants and.”

Effective dates. —

Section 6, ch. 2, SLA 2016, which enacted this section, took effect on March 15, 2016.

Editor's notes. —

Under sec. 3, ch. 1, SLA 2017, subsections (c) and (d) are retroactive to March 15, 2017.

Legislative history reports. —

For governor's transmittal letter for ch. 1, SLA 2017 (SB 91), which amended this section, see 2017 Senate Journal 478 - 479.

Sec. 17.20.090. Misbranded drugs and devices.

A drug or device is misbranded

1. if its labeling is false or misleading in any particular;
2. if it is in package form unless it bears a label containing (A) the name and place of business of the manufacturer, packer, or distributor; and (B) an accurate statement of the quantity of the contents in terms of weight, measure, or numerical count; however, under (B) of this paragraph reasonable variations shall be permitted and exemptions for small packages shall be established by regulations adopted by the department;
3. if a word, statement, or other information required by or under authority of this chapter to appear on the label or labeling is not prominently placed with conspicuousness as compared with other words, statements, designs, or devices, in the labeling and in terms which render it likely to be read and understood by the ordinary individual under customary conditions of the purchase and use;
4. if it is for use by man and contains a quantity of the narcotic or hypnotic substance alpha-eucaine, barbituric acid, beta-eucaine, bromal, cannabis, carbromal, chloral, coca, cocaine, codeine, heroin, marijuana, morphine, opium, paraldehyde, peyote, or sulphonmethane, or a chemical derivative of any of them, which has been by the commissioner after investigation found to be and by regulations under this chapter designated as habit forming; unless its label bears the name, and quantity or proportion of the substance or derivative and in juxtaposition with it the statement “Warning — May be habit forming”;
5. if it is a drug and is not designated solely by a name recognized in an official compendium unless its label bears (A) the common or usual name of the drug; and (B) in case it is fabricated from two or more ingredients, the common or usual name of each active ingredient, including the kind and quantity or proportion of alcohol, and including, whether active or not, the name and quantity or proportion of bromides, ether, chloroform, acetanilid, acetphenetidin, amidopyrine, antipyrine, atropine, hyoscine, hyoscyamine, arsenic, digitalis glucosines, mercury, quabain, strophanthin, strychnine, thyroid, or derivative or preparation of any of these substances contained in them; however, to the extent that compliance with the requirements of (B) of this paragraph is impracticable, exemptions shall be established by regulations adopted by the department;
6. unless its labeling bears (A) adequate directions for use; and (B) adequate warnings against use in those pathological conditions or by children where its use may be dangerous to health, or against unsafe dosage or methods or duration of administration or application, in the manner and form necessary for the protection of users; however, where a requirement of (A) of this paragraph as applied to a drug or device is not necessary for the protection of the public health, the department shall adopt regulations exempting the drug or device from these requirements;
7. if it purports to be a drug the name of which is recognized in an official compendium, unless it is packaged and labeled as prescribed in the compendium; however, the method of packing may be modified with the consent of the commissioner, and when a drug is recognized in both the United States Pharmacopoeia and the Homeopathic Pharmacopoeia of the United States, it is subject to the requirements of the United States Pharmacopoeia with respect to packaging and labeling unless it is labeled and offered for sale as a homeopathic drug, in which case it shall be subject to the provisions of the Homeopathic Pharmacopoeia of the United States, and not to those of the United States Pharmacopoeia;
8. if it has been found by the commissioner to be a drug liable to deterioration, unless it is packaged in the form and manner and its label bears a statement of the precautions the department by regulation requires as necessary for the protection of public health; and no regulation shall be established for a drug recognized in an official compendium until the commissioner has informed the appropriate body charged with the revision of the compendium of the need for packaging or labeling requirements and that body has failed within a reasonable time to prescribe the requirements;
9. if it is a drug and its container is made, formed, or filled so as to be misleading or if it is an imitation of another drug; or if it is offered for sale under the name of another drug;
10. if it is dangerous to health when used in the dosage, or with the frequency or duration prescribed, recommended, or suggested in its labeling;
11. if (A) it is a drug sold at retail and contains any quantity of aminopyrine, barbituric acid, cinchophen, pituitary, thyroid, or their derivatives, or (B) it is a drug or device sold at retail and its label as originally packed bears a statement that it is to be dispensed or sold only by or on the prescription of a physician, dentist, or veterinarian, unless it is sold on a written prescription signed by a member of the medical, dental, or veterinary profession licensed by law to administer the drug or device, and its label as dispensed bears the name and place of business of the seller, the serial number and date of the prescription, and the name of the member of the medical, dental, or veterinary profession, and the prescription shall not be refilled except on the written authorization of the prescribing physician, dentist, or veterinarian.

History. (§ 15 ch 129 SLA 1949)

Sec. 17.20.100. Exemptions in case of drugs and devices.

A drug sold on a written prescription signed by a member of the medical, dental, or veterinary profession, except a drug sold in the course of the conduct of a business of selling drugs pursuant to diagnosis by mail, is exempt from the requirements of AS 17.20.090 (2) and (5) if (1) the member of the medical, dental, or veterinary profession is licensed by law to administer the drug, and (2) the drug bears a label containing the name and place of business of the seller, the serial number and date of the prescription, and the name of the member of the medical, dental, or veterinary profession.

History. (§ 16 ch 129 SLA 1949)

Sec. 17.20.105. Preparation of drug prescription by pharmacist.

1. In preparing a drug prescription a pharmacist shall indicate on the drug container the name and strength of the drug contained in it, unless specifically directed otherwise by the prescribing physician, osteopathic physician, dentist, or veterinarian.  If a drug is a mixture of pharmacologically active substances, only the name of the mixture need be indicated on the container, or in the absence of a name, the term “physician’s mixture” may be used.
2. In preparing a prescription, a pharmacist may not substitute a drug for a registered brand or trade name product specified unless the pharmacist obtains permission from the author of the prescription; but if the prescribing physician, osteopathic physician, dentist, or veterinarian is temporarily unavailable, the pharmacist may, if unable to supply the drug requested, substitute a drug or preparation of approximately equal therapeutic value so long as the pharmacist notifies the author of the prescription at an early opportunity.

History. (§ 1 ch 17 SLA 1971)

Sec. 17.20.110. Sale of new drugs.

1. A person may not sell, deliver, offer for sale, hold for sale, or give away a new drug unless
   1. an application for it has become effective under the federal act; or
   2. when not subject to the federal act unless the drug has been tested and has not been found to be unsafe for use under the conditions prescribed, recommended, or suggested in the labeling of it, and before selling or offering it for sale there has been filed with the commissioner an application setting out
      1. full reports of investigations which have been made to show whether or not the drug is safe for use;
      2. a full list of the articles used as components of the drug;
      3. a full statement of the composition of the drug;
      4. a full description of the methods used in, and the facilities and controls used for, the manufacture, processing, and packing of the drug;
      5. samples of the drug and articles used as components of it which the commissioner requires; and
      6. specimens of the labeling proposed to be used for the drug.
2. This section does not apply to a physician who prescribes or administers a new drug in accordance with the conditions set out in AS 08.64.367(c) .

History. (§ 17(a) ch 129 SLA 1949; am § 3 ch 53 SLA 2018)

Effect of amendments. —

The 2018 amendment, effective October 11, 2018, added (b).

Collateral references. —

Right of medical patient to obtain, or physician to prescribe, Laetrile for treatment of illness — state cases. 5 ALR4th 219.

Sec. 17.20.120. Application for sale of new drugs.

The application provided for in AS 17.20.110 is effective on the 60th day after the filing of it. If the commissioner finds, after notice to the applicant and providing an opportunity for a hearing, that the drug is not safe for use under the conditions prescribed, recommended, or suggested in the proposed labeling, the commissioner shall, before the effective date of the application, issue an order refusing to permit the application to become effective. An order refusing an application to become effective may be revoked by the commissioner.

History. (§ 17(b), (d) ch 129 SLA 1949)

Sec. 17.20.130. Exemptions.

AS 17.20.110 does not apply to a drug

1. intended solely for investigational use by experts qualified by scientific training and experience to investigate the safety in drugs if the drug is plainly labeled “for investigational use only”; or
2. regulated under 42 U.S.C. 262.

History. (§ 17(c) ch 129 SLA 1949; am § 72 ch 21 SLA 2000)

Sec. 17.20.132. Enforcement authority.

The commissioner is responsible for enforcing AS 17.20.080 — 17.20.135 , and may delegate that authority as appropriate. This section does not limit the authority of peace officers.

History. (E.O. No. 51, § 19 (1981))

Sec. 17.20.135. Definitions.

In AS 17.20.080 — 17.20.135 ,

1. “commissioner” means the commissioner of health and social services;
2. “department” means the Department of Health and Social Services.

History. (E.O. No. 51, § 19 (1981))

Sec. 17.20.140. Adulterated cosmetics.

A cosmetic is adulterated if

1. it bears or contains a poisonous or deleterious substance which may render it injurious to a user under the conditions of use prescribed in the labeling or advertisement of it, or under conditions of use which are customary or usual; however, this provision does not apply to coal tar hair dye, the label of which bears the following legend conspicuously displayed: “Caution — this product contains ingredients which may cause skin irritation on certain individuals and a preliminary test according to accompanying directions should first be made. This product must not be used for dyeing the eyelashes or eyebrows; to do so may cause blindness.” and the labeling of which bears adequate directions for preliminary testing, and for the purposes of this paragraph and (5) of this section the term “hair dye” does not include eyelash dyes or eyebrow dyes;
2. it consists in whole or in part of a filthy, putrid, or decomposed substance;
3. it has been produced, prepared, packed, or held under insanitary conditions by which it may have become contaminated with filth or made injurious to health;
4. its container is composed, in whole or in part, of a poisonous or deleterious substance which may make the contents injurious to health;
5. it is not a hair dye and it bears or contains a coal tar color other than one from a batch which has been certified under authority of the federal act.

History. (§ 18 ch 129 SLA 1949)

Collateral references. —

Liability of seller of cosmetics for injuries on theory of breach of warranty as affected by buyer’s or user’s allergy or unusual susceptibility to injury from article. 26 ALR2d 968.

Sufficiency of evidence to support product misuse defense in products liability action concerning cosmetics and other personal care products. 58 ALR4th 40.

Sec. 17.20.150. Misbranded cosmetics.

A cosmetic is misbranded if

1. its labeling is false or misleading in any particular;
2. it is in package form unless it bears a label containing (A) the name and place of business of the manufacturer, packer, or distributor; and (B) an accurate statement of the quantity of the contents in terms of weight, measure, or numerical count; however, under (B) of this paragraph reasonable variations shall be permitted, and exemptions as to small packages shall be established by regulations adopted by the department;
3. a word, statement, or other information required by or under authority of this chapter to appear on the label or labeling is not prominently placed on it with conspicuousness as compared with other words, statements, designs, or devices, in the labeling, and in terms which make it likely to be read and understood by the ordinary individual under customary conditions of purchase and use;
4. its container is made, formed, or filled so as to be misleading.

History. (§ 19 ch 129 SLA 1949)

Sec. 17.20.152. Enforcement authority.

The commissioner of environmental conservation is responsible for enforcing AS 17.20.140 — 17.20.155 , and may delegate that authority as appropriate. This section does not limit the authority of peace officers.

History. (E.O. No. 51, § 19 (1981))

Sec. 17.20.155. Definition.

In AS 17.20.140 — 17.20.155 , “department” means the Department of Environmental Conservation.

History. (E.O. No. 51, § 19 (1981))

Sec. 17.20.160. False advertising generally.

An advertisement of a food, drug, device, or cosmetic is false if it is false or misleading in any particular.

History. (§ 20(a) ch 129 SLA 1949)

Sec. 17.20.170. Specified false advertising.

The advertisement of a drug or device representing that it has an effect on albuminuria, appendicitis, arteriosclerosis, blood poison, bone disease, Bright’s disease, cancer, carbuncles, cholecystitis, diabetes, diphtheria, dropsy, erysipelas, gallstones, heart and vascular diseases, high blood pressure, mastoiditis, measles, meningitis, mumps, nephritis, otitis media, paralysis, pneumonia, poliomyelitis (infantile paralysis), prostate gland disorders, pyelitis, scarlet fever, sexual impotence, sinus infection, smallpox, tuberculosis, tumors, typhoid, uremia, or venereal disease is false advertising. An advertisement not in violation of AS 17.20.160 is not false under this section if it is disseminated only to members of the medical, dental, or veterinary profession, or appears only in the scientific periodicals of these professions, or is disseminated only for the purpose of public health education by persons not commercially interested, directly or indirectly, in the sale of the drug or device. However, when the commissioner determines that an advance in medical science has made a self-medication safe as to any of the diseases named in this section, the department shall by regulation authorize the advertisement of drugs having curative or therapeutic effect for the disease, subject to the conditions and restrictions the commissioner considers necessary in the interests of public health. This section shall not be construed as indicating that self-medication for diseases other than those named in this section is safe or efficacious.

History. (§ 20(b) ch 129 SLA 1949)

Sec. 17.20.172. Enforcement authority.

The commissioner is responsible for enforcing AS 17.20.160 — 17.20.175 , and may delegate that authority as appropriate. This section does not limit the authority of peace officers.

History. (E.O. No. 51, § 19 (1981))

Sec. 17.20.175. Definitions.

In AS 17.20.160 — 17.20.175 ,

1. “commissioner” means the commissioner of health and social services;
2. “department” means the Department of Health and Social Services.

History. (E.O. No. 51, § 19 (1981))

Sec. 17.20.180. Regulations.

The Department of Environmental Conservation and the Department of Health and Social Services may adopt regulations for the efficient enforcement of their respective portions of this chapter. Each department may make the regulations conform, in so far as practicable, with those adopted under the federal act.

History. (§ 21(a) ch 129 SLA 1949; am E.O. No. 51, § 20 (1981))

Administrative Code. —

For food care, see 18 AAC 31, art. 2.

For management and personnel, see 18 AAC 31, art. 3.

For equipment and utensils, see 18 AAC 31, art. 4.

For sanitation and physical facilities, see 18 AAC 31, art. 5.

For temporary food service, limited food service, kiosks, mobile food units, see 18 AAC 31, art. 6.

For food processing, see 18 AAC 31, art. 7.

For markets, see 18 AAC 31, art. 8.

For reindeer slaughtering and processing, see 18 AAC 32, art. 3.

For seafood processing, see 18 AAC 34, art. 1.

For shellfish processing, see 18 AAC 34, art. 2.

For smoked or smoke-flavored seafood products processing, see 18 AAC 34, art. 3.

For thermal processing, see 18 AAC 34, art. 4.

For direct-market fishing vessels, see 18 AAC 34, art. 5.

For requirements for fishing vessels, tender vessels, buying stations, and processing facilities in response to oil contamination, see 18 AAC 34, art. 6.

For direct-market land-based facilities, see 18 AAC 34, art. 7.

Sec. 17.20.190. Hearings.

Hearings authorized or required by this chapter shall be conducted under the provisions of AS 44.62 (Administrative Procedure Act).

History. (§ 21(b) ch 129 SLA 1949)

Sec. 17.20.200. Inspections and examinations.

1. The commissioner of environmental conservation or an agent shall have free access at reasonable hours to a factory, warehouse, or establishment in which foods or cosmetics are manufactured, processed, packed, or held for introduction into commerce, to enter a vehicle being used to transport or hold these foods or cosmetics in commerce, or to an aquatic farm in order to
   1. inspect a factory, warehouse, establishment, vehicle, or aquatic farm to determine if the provisions of the commissioner’s respective portions of this chapter are being violated; and
   2. secure samples or specimens of a food, aquatic farm product, or cosmetic.
2. The commissioner of environmental conservation shall make or have made examinations of samples secured under this section to determine whether or not a provision of the commissioner’s respective portions of this chapter is being violated.
3. The commissioner of health and social services has the same powers and duties with respect to drugs and devices as the commissioner of environmental conservation has with respect to food and cosmetics under (a) and (b) of this section.

History. (§ 22 ch 129 SLA 1949; am § 1 ch 80 SLA 1957; am E.O. No. 51, § 21 (1981); am § 17 ch 72 SLA 1998)

Administrative Code. —

For management and personnel, see 18 AAC 31, art. 3.

For food processing, see 18 AAC 31, art. 7.

For reindeer slaughtering and processing, see 18 AAC 32, art. 3.

For seafood processing, see 18 AAC 34, art. 1.

For requirements for fishing vessels, tender vessels, buying stations, and processing facilities in response to oil contamination, see 18 AAC 34, art. 6.

Collateral references. —

Validity of inspection conducted under provisions of Federal Food, Drug, and Cosmetic Act (21 USCS § 374(a)) authorizing FDA inspectors to enter and inspect food, drug or cosmetic factory, warehouse, or other establishment, 18 ALR Fed. 734.

Sec. 17.20.210. Reimbursement for expenses. [Repealed, § 26 ch 72 SLA 1998.]

Sec. 17.20.220. Publication of reports and information.

1. The commissioner of environmental conservation and the commissioner of health and social services may have published from time to time reports summarizing judgments, decrees, and court orders which have been rendered under their respective portions of this chapter, including the nature of the charge and the disposition of it.
2. The commissioner of environmental conservation may have disseminated information regarding food and cosmetics which the commissioner considers necessary in the interest of public health and the protection of the consumer against fraud.  This section does not prohibit the commissioner from collecting, reporting, and illustrating the results of the commissioner’s investigations.
3. The commissioner of health and social services has the same power with respect to drugs and devices as the commissioner of environmental conservation has with respect to food and cosmetics under (b) of this section.

History. (§ 23 ch 129 SLA 1949; am E.O. No. 51, § 23 (1981))

Sec. 17.20.230. Detention or embargo of goods.

1. Whenever the commissioner of environmental conservation finds or has probable cause to believe that a food or cosmetic is adulterated, or so misbranded as to be dangerous or fraudulent within the meaning of this chapter, the commissioner shall affix to it a tag or other appropriate marking, giving notice that it is or is suspected of being adulterated or misbranded and has been detained or embargoed, and warning all persons not to remove or dispose of it by sale or otherwise until permission for removal or disposal is given by the commissioner or the court.  A person may not remove or dispose of a detained or embargoed article by sale or otherwise without this permission.
2. The commissioner of health and social services has the same duty with respect to drugs and devices as the commissioner of environmental conservation has with respect to food and cosmetics under (a) of this section.

History. (§ 6(a) ch 129 SLA 1949; am E.O. No. 51, § 24 (1981))

Administrative Code. —

For reindeer slaughtering and processing, see 18 AAC 32, art. 3.

For seafood processing, see 18 AAC 34, art. 1.

Sec. 17.20.240. Petition for libel for condemnation.

When an article detained or embargoed under AS 17.20.230 has been found by the commissioner of environmental conservation or the commissioner of health and social services, as the case may be, to be adulterated or misbranded, the appropriate commissioner shall petition the superior court for a libel for condemnation of the article. When that commissioner finds that a detained or embargoed article is not adulterated or misbranded, the commissioner shall remove the tag or other marking.

History. (§ 6(b) ch 129 SLA 1949; am E.O. No. 51, § 25 (1981))

Administrative Code. —

For reindeer slaughtering and processing, see 18 AAC 32, art. 3.

Sec. 17.20.250. Destruction of adulterated or misbranded goods.

If the superior court finds that a detained or embargoed article is adulterated or misbranded, it shall, after entry of the decree, be destroyed at the expense of the claimant, under the supervision of the commissioner of environmental conservation or the commissioner of health and social services, as the case may be. Court costs and fees and storage and other proper expenses shall be taxed against the claimant of the article.

History. (§ 6(c) ch 129 SLA 1949; am E.O. No. 51, § 26 (1981))

Administrative Code. —

For reindeer slaughtering and processing, see 18 AAC 32, art. 3.

Sec. 17.20.260. Exemption from destruction.

When the adulteration or misbranding can be corrected by proper labeling or processing of the article, and after entry of the decree and after costs, fees, and expenses have been paid and a good and sufficient bond, conditioned that the article will be properly labeled or processed has been executed, the court may order that the article be delivered to the claimant for labeling or processing under the supervision of the commissioner of environmental conservation or the commissioner of health and social services, as the case may be. The claimant shall pay the expense of supervision. The bond shall be returned to the claimant of the article on representation to the court by the appropriate commissioner that the article is no longer in violation of this chapter, and that the expenses of supervision have been paid.

History. (§ 6(c) ch 129 SLA 1949; am E.O. No. 51, § 27 (1981))

Sec. 17.20.270. Immediate destruction of contaminated food.

Meat, seafood, poultry, vegetable, fruit, or other perishable article in any room, building, vehicle of transportation, or other structure which is unsound, or contains filthy, decomposed, or putrid substance, or a substance that may be poisonous or deleterious to health or otherwise unsafe, is a nuisance. Whenever the commissioner of environmental conservation finds such an article, the commissioner shall immediately condemn or destroy it or in any other manner render it unsalable as human food.

History. (§ 6(d) ch 129 SLA 1949; am E.O. No. 51, § 28 (1981))

Administrative Code. —

For reindeer slaughtering and processing, see 18 AAC 32, art. 3.

Sec. 17.20.280. Injunction proceedings.

The commissioner of environmental conservation and the commissioner of health and social services may apply to the superior court for, and the court has jurisdiction to grant, a temporary or permanent injunction restraining a person from violating their respective portions of this chapter.

History. (§ 4 ch 129 SLA 1949; am E.O. No. 51, § 29 (1981); am § 18 ch 72 SLA 1998)

Sec. 17.20.290. Prohibited acts.

1. The following acts and the causing thereof are prohibited:
   1. the manufacture, or sale, or delivery, holding, or offering of sale of food, drug, device, or cosmetic that is adulterated or misbranded;
   2. the adulteration or misbranding of food, drug, device, or cosmetic;
   3. the receipt in commerce of food, drug, device, or cosmetic that is adulterated or misbranded, and the delivery or proffered delivery of them for pay or otherwise;
   4. the sale, delivery for sale, holding for sale, or offering for sale of an article in violation of AS 17.20.050 — 17.20.070 and 17.20.100 ;
   5. the dissemination of a false advertisement;
   6. the refusal to permit entry or inspection, or to permit the taking of a sample, as authorized by AS 17.20.200 ;
   7. the giving of a guaranty or undertaking that is false, except by a person who relied on a guaranty or undertaking to the same effect signed by and containing the name and address of the person residing in the state from whom the person who relied on the guarantee or undertaking received the food, drug, device, or cosmetic in good faith;
   8. the removal or disposal of a detained or embargoed article in violation of AS 17.20.230 — 17.20.270 ;
   9. the alteration, mutilation, destruction, obliteration, or removal of the whole or part of the labeling of, or the doing of any other act with respect to, a food, drug, device, or cosmetic, if the act is done while the article is held for sale and results in the article being misbranded;
   10. forging, counterfeiting, simulating, or falsely representing, or without proper authority using a mark, stamp, tag, label, or other identification device authorized or required by regulations adopted under AS 17.20.230 — 17.20.270 ;
   11. the using, on the labeling of a drug or in an advertisement relating to a drug, of a representation or suggestion that an application with respect to the drug is effective under AS 17.20.110 or that the drug complies with the provisions of that section;
   12. the sale or offering for sale of frozen fish as fresh fish;
   13. the improper labeling and drug substitution by pharmacists under AS 17.20.105 .
2. The commissioner of environmental conservation or a designee of the commissioner is responsible for enforcing the provisions of (a)(1) — (10) of this section, if the subject of the prohibited act involves food or cosmetics, and the provisions of (a)(12) of this section. This subsection does not limit the authority of peace officers.
3. The commissioner of health and social services or a designee of the commissioner is responsible for enforcing the provisions of (a)(1) — (10) of this section, if the subject of the prohibited act involves drugs or devices, and the provisions of (a)(11) and (13) of this section. This subsection does not limit the authority of peace officers.

History. (§ 3 ch 129 SLA 1949; am § 1 ch 119 SLA 1967; am § 2 ch 17 SLA 1971; am E.O. No. 51, § 30 (1981); am §§ 2, 3 ch 151 SLA 2004)

Administrative Code. —

For food care, see 18 AAC 31, art. 2.

For management and personnel, see 18 AAC 31, art. 3.

For equipment and utensils, see 18 AAC 31, art. 4.

For sanitation and physical facilities, see 18 AAC 31, art. 5.

For temporary food service, limited food service, kiosks, mobile food units, see 18 AAC 31, art. 6.

For food processing, see 18 AAC 31, art. 7.

For markets, see 18 AAC 31, art. 8.

For milk and milk products, see 18 AAC 32, art. 1.

For reindeer slaughtering and processing, see 18 AAC 32, art. 3.

For seafood processing, see 18 AAC 34, art. 1.

Sec. 17.20.300. Determination of misleading labeling or advertisement.

If an article is alleged to be misbranded because the labeling is misleading, or if an advertisement is alleged to be false because it is misleading, in determining whether the labeling or advertisement is misleading, there shall be taken into account among other things representations made or suggested by statement, word, design, device, sound, or combination of them, and the extent to which the labeling or advertisement fails to reveal facts material in the light of the representations or material with respect to consequences that may result from the use of the article to which the labeling or advertisement relates under the conditions of use prescribed in the labeling or advertisement or under customary or usual conditions of use.

History. (§ 2(l) ch 129 SLA 1949)

Administrative Code. —

For food processing, see 18 AAC 31, art. 7.

Collateral references. —

Products liability of manufacturer or seller for injury or death allegedly caused by failure to warn regarding danger in use of vaccine or prescription drug. 94 ALR3d 748.

Promotional efforts directed towards prescribing physician as affecting prescription drug manufacturer’s liability for product-caused injury. 94 ALR3d 1080.

What constitutes “false advertising” of food products or cosmetics within §§ 5 and 12 of the Federal Trade Commission Act (15 USCS §§ 45, 52). 50 ALR Fed. 16.

Sec. 17.20.305. Penalty for violation.

A person who with criminal negligence violates a provision of this chapter or a regulation, order, quarantine, embargo, or recall made under authority of this chapter, or violates a provision of a permit issued under this chapter, is guilty of a class A misdemeanor for each offense. The use of this section for a violation does not prevent imposition of a penalty under AS 45.50.471 — 45.50.561 for the same violation. In this section, “criminal negligence” has the meaning given in AS 11.81.900 .

History. (§ 19 ch 72 SLA 1998; am § 4 ch 151 SLA 2004)

Sec. 17.20.310. Penalties. [Repealed, § 26 ch 72 SLA 1998.]

Sec. 17.20.315. Civil fine.

1. In addition to any other penalties imposed under this chapter or AS 45.50.471 — 45.50.561 , the department may impose a civil fine on a person for a serious violation or a repeat violation of this chapter, including the regulations adopted under this chapter.
2. The department shall, by regulation, adopt a schedule of fines that a person may be required to pay under this section. A fine may not exceed $1,000 for each violation.
3. In this section, “department” means the Department of Environmental Conservation.

History. (§ 5 ch 151 SLA 2004)

Sec. 17.20.320. Effect of written guaranty.

A person is not subject to the penalties of AS 17.20.305 , 17.20.315 , or AS 45.50.471 — 45.50.561 for having violated AS 17.20.290(a)(1) or (3) if that person establishes a guaranty or undertaking signed by and containing the name and address of the person residing in the state from whom the article was received in good faith, to the effect that it is not adulterated or misbranded within the meaning of this chapter.

History. (§ 5(b) ch 129 SLA 1949; am § 20 ch 72 SLA 1998; am § 6 ch 151 SLA 2004)

Sec. 17.20.330. Liability for dissemination of false advertising.

The publisher, radio-broadcast licensee, or agency or medium for the dissemination of an advertisement, except the manufacturer, packer, distributor, or seller of the article to which a false advertisement relates, is not liable under AS 17.20.305 , 17.20.315 , or AS 45.50.471 — 45.50.561 for the dissemination of the false advertisement, unless the publisher, licensee, agency, or medium has refused the request of the commissioner of health and social services or the commissioner of commerce, community, and economic development to furnish the name and post office address of the manufacturer, packer, distributor, seller, or advertising agency residing in the state who caused dissemination of the advertisement.

History. (§ 5(c) ch 129 SLA 1949; am E.O. No. 51, § 31 (1981); am § 21 ch 72 SLA 1998; am § 7 ch 151 SLA 2004; am § 33 ch 56 SLA 2005)

Collateral references. —

What constitutes “false advertising” of food products or cosmetics within §§ 5 and 12 of the Federal Trade Commission Act (15 USCS §§ 45, 52). 50 ALR Fed. 16.

Sec. 17.20.340. Scope of provisions dealing with sale.

The provisions of this chapter regarding the sale of food, drugs, devices, or cosmetics include the manufacture, production, processing, packing, exposure, offer, possession, and holding of them for sale; the sale, dispensing, and giving of them, and the supplying or applying of them in the conduct of a food, drug, or cosmetic establishment.

History. (§ 2(q) ch 129 SLA 1949)

Administrative Code. —

For milk and milk products, see 18 AAC 32, art. 1.

Sec. 17.20.345. Liability of food donor.

1. Notwithstanding the provisions of AS 17.20.290 , 17.20.305 , or 17.20.315 , a donor of food for free distribution by a food bank or charitable organization is not subject to civil or criminal liability arising from an injury or death attributable to the condition of the donated food if the injury or death is not a result of the gross negligence, recklessness, or intentional misconduct of the donor.
2. Nothing in this section, AS 17.20.290 , 17.20.305 , 17.20.315 , or AS 45.50.471 — 45.50.561 prohibits the donation by a donor of food apparently fit for human consumption at the time of its donation solely because
   1. the label on the food is missing or the food is otherwise misbranded; this paragraph does not apply to the label required under (d)(2) of this section;
   2. the food, if offered for sale commercially, would not be readily marketable because of appearance or grade, or because it is surplus; or
   3. a date on the food indicating when the food is best eaten by or used by has expired.
3. A person who donates to a food bank or charitable organization salmon from a hatchery that operates under a permit issued under AS 16.10.400 — 16.10.470 is immune from liability as provided in this section if the salmon is apparently fit for human consumption at the time of its donation, even if the hatchery does not have a permit issued by the Department of Environmental Conservation under this chapter or other statute to process fisheries products for human consumption.
4. A donor of unsold hot food to a food bank or charitable organization is immune from liability as provided in this section if
   1. at the time the food is donated, the food is apparently fit for human consumption;
   2. the donor labels the food with a statement that reads “This food has been previously heated. Best if kept frozen until ready to eat.”

History. (§ 1 ch 75 SLA 1984; am § 1 ch 16 SLA 1995; am § 22 ch 72 SLA 1998; am §§ 8, 9 ch 151 SLA 2004; am §§ 1, 2 ch 1 SLA 2018)

Administrative Code. —

For food care, see 18 AAC 31, art. 2.

Effect of amendments. —

The 2018 amendment, effective June 4, 2018, in (a), inserted “or charitable organization” following “a food bank”; in (b), in (b)(1), added “this paragraph does not apply to the label required under (d)(2) of this section;” at the end, added (b)(3), and made related changes; in (c), inserted “or charitable organization” following “a food bank”; added (d).

Sec. 17.20.346. Liability of food bank or charitable organization.

1. Notwithstanding the provisions of AS 17.20.290 , 17.20.305 , or 17.20.315 , a food bank or charitable organization that receives and distributes food is not subject to civil or criminal liability arising from an injury or death attributable to the condition of the food if
   1. the food bank or charitable organization inspects the food received in a reasonable manner and finds it to be apparently fit for human consumption at the time of distribution;
   2. the food bank or charitable organization has no actual or constructive knowledge at the time the food is distributed that it is adulterated, tainted, contaminated, or would be harmful to the health or well-being of an individual consuming it; and
   3. the injury or death is not a direct result of the negligence, recklessness, or intentional misconduct of the food bank or charitable organization.
2. Nothing in this section, AS 17.20.290 , 17.20.305 , 17.20.315 , or AS 45.50.471 — 45.50.561 prohibits the distribution by a food bank or charitable organization of food apparently fit for human consumption at the time of its distribution solely because
   1. the label on the food is missing or the food is otherwise misbranded;
   2. the food, if sold commercially, would not be readily marketable because of appearance or grade, or because it is surplus; or
   3. a date on the food indicating when the food is best eaten by or used by has expired.

History. (§ 1 ch 75 SLA 1984; am § 23 ch 72 SLA 1998; am § 10 ch 151 SLA 2004; am § 3 ch 1 SLA 2018)

Administrative Code. —

For food care, see 18 AAC 31, art. 2.

Effect of amendments. —

The 2018 amendment, effective June 4, 2018, inserted “or charitable organization” following “food bank” throughout the section; added (b)(3), and made a related change.

Sec. 17.20.347. Definitions.

In AS 17.20.345 — 17.20.347 ,

1. “charitable organization” means a nonprofit organization that provides food without charge to individuals who do not have money to pay for the food or who do not have homes;
2. “donor” includes a person, farmer, retailer, delicatessen, restaurant, hotel, store, slaughterhouse under state supervision, freight company, distributor, wholesaler, meat processor, seafood processor, or similar entity, and a person who acts in a commercial capacity as a manufacturer, packer, processor, bottler, or similar entity, even if that activity is the person’s primary activity;
3. “food” includes unsold hot food;
4. “food bank” means a nonprofit organization that operates principally to collect, inspect, and salvage donated food for free distribution either to needy persons or to nonprofit organizations for free distribution to needy persons.
5. “nonprofit organization” means an organization recognized by the state or federal government as a nonprofit organization.

History. (§ 1 ch 75 SLA 1984; am § 2 ch 16 SLA 1995; am §§ 4, 5 ch 1 SLA 2018)

Revisor's notes. —

Paragraphs (1) and (3) were enacted as (3) and (4); renumbered in 2018, at which time other paragraphs were renumbered to maintain alphabetical consistency.

Administrative Code. —

For food care, see 18 AAC 31, art. 2.

Effect of amendments. —

The 2018 amendment, effective June 4, 2018, in (2), inserted “delicatessen, restaurant, hotel, store,” following “retailer”; in (4), deleted “; in this paragraph, ‘nonprofit organization’ means an organization recognized by the state or federal government as a nonprofit organization” at the end; added (3) [now (1)], (4) [now 3], and (5).

Sec. 17.20.350. Report of minor violations.

Nothing in this chapter requires either the commissioner of environmental conservation or the commissioner of health and social services, as the case may be, to report minor violations of their respective portions of this chapter for prosecution, or for the institution of libel or injunction proceedings, when that commissioner believes that the public interest will be adequately served by a suitable written notice or warning.

History. (§ 8 ch 129 SLA 1949; am E.O. No. 51, § 32 (1981))

Sec. 17.20.360. Attorney general to prosecute.

The attorney general, to whom the commissioner of environmental conservation or the commissioner of health and social services, as the case may be, reports a violation of this chapter, shall institute appropriate proceedings in the superior court without delay and prosecute them in the manner required by law.

History. (§ 7 ch 129 SLA 1949; am E.O. No. 51, § 3 (1981); am § 11 ch 151 SLA 2004)

Sec. 17.20.365. Additional enforcement powers, penalties, and remedies.

In addition to the enforcement powers, penalties, and remedies available under this chapter, the enforcement powers, penalties, and remedies under AS 45.50.471 — 45.50.561 may be used, where appropriate, to enforce this chapter.

History. (§ 12 ch 151 SLA 2004)

Sec. 17.20.370. Definitions.

In this chapter,

1. “advertisement” means a representation disseminated, other than by labeling, for the purpose of inducing, or which is likely to induce directly or indirectly the purchase of food, drugs, devices, or cosmetics;
2. “aquatic farm” has the meaning given in AS 16.40.199 ;
3. “aquatic farm product” has the meaning given in AS 16.40.199 ;
4. “contaminated with filth” means food, drug, device, or cosmetic not securely protected from dust, dirt, and as far as necessary by all reasonable means, from foreign or injurious contamination;
5. “cosmetic” means an article intended to be rubbed, poured, sprinkled, or sprayed on, introduced into, or otherwise applied to the human body for cleansing, beautifying, promoting attractiveness, or altering the appearance, and an article intended for use as a component of an article enumerated in this paragraph; except that the term does not include soap intended for cleansing purposes only;
6. “device” except when used in AS 17.20.040(a)(6) , 17.20.090 (3), 17.20.150 (3), 17.20.290(a)(10) and 17.20.300 means an instrument, apparatus, and contrivance, including its components, parts, and accessories, intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or animal; or to affect the structure or function of the body of man or animal;
7. “drug” means an article recognized in the official United States Pharmacopoeia, official Homeopathic Pharmacopoeia of the United States, or official National Formulary; an article intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or animal; an article other than food, intended to affect the structure or function of the body of man or animal; and an article intended for use as component of an article specified in this paragraph but does not include devices or their components, parts, or accessories;
8. “federal act” means the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. 301  —  392; 52 Stat. 1040  — 1059;
9. “fish or fisheries products” means any aquatic animal, including amphibians, or aquatic plants or parts of those plants, animals, or amphibians that are usable as human food;
10. “food” means an article used for food or drink for man or animal, chewing gum, and articles used for components of either of them;
11. “immediate container” does not include a package liner;
12. “label” means a display of written, printed or graphic matter upon the immediate container of an article; however, a requirement made by or under authority of this chapter that a word, statement, or other information appear on the label is not complied with unless the word, statement, or other information also appears on the outside container or wrapper of the retail package, if there is one, or is easily legible through the outside container or wrapper;
13. “labeling” means the label and other written, printed, or graphic matter upon an article or its container or wrapper accompanying the article;
14. “new drug” means a drug the composition of which is such that it is not generally recognized among experts qualified by scientific training and experience to evaluate the safety of drugs as safe for use under the conditions prescribed, recommended, or suggested in the labeling of it; or a drug the composition of which is such that the drug, as a result of investigations to determine its safety for use under such conditions, has become so recognized, but which has not, otherwise than in these investigations, been used to a material extent or for a material time under those conditions;
15. “official compendium” means the official United States Pharmacopoeia, official Homeopathic Pharmacopoeia of the United States, official National Formulary, or supplements to them.

History. (§ 2(a) — (k) (m) — (p) (r) ch 129 SLA 1949; am § 6 ch 104 SLA 1971; am § 14 ch 208 SLA 1975; am E.O. No. 51, § 41 (1981); am § 2 ch 164 SLA 1990; am §§ 24, 25 ch 72 SLA 1998; am § 4 ch 8 SLA 2002; am § 103 ch 13 SLA 2019)

Revisor's notes. —

This section was reorganized in 1983 to alphabetize the words defined and in 1990, 1998, 2010, and 2019 to retain alphabetical order.

In 2002, in paragraph (7) [now (6)] of this section, “ AS 17.20.040 (a)(6)” was substituted for “ AS 17.20.040 (6)” to reflect the 2002 addition of subsection (b) to AS 17.20.040.

Effect of amendments. —

The 2019 amendment, effective October 17, 2019, repealed (2).

Sec. 17.20.380. Short title.

This chapter may be cited as the Alaska Food, Drug, and Cosmetic Act.

History. (§ 1 ch 129 SLA 1949)

Sec. 17.21.010. Illicit synthetic drugs.

1. A person may not possess, offer, display, market, advertise for sale, or sell an illicit synthetic drug.
2. A synthetic drug is illicit if
   1. the label
      1. is false or misleading;
      2. does not specify the identity of the substances contained in the synthetic drug; or
      3. does not specify the name and place of business of the manufacturer, packer, or distributor; and
   2. the synthetic drug has one or more of the following characteristics:
      1. the packaging or labeling of the synthetic drug suggests that the user will achieve euphoria, a hallucination, mood enhancement, relaxation, stimulation, or another effect on the body;
      2. the name or packaging of the synthetic drug uses images or labels suggesting that it is a controlled substance or has the effect of a controlled substance;
      3. the synthetic drug resembles a controlled substance in appearance, in chemical structure, or composition;
      4. the synthetic drug is marketed or advertised for a particular use or purpose and the cost of the synthetic drug is disproportionately higher than other products marketed or advertised for the same or similar use or purpose;
      5. the synthetic drug contains a warning label stating or suggesting that the synthetic drug is in compliance with state laws regulating controlled substances;
      6. the synthetic drug is a product to which has been added a synthetic chemical or synthetic chemical compound that does not have a legitimate relationship to the advertised use of the product.
3. It is an affirmative defense to an action for a violation of this section that a product is expressly exempted from or is expressly regulated under and is in compliance with state or federal law. In this subsection, “affirmative defense” has the meaning given in AS 11.81.900 .

History. (§ 1 ch 86 SLA 2014)

Sec. 17.21.020. Exemption.

AS 17.21.010 does not apply to a synthetic drug intended solely for investigational use by experts qualified by scientific training and experience to investigate the safety of drugs if the drug is plainly labeled “for investigational use only,” and the investigational use is authorized by state or federal law.

History. (§ 1 ch 86 SLA 2014)

Sec. 17.21.030. Enforcement and penalties.

1. The commissioner of public safety is responsible for enforcing this chapter and may
   1. delegate that authority as appropriate; and
   2. cooperate with the Department of Health and Social Services in carrying out the commissioner’s enforcement activities.
2. This section does not limit the authority of a peace officer.
3. A person who violates AS 17.21.010 is guilty of a violation, and, upon conviction, is punishable by a fine of not more than $500.
4. The provisions of this section are in addition to the remedies available under AS 45.50.471 — 45.50.561 .

History. (§ 1 ch 86 SLA 2014)

Sec. 17.21.090. Definitions.

In this chapter, unless the context clearly requires otherwise,

1. “controlled substance” has the meaning given in AS 11.71.900 ;
2. “drug” has the meaning given in AS 17.20.370 ;
3. “synthetic drug” means a substance that is
   1. a chemical or chemical compound intended, when introduced into the human body, to mimic or simulate the effect of a drug or controlled substance;
   2. in the form of
      1. a crystalline or powder product in crystalline, loose powder, block, tablet, or capsule form; or
      2. plant material in granular, loose leaf, powder, or liquid form or used as a food additive; and
   3. not a controlled substance.

History. (§ 1 ch 86 SLA 2014)

Sec. 17.22.010. Prescription, purchase, and administration of epinephrine by a trained individual.

An individual who is 18 years of age or older may obtain a prescription for, purchase, and, in an emergency situation, administer epinephrine using

1. an auto-injector, if the individual has successfully completed a training program approved by the department under AS 17.22.020(b) ; or
2. an ampule, if the individual has successfully completed a training program approved by the department under AS 17.22.020(c) .

History. (§ 1 ch 52 SLA 2010)

Sec. 17.22.020. Approval of training programs.

1. The department shall adopt standards for the approval of training programs for the use of
   1. epinephrine auto-injectors; and
   2. epinephrine ampules.
2. The department shall approve an auto-injector training program that meets standards adopted under (a)(1) of this section. The standards must require an epinephrine auto-injector program to provide training in
   1. techniques on how to recognize symptoms of severe asthmatic or allergic reactions, including anaphylaxis;
   2. standards and procedures for the storage of epinephrine auto-injectors and administration of epinephrine using auto-injectors; and
   3. emergency follow-up procedures.
3. The department shall approve an epinephrine ampule training program that meets standards adopted under (a)(2) of this section. The standards must require an epinephrine ampule program to provide training in
   1. techniques on how to recognize symptoms of severe asthmatic or allergic reactions, including anaphylaxis;
   2. standards and procedures for the storage of epinephrine ampules and administration of epinephrine using ampules; and
   3. emergency follow-up procedures.

History. (§ 1 ch 52 SLA 2010)

Sec. 17.22.030. Applicability.

This chapter does not apply to a person who is authorized under another law to administer epinephrine or to a person who is prescribed epinephrine for personal use.

History. (§ 1 ch 52 SLA 2010)

Sec. 17.22.040. Liability of certified individual.

A claim for relief may not be brought against an individual who has successfully completed a training program approved by the department under AS 17.22.020 for an act or omission relating to the administration of epinephrine to another individual in an emergency situation if the individual who completed the training program acted in good faith under the authority granted by this chapter.

History. (§ 1 ch 52 SLA 2010)

Sec. 17.22.090. Definitions.

In this chapter,

1. “department” means the Department of Health and Social Services;
2. “emergency situation” means a circumstance where an individual experiences, or appears to experience, a severe asthmatic or allergic reaction, including anaphylaxis, that requires the administration of epinephrine to avoid severe injury or death and where a certified or licensed health care provider authorized to administer epinephrine is not reasonably available.

History. (§ 1 ch 52 SLA 2010)

Sec. 17.30.010. Regulations. [Repealed, § 22 ch 146 SLA 1986.]

Sec. 17.30.020. Registration requirements; inspections.

1. A person who manufactures, distributes, dispenses, or conducts research with a controlled substance in the state or who proposes to manufacture, distribute, or dispense a controlled substance in the state, shall comply with the registration requirements of 21 U.S.C. 811 — 830 (Controlled Substances Act), and the regulations adopted under those sections.
2. A person registered under federal law to manufacture, distribute, dispense, or conduct research with controlled substances in the state may possess, manufacture, distribute, dispense, or conduct research with those substances to the extent authorized by the person’s registration and in conformity with the other provisions of this chapter.
3. [Repealed, § 22 ch 146 SLA 1986.]
4. [Repealed, § 22 ch 146 SLA 1986.]
5. [Repealed, § 22 ch 146 SLA 1986.]
6. A peace officer may enter a registrant’s premises at reasonable times and in a reasonable manner to inspect the premises and records required to be maintained under federal law.  An inspection may not extend to financial data, pricing data, or sales data, other than shipment data, unless the owner, operator, or agent in charge of the premises consents.
7. Upon request from a peace officer, a person who manufactures, distributes, dispenses, or conducts research with a controlled substance in the state shall provide evidence of current registration under 21 U.S.C. 811 — 830 (Controlled Substances Act) and the regulations adopted under those sections.

History. (§ 4 ch 45 SLA 1982; am §§ 13 — 16, 22 ch 146 SLA 1986)

Cross references. —

For penalty for refusal of entry into a premises for an inspection authorized under this chapter, see AS 11.71.060(a)(3) .

Secs. 17.30.030 — 17.30.050. Registration; denial, revocation, and suspension of registration; order to show cause. [Repealed, § 22 ch 146 SLA 1986.]

Sec. 17.30.060. Records of registrants.

A person registered under federal law to manufacture, distribute, dispense, or conduct research with controlled substances in the state shall keep records and maintain inventories in conformance with the record keeping and inventory requirements of federal law.

History. (§ 4 ch 45 SLA 1982; am § 17 ch 146 SLA 1986)

Cross references. —

For penalty for furnishing false or fraudulent information in or omitting material information from records required to be kept under this chapter, see AS 11.71.040(a)(8) ; for penalty for failure to make, keep, or furnish records required by this chapter, see AS 11.71.050(a)(3) .

Sec. 17.30.070. Order forms; prescriptions.

1. A controlled substance may be distributed by one registrant to another registrant only if the distribution is in accordance with federal requirements for order forms.
2. A controlled substance may not be dispensed by a practitioner other than in accordance with federal requirements regarding prescriptions for controlled substances.
3. If the classification of a controlled substance in a schedule set out in AS 11.71.140 — 11.71.190 is different from its corresponding classification under federal law, the requirements of (a) and (b) of this section are determined by the classification of the substance under federal law.

History. (§ 4 ch 45 SLA 1982; am § 71 ch 6 SLA 1984)

Cross references. —

For penalty for failure to make, keep, or furnish order forms required under this chapter, see AS 11.71.050(a)(3) .

Sec. 17.30.080. Unlawful administration, prescription, and dispensation of controlled substances.

1. A controlled substance classified under federal law or in a schedule set out in AS 11.71.140 — 11.71.190 may not be administered, prescribed, dispensed, or distributed other than for a medical purpose.
2. A person who violates (a) of this section, or who otherwise manufactures, distributes, dispenses, or conducts research with a controlled substance in the state without fully complying with 21 U.S.C. 811 — 830 (Controlled Substances Act), and regulations adopted under those sections, is guilty of misconduct involving a controlled substance under AS 11.71.010 — 11.71.060 in the degree appropriate to the circumstances as described in those sections. Upon filing a complaint, information, presentment, or indictment charging a medical assistance provider with misconduct involving a controlled substance under AS 11.71.140 — 11.71.190 , the attorney general shall, in writing, notify the commissioner of health and social services of the filing.
3. Upon receiving a notice from the attorney general under (b) of this section, the commissioner of health and social services shall immediately undertake a review of all unpaid claims or requests for reimbursements attributable to services claimed to have been provided by the person charged.
4. In this section,
   1. “claims” has the meaning given in AS 47.05.290 ;
   2. “medical assistance provider” has the meaning given in AS 47.05.290 ;
   3. “medical purpose” means a purpose that is solely medical as opposed to any other purpose, that is reasonably necessary for treatment of a person’s illness, injury, or physical or mental health, and that is provided by a practitioner while acting within the usual course of professional practice or research and in accordance with a standard of care generally recognized and accepted within the medical profession in the United States;
   4. “practitioner” has the meaning given in AS 11.71.900 .

History. (§ 4 ch 45 SLA 1982; am § 72 ch 6 SLA 1984; am § 18 ch 146 SLA 1986; am §§ 1, 2 ch 66 SLA 2003)

Revisor’s notes. —

In 2008, in subsection (b), “11.71.060” was substituted for “11.71.070” to reflect the 1991 repeal of AS 11.71.070 .

Sec. 17.30.090. Sale or purchase of certain listed chemicals.

1. A seller, retailer, or vendor may not sell for personal use and a person may not purchase for personal use ephedrine base, pseudoephedrine base, or phenylpropanolamine base, as those terms are used in P.L. 109-177, 120 Stat. 192, unless that sale or purchase complies with and meets the requirements of P.L. 109-177, 120 Stat. 192, with regard to amounts, identification required, storage, access and availability, and logbooks. A seller, retailer, or vendor shall maintain the logbook for the period required under P.L. 109-177, 120 Stat. 192, and shall allow law enforcement officers access to the logbook. Each seller, retailer, and vendor shall provide training to the seller’s, retailer’s, or vendor’s employees and agents in the requirements of this section. The Department of Public Safety shall provide assistance and information to sellers, retailers, and vendors to meet the requirements of this section.
2. A seller, retailer, or vendor may not sell to a person under 16 years of age and a person under 16 years of age may not purchase a product or substance identified in (a) of this section.
3. Nothing in this section limits the authority of a seller, retailer, or vendor regulated by this section to report to a law enforcement agency or officer suspicious purchases of a chemical, product, or substance. A seller, retailer, or vendor is not liable in a civil action for release of information to a law enforcement agency concerning matters related to this section.
4. A seller, retailer, or vendor does not violate this section if the seller, retailer, or vendor proves by a preponderance of the evidence that the seller, retailer, or vendor
   1. exercised the degree of care of a reasonable employer to ensure compliance with (a) — (c) of this section; and
   2. determined that the employees and agents of the seller, retailer, or vendor had been notified of the requirements of this section by
      1. securing each employee’s or agent’s written acknowledgment of notification of those requirements; or
      2. making another appropriate determination.
5. A person who violates this section shall forfeit and pay to the state a civil penalty of not more than $10,000 for each violation.

History. (§ 18 ch 53 SLA 2006)

Revisor’s notes. —

P.L. 109-177, 120 Stat. 192, cross-referenced in (a) of this section, is a reference to the “USA PATRIOT Improvement and Reauthorization Act of 2005.” References to “ephedrine base, pseudoephedrine base, and phenylpropanolamine base” and related requirements described in (a) of this section appear in the Act’s Title VII, the short title of which is “Combat Methamphetamine Epidemic Act of 2005.”

Editor’s notes. —

Section 22, ch. 53, SLA 2006, provides that this section applies “to offenses committed on or after June 3, 2006.”

Public Law 109-177, title VII, the Combat Methamphetamine Epidemic Act of 2005, amended sections through Title 21, Chapter 13 of the U.S. Code, 21 U.S.C. 801 et seq.

Sec. 17.30.100. Powers of the Department of Public Safety.

1. The commissioner of public safety shall enforce this chapter and shall cooperate with other state and federal agencies in the discharge of their responsibilities pertaining to illicit traffic in controlled substances and in suppressing the abuse of controlled substances. Under this section, the powers of the commissioner of public safety include the following:
   1. arranging for the exchange of information among government officials concerning illicit traffic in and abuse of controlled substances;
   2. coordinating training programs pertaining to controlled substances at both local and state levels;
   3. cooperating with the Drug Enforcement Administration of the United States Department of Justice by establishing a centralized unit to accept, catalog, file, and collect statistics, including records of persons who have violated the provisions of this chapter or AS 11.71 in the state and making the information available for federal, state, and local law enforcement purposes; and
   4. instituting in the superior court actions for injunctions against continued manufacture, distribution, dispensation, or research with a controlled substance in the state by a person who violates 21 U.S.C. 811 — 830 (Controlled Substances Act) or the regulations adopted under those sections.
2. The commissioner of public safety may not furnish the name or identity of a patient or research subject whose identity could not be obtained under AS 17.30.155 .
3. The Department of Public Safety, in accordance with AS 37.07 (the Executive Budget Act), may apply for and accept money necessary to exchange information concerning narcotics trafficking between the states, or otherwise related to the enforcement of AS 11.71 or AS 11.73.
4. The Department of Public Safety or a local law enforcement agency may accept from the United States Attorney General property, including money, that is forfeited under 21 U.S.C. 881 (the Controlled Substances Act). The Department of Public Safety and local law enforcement agencies shall, in accordance with 21 U.S.C. 881 (e) and regulations and policies adopted under that section, use property and the proceeds of property obtained under this subsection in the enforcement of this chapter, AS 11.71, and municipal ordinances substantially similar to this chapter and AS 11.71.

History. (§ 4 ch 45 SLA 1982; am § 34 ch 138 SLA 1986; am § 19 ch 146 SLA 1986; am § 1 ch 3 SLA 1988; am § 29 ch 36 SLA 1990; am § 55 ch 13 SLA 2019)

Effect of amendments. —

The 2019 amendment, effective October 17, 2019, in the introductory language in (a), deleted “but are not limited to” following “include” near the end; in (a)(4), deleted the comma following “superior court”.

Sec. 17.30.110. Items subject to forfeiture.

The following may be forfeited to the state:

1. a controlled substance that has been manufactured, distributed, dispensed, acquired, or possessed in violation of this chapter or AS 11.71;
2. raw materials, products, and equipment that are used or intended for use in manufacturing, distributing, compounding, processing, delivering, importing, or exporting a controlled substance that is a felony under this chapter or AS 11.71;
3. property that is used or intended for use as a container for property described in (1) or (2) of this section;
4. a conveyance, including but not limited to aircraft, vehicles, or vessels, that has been used or is intended for use in transporting or in any manner in facilitating the transportation, sale, receipt, possession, or concealment of property described in (1) or (2) of this section in violation of a felony offense under this chapter or AS 11.71; however,
   1. a conveyance may not be forfeited under this paragraph if the owner of the conveyance establishes, by a preponderance of the evidence, at a hearing before the court as the trier of fact, that use of the conveyance in violation of this chapter or AS 11.71 was committed by another person and that the owner was neither a consenting party nor privy to the violation;
   2. a forfeiture of a conveyance encumbered by a valid security interest at the time of seizure is subject to the interest of the secured party if the secured party establishes, by a preponderance of the evidence, at a hearing before the court as the trier of fact, that use of the conveyance in violation of this chapter or AS 11.71 was committed by another person and that the secured party was neither a consenting party nor privy to the violation;
5. books, records, and research products and materials, including formulas, microfilm, tapes, and data, that are used in violation of this chapter or AS 11.71;
6. money, securities, negotiable instruments, or other things of value used in financial transactions derived from activity prohibited by this chapter or AS 11.71; and
7. a firearm that is visible, carried during, or used in furtherance of a violation of this chapter or AS 11.71.

History. (§ 4 ch 45 SLA 1982)

Revisor’s notes. —

AS 17.30.110(b)-(q) were renumbered as AS 17.30.112 — 17.30.126 in 1983.

Sec. 17.30.112. Proceedings resulting in forfeiture.

1. Property listed in AS 17.30.110 may be forfeited to the state either upon conviction of the defendant of a violation of this chapter or AS 11.71, or upon judgment of a court in a separate civil proceeding in rem.  The court may order a forfeiture in the in rem proceeding if it finds that an item specified in AS 17.30.110 was used during or in aid of a violation of this chapter or AS 11.71.
2. It is not a defense in an in rem proceeding brought under this section that a criminal proceeding has resulted in a conviction or conviction of a lesser offense for a violation of this chapter or AS 11.71.
3. When forfeiting property under (a) of this section, a court may award to a municipal law enforcement agency that participated in the arrest or conviction of the defendant, the seizure of property, or the identification of property for seizure, (1) the property if the property is worth $5,000 or less and is not money or some other thing that is divisible, or (2) up to 75 percent of the property or the value of the property if the property is worth more than $5,000 or is money or some other thing that is divisible. In determining the percentage a municipal law enforcement agency may receive under this subsection, the court shall consider the municipal law enforcement agency’s total involvement in the case relative to the involvement of the state.

History. (§ 4 ch 45 SLA 1982; am § 7 ch 129 SLA 1996)

Revisor’s notes. —

Subsections (a) and (b) were formerly AS 17.30.110(b) and (c). Renumbered in 1983.

Sec. 17.30.114. Seizure and custody of property.

1. Property listed in AS 17.30.110 may be seized by a peace officer upon an order issued by a court having jurisdiction over the property upon a showing of probable cause that the property may be forfeited under AS 17.30.110 .  Seizure without a court order may be made if
   1. the seizure is incident to a valid arrest or a search under a valid search warrant;
   2. the property subject to seizure has been the subject of an earlier judgment in favor of the state in a criminal proceeding or civil proceeding in rem under this chapter or AS 11.71; or
   3. there is probable cause that the property was used, is being used, or is intended for use, in violation of this chapter or AS 11.71 and the property is easily movable; property seized under this paragraph may not be held for more than 48 hours without a court order obtained to continue its detention.
2. Property taken or detained under (a) of this section shall be held in the custody of either the commissioner of public safety or a municipal law enforcement agency authorized by the commissioner of public safety to retain custody of property listed in AS 17.30.110 subject only to the orders and decrees of the court having jurisdiction over any forfeiture proceedings. If property is seized under this chapter, the commissioner of public safety or an authorized municipal law enforcement agency may
   1. place the property under seal;
   2. remove the property to a place designated by the court;
   3. take custody of the property and remove it to an appropriate location for disposition in accordance with law; or
   4. with court approval, transfer the property to another state or federal law enforcement agency for forfeiture proceedings by that agency; the court having jurisdiction shall grant the approval under this paragraph if the property
      1. will be retained within the jurisdiction of the court by the agency to which the property is being transferred; or
      2. is
         1. not needed as evidence; or
         2. needed as evidence, and the property is fungible or the property’s evidentiary value can otherwise be preserved without retaining the property within the jurisdiction of the court.
3. Within 10 days after a seizure under AS 17.30.110 — 17.30.126 , the commissioner of public safety shall make an inventory of any property seized, including controlled substances, and shall appraise the value of any items seized other than controlled substances.

History. (§ 4 ch 45 SLA 1982; am § 8 ch 129 SLA 1996)

Revisor’s notes. —

Formerly AS 17.30.110(d)-(f). Renumbered in 1983.

Sec. 17.30.116. Procedure for forfeiture action.

1. Within 20 days after a seizure under AS 17.30.110 — 17.30.126 , the commissioner of public safety shall, by certified mail, notify any person known to have an interest in an item with an appraised value of $500 or more, or who is ascertainable from official registration numbers, licenses, or other state, federal, or municipal numbers on the item, of the pending forfeiture action.  Additionally, the commissioner of public safety shall publish notice of forfeiture action of an item valued at $500 or more in a newspaper of general circulation in the judicial district in which the seizure was made, or if no newspaper is published in that judicial district, in a newspaper published in the state and distributed in that judicial district.  The notice shall be published once each week during four consecutive calendar weeks. The requirements of this subsection do not apply to the forfeiture of controlled substances which have been manufactured, distributed, dispensed, or possessed in violation of this chapter or AS 11.71, regardless of their value.
2. Upon service or publication of notice of commencement of a forfeiture action under this section, a person claiming interest in the property shall file within 30 days after the service or publication, a notice of claim setting out the nature of the interest, the date it was acquired, the consideration paid, and an answer to the state’s allegations. If a claim and answer is not filed within the time specified, the property described in the state’s allegation must be ordered forfeited to the state without further proceedings or showings.
3. Questions of fact or law raised by a notice of forfeiture action and answer of a claimant in an action commenced under this section must be determined by the court sitting without a jury.  This proceeding may be held in abeyance until conclusion of any pending criminal charges against the claimant under this chapter or AS 11.71.

History. (§ 4 ch 45 SLA 1982)

Revisor’s notes. —

Formerly AS 17.30.110(g)-(i). Renumbered in 1983.

Cross references. —

For penalty for failure to furnish notification required under this chapter, see AS 11.71.050(a)(3) .

Sec. 17.30.118. Petition for release of seized items.

1. A claimant under AS 17.30.116(b) may at any time petition for release of a seized item as follows:
   1. to a court in which a warrant for seizure has been issued;
   2. to a court in which a criminal or civil action alleging forfeiture of the item has been filed; or
   3. before an action is filed, or if no seizure warrant was issued, to a court in the judicial district in which the violation took place.
2. An item may not be released by the court under (a) of this section unless the claimant gives adequate assurance that the item will remain subject to the court’s jurisdiction and
   1. the court finds that the release is in the best interests of the state; or
   2. the claimant provides a bond or other valid and equivalent security equal to twice the assessed value of the item.

History. (§ 4 ch 45 SLA 1982)

Revisor’s notes. —

Formerly AS 17.30.110(j) and (k). Renumbered in 1983.

Sec. 17.30.120. Petition for sale of seized item.

A claimant may petition the court for sale of an item before final disposition of court proceedings. The court shall grant a petition for sale upon a finding that the sale is in the best interests of the state and the preservation and maintenance of the item seized. Proceeds from the sale plus interest to the date of final disposition of the court proceedings become the subject of the forfeiture action.

History. (§ 4 ch 45 SLA 1982)

Revisor’s notes. —

Formerly AS 17.30.110 ( l ). Renumbered in 1983.

Sec. 17.30.122. State disposal of forfeited property.

Property forfeited under AS 17.30.110 — 17.30.126 other than controlled substances and firearms shall be disposed of by the commissioner of administration in accordance with applicable law. Firearms shall be disposed of as provided in AS 18.65.340 . As to property other than firearms or controlled substances, the commissioner of administration may

1. destroy property harmful to the public;
2. sell the property and use the proceeds for payment of all proper expenses of the proceedings for forfeiture and sale, including expenses of seizure, custody, and court costs;
3. take custody of the property and authorize its use in the enforcement of this chapter or AS 11.71, or transfer it to another agency of the state or a political subdivision of the state for a use in furtherance of the administration of justice;
4. take custody of the property and remove it for disposition in accordance with law;
5. forward it to the Drug Enforcement Administration of the United States Department of Justice for disposition; or
6. transfer ownership of an aircraft to the Alaska Wing, Civil Air Patrol.

History. (§ 4 ch 45 SLA 1982; am § 2 ch 18 SLA 1983; am § 4 ch 13 SLA 1996)

Revisor’s notes. —

Formerly AS 17.30.110(m). Renumbered in 1983.

Sec. 17.30.124. Remittance to claimant.

1. Upon a showing that a claimant is entitled to remittance under AS 17.30.110 — 17.30.126 , the court shall order that
   1. if the claimant is entitled to the item, it shall be delivered to the claimant immediately;
   2. if the claimant is entitled to remittance of some value less than the total value of the item, the claimant is entitled, at the claimant’s choice, to receive either the value of the claimant’s interest or, upon receipt of payment of the difference in value by the claimant, the entire item.
2. An offender who used an item subject to remission in violation of this chapter or AS 11.71 shall be assessed a fine which may not be less than the cost of any lien payment or remittance made by the state plus the reasonable costs of the seizure.

History. (§ 4 ch 45 SLA 1982)

Revisor’s notes. —

Formerly AS 17.30.110(n) and (o). Renumbered in 1983.

Sec. 17.30.126. Forfeiture of controlled substances.

1. A controlled substance manufactured, possessed, transferred, sold, or offered for sale in violation of this chapter or AS 11.71 is contraband and must be seized and summarily forfeited to the state.  The commissioner of public safety or the commissioner’s designee, including a municipal law enforcement agency authorized under AS 17.30.114(b) to retain custody of controlled substances, is responsible for the disposal of controlled substances which have been forfeited. The controlled substances shall be disposed of in accordance with procedures and requirements prescribed by the commissioner.
2. Plants from which controlled substances may be derived and which have been planted or cultivated in violation of this chapter or AS 11.71, or which are grown in the wild, may be seized and summarily forfeited to the state.

History. (§ 4 ch 45 SLA 1982)

Revisor’s notes. —

Formerly AS 17.30.110(p) and (q). Renumbered in 1983.

Sec. 17.30.130. Judicial review. [Repealed, § 22 ch 146 SLA 1986.]

Sec. 17.30.140. Education and research.

1. The commissioner of health and social services shall provide for educational programs designed to prevent and deter the abuse of controlled substances. In connection with these programs, the commissioner may
   1. assist the regulated industry and interested groups and organizations in contributing to the reduction of abuse of controlled substances;
   2. promote better recognition of the problems surrounding abuse of controlled substances within the regulated industry and among interested groups and organizations;
   3. consult with interested groups and organizations to aid them in solving administrative and organizational problems;
   4. evaluate procedures, projects, and techniques conducted or proposed as part of educational programs on abuse of controlled substances;
   5. disseminate the results of research on abuse of controlled substances to promote a better public understanding of the problems which exist and their solutions; and
   6. with the cooperation of the Department of Law, assist in the education and training of state and local law enforcement officials in their efforts to prevent illicit traffic in and abuse of controlled substances.
2. The commissioner of health and social services shall encourage research on controlled substances and may
   1. establish methods to assess the effects of controlled substances and identify and characterize those with potential for abuse;
   2. make studies and undertake research to
      1. develop new or improved approaches, techniques, systems, equipment, and devices to strengthen the enforcement of this chapter;
      2. determine patterns of abuse of controlled substances and their social effects; and
      3. improve methods for preventing, predicting, and understanding the abuse of controlled substances;
   3. enter into contracts with public agencies, institutions of higher education, and private organizations or individuals for conducting research, demonstrations, or special projects which bear directly on abuse of controlled substances and for related research and educational activities.

History. (§ 4 ch 45 SLA 1982)

Sec. 17.30.150. Reliance on Drug Enforcement Administration.

Results, information, and evidence received from the Drug Enforcement Administration of the United States Department of Justice relating to the enforcement functions of this chapter, including results of inspections conducted by it, may be relied on and acted on by the Department of Public Safety in the exercise of its enforcement functions under this chapter.

History. (§ 4 ch 45 SLA 1982; am § 20 ch 146 SLA 1986)

Revisor’s notes. —

As enacted, this section contained a subsection (b), but the provisions of that subsection were renumbered as AS 17.30.155 .

Sec. 17.30.155. Confidentiality of certain information.

A practitioner engaged in medical practice or research may not disclose the name or identity of a patient or research subject that the practitioner is required to keep confidential unless ordered by a court to disclose it within the context of a criminal investigation or proceeding.

History. (§ 4 ch 45 SLA 1982; am § 21 ch 146 SLA 1986)

Revisor’s notes. —

Enacted as AS 17.30.150(b). Renumbered in 1982.

Sec. 17.30.200. Controlled substance prescription database.

1. The controlled substance prescription database is established in the Board of Pharmacy. The purpose of the database is to contain data as described in this section regarding every prescription for a schedule II, III, or IV controlled substance under federal law dispensed in the state to a person other than under the circumstances described in (t) of this section.
2. The pharmacist-in-charge of each licensed or registered pharmacy, regarding each schedule II, III, or IV controlled substance under federal law dispensed by a pharmacist under the supervision of the pharmacist-in-charge, and each practitioner who directly dispenses a schedule II, III, or IV controlled substance under federal law other than those dispensed or administered under the circumstances described in (t) of this section, shall submit to the board, by a procedure and in a format established by the board, the following information for inclusion in the database on at least a daily basis:
   1. the name of the prescribing practitioner and the practitioner’s federal Drug Enforcement Administration registration number or other appropriate identifier;
   2. the date of the prescription;
   3. the date the prescription was filled and the method of payment; this paragraph does not authorize the board to include individual credit card or other account numbers in the database;
   4. the name, address, and date of birth of the person for whom the prescription was written;
   5. the name and national drug code of the controlled substance;
   6. the quantity and strength of the controlled substance dispensed;
   7. the name of the drug outlet dispensing the controlled substance; and
   8. the name of the pharmacist or practitioner dispensing the controlled substance and other appropriate identifying information.
3. The board shall maintain the database in an electronic file or by other means established by the board to facilitate use of the database for identification of
   1. prescribing practices and patterns of prescribing and dispensing controlled substances;
   2. practitioners who prescribe controlled substances in an unprofessional or unlawful manner;
   3. individuals who receive prescriptions for controlled substances from licensed practitioners and who subsequently obtain dispensed controlled substances from a drug outlet in quantities or with a frequency inconsistent with generally recognized standards of dosage for that controlled substance; and
   4. individuals who present forged or otherwise false or altered prescriptions for controlled substances to a pharmacy.
4. The database and the information contained within the database are confidential, are not public records, are not subject to public disclosure, and may not be shared with the federal government. The board shall undertake to ensure the security and confidentiality of the database and the information contained within the database. The board may allow access to the database only to the following persons, and in accordance with the limitations provided and regulations of the board:
   1. personnel of the board regarding inquiries concerning licensees or registrants of the board or personnel of another board or agency concerning a practitioner under a search warrant, subpoena, or order issued by an administrative law judge or a court;
   2. authorized board personnel or contractors as required for operational and review purposes;
   3. a licensed practitioner having authority to prescribe controlled substances or an agent or employee of the practitioner whom the practitioner has authorized to access the database on the practitioner’s behalf, to the extent the information relates specifically to a current patient of the practitioner to whom the practitioner is prescribing or considering prescribing a controlled substance; the agent or employee must be licensed or registered under AS 08;
   4. a licensed or registered pharmacist having authority to dispense controlled substances or an agent or employee of the pharmacist whom the pharmacist has authorized to access the database on the pharmacist’s behalf, to the extent the information relates specifically to a current patient to whom the pharmacist is dispensing or considering dispensing a controlled substance; the agent or employee must be licensed or registered under AS 08;
   5. federal, state, and local law enforcement authorities may receive printouts of information contained in the database under a search warrant or order issued by a court establishing probable cause for the access and use of the information;
   6. an individual who is the recipient of a controlled substance prescription entered into the database may receive information contained in the database concerning the individual on providing evidence satisfactory to the board that the individual requesting the information is in fact the person about whom the data entry was made and on payment of a fee set by the board under AS 37.10.050 that does not exceed $10;
   7. a licensed pharmacist employed by the Department of Health and Social Services who is responsible for administering prescription drug coverage for the medical assistance program under AS 47.07, to the extent that the information relates specifically to prescription drug coverage under the program;
   8. a licensed pharmacist, licensed practitioner, or authorized employee of the Department of Health and Social Services responsible for utilization review of prescription drugs for the medical assistance program under AS 47.07, to the extent that the information relates specifically to utilization review of prescription drugs provided to recipients of medical assistance;
   9. the state medical examiner, to the extent that the information relates specifically to investigating the cause and manner of a person’s death;
   10. an authorized employee of the Department of Health and Social Services may receive information from the database that does not disclose the identity of a patient, prescriber, dispenser, or dispenser location, for the purpose of identifying and monitoring public health issues in the state; however, the information provided under this paragraph may include the region of the state in which a patient, prescriber, and dispenser are located and the specialty of the prescriber; and
   11. a practitioner, pharmacist, or clinical staff employed by an Alaska tribal health organization, including commissioned corps officers of the United States Public Health Service employed under a memorandum of agreement; in this paragraph, “Alaska tribal health organization” has the meaning given to “tribal health program” in 25 U.S.C. 1603.
5. The failure of a pharmacist-in-charge or a pharmacist to register or submit information to the database as required under this section is grounds for the board to take disciplinary action against the license or registration of the pharmacy or pharmacist. The failure of a practitioner to register or review the database as required under this section is grounds for the practitioner’s licensing board to take disciplinary action against the practitioner.
6. The board may enter into agreements with (1) dispensers in this state that are not regulated by the state to submit information to and access information in the database, and (2) practitioners in this state to access information in the database, subject to this section and the regulations of the board. The board shall prohibit a dispenser that is not regulated by the state from accessing the database if the dispenser has accessed information in the database contrary to the limitations of this section, discloses information in the database contrary to the limitations of this section, or allows unauthorized persons access to the database.
7. The board shall promptly notify the president of the senate and the speaker of the house of representatives if, at any time after September 7, 2008, the federal government fails to pay all or part of the costs of the controlled substance prescription database.
8. An individual who has submitted information to the database in accordance with this section may not be held civilly liable for having submitted the information. Dispensers or practitioners may not be held civilly liable for damages for accessing or failing to access the information in the database.
9. A person who has reason to believe that prescription information from the database has been illegally or improperly accessed shall notify an appropriate law enforcement agency.
10. The board shall notify any person whose prescription information from the database is illegally or improperly accessed.
11. In the regulations adopted under this section, the board shall provide
    1. that prescription information in the database shall be purged from the database after two years have elapsed from the date the prescription was dispensed;
    2. a method for an individual to challenge information in the database about the individual that the person believes is incorrect or was incorrectly entered by a dispenser;
    3. a procedure and time frame for registration with the database;
    4. that a practitioner review the information in the database to check a patient's prescription records before dispensing, prescribing, or administering a schedule II or III controlled substance under federal law to the patient; the regulations must provide that a practitioner is not required to review the information in the database before dispensing, prescribing, or administering
       1. a controlled substance to a person who is receiving treatment
          1. in an inpatient setting;
          2. at the scene of an emergency or in an ambulance; in this sub-subparagraph, "ambulance" has the meaning given in AS 18.08.200 ;
          3. in an emergency room;
          4. immediately before, during, or within the first 48 hours after surgery or a medical procedure;
          5. in a hospice or nursing home that has an in-house pharmacy; or
       2. a nonrefillable prescription of a controlled substance in a quantity intended to last for not more than three days.
12. A person
    1. with authority to access the database under (d) of this section who knowingly
       1. accesses information in the database beyond the scope of the person’s authority commits a class A misdemeanor;
       2. accesses information in the database and recklessly discloses that information to a person not entitled to access or to receive the information commits a class C felony;
       3. allows another person who is not authorized to access the database to access the database commits a class C felony;
    2. without authority to access the database under (d) of this section who knowingly accesses the database or knowingly receives information that the person is not authorized to receive under (d) of this section from another person commits a class C felony.
13. To assist in fulfilling the program responsibilities, performance measures shall be reported to the legislature annually. Performance measures
    1. may include outcomes detailed in the federal prescription drug monitoring program grant regarding efforts to
       1. reduce the rate of inappropriate use of prescription drugs by reporting education efforts conducted by the Board of Pharmacy;
       2. reduce the quantity of pharmaceutical controlled substances obtained by individuals attempting to engage in fraud and deceit;
       3. increase coordination among prescription drug monitoring program partners;
       4. involve stakeholders in the planning process;
    2. shall include information related to the
       1. security of the database; and
       2. reductions, if any, in the inappropriate use or prescription of controlled substances resulting from the use of the database.
14. A pharmacist who dispenses or a practitioner who prescribes, administers, or directly dispenses a schedule II, III, or IV controlled substance under federal law shall register with the database by a procedure and in a format established by the board.
15. The board shall promptly notify the State Medical Board, the Board of Nursing, the Board of Dental Examiners, the Board of Examiners in Optometry, and the Board of Veterinary Examiners when a practitioner registers with the database under (n) of this section.
16. The board is authorized to provide unsolicited notification to a pharmacist, practitioner’s licensing board, or practitioner if a patient has received one or more prescriptions for controlled substances in quantities or with a frequency inconsistent with generally recognized standards of safe practice. An unsolicited notification to a practitioner’s licensing board under this section
    1. must be provided to the practitioner;
    2. is confidential;
    3. may not disclose information that is confidential under this section;
    4. may be in a summary form sufficient to provide notice of the basis for the unsolicited notification.
17. The board shall update the database on at least a daily basis with the information submitted to the board under (b) of this section.
18. The Department of Commerce, Community, and Economic Development shall
    1. assist the board and provide necessary staff and equipment to implement this section; and
    2. establish fees for registration with the database by a pharmacist or practitioner required to register under (n) of this section so that the total amount of fees collected by the department equals the total operational costs of the database minus all federal funds acquired for the operational costs of the database; in setting the fee levels, the department shall
       1. set the fees for registration with the database so that the fees are the same for all practitioners and pharmacists required to register; and
       2. consult with the board to establish the fees under this paragraph.
19. Notwithstanding (p) of this section, the board may issue to a practitioner periodic unsolicited reports that detail and compare the practitioner’s opioid prescribing practice with other practitioners of the same occupation and similar specialty. A report issued under this subsection is confidential and the board shall issue the report only to a practitioner. The board may adopt regulations to implement this subsection. The regulations may address the types of controlled substances to be included in an unsolicited report, the quantities dispensed, the medication strength, and other factors determined by the board.
20. A practitioner or a pharmacist is not required to comply with the requirements of (a) and (b) of this section if a controlled substance is
    1. administered to a patient at
       1. a health care facility; or
       2. a correctional facility;
    2. dispensed to a patient for an outpatient supply of 24 hours or less at a hospital
       1. inpatient pharmacy; or
       2. emergency department.
21. In this section,
    1. “board” means the Board of Pharmacy;
    2. “database” means the controlled substance prescription database established in this section;
    3. “knowingly” has the meaning given in AS 11.81.900 ;
    4. “opioid” includes the opium and opiate substances and opium and opiate derivatives listed in AS 11.71.140 and 11.71.160 ;
    5. “pharmacist-in-charge” has the meaning given in AS 08.80.480 .
    6. the quantity and strength of the controlled substance dispensed;
    7. the name of the drug outlet dispensing the controlled substance; and
    8. the name of the pharmacist or practitioner dispensing the controlled substance and other appropriate identifying information.
    9. the state medical examiner, to the extent that the information relates specifically to investigating the cause and manner of a person's death;
    10. an authorized employee of the Department of Health and Social Services may receive information from the database that does not disclose the identity of a patient, prescriber, dispenser, or dispenser location, for the purpose of identifying and monitoring public health issues in the state; however, the information provided under this paragraph may include the region of the state in which a patient, prescriber, and dispenser are located and the specialty of the prescriber; and
    11. a practitioner, pharmacist, or clinical staff employed by an Alaska tribal health organization, including commissioned corps officers of the United States Public Health Service employed under a memorandum of agreement; in this paragraph, "Alaska tribal health organization" has the meaning given to "tribal health program" in  25 U.S.C. 1603.

History. (§ 2 ch 84 SLA 2008; am §§ 21, 23, 25, 27, 29, 31, 33, 34 ch 25 SLA 2016; am §§ 36 — 44 ch 2 SSSLA 2017)

Revisor's notes. —

Subsections (n) — (s) were relettered as (s) [now (u)] and (n) — (r), respectively, in 2018, for consistency with the style of the Alaska Statutes.

Subsections (s), (t), and (u) were relettered as (u), (s), and (t), respectively, in 2019, for consistency with the style of the Alaska Statutes.

Effect of amendments. —

The 2016 amendment, effective September 19, 2016, added (s) [now (r)]; and, effective July 17, 2017, amended subsections (a), (b), (d), (e), (h), (k), and (m), and added subsections (o) - (r).

The 2017 amendment, in (a), deleted "those administered to a patient at a health care facility" and inserted "under the circumstances described in (u) of this section”; in (b), deleted "administered to a patient at a health care facility" and inserted "dispensed or administered under the circumstances described in (u) of this section"; in (d)(5), inserts "federal" before "state" and makes a related change; in (e), deleted "or practitioner" and made a related change, deleted "or for another" and inserted ". The failure of a practitioner to register or review the database as required under this section is grounds for the practitioner's", and deleted "a" and inserted "the" before "practitioner"; in (n), added new paragraph (5) [now (4)]; in (p), added ", and the Board of Veterinary Examiners" following "Optometry" and made a related change; in (q), added ", practitioner's licensing board," following "pharmacist" and added the last sentence and paragraphs (1) - (4); and added new subsections (t) and (u). Although the 2017 amendment to subsections (a), (b), (d), (e), (p), and (q) were to have taken effect July 17, 2017, under §§ 52 - 56, ch. 2, SSSLA 2017, the governor did not sign the bill until July 25, 2017, and so under AS 01.10.070(d) the actual effective date of the 2017 amendment to subsections (a), (b), (d), (e), (p), and (q) was July 26, 2017.

The 2017 amendment, effective July 1, 2018, in the introductory language in (b), substituted “a daily basis” for “a weekly basis” at the end.

The 2017 amendment, effective July 1, 2018, in (r ), substituted “a daily basis” for “a weekly basis” following “on at least”.

Editor's notes. —

Subsections (a), (b), (d), and (e) were amended by secs. 21, 23, 25, and 27 ch. 25, SLA 2016, respectively, effective July 17, 2017, and further amended by secs. 36, 37, 39, and 40, ch. 2, SSSLA 2017, effective July 26, 2017. Subsections (p) and (q) were enacted by sec. 34, ch. 25, SLA 2016, effective July 17, 2017, and amended by secs. 42 and 43, ch. 2, SSSLA 2017, effective July 26, 2017. From July 17, 2017, until July 26, 2017, subsections (a), (b), (d), (e), (p), and (q) read as follows:

"(a) The controlled substance prescription database is established in the Board of Pharmacy. The purpose of the database is to contain data as described in this section regarding every prescription for a schedule II, III, or IV controlled substance under federal law dispensed in the state to a person other than those administered to a patient at a health care facility.

(b) The pharmacist-in-charge of each licensed or registered pharmacy, regarding each schedule II, III, or IV controlled substance under federal law dispensed by a pharmacist under the supervision of the pharmacist-in-charge, and each practitioner who directly dispenses a schedule II, III, or IV controlled substance under federal law other than those administered to a patient at a health care facility, shall submit to the board, by a procedure and in a format established by the board, the following information for inclusion in the database on at least a weekly basis:

(1) the name of the prescribing practitioner and the practitioner's federal Drug Enforcement Administration registration number or other appropriate identifier;

(2) the date of the prescription;

(3) the date the prescription was filled and the method of payment; this paragraph does not authorize the board to include individual credit card or other account numbers in the database;

(4) the name, address, and date of birth of the person for whom the prescription was written;

(5) the name and national drug code of the controlled substance;

(d) The database and the information contained within the database are confidential, are not public records, are not subject to public disclosure, and may not be shared with the federal government. The board shall undertake to ensure the security and confidentiality of the database and the information contained within the database. The board may allow access to the database only to the following persons, and in accordance with the limitations provided and regulations of the board:

(1) personnel of the board regarding inquiries concerning licensees or registrants of the board or personnel of another board or agency concerning a practitioner under a search warrant, subpoena, or order issued by an administrative law judge or a court;

(2) authorized board personnel or contractors as required for operational and review purposes;

(3) a licensed practitioner having authority to prescribe controlled substances or an agent or employee of the practitioner whom the practitioner has authorized to access the database on the practitioner's behalf, to the extent the information relates specifically to a current patient of the practitioner to whom the practitioner is prescribing or considering prescribing a controlled substance; the agent or employee must be licensed or registered under AS 08;

(4) a licensed or registered pharmacist having authority to dispense controlled substances or an agent or employee of the pharmacist whom the pharmacist has authorized to access the database on the pharmacist's behalf, to the extent the information relates specifically to a current patient to whom the pharmacist is dispensing or considering dispensing a controlled substance; the agent or employee must be licensed or registered under AS 08;

(5) state and local law enforcement authorities may receive printouts of information contained in the database under a search warrant or order issued by a court establishing probable cause for the access and use of the information;

(6) an individual who is the recipient of a controlled substance prescription entered into the database may receive information contained in the database concerning the individual on providing evidence satisfactory to the board that the individual requesting the information is in fact the person about whom the data entry was made and on payment of a fee set by the board under AS 37.10.050 that does not exceed $10;

(7) a licensed pharmacist employed by the Department of Health and Social Services who is responsible for administering prescription drug coverage for the medical assistance program under AS 47.07, to the extent that the information relates specifically to prescription drug coverage under the program;

(8) a licensed pharmacist, licensed practitioner, or authorized employee of the Department of Health and Social Services responsible for utilization review of prescription drugs for the medical assistance program under AS 47.07, to the extent that the information relates specifically to utilization review of prescription drugs provided to recipients of medical assistance;

(e) The failure of a pharmacist-in-charge, pharmacist, or practitioner to register or submit information to the database as required under this section is grounds for the board to take disciplinary action against the license or registration of the pharmacy or pharmacist or for another licensing board to take disciplinary action against a practitioner.

(p) The board shall promptly notify the State Medical Board, the Board of Nursing, the Board of Dental Examiners, and the Board of Examiners in Optometry when a practitioner registers with the database under (o) of this section.

(q) The board is authorized to provide unsolicited notification to a pharmacist or practitioner if a patient has received one or more prescriptions for controlled substances in quantities or with a frequency inconsistent with generally recognized standards of safe practice."

The delayed amendment of subsections (a), (b), (d), (e), (h), and (k) by secs. 22, 24, 26, 28, 30, and 32, ch. 25, SLA 2016, and the repeal of subsections (o), (p), (q), (r), and (s) by sec. 52, ch. 25, SLA 2016, which were to take effect July 1, 2021, were repealed by sec. 47, ch. 2, SSSLA 2017.

Legislative history reports. —

For governor's transmittal letter for ch. 2, SSSLA 2017 (HB 159), which amended (a), (b), (d), (e), (n), (p) — (r), (t), and (u) of this section, see 2017 House Journal 408 — 410.

Sec. 17.30.900. Definitions.

1. Unless the context clearly requires otherwise, the definitions set out in AS 11.71.900 apply to this chapter.
2. [Repealed, § 22 ch 146 SLA 1986.]

History. (§ 4 ch 45 SLA 1982; am § 22 ch 146 SLA 1986)

Revisor’s notes. —

Enacted as AS 17.30.160. Renumbered in 1982.

Collateral references. —

Marijuana, psilocybin, peyote or similar drugs of vegetable origin as narcotics for purposes of drug prosecution, 50 ALR3d 1164.

Sec. 17.37.010. Registry of patients and listing of caregivers.

1. The department shall create and maintain a confidential registry of patients who have applied for and are entitled to receive a registry identification card according to the criteria set out in this chapter. The registry must also contain the name of the primary caregiver and the name of the alternate caregiver of a patient, if either is designated by the patient. Only one primary caregiver and one alternate caregiver may be listed in the registry for a patient. The registry and the information contained within it are not a public record under AS 40.25.100 — 40.25.295 (Alaska Public Records Act). Peace officers and authorized employees of state or municipal law enforcement agencies shall be granted access to the information contained within the department’s confidential registry only
   1. for the purpose of verifying that an individual who has presented a registry identification card to a state or municipal law enforcement official is lawfully in possession of such card; or
   2. for the purpose of determining that an individual who claims to be lawfully engaged in the medical use of marijuana is registered or listed with the department or is considered to be registered or listed under (g) of this section.
2. Except as provided in (a) of this section, a person, other than authorized employees of the department in the course of their official duties, may not be permitted to gain access to names of patients, physicians, primary or alternate caregivers, or any information related to such persons maintained in connection with the department’s confidential registry.
3. In order to be placed on the state’s confidential registry for the medical use of marijuana, an adult patient or a parent or guardian of a minor patient shall provide to the department
   1. a statement signed by the patient’s physician
      1. stating that the physician personally examined the patient and that the examination took place in the context of a bona fide physician-patient relationship and setting out the date the examination occurred;
      2. stating that the patient has been diagnosed with a debilitating medical condition; and
      3. stating that the physician has considered other approved medications and treatments that might provide relief, that are reasonably available to the patient, and that can be tolerated by the patient, and that the physician has concluded that the patient might benefit from the medical use of marijuana;
   2. a sworn application on a form provided by the department containing the following information:
      1. the name, address, date of birth, and Alaska driver’s license or identification card number of the patient;
      2. the name, address, and telephone number of the patient’s physician; and
      3. the name, address, date of birth, and Alaska driver’s license or identification card number of the patient’s primary caregiver and alternate caregiver if either is designated at the time of application, along with the statements required under (d) of this section; and
   3. if the patient is a minor, a statement by the minor’s parent or guardian that the patient’s physician has explained the possible risks and benefits of medical use of marijuana and that the parent or guardian consents to serve as the primary caregiver for the patient and to control the acquisition, possession, dosage, and frequency of use of marijuana by the patient.
4. A person may be listed under this section as the primary caregiver or alternate caregiver for a patient if the person submits a sworn statement on a form provided by the department that the person
   1. is at least 21 years of age;
   2. has never been convicted of a felony offense under AS 11.71 or AS 11.73 or a law or ordinance of another jurisdiction with elements similar to an offense under AS 11.71 or AS 11.73; and
   3. is not currently on probation or parole from this or another jurisdiction.
5. A person may be a primary caregiver or alternate caregiver for only one patient at a time unless the primary caregiver or alternate caregiver is simultaneously caring for two or more patients who are related to the caregiver by at least the fourth degree of kinship by blood or marriage.
6. The department shall review the application and all information submitted under (c) and (d) of this section within 30 days of receiving it. The department shall notify the patient that the patient’s application for a registry identification card has been denied if the department’s review of the information that the patient has provided discloses that the information required under (c) of this section has not been provided or has been falsified or that the patient is not otherwise qualified to be registered. If the department determines that the primary caregiver or alternate caregiver is not qualified under this section to be a primary caregiver or alternate caregiver, or if the information required under this section has not been provided or has been falsified, the department shall notify the patient of that determination and shall proceed to review the patient’s application as if a primary caregiver or alternate caregiver was not designated. The patient may amend the application and designate a new primary caregiver or alternate caregiver at any time. The department may not list a newly designated primary caregiver or alternate caregiver until it determines that the newly designated primary caregiver or alternate caregiver is qualified under this section and that the information required under this section has been provided. Otherwise, not more than five days after verifying the information, the department shall issue a registry identification card to the patient, and, if a primary caregiver for a patient has been listed in the registry, the department shall issue to the patient a duplicate of the patient’s card clearly identified as the caregiver registry identification card, stating
   1. the patient’s name, address, date of birth, and Alaska driver’s license or identification card number;
   2. that the patient is registered with the department as a person who has a debilitating medical condition that the patient may address with the medical use of marijuana;
   3. the dates of issuance and expiration of the registry identification card; and
   4. the name, address, date of birth, and Alaska driver’s license or identification card number of the patient’s primary caregiver and alternate caregiver, if either is designated.
7. If the department fails to deny the application and issue a registry identification card within 35 days of receipt of an application, the patient’s application for the card is considered to have been approved. Receipt of an application shall be considered to have occurred upon delivery to the department. Notwithstanding this subsection, an application may not be considered to have been received before June 1, 1999. If the department subsequently registers a patient or lists a primary caregiver or alternate caregiver, if either is designated, or denies the application or listing, that registration or listing or denial revokes the approval that is considered to have occurred under this subsection.
8. A patient or a primary caregiver who is questioned by a state or municipal law enforcement official about the patient’s or primary caregiver’s medical use of marijuana shall immediately show proper identification to the official and inform the official that the person is a registered patient or listed primary caregiver for a registered patient and either show the official (1) the person’s registry identification card, or (2) a copy of an application that has been pending without registration or denial for over 35 days since received by the department and proof of the date of delivery to the department, which shall be accorded the same legal effect as a registry identification card until the patient receives actual notice that the application has been denied.
9. A person may not apply for a registry identification card more than once every six months.
10. The denial or revocation of a registry identification card or the removal of a patient from the registry or the listing of a caregiver shall be considered a final agency action subject to judicial review. Only the patient, or the parent or guardian of a patient who is a minor, has standing to contest the final agency action.
11. When there has been a change in the name, address, or physician of a patient who has qualified for a registry identification card, or a change in the name or address of the patient’s primary caregiver or alternate caregiver, that patient must notify the department of the change within 10 days. To maintain an effective registry identification card, a patient must annually resubmit updated written documentation, including a statement signed by the patient’s physician containing the information required to be submitted under (c)(1) of this section, to the department, as well as the name and address of the patient’s primary caregiver or alternate caregiver, if any.
12. A patient who no longer has a debilitating medical condition and the patient’s primary caregiver, if any, shall return all registry identification cards to the department within 24 hours of receiving the diagnosis by the patient’s physician.
13. A copy of a registry identification card is not valid. A registry identification card is not valid if the card has been altered, mutilated in a way that impairs its legibility, or laminated.
14. The department may revoke a patient’s registration if the department determines that the patient has violated a provision of this chapter or AS 11.71.
15. The department may remove a primary caregiver or alternate caregiver from the registry if the department determines that the primary caregiver or alternate caregiver is not qualified to be listed or has violated a provision of this chapter or AS 11.71.
16. The department may determine and levy reasonable fees to pay for any administrative costs associated with its role in administering this chapter.
17. A primary caregiver may only act as the primary caregiver for the patient when the primary caregiver is in physical possession of the caregiver registry identification card. An alternate caregiver may only act as the primary caregiver for the patient when the alternate caregiver is in physical possession of the caregiver registry identification card.
18. The department may not register a patient under this section unless the statement of the patient’s physician discloses that the patient was personally examined by the physician within the 16-month period immediately preceding the patient’s application. The department shall cancel, suspend, revoke, or not renew the registration of a patient whose annual resubmission of updated written documentation to the department under (k) of this section does not disclose that the patient was personally examined by the patient’s physician within the 16-month period immediately preceding the date by which the patient is required to annually resubmit written documentation.

History. (§ 1 1998 Ballot Measure No. 8; am § 3 ch 37 SLA 1999; am § 13 ch 58 SLA 2010)

Revisor’s notes. —

In 2000, “AS 40.25.100 — 40.25.220 ” was substituted for “AS 09.25.100 — 09.25.220 ” to reflect the 2000 renumbering of AS 09.25.100 — 09.25.220 .

Administrative Code. —

For medical marijuana registry, see 7 AAC 34, art. 1.

For qualifying debilitating conditions, see 7 AAC 34, art. 2.

Effect of amendments. —

The 2010 amendment, effective June 10, 2010, in the introductory language of (a), substituted “AS 40.25.100 — 40.25.295 ” for “AS 40.25.100 — 40.25.220 ”.

Sec. 17.37.020. Medical Use of Marijuana. [Repealed, § 8 ch 37 SLA 1999.]

Sec. 17.37.030. Privileged medical use of marijuana.

1. A patient, primary caregiver, or alternate caregiver registered with the department under this chapter has an affirmative defense to a criminal prosecution related to marijuana to the extent provided in AS 11.71.090 .
2. Except as otherwise provided by law, a person is not subject to arrest, prosecution, or penalty in any manner for applying to have the person’s name placed on the confidential registry maintained by the department under AS 17.37.010 .
3. A physician is not subject to any penalty, including arrest, prosecution, or disciplinary proceeding, or denial of any right or privilege, for
   1. advising a patient whom the physician has diagnosed as having a debilitating medical condition about the risks and benefits of medical use of marijuana or that the patient might benefit from the medical use of marijuana, provided that the advice is based upon the physician’s contemporaneous assessment in the context of a bona fide physician-patient relationship of
      1. the patient’s medical history and current medical condition; and
      2. other approved medications and treatments that might provide relief and that are reasonably available to the patient and that can be tolerated by the patient; or
   2. providing a patient with a written statement in an application for registration under AS 17.37.010 .
4. Notwithstanding the provisions of this section, a person, including a patient, primary caregiver, or alternate caregiver, is not entitled to the protection of this chapter for the person’s acquisition, possession, cultivation, use, sale, distribution, or transportation of marijuana for nonmedical use.

History. (§ 1 1998 Ballot Measure No. 8; am § 4 ch 37 SLA 1999)

Sec. 17.37.040. Restrictions on medical use of marijuana.

1. A patient, primary caregiver, or alternate caregiver may not
   1. engage in the medical use of marijuana in a way that endangers the health or well-being of any person;
   2. engage in the medical use of marijuana in plain view of, or in a place open to, the general public; this paragraph does not prohibit a patient or primary caregiver from possessing marijuana in a place open to the general public if
      1. the person possesses, in a closed container carried on the person, one ounce or less of marijuana in usable form;
      2. the marijuana is not visible to anyone other than the patient or primary caregiver; and
      3. the possession is limited to that necessary to transport the marijuana directly to the patient or primary caregiver or directly to a place where the patient or primary caregiver may lawfully possess or use the marijuana;
   3. sell or distribute marijuana to any person, except that a patient may deliver marijuana to the patient’s primary caregiver and a primary caregiver may deliver marijuana to the patient for whom the caregiver is listed; or
   4. possess in the aggregate more than
      1. one ounce of marijuana in usable form; and
      2. six marijuana plants, with no more than three mature and flowering plants producing usable marijuana at any one time.
2. Any patient found by a preponderance of the evidence to have knowingly violated the provisions of this chapter shall be precluded from obtaining or using a registry identification card for the medical use of marijuana for a period of one year. In this subsection, “knowingly” has the meaning given in AS 11.81.900 .
3. A governmental, private, or other health insurance provider is not liable for any claim for reimbursement for expenses associated with medical use of marijuana.
4. Nothing in this chapter requires any accommodation of any medical use of marijuana
   1. in any place of employment;
   2. in any correctional facility, medical facility, or facility monitored by the department or the Department of Administration;
   3. on or within 500 feet of school grounds;
   4. at or within 500 feet of a recreation or youth center; or
   5. on a school bus.

History. (§ 1 1998 Ballot Measure No. 8; am § 5 ch 37 SLA 1999)

Administrative Code. —

For medical marijuana registry, see 7 AAC 34, art. 1.

Sec. 17.37.050. Medical use of marijuana by a minor. [Repealed, § 8 ch 37 SLA 1999.]

Sec. 17.37.060. Addition of debilitating medical conditions.

The department shall adopt regulations under AS 44.62 (Administrative Procedure Act) governing the manner in which it may consider adding debilitating medical conditions to the list provided in AS 17.37.070 .

After the adoption of the regulations, the department shall also accept for consideration physician or patient initiated petitions to add debilitating medical conditions to the list provided in AS 17.37.070 and, after hearing, shall approve or deny the petitions within 180 days after submission. The denial of a petition shall be considered a final agency action subject to judicial review.

History. (§ 1 1998 Ballot Measure No. 8; am § 6 ch 37 SLA 1999; am § 56 ch 13 SLA 2019)

Revisor's notes. —

In 1999, “AS 44.62 (Administrative Procedure Act)” was substituted for “the Administrative Procedure Act” to conform the section to the style of the Alaska Statutes.

Administrative Code. —

For qualifying debilitating conditions, see 7 AAC 34, art. 2.

Effect of amendments. —

The 2019 amendment, effective October 17, 2019, at the beginning of the first sentence, deleted “Not later than August 31, 1999,”; in the second sentence, substituted “180 days after” for “180 days of” near the end.

Sec. 17.37.070. Definitions.

In this chapter, unless the context clearly requires otherwise,

1. “alternate caregiver” means a person who is listed as an alternate caregiver under AS 17.37.010 ;
2. “bona fide physician-patient relationship” means that the physician obtained a patient history, performed an in-person physical examination of the patient, and documented written findings, diagnoses, recommendations, and prescriptions in written patient medical records maintained by the physician;
3. “correctional facility” has the meaning given in AS 33.30.901 ;
4. “debilitating medical condition” means
   1. cancer, glaucoma, positive status for human immunodeficiency virus, or acquired immune deficiency syndrome, or treatment for any of these conditions;
   2. any chronic or debilitating disease or treatment for such diseases, which produces, for a specific patient, one or more of the following, and for which, in the professional opinion of the patient’s physician, such condition or conditions reasonably may be alleviated by the medical use of marijuana: cachexia; severe pain; severe nausea; seizures, including those that are characteristic of epilepsy; or persistent muscle spasms, including those that are characteristic of multiple sclerosis; or
   3. any other medical condition, or treatment for such condition, approved by the department, under regulations adopted under AS 17.37.060 or approval of a petition submitted under AS 17.37.060 ;
5. “department” means the Department of Health and Social Services;
6. “facility monitored by the department or the Department of Administration” means an institution, building, office, or home operated by the department or the Department of Administration, funded by the department or the Department of Administration, under contract with the department or the Department of Administration, inspected by the department or the Department of Administration, designated by the department or the Department of Administration, or licensed by the department or the Department of Administration, for the care of
   1. juveniles; for the purposes of this subparagraph, “institution” includes a foster home and a group home, and a juvenile detention facility and a juvenile treatment facility, as those terms are defined in AS 47.12.990 ;
   2. the elderly; for the purposes of this subparagraph, “institution” includes
      1. an assisted living home as defined in AS 47.33.990 ; and
      2. the Alaska Pioneers’ Home or the Alaska Veterans’ Home, operated under AS 47.55;
   3. the mentally ill; for the purposes of this subparagraph, “institution” includes a designated treatment facility and an evaluation facility, as those terms are defined in AS 47.30.915 ;
7. “medical facility” means an institution, building, office, or home providing medical services, and includes a hospital, clinic, physician’s office, or health facility as defined in AS 47.07.900 , and a facility providing hospice care or rehabilitative services, as those terms are defined in AS 47.07.900 ;
8. “medical use” means the acquisition, possession, cultivation, use or transportation of marijuana or paraphernalia related to the administration of marijuana to alleviate a debilitating medical condition under the provisions of this chapter and AS 11.71.090 ;
9. “patient” means a person who has a debilitating medical condition;
10. “physician” means a person licensed to practice medicine in this state or an officer in the regular medical service of the armed forces of the United States or the United States Public Health Service while in the discharge of their official duties, or while volunteering services without pay or other remuneration to a hospital, clinic, medical office, or other medical facility in this state;
11. “primary caregiver ” means a person listed as a primary caregiver under AS 17.37.010 and in physical possession of a caregiver registry identification card; “primary caregiver” also includes an alternate caregiver when the alternate caregiver is in physical possession of the caregiver registry identification card;
12. “usable form” and “usable marijuana” means the seeds, leaves, buds, and flowers of the plant (genus) cannabis, but does not include the stalks or roots.

History. (§ 1 1998 Ballot Measure No. 8; am § 7 ch 37 SLA 1999; am § 3 ch 59 SLA 2004; am § 24 ch 41 SLA 2009; am § 11 ch 16 SLA 2021)

Revisor’s notes. —

In 1999, the numbering of paragraphs (1) — (11) was substituted for (a) — (k) to conform the section to the style of the Alaska Statutes.

Effect of amendments. —

The 2021 amendment, effective July 9, 2021, in (6)(A), substituted “and a juvenile treatment facility” for “, a juvenile detention home, a juvenile work camp, and a treatment facility” following “juvenile detention facility”.

Editor’s notes. —

Section 57(b), ch. 16, SLA 2021, provides that the 2021 amendment of paragraph (6) of this section applies to minors subject to AS 47.12.030(a) , as amended by sec. 22, ch. 16, SLA 2021, and AS 47.12.100 “who are held in a facility operated by the Department of Corrections or a facility operated by the Department of Health and Social Services on or after July 9, 2021.”

Legislative history reports. —

For governor’s transmittal letter for ch. 16, SLA 2021 (HB 105), which amended paragraph (6) of this section, see 2021 House Journal 181 — 182.

Sec. 17.37.080. Short title.

AS 17.37.010 — 17.37.070 may be cited as the Medical Uses of Marijuana for Persons Suffering from Debilitating Medical Conditions Act.

History. (§ 1 1998 Ballot Measure No. 8)

Sec. 17.38.010. Purpose and findings.

1. In the interest of allowing law enforcement to focus on violent and property crimes, and to enhance individual freedom, the people of the state of Alaska find and declare that the use of marijuana should be legal for persons 21 years of age or older.
2. In the interest of the health and public safety of our citizenry, the people of the state of Alaska further find and declare that the production and sale of marijuana should be regulated so that
   1. individuals will have to show proof of age before purchasing marijuana;
   2. legitimate, taxpaying business people, and not criminal actors, will conduct sales of marijuana; and
   3. marijuana sold by regulated businesses will be labeled and subject to additional regulations to ensure that consumers are informed and protected.
3. The people of the state of Alaska further declare that the provisions of this Act are not intended to diminish the right to privacy as interpreted by the Alaska Supreme Court in Ravin v. State of Alaska.
4. Nothing in this Act proposes or intends to require any individual or entity to engage in any conduct that violates federal law, or exempt any individual or entity from any requirement of federal law, or pose any obstacle to federal enforcement of federal law.

History. (§ 1 2014 General Election Ballot Measure No. 2)

Revisor's notes. —

Minor editorial changes were made to this section, enacted by 2014 General Election Ballot Measure No. 2, to conform capitalization, punctuation, and numbering to the style of the Alaska Statutes.

Editor's notes. —

2014 General Election Ballot Measure No. 2, which enacted this section, was approved by the voters at the general election of November 4, 2014. The results of the general election were certified by the Lieutenant Governor November 26, 2014. Under art. XI, sec. 6, Constitution of the State of Alaska, the initiative’s provisions took effect February 24, 2015.

Section 3, 2014 General Election Ballot Measure No. 2, part of the initiative that enacted this section, provides that “[t]he provisions of this Act are independent and severable, and, except where otherwise indicated in the text, shall supersede conflicting statutes, local charter, ordinance, or resolution, and other state and local provisions. If any provisions of this Act, or the application thereof to any person or circumstance, is found to be invalid or unconstitutional, the remainder of this Act shall not be affected and shall be given effect to the fullest extent possible.”

The citation for Ravin v. State of Alaska, referred to in subsection (c), is Ravin v. State, 537 P.2d 494 (Alaska 1975).

Sec. 17.38.020. Personal use of marijuana.

Notwithstanding any other provision of law, except as otherwise provided in this chapter, the following acts, by persons 21 years of age or older, are lawful and are not criminal or civil offenses under state law or the law of any political subdivision of the state or a basis for seizure or forfeiture of assets under state law:

1. possessing, using, displaying, purchasing, or transporting marijuana accessories or one ounce or less of marijuana;
2. possessing, growing, processing, or transporting not more than six marijuana plants, with three or fewer being mature, flowering plants, and possession of the marijuana produced by the plants on the premises where the plants were grown, except that not more than 12 marijuana plants, with six or fewer being mature, flowering plants, may be present in a single dwelling regardless of the number of persons 21 years of age or older residing in the dwelling;
3. transferring one ounce or less of marijuana and up to six immature marijuana plants to a person who is 21 years of age or older without remuneration;
4. consumption of marijuana, except that nothing in this chapter permits the consumption of marijuana in public; and
5. assisting, aiding, or supporting another person who is 21 years of age or older in any of the acts described in (1) — (4) of this section.

History. (§ 1 2014 General Election Ballot Measure No. 2; am § 1 ch 53 SLA 2016; am § 57 ch 13 SLA 2019)

Revisor's notes. —

Minor editorial changes were made to this section, enacted by 2014 General Election Ballot Measure No. 2, to conform capitalization, punctuation, and numbering to the style of the Alaska Statutes.

Effect of amendments. —

The 2016 amendment, effective July 29, 2016, in the introductory language, substituted “are not criminal or civil offenses” for ”shall not be a criminal or civil offense”, substituted ”bases” for “be a basis” preceding “for seizure”; in (2), inserted “, except that not more than 12 marijuana plants, with six or fewer being mature, flowering plants, may be present in a single dwelling regardless of the number of persons 21 years of age or older residing in the dwelling” following “were grown”; in (5), inserted “, aiding, or supporting” following “assisting”; and made stylistic changes.

The 2019 amendment, effective October 17, 2019, in the introductory language substituted “state” or “the state” for “Alaska”, and substituted “a basis” for “bases” preceding “for seizure”.

Editor's notes. —

2014 General Election Ballot Measure No. 2, which enacted this section, was approved by the voters at the general election of November 4, 2014. The results of the general election were certified by the Lieutenant Governor November 26, 2014. Under art. XI, sec. 6, Constitution of the State of Alaska, the initiative's provisions took effect February 24, 2015.

Section 3, 2014 General Election Ballot Measure No. 2, part of the initiative that enacted this section, provides that “[t]he provisions of this Act are independent and severable, and, except where otherwise indicated in the text, shall supersede conflicting statutes, local charter, ordinance, or resolution, and other state and local provisions. If any provisions of this Act, or the application thereof to any person or circumstance, is found to be invalid or unconstitutional, the remainder of this Act shall not be affected and shall be given effect to the fullest extent possible.”

Sec. 17.38.030. Restrictions on personal cultivation, penalty.

1. The personal cultivation of marijuana described in AS 17.38.020 (2) is subject to the following terms:
   1. marijuana plants shall be cultivated in a location where the plants are not subject to public view without the use of binoculars, aircraft, or other optical aids;
   2. a person who cultivates marijuana must take reasonable precautions to ensure the plants are secure from unauthorized access;
   3. marijuana cultivation may only occur on property lawfully in possession of the cultivator or with the consent of the person in lawful possession of the property.
2. A person who violates this section while otherwise acting in compliance with AS 17.38.020 (2) is guilty of a violation punishable by a fine of up to $750.

History. (§ 1 2014 General Election Ballot Measure No. 2)

Revisor’s notes. —

Minor editorial changes were made to this section, enacted by 2014 General Election Ballot Measure No. 2, to conform capitalization, punctuation, and numbering to the style of the Alaska Statutes.

Editor’s notes. —

2014 General Election Ballot Measure No. 2, which enacted this section, was approved by the voters at the general election of November 4, 2014. The results of the general election were certified by the Lieutenant Governor November 26, 2014. Under art. XI, sec. 6, Constitution of the State of Alaska, the initiative’s provisions took effect February 24, 2015.

Section 3, 2014 General Election Ballot Measure No. 2, part of the initiative that enacted this section, provides that “[t]he provisions of this Act are independent and severable, and, except where otherwise indicated in the text, shall supersede conflicting statutes, local charter, ordinance, or resolution, and other state and local provisions. If any provisions of this Act, or the application thereof to any person or circumstance, is found to be invalid or unconstitutional, the remainder of this Act shall not be affected and shall be given effect to the fullest extent possible.”

Sec. 17.38.040. Public consumption banned, penalty.

It is unlawful to consume marijuana in public. A person who violates this section is guilty of a violation punishable by a fine of up to $100.

History. (§ 1 2014 General Election Ballot Measure No. 2)

Editor’s notes. —

2014 General Election Ballot Measure No. 2, which enacted this section, was approved by the voters at the general election of November 4, 2014. The results of the general election were certified by the Lieutenant Governor November 26, 2014. Under art. XI, sec. 6, Constitution of the State of Alaska, the initiative’s provisions took effect February 24, 2015.

Section 3, 2014 General Election Ballot Measure No. 2, part of the initiative that enacted this section, provides that “[t]he provisions of this Act are independent and severable, and, except where otherwise indicated in the text, shall supersede conflicting statutes, local charter, ordinance, or resolution, and other state and local provisions. If any provisions of this Act, or the application thereof to any person or circumstance, is found to be invalid or unconstitutional, the remainder of this Act shall not be affected and shall be given effect to the fullest extent possible.”

Opinions of attorney general. —

Interpreting the prohibition of public consumption of marijuana at “places of amusement or business”, the attorney general concluded that individuals may not consume marijuana at a club or other place that charges a fee for entry or consumption unless the place is licensed as a retail marijuana store under state law. 2016 Op. Alaska Att’y. Gen. (Aug. 31).

Sec. 17.38.050. False identification, penalty.

1. A person who is under 21 years of age may not present or offer to a marijuana establishment or the marijuana establishment’s agent or employee any written or oral evidence of age that is false, fraudulent, or not actually the person’s own, for the purpose of
   1. purchasing, attempting to purchase, or otherwise procuring or attempting to procure marijuana or marijuana products; or
   2. gaining access to a marijuana establishment.
2. A person who violates this section is guilty of a violation punishable by a fine of up to $400.

History. (§ 1 2014 General Election Ballot Measure No. 2)

Revisor’s notes. —

Minor editorial changes were made to this section, enacted by 2014 General Election Ballot Measure No. 2, to conform capitalization, punctuation, and numbering to the style of the Alaska Statutes.

Editor’s notes. —

2014 General Election Ballot Measure No. 2, which enacted this section, was approved by the voters at the general election of November 4, 2014. The results of the general election were certified by the Lieutenant Governor November 26, 2014. Under art. XI, sec. 6, Constitution of the State of Alaska, the initiative’s provisions took effect February 24, 2015.

Section 3, 2014 General Election Ballot Measure No. 2, part of the initiative that enacted this section, provides that “[t]he provisions of this Act are independent and severable, and, except where otherwise indicated in the text, shall supersede conflicting statutes, local charter, ordinance, or resolution, and other state and local provisions. If any provisions of this Act, or the application thereof to any person or circumstance, is found to be invalid or unconstitutional, the remainder of this Act shall not be affected and shall be given effect to the fullest extent possible.”

Sec. 17.38.060. Marijuana accessories authorized.

Notwithstanding any other provision of law, it is lawful and is not an offense under state law or the law of any political subdivision of the state or a basis for seizure or forfeiture of assets under state law for persons 21 years of age or older to manufacture, possess, or purchase marijuana accessories, or to distribute or sell marijuana accessories to a person who is 21 years of age or older.

History. (§ 1 2014 General Election Ballot Measure No. 2; am § 58 ch 13 SLA 2019)

Effect of amendments. —

The 2019 amendment, effective October 17, 2019, substituted “and is not an offense” for “and shall not be an offense” following “is lawful”; substituted “state” or “the state” for “Alaska” three times.

Editor's notes. —

2014 General Election Ballot Measure No. 2, which enacted this section, was approved by the voters at the general election of November 4, 2014. The results of the general election were certified by the Lieutenant Governor November 26, 2014. Under art. XI, sec. 6, Constitution of the State of Alaska, the initiative’s provisions took effect February 24, 2015.

Section 3, 2014 General Election Ballot Measure No. 2, part of the initiative that enacted this section, provides that “[t]he provisions of this Act are independent and severable, and, except where otherwise indicated in the text, shall supersede conflicting statutes, local charter, ordinance, or resolution, and other state and local provisions. If any provisions of this Act, or the application thereof to any person or circumstance, is found to be invalid or unconstitutional, the remainder of this Act shall not be affected and shall be given effect to the fullest extent possible.”

Sec. 17.38.070. Lawful operation of marijuana-related facilities.

1. Notwithstanding any other provision of law, the following acts, when performed by a retail marijuana store with a current, valid registration, or a person 21 years of age or older who is acting in the person’s capacity as an owner, employee, or agent of a retail marijuana store, are lawful and are not an offense under state law or a basis for seizure or forfeiture of assets under state law:
   1. possessing, displaying, storing, or transporting marijuana or marijuana products, except that marijuana and marijuana products may not be displayed in a manner that is visible to the general public from a public right-of-way;
   2. delivering or transferring marijuana or marijuana products to a marijuana testing facility;
   3. receiving marijuana or marijuana products from a marijuana testing facility;
   4. purchasing marijuana from a marijuana cultivation facility;
   5. purchasing marijuana or marijuana products from a marijuana product manufacturing facility; and
   6. delivering, distributing, or selling marijuana or marijuana products to consumers.
2. Notwithstanding any other provision of law, the following acts, when performed by a marijuana cultivation facility with a current, valid registration, or a person 21 years of age or older who is acting in the person’s capacity as an owner, employee, or agent of a marijuana cultivation facility, are lawful and are not an offense under state law or a basis for seizure or forfeiture of assets under state law:
   1. cultivating, manufacturing, harvesting, processing, packaging, transporting, displaying, storing, or possessing marijuana;
   2. delivering or transferring marijuana to a marijuana testing facility;
   3. receiving marijuana from a marijuana testing facility;
   4. delivering, distributing, or selling marijuana to a marijuana cultivation facility, a marijuana product manufacturing facility, or a retail marijuana store;
   5. receiving or purchasing marijuana from a marijuana cultivation facility; and
   6. receiving marijuana seeds or immature marijuana plants from a person 21 years of age or older.
3. Notwithstanding any other provision of law, the following acts, when performed by a marijuana product manufacturing facility with a current, valid registration, or a person 21 years of age or older who is acting in the person’s capacity as an owner, employee, or agent of a marijuana product manufacturing facility, are lawful and are not an offense under state law or a basis for seizure or forfeiture of assets under state law:
   1. packaging, processing, transporting, manufacturing, displaying, or possessing marijuana or marijuana products;
   2. delivering or transferring marijuana or marijuana products to a marijuana testing facility;
   3. receiving marijuana or marijuana products from a marijuana testing facility;
   4. delivering or selling marijuana or marijuana products to a retail marijuana store or a marijuana product manufacturing facility;
   5. purchasing marijuana from a marijuana cultivation facility; and
   6. purchasing marijuana or marijuana products from a marijuana product manufacturing facility.
4. Notwithstanding any other provision of law, the following acts, when performed by a marijuana testing facility with a current, valid registration, or a person 21 years of age or older who is acting in the person’s capacity as an owner, employee, or agent of a marijuana testing facility, are lawful and are not an offense under state law or a basis for seizure or forfeiture of assets under state law:
   1. possessing, cultivating, processing, repackaging, storing, transporting, displaying, transferring, or delivering marijuana;
   2. receiving marijuana or marijuana products from a marijuana cultivation facility, a marijuana retail store, a marijuana products manufacturer, or a person 21 years of age or older; and
   3. returning marijuana or marijuana products to a marijuana cultivation facility, a marijuana retail store, a marijuana products manufacturer, or a person 21 years of age or older.
5. Notwithstanding any other provision of law, it is lawful and is not an offense under state law or a basis for seizure or forfeiture of assets under state law to lease or otherwise allow the use of property owned, occupied, or controlled by any person, corporation, or other entity for any of the activities conducted lawfully in accordance with (a) — (d) of this section.
6. Nothing in this section prevents the imposition of penalties upon marijuana establishments for violating this chapter or rules adopted by the board or local governments pursuant to this chapter.
7. The provisions of AS 17.30.020 do not apply to marijuana establishments.

History. (§ 1 2014 General Election Ballot Measure No. 2; am §§ 59 — 63 ch 13 SLA 2019)

Revisor's notes. —

Minor editorial changes were made to this section, enacted by 2014 General Election Ballot Measure No. 2, to conform capitalization, punctuation, and numbering to the style of the Alaska Statutes, and “the person’s” was substituted for “his or her” in four places “to avoid the use of pronouns denoting masculine or feminine gender” as provided in AS 01.05.031 .

Effect of amendments. —

The 2019 amendment, effective October 17, 2019, in the introductory language in (a) through (e), substituted “and are not an offense” or similar, for “and shall not be an offense”; substituted “state” for “Alaska”.

Editor's notes. —

2014 General Election Ballot Measure No. 2, which enacted this section, was approved by the voters at the general election of November 4, 2014. The results of the general election were certified by the Lieutenant Governor November 26, 2014. Under art. XI, sec. 6, Constitution of the State of Alaska, the initiative’s provisions took effect February 24, 2015.

Section 3, 2014 General Election Ballot Measure No. 2, part of the initiative that enacted this section, provides that “[t]he provisions of this Act are independent and severable, and, except where otherwise indicated in the text, shall supersede conflicting statutes, local charter, ordinance, or resolution, and other state and local provisions. If any provisions of this Act, or the application thereof to any person or circumstance, is found to be invalid or unconstitutional, the remainder of this Act shall not be affected and shall be given effect to the fullest extent possible.”

Sec. 17.38.080. Marijuana Control Board; appointment and qualifications.

1. The Marijuana Control Board is established in the Department of Commerce, Community, and Economic Development as a regulatory and quasi-judicial agency. The board is in the Department of Commerce, Community, and Economic Development for administrative purposes only.
2. The board members shall be appointed by the governor and confirmed by a majority of the members of the legislature in joint session. A member of the board may not hold any other state or federal office, either elective or appointive. The board consists of five voting members as follows:
   1. one person from the public safety sector;
   2. one person from the public health sector;
   3. one person currently residing in a rural area;
   4. one person actively engaged in the marijuana industry; and
   5. one person who is either from the general public or actively engaged in the marijuana industry.
3. Not more than two members of the board may be engaged in the same business, occupation, or profession.
4. A board member representing the general public, the public safety sector, the public health sector, or a rural area, or the member’s immediate family member, may not have a financial interest in the marijuana industry.
5. In this section,
   1. “financial interest” means holding, directly or indirectly, a legal or equitable interest in the operation of a business licensed under this chapter;
   2. “immediate family member” means a spouse, child, or parent;
   3. “marijuana industry” means a business or profession related to marijuana in which the person is lawfully engaged and that is in compliance with the provisions of state law, including this chapter and regulations adopted under this chapter;
   4. “public health sector” means a state, federal, or local entity that works to ensure the health and safety of persons and communities through education, policymaking, treatment and prevention of injury and disease, and promotion of wellness;
   5. “public safety sector” means a state, federal, or local law enforcement authority that provides for the welfare and protection of the general public through the enforcement of applicable laws;
   6. “rural area” means a community with a population of 7,000 or less that is not connected by road or rail to Anchorage or Fairbanks, or with a population of 2,000 or less that is connected by road or rail to Anchorage or Fairbanks.

History. (§ 2 ch 4 SLA 2015)

Cross references. —

For a transitional provision relating to regulations adopted by the Alcoholic Beverage Control Board and to the authority of that board, see sec. 11, ch. 4, SLA 2015.

Effect of amendments. —

The 2015 amendment, effective May 5, 2015, repealed and reenacted the section, which read, “At any time, the legislature may create a Marijuana Control Board in the Department of Commerce, Community, and Economic Development or its successor agency to assume the power, duties, and responsibilities delegated to the Alcoholic Beverage Control Board under this chapter.”

Editor’s notes. —

2014 General Election Ballot Measure No. 2, which enacted this section, was approved by the voters at the general election of November 4, 2014. The results of the general election were certified by the Lieutenant Governor November 26, 2014. Under art. XI, sec. 6, Constitution of the State of Alaska, the initiative’s provisions took effect February 24, 2015.

Section 3, 2014 General Election Ballot Measure No. 2, part of the initiative that enacted this section, provides that “[t]he provisions of this Act are independent and severable, and, except where otherwise indicated in the text, shall supersede conflicting statutes, local charter, ordinance, or resolution, and other state and local provisions. If any provisions of this Act, or the application thereof to any person or circumstance, is found to be invalid or unconstitutional, the remainder of this Act shall not be affected and shall be given effect to the fullest extent possible.”

Sec. 17.38.091. Terms of office; chair.

1. Members of the board serve staggered three-year terms.
2. Except as provided in AS 39.05.080 (4), a member of the board serves until a successor is appointed.
3. A vacancy occurring in the membership of the board shall be filled within 30 days by appointment of the governor for the unexpired portion of the vacated term.
4. A member who has served all or part of three successive terms on the board may not be reappointed to the board unless three years have elapsed since the person has last served on the board.
5. The board shall select a chair from among its members.

History. (§ 3 ch 4 SLA 2015)

Revisor’s notes. —

Enacted as AS 17.38.081; renumbered in 2015.

Cross references. —

For a provision relating to initial terms and appointments to the Marijuana Control Board, see sec. 10, ch. 4, SLA 2015.

Effective dates. —

Section 12, ch. 4, SLA 2015 makes this section effective May 5, 2015.

Sec. 17.38.101. Per diem and expenses.

Members of the board do not receive a salary but are entitled to per diem and travel expenses authorized for boards and commissions under AS 39.20.180 .

History. (§ 3 ch 4 SLA 2015)

Revisor’s notes. —

Enacted as AS 17.38.082; renumbered in 2015.

Effective dates. —

Section 12, ch. 4, SLA 2015 makes this section effective May 5, 2015.

Sec. 17.38.111. Meetings.

1. The board shall meet at the call of the chair. The board shall also meet at least once each year in each judicial district of the state to study this chapter and existing board regulations in light of statewide and local issues. Unless impracticable, the board shall hold its regular meetings at the same location as and within 24 hours of the regular meetings of the Alcoholic Beverage Control Board.
2. Three members of the board constitute a quorum for the conduct of business. A majority of the whole membership of the board must approve applications for new licenses, renewals, transfers, suspensions, and revocations of existing licenses, and product approvals as provided in regulations adopted by the board.

History. (§ 3 ch 4 SLA 2015)

Revisor’s notes. —

Enacted as AS 17.38.083; renumbered in 2015.

Cross references. —

For a provision relating to meetings of the Alcoholic Beverage Control Board, see AS 04.06.050 .

Effective dates. —

Section 12, ch. 4, SLA 2015 makes this section effective May 5, 2015.

Sec. 17.38.121. Powers and duties of the board.

1. The board shall control the cultivation, manufacture, and sale of marijuana in the state. The board is vested with the powers and duties necessary to enforce this chapter.
2. The board shall
   1. propose and adopt regulations;
   2. establish by regulation the qualifications for licensure including fees and factors related to the applicant’s experience, criminal justice history, and financial interests;
   3. review applications for licensure made under this chapter and may order the executive director to issue, renew, suspend, or revoke a license authorized under this chapter; and
   4. hear appeals from actions of the director and from actions of officers and employees charged with enforcing this chapter and the regulations adopted under this chapter.
3. When considering an application for licensure, the board may reduce the area to be designated as the licensed premises from the area applied for if the board determines that a reduction in area is necessary to ensure control over the sale and consumption of marijuana on the premises or is otherwise in the public interest.
4. The board shall adopt regulations under this chapter in accordance with AS 44.62 (Administrative Procedure Act).
5. The board may employ, directly or through contracts with other departments and agencies of the state, enforcement agents and staff it considers necessary to carry out the purposes of this chapter. The salaries of personnel of the board in the exempt service shall be set by the Department of Administration.
6. The board shall promptly notify all licensees and municipalities of major changes to this chapter and to regulations adopted under this chapter. However, if changes affect only specific classifications of licenses and permits, the board need only notify those licensees and municipalities directly affected by the changes. Current copies of this chapter and current copies of the regulations adopted under this chapter shall be made available at all offices in the state of the Department of Commerce, Community, and Economic Development and the detachment headquarters and posts maintained by the division of Alaska state troopers in the Department of Public Safety.

History. (§ 3 ch 4 SLA 2015)

Revisor’s notes. —

Enacted as AS 17.38.084; renumbered in 2015.

Effective dates. —

Section 12, ch. 4, SLA 2015 makes this section effective May 5, 2015.

Sec. 17.38.131. Enforcement powers.

The director and the persons employed for the administration and enforcement of this chapter may, with the concurrence of the commissioner of public safety, exercise the powers of peace officers when those powers are specifically granted by the board. Powers granted by the board under this section may be exercised only when necessary for the enforcement of the criminally punishable provisions of this chapter, other criminal statutes relating to substances or activities regulated or permitted under this chapter, regulations of the board, and other criminally punishable laws and regulations relating to marijuana.

History. (§ 3 ch 4 SLA 2015)

Revisor’s notes. —

Enacted as AS 17.38.085; renumbered in 2015.

Effective dates. —

Section 12, ch. 4, SLA 2015 makes this section effective May 5, 2015.

Sec. 17.38.140. Appointment and removal of director; staff.

1. The director of the Alcoholic Beverage Control Board appointed under AS 04.06.070 shall serve as the director of the board. The board may remove the director by a majority vote of the full membership of the board and a majority vote of the full membership of the Alcoholic Beverage Control Board. The governor may remove the executive director as provided in AS 04.06.070 .
2. The paid staff of the Alcoholic Beverage Control Board created in AS 04.06.010 shall also be the staff for the board.

History. (§ 3 ch 4 SLA 2015)

Revisor’s notes. —

Enacted as AS 17.38.086; renumbered in 2015.

Effective dates. —

Section 12, ch. 4, SLA 2015 makes this section effective May 5, 2015.

Sec. 17.38.150. Duties of director.

The director shall enforce this chapter and regulations adopted by the board. The director shall issue, renew, transfer, suspend, or revoke all licenses and permits and issue product approvals at the direction of the board. The board may delegate to the director the authority to temporarily grant or deny the issuance, renewal, or transfer of licenses and permits. The director’s temporary grant or denial of the issuance, renewal, or transfer of a license or permit is not binding on the board. The board may delegate to the director any duty imposed by this chapter except its power to propose and adopt regulations.

History. (§ 3 ch 4 SLA 2015)

Revisor’s notes. —

Enacted as AS 17.38.087; renumbered in 2015.

Effective dates. —

Section 12, ch. 4, SLA 2015 makes this section effective May 5, 2015.

Sec. 17.38.190. Rulemaking.

1. The board shall adopt regulations necessary for implementation of this chapter. Regulations under this subsection may not prohibit the operation of marijuana establishments, either expressly or through regulations that make their operation unreasonably impracticable. The regulations must include
   1. procedures for the issuance, renewal, suspension, and revocation of a registration to operate a marijuana establishment; procedures under this paragraph are subject to all requirements of AS 44.62 (Administrative Procedure Act);
   2. a schedule of application, registration, and renewal fees; application fees may not exceed $5,000, with this upper limit adjusted annually for inflation, unless the board determines a greater fee is necessary to carry out its responsibilities under this chapter;
   3. qualifications for registration that are directly and demonstrably related to the operation of a marijuana establishment;
   4. security requirements for marijuana establishments, including for the transportation of marijuana by marijuana establishments;
   5. requirements to prevent the sale or diversion of marijuana and marijuana products to persons under the age of 21;
   6. labeling requirements for marijuana and marijuana products sold or distributed by a marijuana establishment;
   7. health and safety regulations and standards for the manufacture of marijuana products and the cultivation of marijuana;
   8. reasonable restrictions on the advertising and display of marijuana and marijuana products; and
   9. civil penalties for the failure to comply with regulations made under this chapter.
2. In order to ensure that individual privacy is protected, the board may not require a consumer to provide a retail marijuana store with personal information other than government-issued identification to determine the consumer’s age, and a retail marijuana store may not be required to acquire and record personal information about consumers.

History. (§ 1 2014 General Election Ballot Measure No. 2; am § 64 ch 13 SLA 2019)

Revisor's notes. —

Enacted as AS 17.38.090; renumbered in 2015.

Minor editorial changes were made to this section, enacted by 2014 General Election Ballot Measure No. 2, to conform capitalization, punctuation, and numbering to the style of the Alaska Statutes, and “February 24, 2015” was substituted for “the effective date of this Act”.

Effect of amendments. —

The 2019 amendment, effective October 17, 2019, in (a), in the introductory language, at the beginning of the first sentence, deleted “Not later than nine months after February 24, 2015,” and made a related change, substituted “Regulations under this subsection may” for “Such regulations shall” at the beginning of the second sentence, substituted “The regulations must” for “Such regulations shall” at the beginning of the third sentence; in (a)(1), substituted “; procedures under this paragraph are” for “, with such procedures” following “marijuana establishment”; in (a)(2), substituted “; application fees shall” for “, provided, application fees shall” following “renewal fees”; made a stylistic change in (a)(9); in (b), substituted “may not require” for “shall not require” following “the board”, and “may not be required” for “shall not be required” following “retail marijuana store”.

Editor's notes. —

2014 General Election Ballot Measure No. 2, which enacted this section, was approved by the voters at the general election of November 4, 2014. The results of the general election were certified by the Lieutenant Governor November 26, 2014. Under art. XI, sec. 6, Constitution of the State of Alaska, the initiative’s provisions took effect February 24, 2015.

Section 3, 2014 General Election Ballot Measure No. 2, part of the initiative that enacted this section, provides that “[t]he provisions of this Act are independent and severable, and, except where otherwise indicated in the text, shall supersede conflicting statutes, local charter, ordinance, or resolution, and other state and local provisions. If any provisions of this Act, or the application thereof to any person or circumstance, is found to be invalid or unconstitutional, the remainder of this Act shall not be affected and shall be given effect to the fullest extent possible.”

Sec. 17.38.200. Marijuana establishment registrations.

1. Each application or renewal application for a registration to operate a marijuana establishment shall be submitted to the board. A renewal application may be submitted up to 90 days before the expiration of the marijuana establishment’s registration. When filing an application for a new registration under this subsection, the applicant shall submit the applicant’s fingerprints and the fees required by the Department of Public Safety under AS 12.62.160 for criminal justice information and a national criminal history record check. When filing an application for renewal of registration, an applicant shall submit the applicant’s fingerprints and the fees required by the Department of Public Safety under AS 12.62.160 for criminal justice information and a national criminal history record check every five years. The board shall forward the fingerprints and fees to the Department of Public Safety to obtain a report of criminal justice information under AS 12.62 and a national criminal history record check under AS 12.62.400 .
2. The board shall begin accepting and processing applications to operate marijuana establishments one year after February 24, 2015.
3. Upon receiving an application or renewal application for a marijuana establishment, the board shall immediately forward a copy of each application and half of the registration application fee to the local regulatory authority for the local government in which the applicant desires to operate the marijuana establishment, unless the local government has not designated a local regulatory authority pursuant to AS 17.38.210(c) .
4. Within 45 to 90 days after receiving an application or renewal application, the board shall issue an annual registration to the applicant unless the board finds the applicant is not in compliance with regulations enacted pursuant to AS 17.38.190 or the board is notified by the relevant local government that the applicant is not in compliance with ordinances and regulations made pursuant to AS 17.38.210 and in effect at the time of application.
5. If a local government has enacted a numerical limit on the number of marijuana establishments and a greater number of applicants seek registrations, the board shall solicit and consider input from the local regulatory authority as to the local government’s preference or preferences for registration.
6. Upon denial of an application, the board shall notify the applicant in writing of the specific reason for its denial.
7. Every marijuana establishment registration shall specify the location where the marijuana establishment will operate. A separate registration shall be required for each location at which a marijuana establishment operates.
8. Marijuana establishments and the books and records maintained and created by marijuana establishments are subject to inspection by the board.
9. A marijuana establishment may not be registered under this chapter if a person who is an owner, officer, or agent of the marijuana establishment has been convicted of a felony and either
   1. less than five years have elapsed from the time of the person’s conviction; or
   2. the person is currently on probation or parole for that felony.

History. (§ 1 2014 General Election Ballot Measure No. 2; am § 4 ch 4 SLA 2015; am § 15 ch 32 SLA 2016; am § 2 ch 69 SLA 2018)

Revisor’s notes. —

Enacted as AS 17.38.100; renumbered in 2015, at which time cross references to other renumbered sections were also corrected.

Minor editorial changes were made to this section, enacted by 2014 General Election Ballot Measure No. 2, to conform capitalization, punctuation, and numbering to the style of the Alaska Statutes, and “February 24, 2015” was substituted for “the effective date of this Act”.

Effect of amendments. —

The 2015 amendment, effective May 5, 2015, added (i).

The 2016 amendment, effective October 4, 2016, in (a), added the third and fourth sentences, and made a stylistic change.

The 2018 amendment, effective July 25, 2018, in (a), in the third sentence, inserted “for a new registration” following “When filing an application”, added the fourth sentence.

Editor’s notes. —

2014 General Election Ballot Measure No. 2, which enacted this section, was approved by the voters at the general election of November 4, 2014. The results of the general election were certified by the Lieutenant Governor November 26, 2014. Under art. XI, sec. 6, Constitution of the State of Alaska, the initiative’s provisions took effect February 24, 2015.

Section 3, 2014 General Election Ballot Measure No. 2, part of the initiative that enacted this section, provides that “[t]he provisions of this Act are independent and severable, and, except where otherwise indicated in the text, shall supersede conflicting statutes, local charter, ordinance, or resolution, and other state and local provisions. If any provisions of this Act, or the application thereof to any person or circumstance, is found to be invalid or unconstitutional, the remainder of this Act shall not be affected and shall be given effect to the fullest extent possible.”

Sec. 17.38.210. Local control.

1. A local government may prohibit the operation of marijuana cultivation facilities, marijuana product manufacturing facilities, marijuana testing facilities, or retail marijuana stores through the enactment of an ordinance or by a voter initiative. An established village may prohibit the operation of marijuana cultivation facilities, marijuana product manufacturing facilities, marijuana testing facilities, or retail marijuana stores as provided in AS 17.38.300 .
2. A local government may enact ordinances or regulations not in conflict with this chapter or with regulations enacted pursuant to this chapter, governing the time, place, manner, and number of marijuana establishment operations. A local government may establish civil penalties for violation of an ordinance or regulation governing the time, place, and manner of a marijuana establishment that may operate in such local government.
3. A local government may designate a local regulatory authority that is responsible for processing applications submitted for a registration to operate a marijuana establishment within the boundaries of the local government. The local government may provide that the local regulatory authority may issue such registrations should the issuance by the local government become necessary because of a failure by the board to adopt regulations pursuant to AS 17.38.190 or to accept or process applications in accordance with AS 17.38.200 .
4. A local government may establish procedures for the issuance, suspension, and revocation of a registration issued by the local government in accordance with (f) of this section. The procedures are subject to all requirements of AS 44.62 (Administrative Procedure Act).
5. A local government may establish a schedule of annual operating, registration, and application fees for marijuana establishments, provided that the local government may charge the
   1. application fee only if an application is submitted to the local government in accordance with (f) of this section; and
   2. registration fee only if a registration is issued by the local government in accordance with (f) of this section.
6. If the board does not issue a registration to an applicant within 90 days of receipt of the application filed in accordance with AS 17.38.200 and does not notify the applicant of the specific, permissible reason for its denial, in writing and within such time period, or if the board has adopted regulations pursuant to AS 17.38.190 and has accepted applications pursuant to AS 17.38.200 but has not issued any registrations by 15 months after February 24, 2015, the applicant may resubmit its application directly to the local regulatory authority, pursuant to (c) of this section, and the local regulatory authority may issue an annual registration to the applicant. If an application is submitted to a local regulatory authority under this subsection, the board shall forward to the local regulatory authority the application fee paid by the applicant to the board upon request by the local regulatory authority.
7. [Repealed, § 103 ch 13 SLA 2019.]
8. A local regulatory authority issuing a registration to an applicant shall do so within 90 days of receipt of the submitted or resubmitted application unless the local regulatory authority finds and notifies the applicant that the applicant is not in compliance with ordinances and regulations made pursuant to (b) of this section in effect at the time the application is submitted to the local regulatory authority. The local government shall notify the board if an annual registration has been issued to the applicant.
9. A registration issued by a local government in accordance with (f) of this section has the same force and effect as a registration issued by the board in accordance with AS 17.38.200 . The holder of a registration described in this subsection is not subject to regulation or enforcement by the board during the term of the registration.
10. A subsequent or renewed registration may be issued under (f) of this section on an annual basis only upon resubmission to the local government of a new application submitted to the board pursuant to AS 17.38.200 .
11. [Repealed, § 103 ch 13 SLA 2019.]
12. Nothing in this section shall limit such relief as may be available to an aggrieved party under AS 44.62 (Administrative Procedure Act).
13. Except as provided in AS 29, the exercise of the powers authorized by this section by a borough may be exercised only on a nonareawide basis. In this subsection, "nonareawide" means throughout the area of a borough outside all cities in the borough.

History. (§ 1 2014 General Election Ballot Measure No. 2; am §§ 2, 3 ch 53 SLA 2016; am §§ 65 — 67, 103 ch 13 SLA 2019)

Revisor's notes. —

Enacted as AS 17.38.110; renumbered in 2015, at which time cross references to other renumbered sections were also corrected.

Minor editorial changes were made to this section, enacted by 2014 General Election Ballot Measure No. 2, to conform capitalization, punctuation, and numbering to the style of the Alaska Statutes, and “February 24, 2015” was substituted for “the effective date of this Act”.

Effect of amendments. —

The 2016 amendment, effective July 29, 2016, in (a), added the second sentence; added (m).

The 2019 amendment, effective October 17, 2019, in (d), substituted “The procedures are subject” for “or (g) of this section, these procedures shall be” at the beginning of the second sentence, and made a related change; in (e), in the introductory language, inserted “that the local government may charge” near the end, and made a related change, added the (1) and (2) designations, in (e)(1), substituted “application fee only if” for “application fee shall only be due if”, and made a stylistic change, in (e)(2), substituted “registration fee only if” for “a registration fee shall only be due if” and deleted “or (g) of this section” at the end, and made a stylistic change; in (i), in the first sentence, deleted “of this section or” following “with (f)”, and substituted “has the same force” for “shall have the same force”, in the second sentence substituted “a registration described in this section is not subject” for “such registration shall not be subject”, made a stylistic change and repealed (g) and (k).

Editor's notes. —

2014 General Election Ballot Measure No. 2, which enacted this section, was approved by the voters at the general election of November 4, 2014. The results of the general election were certified by the Lieutenant Governor November 26, 2014. Under art. XI, sec. 6, Constitution of the State of Alaska, the initiative's provisions took effect February 24, 2015.

Section 3, 2014 General Election Ballot Measure No. 2, part of the initiative that enacted this section, provides that “[t]he provisions of this Act are independent and severable, and, except where otherwise indicated in the text, shall supersede conflicting statutes, local charter, ordinance, or resolution, and other state and local provisions. If any provisions of this Act, or the application thereof to any person or circumstance, is found to be invalid or unconstitutional, the remainder of this Act shall not be affected and shall be given effect to the fullest extent possible.”

Sec. 17.38.220. Employers, driving, minors, and control of property.

1. Nothing in this chapter is intended to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growing of marijuana in the workplace or to affect the ability of employers to have policies restricting the use of marijuana by employees.
2. Nothing in this chapter is intended to allow driving under the influence of marijuana or to supersede laws related to driving under the influence of marijuana.
3. Nothing in this chapter is intended to permit the transfer of marijuana, with or without remuneration, to a person under the age of 21.
4. Nothing in this chapter shall prohibit a person, employer, school, hospital, recreation or youth center, correction facility, corporation, or any other entity who occupies, owns, or controls private property from prohibiting or otherwise regulating the possession, consumption, use, display, transfer, distribution, sale, transportation, or growing of marijuana on or in that property.

History. (§ 1 2014 General Election Ballot Measure No. 2; am § 68 ch 13 SLA 2019)

Revisor's notes. —

Enacted as AS 17.38.120; renumbered in 2015.

Minor editorial changes were made to this section, enacted by 2014 General Election Ballot Measure No. 2, to conform capitalization, punctuation, and numbering to the style of the Alaska Statutes.

Effect of amendments. —

The 2019 amendment, effective October 17, 2019, in (a), substituted “consumption” for “consumptions” following “the use,”.

Editor's notes. —

2014 General Election Ballot Measure No. 2, which enacted this section, was approved by the voters at the general election of November 4, 2014. The results of the general election were certified by the Lieutenant Governor November 26, 2014. Under art. XI, sec. 6, Constitution of the State of Alaska, the initiative’s provisions took effect February 24, 2015.

Section 3, 2014 General Election Ballot Measure No. 2, part of the initiative that enacted this section, provides that “[t]he provisions of this Act are independent and severable, and, except where otherwise indicated in the text, shall supersede conflicting statutes, local charter, ordinance, or resolution, and other state and local provisions. If any provisions of this Act, or the application thereof to any person or circumstance, is found to be invalid or unconstitutional, the remainder of this Act shall not be affected and shall be given effect to the fullest extent possible.”

Sec. 17.38.230. Impact on medical marijuana law.

Nothing in this chapter shall be construed to limit any privileges or rights of a medical marijuana patient or medical marijuana caregiver under AS 17.37.

History. (§ 1 2014 General Election Ballot Measure No. 2)

Revisor’s notes. —

Enacted as AS 17.38.130; renumbered in 2015.

Editor’s notes. —

2014 General Election Ballot Measure No. 2, which enacted this section, was approved by the voters at the general election of November 4, 2014. The results of the general election were certified by the Lieutenant Governor November 26, 2014. Under art. XI, sec. 6, Constitution of the State of Alaska, the initiative’s provisions took effect February 24, 2015.

Section 3, 2014 General Election Ballot Measure No. 2, part of the initiative that enacted this section, provides that “[t]he provisions of this Act are independent and severable, and, except where otherwise indicated in the text, shall supersede conflicting statutes, local charter, ordinance, or resolution, and other state and local provisions. If any provisions of this Act, or the application thereof to any person or circumstance, is found to be invalid or unconstitutional, the remainder of this Act shall not be affected and shall be given effect to the fullest extent possible.”

Sec. 17.38.300. Local option election by an established village.

1. If a majority of the voters voting on the question vote to approve the option, an established village shall exercise a local option to prohibit the operation of one or more of the following types of marijuana establishments:
   1. marijuana cultivation facilities;
   2. marijuana product manufacturing facilities;
   3. marijuana testing facilities; or
   4. retail marijuana stores.
2. A ballot question to adopt a local option under this section must at least contain language substantially similar to the following  §Shall (name of village) adopt a local option to prohibit (specify local option under (a) of this section)? (yes or no).”

History. (§ 4 ch 53 SLA 2016)

Effective dates. —

Section 4, ch. 53, SLA 2016, which enacted this section, took effect on July 29, 2016.

Sec. 17.38.310. Removal of local option.

1. If a majority of the voters voting on the question vote to remove the option, an established village shall remove a local option previously adopted under  AS 17.38.300 . The option is repealed effective the first day of the month following certification of the results of the election.
2. A ballot question to remove a local option under this section must at least contain language substantially similar to the following  §Shall (name of village) remove the local option currently in effect, that prohibits (current local option under  AS 17.38.300(a) ), so that there is no longer any local option in effect? (yes or no).”
3. When issuing a registration in the area that has removed a local option, the board shall give priority to an applicant who was formerly registered and whose registration was not renewed because of the results of the previous local option election. However, an applicant described in this subsection does not have a legal right to registration, and the board is not required to approve the application.

History. (§ 4 ch 53 SLA 2016)

Effective dates. —

Section 4, ch. 53, SLA 2016, which enacted this section, took effect on July 29, 2016.

Sec. 17.38.320. Effect on registrations of prohibition of marijuana establishments.

If a majority of voters vote to prohibit the operation of marijuana establishments under AS 17.38.300 , the board may not issue, renew, or transfer, between persons or locations, a registration for a marijuana establishment located within the perimeter of the established village. A registration that may not be renewed because of a local option election held under AS 17.38.300 is void 90 days after the results of the election are certified. A registration that expires during the 90 days after the results of a local option election are certified may be extended, until it is void under this section, by payment of a prorated portion of the annual registration fee.

History. (§ 4 ch 53 SLA 2016)

Effective dates. —

Section 4, ch. 53, SLA 2016, which enacted this section, took effect on July 29, 2016.

Sec. 17.38.330. Prohibition of sale and manufacture after election.

1. If a majority of the voters vote to prohibit the operation of marijuana establishments under  AS 17.38.300 , a person may not knowingly sell or manufacture marijuana in the established village.
2. If there are registered establishments within the established village, the prohibition on sale and manufacture is effective beginning 90 days after the results of the election are certified.
3. Nothing in this section prohibits the personal conduct authorized in  AS 17.38.020 .
4. A person who violates this section is guilty, upon conviction, of a class A misdemeanor.  Each violation is a separate offense.

History. (§ 4 ch 53 SLA 2016)

Cross references. —

For penalties for misdemeanors, see AS 12.55.135 for imprisonment and AS 12.55.035 for fines.

Effective dates. —

Section 4, ch. 53, SLA 2016, which enacted this section, took effect on July 29, 2016.

Sec. 17.38.340. Procedure for local option elections.

1. An election to adopt a local option under  AS 17.38.300 or remove a local option under  AS 17.38.310 shall be conducted as required in this section.
2. Upon receipt of a petition of 35 percent or more of the registered voters residing within an established village, the lieutenant governor shall place on a separate ballot at a special election the local option or removal of local option that constitutes the subject of the petition. The lieutenant governor shall conduct the election under AS 15.
3. An election under (b) of this section to remove a local option may not be conducted during the first 24 months after the local option was adopted or more than once in a 36-month period.
4. After a petition has been certified as sufficient to meet the requirements of (b) of this section, another petition may not be filed or certified until after the question presented in the first petition has been voted on. A local option question to prohibit the operation of marijuana cultivation facilities, marijuana product manufacturing facilities, marijuana testing facilities, or retail marijuana stores or to prohibit all marijuana establishments may be presented in one election.

History. (§ 4 ch 53 SLA 2016)

Effective dates. —

Section 4, ch. 53, SLA 2016, which enacted this section, took effect on July 29, 2016.

Sec. 17.38.350. Establishment of perimeter of established village.

1. Except as provided under (b) and (c) of this section, for purposes of AS 17.38.300 - 17.38.320 , the perimeter of an established village is a circle around the established village that includes an area within a five-mile radius of the post office of the established village. If the established village does not have a post office, the perimeter of an established village is a circle around the established village that includes an area within a five-mile radius of another site selected by the local governing body or by the board if the established village does not have a local governing body.
2. If the perimeter of an established village determined under (a) of this section includes any area that is within the perimeter of another established village and, if the other established village has
   1. also adopted a local option under AS 17.38.300 , the local option of the established village that is less restrictive applies in the overlapping area;
   2. not adopted a local option under AS 17.38.300 , the local option does not apply in the overlapping area.
3. If the board determines that the perimeter of an established village as provided under (a) and (b) of this section does not accurately reflect the perimeter of the established village, the board may establish the perimeter of the established village and the areas of overlapping perimeter described under (b) of this section for purposes of applying a local option selected under this chapter.

History. (§ 4 ch 53 SLA 2016)

Effective dates. —

Section 4, ch. 53, SLA 2016, which enacted this section, took effect on July 29, 2016.

Sec. 17.38.360. Notice of the results of a local option election.

If a majority of the voters vote to adopt or remove a local option under AS 17.38.300 or 17.38.310 , the lieutenant governor shall notify the board of the results of the election immediately after the results are certified. The board shall immediately notify the Department of Law and the Department of Public Safety of the results of the election.

History. (§ 4 ch 53 SLA 2016)

Effective dates. —

Section 4, ch. 53, SLA 2016, which enacted this section, took effect on July 29, 2016.

Sec. 17.38.370. Bail forfeiture for certain offenses.

The supreme court shall establish by rule or order a schedule of bail amounts that may be forfeited without court appearance for a violation of AS 17.38.030 - 17.38.050 .

History. (§ 4 ch 53 SLA 2016)

Effective dates. —

Section 4, ch. 53, SLA 2016, which enacted this section, took effect on July 29, 2016.

Sec. 17.38.900. Definitions.

As used in this chapter, unless the context otherwise requires,

1. “board” means the Marijuana Control Board established by AS 17.38.080 ;
2. “consumer” means a person 21 years of age or older who purchases marijuana or marijuana products for personal use by persons 21 years of age or older, but not for resale to others;
3. “consumption” means the act of ingesting, inhaling, or otherwise introducing marijuana into the human body;
4. “director” means the director of the Marijuana Control Board and the Alcoholic Beverage Control Board;
5. “dwelling” has the meaning given in AS 11.81.900 ;
6. “established village” means an area that does not contain any part of an incorporated city or another established village and that is an unincorporated community that is in the unorganized borough and that has 25 or more permanent residents;
7. “local government” means both home rule and general law municipalities, including boroughs and cities of all classes and unified municipalities;
8. “local regulatory authority” means the office or entity designated to process marijuana establishment applications by a local government;
9. “manufacture” has the meaning given in AS 11.71.900 .
10. “marijuana” means all parts of the plant of the genus cannabis whether growing or not, the seeds thereof, the resin extracted from any part of the plant, and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or its resin, including marijuana concentrate; “marijuana” does not include fiber produced from the stalks, oil or cake made from the seeds of the plant, sterilized seed of the plant that is incapable of germination, the weight of any other ingredient combined with marijuana to prepare topical or oral administrations, food, drink, or other products, or industrial hemp as defined in AS 03.05.100 ;
11. “marijuana accessories” means any equipment, products, or materials of any kind which are used, intended for use, or designed for use in planting, propagating, cultivating, growing, harvesting, composting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, vaporizing, or containing marijuana, or for ingesting, inhaling, or otherwise introducing marijuana into the human body;
12. “marijuana cultivation facility” means an entity registered to cultivate, prepare, and package marijuana and to sell marijuana to retail marijuana stores, to marijuana product manufacturing facilities, and to other marijuana cultivation facilities, but not to consumers;
13. “marijuana establishment” means a marijuana cultivation facility, a marijuana testing facility, a marijuana product manufacturing facility, or a retail marijuana store;
14. “marijuana product manufacturing facility“ means an entity registered to purchase marijuana; manufacture, prepare, and package marijuana products; and sell marijuana and marijuana products to other marijuana product manufacturing facilities and to retail marijuana stores, but not to consumers;
15. “marijuana products” means concentrated marijuana products and marijuana products that are comprised of marijuana and other ingredients and are intended for use or consumption, such as, but not limited to, edible products, ointments, and tinctures;
16. “marijuana testing facility” means an entity registered to analyze and certify the safety and potency of marijuana;
17. “registration” means registration or licensure, as determined by regulation;
18. “retail marijuana store” means an entity registered to purchase marijuana from marijuana cultivation facilities, to purchase marijuana and marijuana products from marijuana product manufacturing facilities, and to sell marijuana and marijuana products to consumers;
19. “unreasonably impracticable” means that the measures necessary to comply with the regulations require such a high investment of risk, money, time, or any other resource or asset that the operation of a marijuana establishment is not worthy of being carried out in practice by a reasonably prudent businessperson.

History. (§ 1 2014 General Election Ballot Measure No. 2; am §§ 5, 6 ch 4 SLA 2015; am § 5 ch 53 SLA 2016; am § 10 ch 5 SLA 2018)

Revisor’s notes. —

Paragraph (4) was enacted as paragraph (15) and paragraph (17) was enacted as paragraph (16) and renumbered in 2015; paragraphs (5), (6), and (9) were enacted as paragraphs (17) — (19) and renumbered in 2016; at the time these paragraphs were renumbered other paragraphs were also renumbered for alphabetical consistency.

Minor editorial changes were made to this section, enacted by 2014 General Election Ballot Measure No. 2, to conform capitalization, punctuation, and numbering to the style of the Alaska Statutes.

Effect of amendments. —

The 2015 amendment, effective May 5, 2015, in (1), substituted “Marijuana Control Board established by AS 17.38.080 ” for “Alcoholic Beverage Control Board established by AS 04.06”; added (15) [now (4)] and (16) [now (17)].

The 2016 amendment, effective July 29, 2016, added (17), (18) and (19).

The 2018 amendment, effective April 12, 2018, in (10), added “, or industrial hemp as defined in AS 03.05.100 ” at the end, and made stylistic changes.

Editor’s notes. —

2014 General Election Ballot Measure No. 2, which enacted this section, was approved by the voters at the general election of November 4, 2014. The results of the general election were certified by the Lieutenant Governor November 26, 2014. Under art. XI, sec. 6, Constitution of the State of Alaska, the initiative’s provisions took effect February 24, 2015.

Section 3, 2014 General Election Ballot Measure No. 2, part of the initiative that enacted this section, provides that “[t]he provisions of this Act are independent and severable, and, except where otherwise indicated in the text, shall supersede conflicting statutes, local charter, ordinance, or resolution, and other state and local provisions. If any provisions of this Act, or the application thereof to any person or circumstance, is found to be invalid or unconstitutional, the remainder of this Act shall not be affected and shall be given effect to the fullest extent possible.”