CHAPTER 19-01 Administration

19-01-01. Definitions of terms used in title. [Effective through August 31, 2022]

In this title, unless the context or subject matter otherwise requires:

  1. “Department” means the state department of health.
  2. “Person” includes both the singular and the plural, as the case demands, and includes individuals, partnerships, corporations, limited liability companies, companies, and associations, or two or more individuals having a joint or common interest.

Source:

S.L. 1905, ch. 8, § 1; R.C. 1905, § 2139; S.L. 1913, ch. 171, §§ 9, 13; 1913, ch. 214, § 17; C.L. 1913, §§ 2923, 3074, 10218, 10222; S.L. 1915, ch. 188, § 17; 1917, ch. 117, § 1; 1919, ch. 185, § 17; 1921, ch. 1, § 1; 1923, ch. 222, §§ 4, 12, 25; 1923, ch. 223, §§ 3, 13; 1925 Supp., §§ 2889b4, 2889b12, 2889c1, 2925a1, 3080a3, 3080a13; S.L. 1933, ch. 106, § 1; 1933, ch. 165, §§ 1, 3; 1937, ch. 132, § 1; 1939, ch. 137, § 1; 1939, ch. 148, §§ 1, 3, 4; R.C. 1943, § 19-0101; 1987, ch. 263, § 2; S.L. 1993, ch. 54, § 106; 1995, ch. 243, § 2.

19-01-01. Definitions of terms used in title. [Effective September 1, 2022]

In this title, unless the context or subject matter otherwise requires:

  1. “Department” means the department of health and human services.
  2. “Person” includes both the singular and the plural, as the case demands, and includes individuals, partnerships, corporations, limited liability companies, companies, and associations, or two or more individuals having a joint or common interest.

Source:

S.L. 1905, ch. 8, § 1; R.C. 1905, § 2139; S.L. 1913, ch. 171, §§ 9, 13; 1913, ch. 214, § 17; C.L. 1913, §§ 2923, 3074, 10218, 10222; S.L. 1915, ch. 188, § 17; 1917, ch. 117, § 1; 1919, ch. 185, § 17; 1921, ch. 1, § 1; 1923, ch. 222, §§ 4, 12, 25; 1923, ch. 223, §§ 3, 13; 1925 Supp., §§ 2889b4, 2889b12, 2889c1, 2925a1, 3080a3, 3080a13; S.L. 1933, ch. 106, § 1; 1933, ch. 165, §§ 1, 3; 1937, ch. 132, § 1; 1939, ch. 137, § 1; 1939, ch. 148, §§ 1, 3, 4; R.C. 1943, § 19-0101; 1987, ch. 263, § 2; S.L. 1993, ch. 54, § 106; 1995, ch. 243, § 2; 2021, ch. 352, § 78, effective September 1, 2022.

19-01-02. Consolidated laboratories branch — Members, duties, meetings. [Repealed]

Repealed by S.L. 1993, ch. 218, § 10.

19-01-02.1. Legislative intent.

It is the intent of the legislative assembly that the department provide consumer protection services to the public by means of laboratory sampling, laboratory testing, onsite inspecting, and public information services within its jurisdiction.

Source:

S.L. 1973, ch. 36, § 4; 1987, ch. 263, § 4.

19-01-03. Director of department — Appointment, bond, oath, salary. [Repealed]

Repealed by S.L. 1987, ch. 263, § 30.

19-01-04. Assistant director — Qualifications, appointment, bond, salary, duties. [Repealed]

Repealed by S.L. 1987, ch. 263, § 30.

19-01-05. Sheriff as local inspector — Compensation, duties. [Repealed]

Repealed by S.L. 2013, ch. 179, § 2.

19-01-06. Offices of department — Employees — Equipment. [Repealed]

Repealed by S.L. 1987, ch. 263, § 30.

19-01-07. Contract services. [Effective through August 31, 2022]

Funds may be accepted by the department from cities, counties, states, federal agencies, and private organizations for contract services of analytical and inspection work. Such funds must be remitted by the department to the state treasurer and deposited in the operating fund of the state department of health.

Source:

I.M. June 28, 1938, § 6, S.L. 1939, ch. 258, § 6; R.C. 1943, § 19-0107; S.L. 1985, ch. 54, § 2; 1985, ch. 258, § 4; 1987, ch. 263, § 5; 1989, ch. 116, § 2; 1995, ch. 243, § 2; 2013, ch. 179, § 1.

19-01-07. Contract services. [Effective September 1, 2022]

Funds may be accepted by the department from cities, counties, states, federal agencies, and private organizations for contract services of analytical and inspection work. Such funds must be remitted by the department to the state treasurer and deposited in the operating fund of the department.

Source:

I.M. June 28, 1938, § 6, S.L. 1939, ch. 258, § 6; R.C. 1943, § 19-0107; S.L. 1985, ch. 54, § 2; 1985, ch. 258, § 4; 1987, ch. 263, § 5; 1989, ch. 116, § 2; 1995, ch. 243, § 2; 2013, ch. 179, § 1; 2021, ch. 352, § 79, effective August 1, 2022.

19-01-08. Expenses — How paid. [Repealed]

Repealed by S.L. 1987, ch. 263, § 30.

19-01-09. Right of inspection — Penalty.

For obtaining information regarding suspected violations of any provision contained in this title, the department, its inspectors and agents, shall have free access to all places, except private homes, and all vehicles of transportation where and in which any of the products, articles, compositions, or things designated in any chapter in this title are manufactured, stored, sold, exposed for sale, prepared for sale, held, or transported. Such inspectors and other agents of the department may open any car, vehicle, package, can, jar, tub, tank, or other receptacle containing any such product, articles, composition, or thing, for the purpose of inspection, and may take therefrom such sample as may be required to permit such contents to be inspected and analyzed, upon paying or offering to pay to the person entitled thereto the full value of the sample so taken. Agents, bookkeepers, transportation officers, and other employees connected with or having control over any place or vehicle in which any such products, articles, compositions, or things, are manufactured, stored, sold, exposed for sale, prepared for sale, held, or transported, shall render all assistance and aid within their power to inspectors and agents of the department in carrying out the provisions of any chapter contained in this title. Any person obstructing any such agent or inspector of the department in making the entry or inspection or in taking the samples authorized under the provisions of this section or failing upon request to assist therein is guilty of a class A misdemeanor.

Source:

S.L. 1899, ch. 106, § 4; R.C. 1899, § 1712; S.L. 1905, ch. 8, §§ 3, 4; R.C. 1905, §§ 2116, 2141; S.L. 1907, ch. 197, § 8; C.L. 1913, §§ 2877, 2918, 2925; S.L. 1921, ch. 1, § 4; 1921, ch. 37, § 8; 1923, ch. 221, § 7; 1923, ch. 222, § 14; 1923, ch. 223, § 9; 1925 Supp., §§ 2889b14, 2918, 2925a4, 3080a9, 10169a7; S.L. 1927, ch. 141, § 7; 1937, ch. 7, § 5, subs. 2; 1937, ch. 136, § 7; R.C. 1943, § 19-0109; S.L. 1975, ch. 106, § 164.

19-01-10. Department to make analyses, inspections, and examinations — Report of examination as evidence — Publication of report.

The department shall make, or cause to be made, analyses, examinations, and inspections of all products, articles, compositions, or things included under this title whenever such analyses, inspections, or examinations are necessary to determine whether any of such products, articles, compositions, or things violate this title relating to the products, articles, compositions, or things in question, or violate any definition, standard, tolerance, rule, or regulation issued with regard to such products, articles, compositions, or things pursuant to any provision contained in this title. However, the state crime laboratory shall make or cause to be made, analysis, examination, inspection, or test of any product, article, composition, or thing at the request of any prosecutor, defense counsel, or law enforcement officer in the state of North Dakota when such analysis, examination, inspection, or test is made in connection with an investigation into violations of the criminal law of this state. A copy of any report issued by the department or the state crime laboratory, or electronically posted by the director of the state crime laboratory or the director’s designee on the crime laboratory information management system and certified by a law enforcement officer or individual who has authorized access to the crime laboratory information management system through the criminal justice data information sharing system, of the examination or analyses of any product, article, composition, or thing, duly authenticated by the person making the analysis or examination, when given under oath, is prima facie evidence in all courts of the matters and facts therein contained. The department may collect samples of any product, article, composition, or thing for the purpose of making analyses, inspections, and investigations in connection with research carried on by it and may publish the reports thereof for the information of the public.

Source:

S.L. 1901, ch. 128, § 13; 1903, ch. 6, §§ 5, 8; 1903, ch. 101, § 6; 1903, ch. 129, § 9; 1905, ch. 141, § 9; R.C. 1905, §§ 2122, 2125, 2221; S.L. 1907, ch. 195, §§ 5, 8; 1909, ch. 171, § 9; 1913, ch. 214, § 16; C.L. 1913, §§ 2883, 2886, 2895, 3073; S.L. 1915, ch. 188, § 16; 1915, ch. 200, §§ 6, 12; 1919, ch. 185, § 16; 1921, ch. 1, § 6; 1923, ch. 221, §§ 7, 10; 1923, ch. 222, § 19; 1923, ch. 223, §§ 8, 10; 1925 Supp., §§ 2889a6, 2889a12, 2889b19, 2925a6, 3080a8, 3080a10, 10169a7, 10169a10; S.L. 1927, ch. 141, § 11; 1937, ch. 136, § 9; R.C. 1943, § 19-0110; S.L. 1977, ch. 192, § 1; 1983, ch. 253, § 1; 2003, ch. 469, § 1; 2015, ch. 168, § 1, effective August 1, 2015.

Effective Date.

The 2015 amendment of this section by section 1 of chapter 168, S.L. 2015 became effective August 1, 2015.

Cross-References.

Public water system analyses, see N.D.C.C. § 61-28.1-07.

Collateral References.

Admissibility of evidence of fingernail comparisons in criminal case, 40 A.L.R.4th 575.

Consumption or destruction of physical evidence due to testing or analysis by prosecution’s expert as warranting suppression of evidence or dismissal of case against accused in state court, 40 A.L.R.4th 594.

19-01-11. Possession of prohibited or regulated products, articles, compositions, or things as prima facie evidence.

Possession of any product, article, composition, or thing, the manufacture, sale, or use of which is restricted, regulated, or forbidden by any provision of this title, is prima facie evidence of the intent to sell, manufacture, transport, possess, or use the same in violation of the provisions of this title relating to such product, article, composition, or thing, as the case may be.

Source:

S.L. 1905, ch. 8, § 2; R.C. 1905, § 2140; C.L. 1913, § 2924; S.L. 1921, ch. 1, § 3; 1923, ch. 222, § 25; 1923, ch. 223, § 13; 1925 Supp., §§ 2889b25, 2925a3, 3080a13; R.C. 1943, § 19-0111.

19-01-12. Seizure of unlawful products — Search warrant.

A search warrant may be issued by any judge, including a district or municipal judge, whenever probable cause is shown by affidavit or deposition under oath that any article, product, composition, or thing is being kept or is present upon certain premises which shall be particularly described or is in possession of any person who shall be named in the affidavit or deposition, and that such article, product, composition, or thing, is not in compliance with, or is being used or possessed contrary to, any applicable provision of this title or of any rule, regulation, standard, tolerance, or definition issued pursuant thereto. The search warrant must be in substantially the form described in the North Dakota Rules of Criminal Procedure. It must particularly describe the premises or the person who has possession of such article and must be signed by the judge with the name of the judge’s office, and must be directed to any peace officer of the county or to the department or any of its agents. The warrant shall command the peace officer or agent of the department to search the persons or places named and to seize all and any products, articles, compositions, or things of the kind described therein which may be held in violation of any applicable provision of this title and to bring such products, articles, compositions, or things before the judge.

Source:

Pen. C. 1877, § 420; S.L. 1885, ch. 64, § 2; R.C. 1895, §§ 7266, 7652; R.C. 1899, §§ 7266, 7652; R.C. 1905, §§ 9006, 9422; C.L. 1913, §§ 9721, 10209; S.L. 1915, ch. 200, § 8; 1917, ch. 117, § 4; 1923, ch. 222, § 15; 1925 Supp., §§ 2889a8, 2889b15, 2889c4; R.C. 1943, § 19-0112; S.L. 1979, ch. 187, § 26; 1981, ch. 320, § 35; 1985, ch. 258, § 5.

19-01-13. Department may seize unlawful products, articles, compositions, or things without search warrant.

The department may seize any product, article, composition, or thing which is manufactured, sold, used, transported, kept, or offered for sale, use, or transportation, or which is held in possession with intent to use, sell, or transport the same, in violation of any provision of this title applicable to such product, article, composition, or thing, or in violation of any rule, regulation, standard, or definition relating to the product, article, composition, or thing established pursuant to any provision of this title. The employees of the department have the powers of a peace officer. A seizure may be made without warrant, but, as soon as practicable, the person suspected of violation must be arrested and prosecuted for the violation.

Source:

S.L. 1885, ch. 64, § 1; R.C. 1895, § 7651; R.C. 1899, § 7651; R.C. 1905, § 9421; C.L. 1913, § 10208; S.L. 1915, ch. 200, § 8; 1923, ch. 222, § 15; 1925 Supp., §§ 2889a8, 2889b15; R.C. 1943, § 19-0113; S.L. 1985, ch. 151, § 16; 1993, ch. 218, § 1.

Collateral References.

Property of state or local government health officer’s warrantless search — post-Camara cases, 53 A.L.R.4th 1168.

19-01-14. Service and return of search warrant and proceedings thereon.

The provisions of sections 29-29-01 and 29-29-18 and rule 41 of the North Dakota Rules of Criminal Procedure, as to the service and return of a search warrant, and hearing, and return thereon to the district court, govern in cases of search warrants issued pursuant to the provisions of this chapter except that testimony of witnesses need not be reduced to writing. If the magistrate finds that the property seized is property of the kind described in the search warrant and that there is probable cause to believe that the grounds on which the search warrant was issued existed, the magistrate shall send the property so seized to the district court, together with the magistrate’s return. If the magistrate finds that there is not probable cause to believe that the grounds on which the search warrant was issued existed, the magistrate shall order the property returned to the person from whom it was taken.

Source:

S.L. 1885, ch. 64, § 2; R.C. 1895, § 7652; R.C. 1899, § 7652; R.C. 1905, § 9422; C.L. 1913, § 10209; S.L. 1915, ch. 200, § 8; 1923, ch. 222, § 15; 1925 Supp., §§ 2889a8, 2889b15; R.C. 1943, § 19-0114; S.L. 1981, ch. 91, § 11; 1985, ch. 258, § 6.

19-01-15. Agent is punishable for violation of any provision of title. [Repealed]

Repealed by S.L. 1975, ch. 106, § 673.

19-01-16. Enforcement by department — Duty of state’s attorney to prosecute.

The department shall enforce the provisions contained in this title and may prevent the manufacture or sale of products, articles, compositions, or things not complying with any provisions of this title applicable thereto. The department shall report each violation of any such provision to the state’s attorney of the county within which such violation occurred. Any state’s attorney to whom the department or any of its inspectors or agents shall report any such violation, without delay, shall cause appropriate proceedings to be instituted for the enforcement of the appropriate penalty.

Source:

S.L. 1899, ch. 106, § 4; R.C. 1899, § 1712; S.L. 1901, ch. 4, § 4; 1901, ch. 128, § 13; 1903, ch. 6, § 4; 1903, ch. 101, § 8; 1903, ch. 129, § 9; S.L. 1905, ch. 8, §§ 3, 4; 1905, ch. 141, § 9; R.C. 1905, §§ 2116, 2121, 2137, 2141, 2221; S.L. 1907, ch. 195, § 4; 1907, ch. 197, § 10; 1909, ch. 171, § 9; 1913, ch. 214, § 16; C.L. 1913, §§ 2877, 2882, 2897, 2920, 2925, 3073; S.L. 1915, ch. 188, § 16; 1915, ch. 200, § 9; 1919, ch. 185, § 16; 1921, ch. 1, § 4; 1921, ch. 37, § 10; 1923, ch. 221, §§ 7, 8; 1923, ch. 222, § 21; 1923, ch. 223, § 10; 1925 Supp., §§ 2889a9, 2889b21, 2920, 2925a4, 3080a10, 10169a7, 10169a8; S.L. 1927, ch. 141, § 9; 1937, ch. 136, § 10; R.C. 1943, § 19-0116.

19-01-17. Form of license to be issued.

All licenses and permits issued by the department must be uniform insofar as practicable and must be on a suitable blank provided and prescribed by the department. If two or more licenses or permits are issued to the same person or corporation, they must be on one and the same blank when possible and practicable.

Source:

I.M. June 28, 1938, § 7, S.L. 1939, ch. 258, § 7; R.C. 1943, § 19-0117; S.L. 1989, ch. 264, § 1.

19-01-18. Duties as to weights and measures. [Repealed]

Repealed by S.L. 2013, ch. 179, § 2.

19-01-19. Administrative procedure and judicial review.

Any proceeding under this title for issuing or modifying rules and regulations and determining compliance with rules and regulations of the department must be conducted in accordance with chapter 28-32 and appeals may be taken as provided in chapter 28-32.

Source:

S.L. 1981, ch. 336, § 8.

CHAPTER 19-02 Food and Drug Law [Repealed]

[Repealed by S.L. 1949, ch. 169, § 1; 1967, ch. 168, § 24; 1969, ch. 322, § 10; 1989, ch. 316, § 4; and by omission]

CHAPTER 19-02.1 North Dakota Food, Drug, and Cosmetic Act

19-02.1-01. Definitions. [Effective through August 31, 2022]

For the purpose of this chapter:

  1. “Advertisement” means all representations disseminated in any manner or by any means, other than by labeling, for the purpose of inducing, or which are likely to induce, directly or indirectly, the purchase of food, drugs, devices, or cosmetics.
  2. “Color” includes black, white, and intermediate grays.
  3. “Color additive” means a material which:
    1. Is a dye, pigment, or other substance made by a process of synthesis or similar artifice, or extracted, isolated, or otherwise derived, with or without intermediate or final change of identity from a vegetable, animal, mineral, or other source; or
    2. When added or applied to a food, drug, or cosmetic, or to the human body or any part thereof, is capable, alone or through reaction with other substance, of imparting color thereto, except that such term does not include any material which has been or hereafter is exempted under the federal act.
  4. “Contaminated with filth” applies to any food, drug, device, or cosmetic not securely protected from dust, dirt, and as far as may be necessary by all reasonable means, from all foreign or injurious contaminations.
  5. “Cosmetic” means:
    1. Articles intended to be rubbed, poured, sprinkled, or sprayed on, introduced into, or otherwise applied to the human body or any part thereof for cleansing, beautifying, promoting attractiveness, or altering the appearance; or
    2. Articles intended for use as a component of any such articles, except that such term does not include soap.
  6. “Department” means the state department of health.
  7. “Device”, except when used in the first paragraph following subsection 21 of this section and in subsection 10 of section 19-02.1-02, subsection 6 of section 19-02.1-10, subsections 3 and 16 of section 19-02.1-14, and subsection 3 of section 19-02.1-18, means instruments, apparatus and contrivances, including their components, parts, and accessories, intended:
    1. For use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animals; or
    2. To affect the structure or any function of the body of man or other animals.
  8. “Drug” means:
    1. Articles recognized in the official United States pharmacopoeia, official homeopathic pharmacopoeia of the United States, or official national formulary, or any supplement to any of them;
    2. Articles intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animals;
    3. Articles, other than food, intended to affect the structure or any function of the body of man or other animals; or
    4. Articles intended for use as a component of any article specified in subdivision a, b, or c, but does not include devices or their components, parts, or accessories. Provided, however, that “drug”, for the purpose of this chapter, and as defined by this subsection, does not include those controlled substances or drugs regulated by or under the authority of the Uniform Controlled Substances Act, with respect to such drugs, the Uniform Controlled Substances Act takes precedence over and supplants the provisions of this chapter only so far as its authority and control is synonymous with the provisions of this chapter.
  9. “Federal act” means the Federal Food, Drug, and Cosmetic Act, as amended [21 U.S.C. 301 et seq.].
  10. “Food” means:
    1. Articles used for food or drink for man or other animals;
    2. Chewing gum; and
    3. Articles used for components of any such article.
  11. “Food additive” means any substance, the intended use of which results or may be reasonably expected to result, directly or indirectly, in its becoming a component or otherwise affecting the characteristics of any food, including any substance intended for use in producing, manufacturing, packing, processing, preparing, treating, packaging, transporting, or holding food; and including any source of radiation intended for any such use, if such substance is not generally recognized, among experts qualified by scientific training and experience to evaluate its safety, as having been adequately shown through scientific procedures, or, in the case of a substance used in a food prior to January 1, 1958, through either scientific procedures or experience based on common use in food, to be safe under the conditions of its intended use, except that such term does not include:
    1. A pesticide chemical in or on a raw agricultural commodity;
    2. A pesticide chemical to the extent that it is intended for use or is used in the production, storage, or transportation of any raw agricultural commodity;
    3. A color additive; or
    4. Any substance used in accordance with a sanction or approval granted prior to the enactment of the Food Additives Amendment of 1958, pursuant to the federal act; the Poultry Products Inspection Act [21 U.S.C. 451 et seq.]; or the Meat Inspection Act of March 4, 1907 [34 Stat. 1260, as amended and extended, 21 U.S.C. 71 et seq.].
  12. “Immediate container” does not include package liners.
  13. “Label” means a display of written, printed, or graphic matter upon the immediate container of any article; and a requirement made by or under authority of this chapter that any word, statement, or other information appearing on the label may not be considered to be complied with unless such word, statement, or other information also appears on the outside container or wrapper, if any there be, of the retail package of such article, or is easily legible through the outside container or wrapper.
  14. “Labeling” means all labels and other written, printed, or graphic matter:
    1. Upon an article or any of its containers or wrappers; or
    2. Accompanying such article.
  15. “Manufacture, compound, or process” includes repackaging or otherwise changing the container, wrapper, or labeling of any drug package in the furtherance of the distribution of the drug from the original place of manufacture to the person who makes final delivery or sale to the ultimate consumer, and the term “manufacturers, compounders, and processors” must be deemed to refer to persons engaged in such defined activities.
  16. “New drug” means:
    1. Any drug the composition of which is such that such drug is not generally recognized among experts qualified by scientific training and experience to evaluate the safety and effectiveness of drugs, as safe and effective for use under the conditions prescribed, recommended, or suggested in the labeling thereof; or
    2. Any drug the composition of which is such that such drug, as a result of investigations to determine its safety and effectiveness for use under such conditions, has become so recognized, but which has not, otherwise than in such investigations, been used to a material extent or for a material time under such conditions.
  17. “Official compendium” means the official United States pharmacopoeia, official homeopathic pharmacopoeia of the United States, official national formulary, or any supplement to any of them.
  18. “Person” includes individual, partnership, corporation, limited liability company, and association.
  19. “Pesticide chemical” means any substance which, alone, in chemical combination, or in formulation with one or more other substances is a pesticide within the meaning of chapter 4.1-34, and which is used in the production, storage, or transportation of raw agricultural commodities.
  20. “Practitioner” means an individual licensed, registered, or otherwise authorized by the jurisdiction in which the individual is practicing to prescribe drugs in the course of professional practice which are subject to this chapter.
  21. “Raw agricultural commodity” means any food in its raw or natural state, including all fruits that are washed, colored, or otherwise treated in their unpeeled natural form prior to marketing.

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, then in determining whether the labeling or advertisement is misleading, there must be taken into account, among other things, not only representations made or suggested by statement, word, design, device, sound, or in any combination thereof, but also the extent to which the labeling or advertisement fails to reveal facts material in the light of such representations or material with respect to consequences which 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 thereof or under such conditions of use as are customary or usual.

The representation of a drug, in its labeling or advertisement, as an antiseptic must be considered to be a representation that it is a germicide, except in the case of a drug purporting to be, or represented as, an antiseptic for inhibitory use as a wet dressing, ointment, dusting powder, or such other use as involves prolonged contact with the body.

The provisions of this chapter regarding the selling of food, drugs, devices, or cosmetics must be considered to include the manufacture, production, processing, packing, exposure, offer, possession, and holding of any such article for sale; and the sale, dispensing, and giving of any such article and the supplying or applying of any such articles in the conduct of any food, drug, or cosmetic establishment.

Nothing in subsection 21 may be construed to apply to any pesticide chemical, soil or plant nutrient, or other agricultural chemical solely because of its effect in aiding, retarding, or otherwise affecting, directly or indirectly, the growth or other natural physiological process of produce of the soil and thereby affecting its color, whether before or after harvest.

Source:

S.L. 1967, ch. 168, § 2; 1969, ch. 230, § 1; 1971, ch. 235, §§ 46, 49; 1985, ch. 258, § 11; 1989, ch. 264, § 2; 1993, ch. 54, § 106; 1995, ch. 243, § 2; 1999, ch. 379, § 1; 2017, ch. 67, § 10, effective July 1, 2017.

Cross-References.

City regulation of food retailers, see N.D.C.C. § 40-05-03.

Uniform Controlled Substances Act, see N.D.C.C. ch. 19-03.1.

Notes to Decisions

Constitutionality.

Allowing an agency of the federal government to define illegal drugs under this section was not an unconstitutional delegation of legislative power. State v. Julson, 202 N.W.2d 145, 1972 N.D. LEXIS 99 (N.D. 1972).

“As Amended.”

“As amended” refers to the Federal Act “as amended” at the time of the enactment of the adoptive statute, adopting by reference the Federal Act and the regulations and changes promulgated prior to the enactment of the adoptive statute. State v. Julson, 202 N.W.2d 145, 1972 N.D. LEXIS 99 (N.D. 1972).

DECISIONS UNDER PRIOR LAW

Injunction.

Action for injunction against addition of fluoride compounds to city water supply, allegedly adulterating the water and making it dangerous to health, was not subject to demurrer. McGurren v. Fargo, 66 N.W.2d 207, 1954 N.D. LEXIS 103 (N.D. 1954).

LSD.

LSD was a hallucinogenic drug under subsection 23, since repealed. State v. Julson, 202 N.W.2d 145, 1972 N.D. LEXIS 99 (N.D. 1972).

Collateral References.

What is a “drug”, “device”, and “new drug” within the definitions of these terms in § 201(g)(1), (h), and (p) of the Federal Food, Drug, and Cosmetic Act as amended (21 USCS 321(g)(1), (h), and (p)). 3 A.L.R. Fed. 843, 127 A.L.R. Fed. 141, 129 A.L.R. Fed. 1, 129 A.L.R. Fed. 343, 129 A.L.R. Fed. 377, 133 A.L.R. Fed. 229.

Construction and application of national childhood vaccine injury act, 3 A.L.R. Fed. 843,127 A.L.R. Fed. 141, 129 A.L.R. Fed. 1, 129 A.L.R. Fed. 343, 129 A.L.R. Fed. 377, 133 A.L.R. Fed. 229.

19-02.1-01. Definitions. [Effective September 1, 2022]

For the purpose of this chapter:

  1. “Advertisement” means all representations disseminated in any manner or by any means, other than by labeling, for the purpose of inducing, or which are likely to induce, directly or indirectly, the purchase of food, drugs, devices, or cosmetics.
  2. “Color” includes black, white, and intermediate grays.
  3. “Color additive” means a material which:
    1. Is a dye, pigment, or other substance made by a process of synthesis or similar artifice, or extracted, isolated, or otherwise derived, with or without intermediate or final change of identity from a vegetable, animal, mineral, or other source; or
    2. When added or applied to a food, drug, or cosmetic, or to the human body or any part thereof, is capable, alone or through reaction with other substance, of imparting color thereto, except that such term does not include any material which has been or hereafter is exempted under the federal act.
  4. “Contaminated with filth” applies to any food, drug, device, or cosmetic not securely protected from dust, dirt, and as far as may be necessary by all reasonable means, from all foreign or injurious contaminations.
  5. “Cosmetic” means:
    1. Articles intended to be rubbed, poured, sprinkled, or sprayed on, introduced into, or otherwise applied to the human body or any part thereof for cleansing, beautifying, promoting attractiveness, or altering the appearance; or
    2. Articles intended for use as a component of any such articles, except that such term does not include soap.
  6. “Department” means the department of health and human services.
  7. “Device”, except when used in the first paragraph following subsection 21 of this section and in subsection 10 of section 19-02.1-02, subsection 6 of section 19-02.1-10, subsections 3 and 16 of section 19-02.1-14, and subsection 3 of section 19-02.1-18, means instruments, apparatus and contrivances, including their components, parts, and accessories, intended:
    1. For use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animals; or
    2. To affect the structure or any function of the body of man or other animals.
  8. “Drug” means:
    1. Articles recognized in the official United States pharmacopoeia, official homeopathic pharmacopoeia of the United States, or official national formulary, or any supplement to any of them;
    2. Articles intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animals;
    3. Articles, other than food, intended to affect the structure or any function of the body of man or other animals; or
    4. Articles intended for use as a component of any article specified in subdivision a, b, or c, but does not include devices or their components, parts, or accessories. Provided, however, that “drug”, for the purpose of this chapter, and as defined by this subsection, does not include those controlled substances or drugs regulated by or under the authority of the Uniform Controlled Substances Act, with respect to such drugs, the Uniform Controlled Substances Act takes precedence over and supplants the provisions of this chapter only so far as its authority and control is synonymous with the provisions of this chapter.
  9. “Federal act” means the Federal Food, Drug, and Cosmetic Act, as amended [21 U.S.C. 301 et seq.].
  10. “Food” means:
    1. Articles used for food or drink for man or other animals;
    2. Chewing gum; and
    3. Articles used for components of any such article.
  11. “Food additive” means any substance, the intended use of which results or may be reasonably expected to result, directly or indirectly, in its becoming a component or otherwise affecting the characteristics of any food, including any substance intended for use in producing, manufacturing, packing, processing, preparing, treating, packaging, transporting, or holding food; and including any source of radiation intended for any such use, if such substance is not generally recognized, among experts qualified by scientific training and experience to evaluate its safety, as having been adequately shown through scientific procedures, or, in the case of a substance used in a food prior to January 1, 1958, through either scientific procedures or experience based on common use in food, to be safe under the conditions of its intended use, except that such term does not include:
    1. A pesticide chemical in or on a raw agricultural commodity;
    2. A pesticide chemical to the extent that it is intended for use or is used in the production, storage, or transportation of any raw agricultural commodity;
    3. A color additive; or
    4. Any substance used in accordance with a sanction or approval granted prior to the enactment of the Food Additives Amendment of 1958, pursuant to the federal act; the Poultry Products Inspection Act [21 U.S.C. 451 et seq.]; or the Meat Inspection Act of March 4, 1907 [34 Stat. 1260, as amended and extended, 21 U.S.C. 71 et seq.].
  12. “Immediate container” does not include package liners.
  13. “Label” means a display of written, printed, or graphic matter upon the immediate container of any article; and a requirement made by or under authority of this chapter that any word, statement, or other information appearing on the label may not be considered to be complied with unless such word, statement, or other information also appears on the outside container or wrapper, if any there be, of the retail package of such article, or is easily legible through the outside container or wrapper.
  14. “Labeling” means all labels and other written, printed, or graphic matter:
    1. Upon an article or any of its containers or wrappers; or
    2. Accompanying such article.
  15. “Manufacture, compound, or process” includes repackaging or otherwise changing the container, wrapper, or labeling of any drug package in the furtherance of the distribution of the drug from the original place of manufacture to the person who makes final delivery or sale to the ultimate consumer, and the term “manufacturers, compounders, and processors” must be deemed to refer to persons engaged in such defined activities.
  16. “New drug” means:
    1. Any drug the composition of which is such that such drug is not generally recognized among experts qualified by scientific training and experience to evaluate the safety and effectiveness of drugs, as safe and effective for use under the conditions prescribed, recommended, or suggested in the labeling thereof; or
    2. Any drug the composition of which is such that such drug, as a result of investigations to determine its safety and effectiveness for use under such conditions, has become so recognized, but which has not, otherwise than in such investigations, been used to a material extent or for a material time under such conditions.
  17. “Official compendium” means the official United States pharmacopoeia, official homeopathic pharmacopoeia of the United States, official national formulary, or any supplement to any of them.
  18. “Person” includes individual, partnership, corporation, limited liability company, and association.
  19. “Pesticide chemical” means any substance which, alone, in chemical combination, or in formulation with one or more other substances is a pesticide within the meaning of chapter 4.1-34, and which is used in the production, storage, or transportation of raw agricultural commodities.
  20. “Practitioner” means an individual licensed, registered, or otherwise authorized by the jurisdiction in which the individual is practicing to prescribe drugs in the course of professional practice which are subject to this chapter.
  21. “Raw agricultural commodity” means any food in its raw or natural state, including all fruits that are washed, colored, or otherwise treated in their unpeeled natural form prior to marketing.

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, then in determining whether the labeling or advertisement is misleading, there must be taken into account, among other things, not only representations made or suggested by statement, word, design, device, sound, or in any combination thereof, but also the extent to which the labeling or advertisement fails to reveal facts material in the light of such representations or material with respect to consequences which 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 thereof or under such conditions of use as are customary or usual.

The representation of a drug, in its labeling or advertisement, as an antiseptic must be considered to be a representation that it is a germicide, except in the case of a drug purporting to be, or represented as, an antiseptic for inhibitory use as a wet dressing, ointment, dusting powder, or such other use as involves prolonged contact with the body.

The provisions of this chapter regarding the selling of food, drugs, devices, or cosmetics must be considered to include the manufacture, production, processing, packing, exposure, offer, possession, and holding of any such article for sale; and the sale, dispensing, and giving of any such article and the supplying or applying of any such articles in the conduct of any food, drug, or cosmetic establishment.

Nothing in subsection 21 may be construed to apply to any pesticide chemical, soil or plant nutrient, or other agricultural chemical solely because of its effect in aiding, retarding, or otherwise affecting, directly or indirectly, the growth or other natural physiological process of produce of the soil and thereby affecting its color, whether before or after harvest.

Source:

S.L. 1967, ch. 168, § 2; 1969, ch. 230, § 1; 1971, ch. 235, §§ 46, 49; 1985, ch. 258, § 11; 1989, ch. 264, § 2; 1993, ch. 54, § 106; 1995, ch. 243, § 2; 1999, ch. 379, § 1; 2017, ch. 67, § 10, effective July 1, 2017; 2021, ch. 352, § 80, effective September 1, 2022.

19-02.1-02. Prohibited acts.

The following acts and the causing thereof within the state of North Dakota are hereby prohibited:

  1. The manufacture, sale, or delivery, holding or offering for sale of any food, drug, device, or cosmetic that is adulterated or misbranded.
  2. The adulteration or misbranding of any food, drug, device, or cosmetic.
  3. The receipt in commerce of any food, drug, device, or cosmetic that is adulterated or misbranded, and the delivery or proffered delivery thereof for pay or otherwise.
  4. The sale, delivery for sale, holding for sale, or offering for sale of any article in violation of section 19-02.1-11 or 19-02.1-16.
  5. The dissemination of any false advertisement.
  6. The refusal to permit entry or inspection, or to permit the taking of a sample, as authorized by section 19-02.1-21.
  7. The giving of a guaranty or undertaking which guaranty or undertaking 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 of North Dakota from whom the person received in good faith the food, drug, device, or cosmetic.
  8. The removal or disposal of a detained or embargoed article in violation of section 19-02.1-05.
  9. The alteration, mutilation, destruction, obliteration, or removal of the whole or any part of the labeling of, or the doing of any other act with respect to a food, drug, device, or cosmetic, if such act is done while such article is held for sale and results in such article being adulterated or misbranded.
  10. Forging, counterfeiting, simulating, or falsely representing, or without proper authority using any mark, stamp, tag, label, or other identification device authorized or required by regulations promulgated under the provisions of this chapter or of the federal act.
  11. The using, on the labeling of any drug or in any advertisement relating to such drug, of any representation or suggestion that an application with respect to such drug is effective under section 19-02.1-16 or that such drug complies with the provisions of such section.
  12. In the case of a prescription drug distributed or offered for sale in this state, the failure of the manufacturer, packer, or distributor thereof to maintain for transmittal, or to transmit, to any practitioner licensed by applicable law to administer such drug who makes written request for information as to such drug, true and correct copies of all printed matter which is required to be included in any package in which that drug is distributed or sold, or such other printed matter as is approved under the federal act. Nothing in this subsection may be construed to exempt any person from any labeling requirement imposed by or under other provisions of this chapter.
  13. Placing or causing to be placed upon any drug or device or container thereof, with intent to defraud, the trade name or other identifying mark, or imprint of another or any likeness of any of the foregoing; selling, dispensing, disposing of, or causing to be sold, dispensed, or disposed of, or concealing or keeping in possession, control, or custody, with intent to sell, dispense, or dispose of, any drug, device, or any container thereof, with knowledge that the trade name or other identifying mark or imprint of another or any likeness of any of the foregoing has been placed thereon in a manner prohibited by this subsection; or making, selling, disposing of, or causing to be made, sold, or disposed of, or keeping in possession, control, or custody, or concealing, with intent to defraud, any punch, die, plate, or other thing designed to print, imprint, or reproduce that trade name or other identifying mark or imprint of another or any likeness of any of the foregoing upon any drug, device, or container thereof.
  14. Dispensing or causing to be dispensed a different drug or brand of drug in place of the drug or brand of drug ordered or prescribed without the express permission in each case of the person ordering or prescribing.
  15. The manufacture of drugs, or the supplying of drugs at wholesale or retail, unless a license or permit to do so has first been obtained from the state board of pharmacy after application to the state board of pharmacy and the payment of a fee set by the state board of pharmacy.
  16. The filling or refilling of any prescription in violation of subsection 1 of section 19-02.1-15.

Source:

S.L. 1967, ch. 168, § 3; 1969, ch. 230, § 2; 1971, ch. 235, § 49; 1979, ch. 187, § 27; 1981, ch. 249, § 1.

19-02.1-03. Injunction proceedings.

In addition to the remedies hereinafter provided, the department is hereby authorized to apply to the district court of Burleigh County for, and such court shall have jurisdiction upon hearing and for cause shown to grant, a temporary or permanent injunction restraining any person from violating any provision of section 19-02.1-02, irrespective of whether or not there exists an adequate remedy at law.

Source:

S.L. 1967, ch. 168, § 4.

19-02.1-04. Penalties and guaranty.

  1. Any person who violates any of the provisions of subsections 1 through 16 of section 19-02.1-02 is guilty of a class B misdemeanor.
  2. No person shall be subject to the penalties of subsection 1, for having violated subsection 1 or 3 of section 19-02.1-02 if the person established a guaranty or undertaking signed by, and containing the name and address of, the person residing in the state of North Dakota from whom the person received in good faith the article, to the effect that such article is not adulterated or misbranded within the meaning of this chapter, designating this chapter.
  3. No 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, shall be liable under this section by reason of the dissemination by the person of such false advertisement, unless the person has refused, on the request of the department, to furnish the department the name and post-office address of the manufacturer, packer, distributor, seller, or advertising agency residing in the state of North Dakota who caused the person to disseminate such advertisement.
  4. Repealed by S.L. 1971, ch. 235, § 49.

Source:

S.L. 1967, ch. 168, § 5; 1969, ch. 230, § 3; 1971, ch. 235, § 49; 1975, ch. 106, § 167; 1985, ch. 258, § 12; 1985, ch. 259, § 1.

Collateral References.

Products liability: toxic shock syndrome, 59 A.L.R.4th 50.

Construction and application of learned-intermediary doctrine, 57 A.L.R.5th 1.

19-02.1-05. Seizure.

  1. Whenever a duly authorized agent of the department finds or has probable cause to believe that any food, drug, device, or cosmetic is adulterated or so misbranded as to be dangerous or fraudulent, within the meaning of this chapter, the authorized agent shall affix to such article a tag or other appropriate marking, giving notice that such article 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 such article by sale or otherwise until permission for removal or disposal is given by such agent or the court. It is unlawful for any person to remove or dispose of such detained or embargoed article by sale or otherwise without such permission.
  2. When an article detained or embargoed under subsection 1 has been found by such agent to be adulterated or misbranded, the authorized agent shall petition the judge of the district court in the county in which the article is detained or embargoed for a libel for condemnation of such article. When such agent has found that an article so detained or embargoed is not adulterated or misbranded, the authorized agent shall remove the tag or other marking.
  3. If the court finds that a detained or embargoed article is adulterated or misbranded, such article must, after entry of the decree, be destroyed at the expense of the claimant thereof, under the supervision of such agent, and all court costs and fees, and storage and other proper expenses, must be taxed against the claimant of such article or the claimant’s agent; provided, that when the adulteration or misbranding can be corrected by proper labeling or processing of the article, the court, after entry of the decrees and after such costs, fees, and expenses have been paid and a good and sufficient bond, conditioned that such article must be so labeled or processed, has been executed, may by order direct that such article be delivered to the claimant thereof for such labeling or processing under the supervision of an agent of the department. The expense of such supervision must be paid by the claimant. Such must be returned to the claimant of the article on the representation to the court by the department that the article is no longer in violation of this chapter, and that the expenses of such supervision have been paid.
  4. Whenever an authorized agent of the department finds in any room, building, vehicle of transportation or other structure, any meat, seafood, poultry, vegetable, fruit, or other perishable articles which are unsound, or contain any filthy, decomposed, or putrid substance, or that may be poisonous or deleterious to health or otherwise unsafe, the same being hereby declared to be a nuisance, the department’s authorized agent shall forthwith condemn or destroy the same, or in any other manner render the same unsalable as human food.
  5. Any person, firm, corporation, or limited liability company having an interest in the alleged article, equipment, or other thing proceeded against, or any person, firm, corporation, or limited liability company against whom a civil or criminal liability would exist if said merchandise is in violation of section 19-02.1-02 may, within twenty days following the seizure, appear and file answer to the complaint. The answer must allege the interest or liability of the party filing it. In all other respects, the issue must be made up as in other civil actions.
  6. Any article, equipment, conveyance, or other thing condemned under this section must, after entry of the decree, be disposed of by destruction or sale as the court may, in accordance with the provisions of this section, direct and the proceeds thereof, if sold, less the legal costs and charges, must be paid to the treasurer of the state; but such article, equipment, or other thing may not be sold under such decree contrary to provisions of this chapter.
  7. Whenever in any proceedings under this section the condemnation of any equipment or conveyance or other thing, other than a drug, is decreed, the court shall allow the claim of any claimant, to the extent of such claimant’s interest, for remission or mitigation of such forfeiture if such claimant proves to the satisfaction of the court all of the following:
    1. The claimant has not committed or caused to be committed any prohibited act referred to in chapter 19-03.1 and has no interest in any drug or controlled substance referred to therein.
    2. The claimant has an interest in such equipment, or other thing as owner or lienor or otherwise, acquired by the claimant in good faith.
    3. The claimant at no time had any knowledge or reason to believe that such equipment, conveyance, or other thing was being or would be used in, or to facilitate, the violation of the laws of this state relating to depressant, stimulant, or hallucinogenic drugs or counterfeit drugs.
  8. When a decree of condemnation is entered against the article, equipment, conveyance, or other thing, court costs and fees and storage and other proper expenses must be awarded against the person, if any, intervening as claimant of the article.

Source:

S.L. 1967, ch. 168, § 6; 1969, ch. 230, § 4; 1971, ch. 235, §§ 45, 49; 1979, ch. 187, § 28; 1985, ch. 258, § 13; 1987, ch. 263, § 7; 1993, ch. 54, § 106.

Collateral References.

Propriety of state and local government health officers’ warrantless search — post-Camara cases, 53 A.L.R.4th 1168.

19-02.1-06. Prosecutions — State’s attorney.

It is the duty of each state’s attorney, to whom the department or state board of pharmacy reports any violation of this chapter occurring in the state’s attorney’s county, to cause appropriate proceedings to be instituted in the proper courts without delay and to be prosecuted in the manner required by law.

Source:

S.L. 1967, ch. 168, § 7; 1969, ch. 230, § 5; 1985, ch. 258, § 14; 1985, ch. 259, § 2.

19-02.1-07. Minor violations. [Effective through August 31, 2022]

Nothing in this chapter may be construed as requiring the state department of health or the state board of pharmacy to report minor violations of this chapter for the institution of proceedings under this chapter whenever the state department of health or the state board of pharmacy believes that the public interest will be adequately served in the circumstances by a suitable written notice or warning.

Source:

S.L. 1967, ch. 168, § 8; 1985, ch. 259, § 3; 1995, ch. 243, § 2.

19-02.1-07. Minor violations. [Effective September 1, 2022]

Nothing in this chapter may be construed as requiring the department or the state board of pharmacy to report minor violations of this chapter for the institution of proceedings under this chapter whenever the department or the state board of pharmacy believes that the public interest will be adequately served in the circumstances by a suitable written notice or warning.

Source:

S.L. 1967, ch. 168, § 8; 1985, ch. 259, § 3; 1995, ch. 243, § 2; 2021, ch. 352, § 81, effective September 1, 2022.

19-02.1-08. Food — Definitions and standards.

Whenever in the judgment of the department such action will promote honesty and fair dealing in the interest of consumers, the department shall promulgate regulations fixing and establishing for any food or class of food a reasonable definition and standard of identity or reasonable standard of quality or fill of container. In prescribing a definition and standard of identity for any 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 must be named on the label. The definitions and standards so promulgated must conform so far as practicable to the definitions and standards promulgated under authority of the federal act.

Source:

S.L. 1967, ch. 168, § 9.

19-02.1-09. Food — Adulteration defined.

A food must be deemed to be adulterated for any of the following reasons:

  1. If it bears or contains any poisonous or deleterious substance which may render it injurious to health; but in case the substance is not an added substance such food may not be considered adulterated under this clause if the quantity of such substance in such food does not ordinarily render it injurious to health.
  2. If it bears or contains any added poisonous or added deleterious substance, other than one which is:
    1. A pesticide chemical in or on a raw agricultural commodity;
    2. A food additive; or
    3. A color additive which is unsafe within the meaning of subsection 1 of section 19-02.1-12.
  3. If it is a raw agricultural commodity and it bears or contains a pesticide chemical which is unsafe within the meaning of subsection 1 of section 19-02.1-12.
  4. If it is or bears or contains, any food additive which is unsafe within the meaning of subsection 1 of section 19-02.1-12. Provided, that when a pesticide chemical has been used in or on a raw agricultural commodity in conformity with an exemption granted or tolerance prescribed under subsection 1 of section 19-02.1-12, and such raw agricultural commodity has been subjected to processing such as canning, cooking, freezing, dehydrating, or milling, the residue of such pesticide chemical remaining in or on such processed food may not, notwithstanding the provisions of section 19-02.1-12 and this subsection, be deemed unsafe if such residue in or on the raw agricultural commodity has been removed to the extent possible in good manufacturing practice, and the concentration of such residue in the processed food when ready-to-eat, is not greater than the tolerance prescribed for the raw agricultural commodity.
  5. If it consists in whole or in part of a diseased, contaminated, filthy, putrid, or decomposed substance or if it is otherwise unfit for food.
  6. If it has been produced, prepared, packed, or held under unsanitary conditions whereby it may have become contaminated with filth or whereby it may have been rendered diseased, unwholesome, or injurious to health.
  7. If it is the product of a diseased animal or an animal which has died otherwise than by slaughter or that has been fed upon the uncooked offal from a slaughterhouse.
  8. If its container is composed, in whole or in part, of any poisonous or deleterious substance which may render the contents injurious to health.
  9. If any valuable constituent has been in whole or in part omitted or abstracted therefrom.
  10. If any substance has been substituted wholly or in part therefor.
  11. If damage or inferiority has been concealed in any manner.
  12. If any substance has been added thereto or mixed or packed therewith so as to increase its bulk or weight or reduce its quality or strength or make it appear better or of greater value than it is.
  13. If it is confectionery and has partially or completely imbedded therein any non-nutritive object. This subsection does not apply in the case of any non-nutritive object if, in the judgment of the department as provided by rules, the object is of practical functional value to the confectionery product and would not render the product injurious or hazardous to health. This subsection does not apply to any confectionery, by reason of its containing less than one-half of one percent by volume of alcohol derived solely from the use of flavoring extracts. This subsection does not apply to a non-nutritive substance that is in or on confectionery by reason of its use for some practical functional purpose in the manufacture, packaging, or storage of such confectionery if the use of the substance does not promote deception of the consumer or otherwise result in adulteration or misbranding in violation of any provision of this chapter. To avoid or resolve uncertainty as to the application of this subsection, the department may issue rules allowing or prohibiting use of particular non-nutritive substances.
  14. If it is or bears or contains any color additive which is unsafe within the meaning of subsection 1 of section 19-02.1-12.
  15. If it has been intentionally subjected to radiation, unless the use of the radiation was in conformity with a regulation or exemption in effect pursuant to federal law.

Source:

S.L. 1967, ch. 168, § 10; 1989, ch. 264, § 3.

Collateral References.

Construction and application of Federal Food, Drug, and Cosmetic Act, § 402(a)(c) [21 USCS 342(a)(3)] as to food deemed “adulterated” if it is filthy or the like or unfit for food, 45 A.L.R.2d 861.

Coloring matter as forbidden adulteration of food, 56 A.L.R.2d 1129.

Liability of packer, foodstore, or restaurant for causing trichinosis, 96 A.L.R.3d 451.

Liability for injury or death allegedly caused by foreign object in food or food product, 1 A.L.R.5th 1.

Liability for injury or death allegedly caused by spoilage, contamination, or other deleterious condition of food or food product, 2 A.L.R.5th 1.

Liability for injury or death allegedly caused by food product containing object related to, but not intended to be present in, product, 2 A.L.R.5th 189.

19-02.1-10. Food — Misbranding defined. [Effective through August 31, 2022]

A food must be deemed to be misbranded:

  1. If its labeling is false or misleading in any particular.
  2. If it is offered for sale under the name of another food.
  3. If it is an imitation of another food for which a definition and standard of identity has been prescribed by regulations as provided by section 19-02.1-08 or if it is an imitation of another food that is not subject to subsection 7, unless its label bears in type of uniform size and prominence the word imitation and immediately thereafter the name of the food imitated.
  4. If its container is so made, formed, or filled as to be misleading.
  5. If in package form, unless it bears a label containing:
    1. The name and place of business of the manufacturer, packer, or distributor;
    2. An accurate statement of the quantity of the contents in terms of weight, measure, or numerical count; and
    3. In the case of beverages that are manufactured, distributed, and sold under a franchise or trademark name indicated thereon, whereby the person, firm, corporation, or limited liability company owning the franchise or trademark has control over the distribution, such beverages may be exempt from this subsection, if a certified statement is filed with the state department of health, stating the name and address of the manufacturer or distributor, and a statement signed by the manufacturer or distributor that they assume all responsibility and liability for the product named, which is being sold, or offered for sale, under such name within the area of the state designated, which certificate must be in the following form:
  6. If any word, statement, or other information required by or under authority of this chapter to appear on the label or labeling is not prominently placed thereon with such conspicuousness, as compared with other words, statements, designs, or devices, in the labeling, and in such terms as to render it likely to be read and understood by the ordinary individual under customary conditions of purchase and use.
  7. If 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 section 19-02.1-08 unless it conforms to such definition and standard, its label bears the name of the food specified in the definition and standard, and, insofar as may be required by such regulations, the common names of optional ingredients, other than spices, flavoring, and coloring, present in such food.
  8. If it purports to be or is represented as:
    1. A food for which a standard of quality has been prescribed by regulations as provided by section 19-02.1-08 and its quality falls below such standard unless its label bears, in such manner and form as such regulations specify, a statement that it falls below such standard; or
    2. A food for which a standard or standards of fill of container have been prescribed by regulation as provided by section 19-02.1-08, and it falls below the standard of fill of container applicable thereto, unless its label bears, in such manner and form as such regulations specify, a statement that it falls below such standard.
  9. If it is not subject to the provisions of subsection 7, unless it bears labeling clearly giving:
    1. The common or usual name of the food, if any there be; and
    2. The common or usual name of each such ingredient, in case it is fabricated from two or more ingredients, except that spices, flavorings, and colorings, other than those sold as such, may be designated as spices, flavorings, and colorings without naming each; provided, that to the extent that compliance with the requirements of this subdivision is impracticable or results in deception or unfair competition, exemptions must be established by regulations promulgated by the department and, provided further, that the requirements of this subdivision do not apply to food products which 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 promulgated by the department.
  10. If it purports to be or is represented for special dietary uses, unless its label bears such information concerning its vitamin, mineral, and other dietary properties as the department determines to be, and by regulations prescribes as, necessary in order to fully inform purchasers as to its value for such uses.
  11. If it bears or contains any artificial flavoring, artificial coloring, or chemical preservative, unless it bears labeling stating that fact; provided, that the extent that compliance with the requirements of this subsection is impracticable, exemptions must be established by regulations promulgated by the department.
  12. If it is a product intended as an ingredient of another food and when used according to the directions of the purveyor will result in the final food product being adulterated or misbranded.
  13. If it is a color additive unless its packaging and labeling are in conformity with such packaging and labeling requirements applicable to such color additive prescribed under the provisions of the federal act.
  14. If it is a raw agricultural commodity that is the produce of the soil, bearing or containing a pesticide chemical applied after harvest, unless the shipping container of the commodity bears labeling that declares the presence of the chemical in or on the commodity and the common or usual name and the function of the chemical. No such declaration is required while the commodity, having been removed from the shipping container, is being held or displayed for sale at retail out of the container in accordance with the custom of the trade.
  15. If its packaging or labeling is in violation of an applicable regulation issued under section 3 or 4 of the Poison Prevention Packaging Act of 1970.

NORTH DAKOTA STATE DEPARTMENT OF HEALTH BISMARCK, NORTH DAKOTA BEVERAGE LABELING EXEMPTIONS CERTIFICATE I, , the undersigned, an agent of and having authority to sign, do hereby certify that the following information is correct: Name and address of company requesting exemption Name Street Address City or Town State Name of Product Brand Name In order to be exempt from subdivisions a and b of subsection 5 of , relating to misbranding of food, which requires the name and address of the real manufacturer or other persons responsible for placing the product upon the market, I, the undersigned, do bind the company listed above by agreeing to assume all responsibility for the product named in this certificate which is being sold, or offered for sale under such name and brand name within the area consisting of in the State of North Dakota. section 19-02.1-10 of the North Dakota Century Code Note: The area must be designated by counties or other legal subdivisions of the city, county, or state. Firm Signed Title Address Note: If signed by a person other than an officer of the company, authorization for signature must accompany this form. This certificate must be acknowledged.

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Provided, that under subdivision b reasonable variations must be permitted, and exemptions as to small packages must be established, by regulations prescribed by the department.

Source:

S.L. 1967, ch. 168, § 11; 1971, ch. 234, § 1; 1989, ch. 264, § 4; 1993, ch. 54, § 106; 1995, ch. 243, § 2.

Note.

Sections 3 and 4 of the Poison Prevention Packaging Act of 1970, referred to in subsection 15 of this section, are compiled at 15 USCS, §§ 1472 and 1473, respectively.

Collateral References.

Horsemeat: validity and construction of statutes, ordinances, or regulations concerning the sale of horsemeat for human consumption, 19 A.L.R.2d 1013.

Coloring matter as forbidden adulteration of food as affected by truthful labeling, 56 A.L.R.2d 1129.

19-02.1-10. Food — Misbranding defined. [Effective September 1, 2022]

A food must be deemed to be misbranded:

  1. If its labeling is false or misleading in any particular.
  2. If it is offered for sale under the name of another food.
  3. If it is an imitation of another food for which a definition and standard of identity has been prescribed by regulations as provided by section 19-02.1-08 or if it is an imitation of another food that is not subject to subsection 7, unless its label bears in type of uniform size and prominence the word imitation and immediately thereafter the name of the food imitated.
  4. If its container is so made, formed, or filled as to be misleading.
  5. If in package form, unless it bears a label containing:
    1. The name and place of business of the manufacturer, packer, or distributor;
    2. An accurate statement of the quantity of the contents in terms of weight, measure, or numerical count; and
    3. In the case of beverages that are manufactured, distributed, and sold under a franchise or trademark name indicated thereon, whereby the person, firm, corporation, or limited liability company owning the franchise or trademark has control over the distribution, such beverages may be exempt from this subsection, if a certified statement is filed with the department, stating the name and address of the manufacturer or distributor, and a statement signed by the manufacturer or distributor that they assume all responsibility and liability for the product named, which is being sold, or offered for sale, under such name within the area of the state designated, which certificate must be in the following form:
  6. If any word, statement, or other information required by or under authority of this chapter to appear on the label or labeling is not prominently placed thereon with such conspicuousness, as compared with other words, statements, designs, or devices, in the labeling, and in such terms as to render it likely to be read and understood by the ordinary individual under customary conditions of purchase and use.
  7. If 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 section 19-02.1-08 unless it conforms to such definition and standard, its label bears the name of the food specified in the definition and standard, and, insofar as may be required by such regulations, the common names of optional ingredients, other than spices, flavoring, and coloring, present in such food.
  8. If it purports to be or is represented as:
    1. A food for which a standard of quality has been prescribed by regulations as provided by section 19-02.1-08 and its quality falls below such standard unless its label bears, in such manner and form as such regulations specify, a statement that it falls below such standard; or
    2. A food for which a standard or standards of fill of container have been prescribed by regulation as provided by section 19-02.1-08, and it falls below the standard of fill of container applicable thereto, unless its label bears, in such manner and form as such regulations specify, a statement that it falls below such standard.
  9. If it is not subject to the provisions of subsection 7, unless it bears labeling clearly giving:
    1. The common or usual name of the food, if any there be; and
    2. The common or usual name of each such ingredient, in case it is fabricated from two or more ingredients, except that spices, flavorings, and colorings, other than those sold as such, may be designated as spices, flavorings, and colorings without naming each; provided, that to the extent that compliance with the requirements of this subdivision is impracticable or results in deception or unfair competition, exemptions must be established by regulations promulgated by the department and, provided further, that the requirements of this subdivision do not apply to food products which 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 promulgated by the department.
  10. If it purports to be or is represented for special dietary uses, unless its label bears such information concerning its vitamin, mineral, and other dietary properties as the department determines to be, and by regulations prescribes as, necessary in order to fully inform purchasers as to its value for such uses.
  11. If it bears or contains any artificial flavoring, artificial coloring, or chemical preservative, unless it bears labeling stating that fact; provided, that the extent that compliance with the requirements of this subsection is impracticable, exemptions must be established by regulations promulgated by the department.
  12. If it is a product intended as an ingredient of another food and when used according to the directions of the purveyor will result in the final food product being adulterated or misbranded.
  13. If it is a color additive unless its packaging and labeling are in conformity with such packaging and labeling requirements applicable to such color additive prescribed under the provisions of the federal act.
  14. If it is a raw agricultural commodity that is the produce of the soil, bearing or containing a pesticide chemical applied after harvest, unless the shipping container of the commodity bears labeling that declares the presence of the chemical in or on the commodity and the common or usual name and the function of the chemical. No such declaration is required while the commodity, having been removed from the shipping container, is being held or displayed for sale at retail out of the container in accordance with the custom of the trade.
  15. If its packaging or labeling is in violation of an applicable regulation issued under section 3 or 4 of the Poison Prevention Packaging Act of 1970.

NORTH DAKOTA STATE DEPARTMENT OF HEALTH AND HUMAN SERVICES BISMARCK, NORTH DAKOTA BEVERAGE LABELING EXEMPTIONS CERTIFICATE I, , the undersigned, an agent of and having authority to sign, do hereby certify that the following information is correct: Name and address of company requesting exemption Name Street Address City or Town State Name of Product Brand Name In order to be exempt from subdivisions a and b of subsection 5 of , relating to misbranding of food, which requires the name and address of the real manufacturer or other persons responsible for placing the product upon the market, I, the undersigned, do bind the company listed above by agreeing to assume all responsibility for the product named in this certificate which is being sold, or offered for sale under such name and brand name within the area consisting of in the State of North Dakota. section 19-02.1-10 of the North Dakota Century Code Note: The area must be designated by counties or other legal subdivisions of the city, county, or state. Firm Signed Title Address Note: If signed by a person other than an officer of the company, authorization for signature must accompany this form. This certificate must be acknowledged.

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Provided, that under subdivision b reasonable variations must be permitted, and exemptions as to small packages must be established, by regulations prescribed by the department.

Source:

S.L. 1967, ch. 168, § 11; 1971, ch. 234, § 1; 1989, ch. 264, § 4; 1993, ch. 54, § 106; 1995, ch. 243, § 2; 2021, ch. 352, § 82, effective September 1, 2022.

19-02.1-10.1. Eggs — Labeling and temperature rules. [Effective through August 31, 2022]

The state department of health may adopt appropriate rules under chapter 28-32 to establish standards for proper labeling and temperature during the retail storage and sale of shell eggs. As used in this section, “eggs” means eggs in the shell which are the product of a domesticated chicken.

Source:

S.L. 2017, ch. 61, § 9, effective July 1, 2017.

19-02.1-10.1. Eggs — Labeling and temperature rules. [Effective September 1, 2022]

The department may adopt appropriate rules under chapter 28-32 to establish standards for proper labeling and temperature during the retail storage and sale of shell eggs. As used in this section, “eggs” means eggs in the shell which are the product of a domesticated chicken.

Source:

S.L. 2017, ch. 61, § 9, effective July 1, 2017; 2021, ch. 352, § 83, effective September 1, 2022.

19-02.1-11. Emergency permit control.

Whenever the department finds after investigation that the distribution in the state of North Dakota of any class of food may, by reason of contamination with micro-organisms during manufacture, processing, or packing thereof in any locality, be injurious to health and that such injurious nature cannot be adequately determined after such articles have entered commerce, it then, and in such case only, shall promulgate regulations providing for the issuance, to manufacturers, processors, or packers of such class of food in such locality, of permits to which must be attached such conditions governing the manufacture, processing, or packaging, or packing of such class of food, for such temporary period of time, as may be necessary to protect the public health; and after the effective date of such regulations, and during such temporary period, no person may introduce or deliver for introduction into commerce any such food manufactured, processed, or packed by any such manufacturer, processor, or packer unless such manufacturer, processor, or packer holds a permit issued by the department as provided by such regulations.

The department is authorized to suspend immediately upon notice any permit issued under authority of this section if it is found that any of the conditions of the permit have been violated. The holder of a permit so suspended is privileged at any time to apply for the reinstatement of such permit, and the department shall, immediately after prompt hearing and inspection of the establishment, reinstate such 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.

Any officer or employee duly designated by the department shall have access to any factory or establishment, the operator of which holds a permit from the department for the purpose of ascertaining whether or not the conditions of the permit are being complied with, and denial of access for such inspection is grounds for suspension of the permit until such access is freely given by the operator.

Source:

S.L. 1967, ch. 168, § 12; 1989, ch. 264, § 5.

19-02.1-12. Food — Tolerances for added poisonous ingredients.

  1. Any added poisonous or deleterious substance, any food additive, any pesticide chemical in or on a raw agricultural commodity, or any color additive shall with respect to any particular use or intended use be deemed unsafe for the purpose of application of subsection 2 of section 19-02.1-09 with respect to any food, subsection 1 of section 19-02.1-13 with respect to any drug or device, or subsection 1 of section 19-02.1-17 with respect to any cosmetic, unless there is in effect a regulation pursuant to subsection 2 limiting the quantity of such substance, and the use or intended use of such substance conforms to the terms prescribed by such regulation. While such regulation relating to such substance is in effect, a food, drug, or cosmetic may not, by reason of bearing or containing such substance in accordance with the regulation, be considered adulterated within the meaning of subsection 1 of section 19-02.1-09, subsection 1 of section 19-02.1-13, or subsection 1 of section 19-02.1-17.
  2. The department, whenever public health or other considerations in the state so require, is authorized to adopt, amend, or repeal regulations whether or not in accordance with regulations promulgated under the federal act prescribing therein tolerances for any added poisonous or deleterious substances, for food additives, for pesticide chemicals in or on raw agricultural commodities, or for color additives, including zero tolerances, and exemptions from tolerances in the case of pesticide chemicals in or on raw agricultural commodities, and prescribing the conditions under which a food additive or a color additive may be safely used and exemptions when such food additive or color additive is to be used solely for investigational or experimental purposes, upon its own motion or upon the petition of any interested party requesting that such a regulation be established, and it is incumbent upon such petitioner to establish by data submitted to the department that a necessity exists for such regulation, and that its effect will not be detrimental to the public health. If the data furnished by the petitioner is not sufficient to allow the department to determine whether such regulation should be promulgated, the department may require additional data to be submitted and failure to comply with the request is sufficient grounds to deny the request. In adopting, amending, or repealing regulations relating to such substances, the department shall consider among other relevant factors the following which the petitioner, if any, shall furnish:
    1. The name and all pertinent information concerning such substance, including where available, its chemical identity and composition, a statement of the conditions of the proposed use, including directions, recommendations, and suggestions and including specimens of proposed labeling, and all relevant data bearing on the physical or other technical effect and the quantity required to produce such effect;
    2. The probable composition of any substance formed in or on a food, drug, or cosmetic resulting from the use of such substance;
    3. The probable consumption of such substance in the diet of man and animals taking into account any chemically or pharmacologically related substance in such diet;
    4. Safety factors which, in the opinion of experts qualified by scientific training and experience to evaluate the safety of such substances for the use or uses for which they are proposed to be used, are generally recognized as appropriate for the use of animal experimentation data;
    5. The availability of any needed practicable methods of analysis for determining the identity and quantity of such substance in or on an article, any substance formed in or on such article because of the use of such substance, and the pure substance and all intermediates and impurities; and
    6. Facts supporting a contention that the proposed use of such substance will serve a useful purpose.

Source:

S.L. 1967, ch. 168, § 13.

19-02.1-12.1 Misrepresentation of cell-cultured protein as meat food product prohibited.

  1. A person may not advertise, offer for sale, sell, or misrepresent cell-cultured protein as a meat food product. A cell-cultured food product:
    1. May not be packaged in the same, or deceptively similar, packaging as a meat food product; and
    2. Must be labeled as a cell-cultured food product.
  2. For purposes of this section, “deceptively similar” means packaging that could mislead a reasonable person to believe the product is a meat food product.

Source:

S.L. 2019, ch. 67, § 3, effective August 1, 2019.

19-02.1-13. Drugs and devices — Adulteration defined.

A drug or device must be deemed to be adulterated:

  1. If it consists in whole or in part of any filthy, putrid, or decomposed substance.
  2. If it has been produced, prepared, packed, or held under unsanitary conditions whereby it may have been contaminated with filth, or whereby it may have been rendered injurious to health.
  3. If it is a drug and the methods used in, or the facilities or controls used for, its manufacture, processing, packing, or holding do not conform to or are not operated or administered in conformity with current good manufacturing practice to assure that such drug meets the requirements of this chapter as to safety and has the identity and strength, and meets the quality and purity characteristics, which it purports or is represented to possess.
  4. If it is a drug and its container is composed, in whole or in part, of any poisonous or deleterious substance which may render the contents injurious to health.
  5. If it is a drug and it bears or contains, for purposes of coloring only, a color additive which is unsafe within the meaning of subsection 1 of section 19-02.1-12 or it is a color additive, the intended use of which in or on drugs is for purposes of coloring only, and is unsafe within the meaning of subsection 1 of section 19-02.1-12.
  6. 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 such compendium. Such determination as to strength, quality, or purity must be made in accordance with the tests or methods of assay set forth in such compendium or, in the absence of or inadequacy of such tests or methods of assay, those prescribed under authority of the federal act. No drug defined in an official compendium may be deemed to be adulterated under this subsection because it differs from the standard of strength, quality, or purity therefor set forth in such compendium if its difference in strength, quality, or purity from such standard is plainly stated on its label. Whenever 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.
  7. If it is not subject to the provisions of subsection 6 and its strength differs from, or its purity or quality falls below, that which it purports or is represented to possess.
  8. If it is a drug and any substance has been mixed or packed therewith so as to reduce its quality or strength or substituted wholly or in part therefor.

Source:

S.L. 1967, ch. 168, § 14.

19-02.1-14. Drugs and devices — Misbranding defined.

A drug or device must be deemed to be misbranded:

  1. If its labeling is false or misleading in any particular.
  2. If in package form unless it bears a label containing:
    1. The name and place of business of the manufacturer, packer, or distributor; and
    2. An accurate statement of the quantity of the contents in terms of weight, measure, or numerical count; provided, that under this subdivision reasonable variations must be permitted, and exemptions as to small packages must be allowed, in accordance with regulations prescribed by the department or issued under the federal act.
  3. If any word, statement, or other information required by or under authority of this chapter to appear on the label or labeling is not prominently placed thereon with such conspicuousness, as compared with other words, statements, designs, or devices in the labeling, and in such terms as to render it likely to be read and understood by the ordinary individual under customary conditions of purchase and use.
  4. If it is for use by man and contains any 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 sulfonmethane, or any chemical derivative of such substance, which derivative, after investigation, has been found to be and designated as, habit-forming, by regulations issued by the department under this chapter, or by regulations issued pursuant to section 502(d) of the federal act, unless its label bears the name and quantity or proportion of such substance or derivative and in juxtaposition therewith the statement “Warning — May be habit-forming”.
  5. If it is a drug, unless its label bears, to the exclusion of any other nonproprietary name, except the applicable systematic chemical name or the chemical formula:
    1. The established name, as defined in subsection 6, of the drug, if such there be; and
    2. The established name and quantity of each active ingredient, in case it is fabricated from two or more ingredients, including the kind and quantity or proportion of any alcohol, and also including, whether active or not, the established name and quantity or proportion of any bromides, ether, chloroform, acetanilid, acetophenetidin, amidopyrine, antipyrine, atropine, hyoscine, hyoscyamine, arsenic, digitalis, digitalis glucosides, mercury, ouabain, strophanthin, strychnine, thyroid, or any derivative or preparation of any such substances, contained therein.
  6. As used in subsections 5 and 6, the term “established name”, with respect to a drug or ingredient thereof, means:
    1. The applicable official name designated pursuant to section 508 of the federal act;
    2. If there is no such name and such drug, or such ingredient, is an article recognized in an official compendium, then the official title thereof in such compendium; or
    3. If neither subdivision a nor b applies, then the common or usual name, if any, of such drug or of such ingredient.
  7. Unless its labeling bears:
    1. Adequate directions for use; and
    2. Such adequate warnings against use in those pathological conditions or by children when its use may be dangerous to health, or against unsafe dosage or methods or duration of administration or application, in such manner and form, as are necessary for the protection of users.
  8. 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 therein; provided, that the method of packing may be modified with the consent of the department, or if consent is obtained under the federal act. Whenever a drug is recognized in both the United States pharmacopeia and the homeopathic pharmacopeia of the United States, it is subject to the requirements of the United States pharmacopeia with respect to packaging and labeling unless it is labeled and offered for sale as a homeopathic drug, in which case it is subject to the provisions of the homeopathic pharmacopeia of the United States and not to those of the United States pharmacopeia; provided, further, that in the event of inconsistency between the requirements of this subsection and those of subsections 5 and 6 as to the name by which the drug or its ingredients must be designated, the requirements of subsections 5 and 6 must prevail.
  9. If it has been found by the department or under the federal act to be a drug liable to deterioration, unless it is packaged in such form and manner, and its label bears a statement of such precautions, as the regulations issued by the department or under the federal act require as necessary for the protection of public health. No such regulation may be established for any drug recognized in an official compendium until the department shall have informed the appropriate body charged with the revision of such compendium of the need for such packaging or labeling requirements and such body shall have failed within a reasonable time to prescribe such requirements.
  10. If it is a drug and:
    1. Its container is so made, formed, or filled as to be misleading;
    2. If it is an imitation of another drug; or
    3. If it is offered for sale under the name of another drug.
  11. If it is dangerous to health when used in the dosage, or with the frequency or duration prescribed, recommended, or suggested in the labeling thereof.
  12. If it is, or purports to be, or is represented as a drug composed wholly or partly of insulin, unless it is from a batch with respect to which a certificate or release has been issued pursuant to section 506 of the federal act, and such certificate or release is in effect with respect to such drug.
  13. If it is, or purports to be, or is represented as a drug composed wholly or partly of any kind of penicillin, streptomycin, chlortetracycline, chloramphenicol, bacitracin, or any other antibiotic drug, or any derivative thereof, unless it is from a batch with respect to which a certificate or release has been issued pursuant to section 507 of the federal act, and such certificate or release is in effect with respect to such drug; provided, that this subsection does not apply to any drug or class of drugs exempted by regulations promulgated under section 507(c) or (d) of the federal act. For the purpose of this subsection, the term “antibiotic drug” means any drug intended for use by man containing any quantity of any chemical substance which is produced by a micro-organism and which has the capacity to inhibit or destroy micro-organisms in dilute solution, including the chemically synthesized equivalent of any such substance.
  14. If it is a color additive, the intended use of which in or on drugs is for the purpose of coloring only, unless its packaging and labeling are in conformity with such packaging and labeling requirements applicable to such color additive, prescribed under the provisions of subsection 2 of section 19-02.1-12 or of the federal act.
  15. In the case of any prescription drug distributed or offered for sale in this state, unless the manufacturer, packer, or distributor thereof includes in all advertisements and other descriptive printed matter issued or caused to be issued by the manufacturer, packer, or distributor with respect to that drug a true statement of the established name as defined in subsection 6, the formula showing quantitatively each ingredient of such drug to the extent required for labels under section 502(e) of the federal act, and such other information in brief summary relating to side effects, contraindications, and effectiveness as are required in regulations issued under the federal act.
  16. If a trademark, trade name, or other identifying mark, imprint, or device of another or any likeness of the foregoing has been placed thereon or upon its container with intent to defraud.
  17. Drugs and devices which are, in accordance with the practice of the trade, to be processed, labeled, or repacked in substantial quantities at establishments other than those where originally processed or packed are exempt from any labeling or packaging requirements of this chapter; provided, that such drugs and devices are being delivered, manufactured, processed, labeled, repacked, or otherwise held in compliance with regulations issued by the department, or under the federal act.
  18. If it is a device and it has an established name, unless its label bears, to the exclusion of any other nonproprietary name, its established name, as defined in subsection 6, prominently printed in type at least half as large as that used thereon for any proprietary name or designation for the device, except that to the extent compliance with the requirements of this subsection is impracticable, exemptions will be established by rules adopted by the department. As used in this subsection, the term “established name” with respect to a device means:
    1. The applicable official name of the device designated pursuant to federal law.
    2. If there is no official name of the device designated pursuant to federal law and the device is an article recognized in an official compendium, then the official title of the device in the compendium.
    3. If neither subdivision a nor subdivision b applies, then any common or usual name of the device.
  19. If it is a device subject to a performance standard established under federal law, unless it bears labeling prescribed in the performance standard.

Provided, that the requirement for stating the quantity of the active ingredients, other than the quantity of those specifically named in this subsection applies only to prescription drugs; provided, further, that to the extent that compliance with the requirements of subdivision b of subsection 6 is impracticable, exemptions must be allowed under regulations promulgated by the department, or under the federal act.

Provided, further, that when subdivision b applies to an article recognized in the United States pharmacopeia and in the homeopathic pharmacopeia under different official titles, the official title used in the United States pharmacopeia applies unless it is labeled and offered for sale as a homeopathic drug, in which case the official title used in the homeopathic pharmacopeia applies.

Provided, that if any requirement of subdivision a, as applied to any drug or device, is not necessary for the protection of the public health, the department shall promulgate regulations exempting such drug or device from such requirements; provided, further, that articles exempted under regulations issued under section 502(f) of the federal act may also be exempt.

Source:

S.L. 1967, ch. 168, § 15; 1989, ch. 264, § 6.

19-02.1-14.1. Definitions — Label of prescription drugs — Selecting and dispensing generic name drugs — Identification of prescription drugs.

  1. As used in this section, unless the subject matter or context otherwise requires:
    1. “Brand name” means the registered trademark name given to a drug or medicine by its manufacturer, labeler, or distributor.
    2. “Code imprint” means a series of letters or numbers assigned by the manufacturer or distributor to a specific drug, or marks or monograms unique to the manufacturer or distributor of the drug, or both.
    3. “Distributor” means a person who distributes for resale a drug in solid dosage form under that person’s own label even though that person is not the actual manufacturer of the drug.
    4. “Generic name” means the established name or official chemical name of the drug, drug product, or medicine.
    5. “Prescription drug” means a drug defined by section 503(b) of the federal Act and under which definition its label is required to bear the statement “Caution: Federal law prohibits dispensing without prescription” or “Rx Only”.
    6. “Solid dosage form” means capsules or tablets intended for oral use.
    7. “Therapeutically equivalent” means a generic name drug product that would elicit the same therapeutic response from the same person as a brand name drug product.
  2. Drugs or medicines dispensed pursuant to a prescription must bear a label permanently affixed to the immediate container in which the drug or medicine is dispensed or delivered and which is received by the purchaser or patient. The label must bear the brand name or the generic name, strength, quantity, serial number, date of dispensing, patient name, and directions for use of the drug or medicine, except when the physician or other health care provider authorized by law to prescribe drugs or medicine has notified the pharmacist that the appearance of the name on the label would be alarming to or detrimental to the well-being of the purchaser of the prescription.
  3. If a practitioner prescribes a drug by its brand name, the pharmacist may exercise professional judgment in the economic interest of the patient by selecting a drug product with the same generic name and demonstrated therapeutical equivalency as the one prescribed for dispensing and sale to the patient unless the practitioner specifically indicates in the practitioner’s own handwriting “brand medically necessary” on a written prescription or expressly indicates that an oral prescription is to be dispensed as communicated. If the prescription is created electronically by the prescriber, the required legend must appear on the practitioner’s screen. The practitioner must take a specific overt action to include the “brand medically necessary” language with the electronic transmission. The pharmacist shall note the instructions on the file copy of the prescription, or maintain the digital record as transmitted if it is an electronic prescription. A reminder legend must be placed on all prescription forms or appear on the computer screen of the electronic prescribing system. The legend must state “In order to require that a brand name product be dispensed, the practitioner must handwrite the words ‘brand medically necessary’.”. The legend printed on the prescription form or appearing on the prescriber’s computer screen must be in at least six-point uppercase print or font. The pharmacist may not substitute a generic name drug product unless its price to the purchaser is less than the price of the prescribed drug product. In addition, a pharmacist may not substitute drug products in the following dosage forms: enteric coated tablets, controlled release products, injectable suspensions other than antibiotics, suppositories containing active ingredients for which systemic absorption is necessary for therapeutic activity, and different delivery systems for aerosol and nebulizer drugs. In the event that any drug listed above is, subsequent to January 1, 1982, determined to be therapeutically equivalent, then the previously mentioned substitution ban is automatically removed for that drug. The pharmacist shall inform the person receiving the drug when a prescription for a brand name drug product does not require that the prescribed drug be dispensed and of the person’s right to refuse a generic name drug product selected by the pharmacist. The pharmacy file copy of every prescription must include the brand name, if any, or the name of the manufacturer, packer, or distributor of the generic name drug dispensed. A pharmacist who selects and dispenses a therapeutically equivalent generic name drug product shall assume no greater liability for selecting the dispensed drug product than would be incurred in filling a prescription for a drug product prescribed by its generic name. The practitioner is not liable for the substitution made by a pharmacist.
  4. In the case of a prescription for which a maximum allowable cost program for purposes of reimbursement has been established under title XIX of the federal Social Security Act, the following also apply:
    1. If the practitioner has instructed the pharmacist to dispense as written, the words “brand medically necessary” must also be written on the prescription in the practitioner’s own handwriting, or appear as part of the electronic prescription as noted in subsection 3. The pharmacist may dispense a therapeutically equivalent generic name drug product if this handwritten or electronic instruction does not appear on the prescription.
    2. If the pharmacist is instructed orally to dispense a brand name drug as prescribed, the pharmacist shall reduce the prescription to writing and shall note the instructions on the file copy of the prescription.
    3. If the practitioner has not instructed the pharmacist to dispense a brand name drug or medicine and the patient specifically requests a brand name drug or medicine, the patient shall pay the difference between the price to the patient of the brand name drug or medicine and the therapeutically equivalent generic name drug or medicine if the price of the brand name drug or medicine is higher.
  5. A pharmacist may not select and dispense a different drug product for a prescribed drug product unless it has been manufactured with the following minimum manufacturing standards and practices by a manufacturer who:
    1. Marks capsules and tablets with identification code or monogram.
    2. Labels products with their expiration date.
    3. Provides reasonable services to accept return goods that have reached their expiration date.
    4. Provides the pharmacist with information from which it can be determined whether a drug product is therapeutically equivalent.
    5. Maintains recall capabilities for unsafe or defective drugs.
  6. No prescription drug in solid dosage form may be manufactured or distributed in this state unless it is clearly marked or imprinted with a code imprint identifying the drug and the manufacturer or distributor of the drug.
  7. All manufacturers and distributors of prescription drugs in solid dosage form shall provide to the department or state board of pharmacy, upon request, a listing of all such prescription drugs identifying by code imprint the manufacturer and the specific type of drug. The listing must at all times be kept current by all manufacturers and distributors subject to the provisions of this section.
  8. The state board of pharmacy may grant exemptions from the requirements of this section upon application by any drug manufacturer or distributor which shows size, physical characteristics, or other unique characteristics of a drug that render the use of a code imprint on the drug impracticable or impossible. Any exemption granted by the state board of pharmacy must be included by the manufacturer or distributor in the listing required by this section. The listing must describe the physical characteristics and type of drug to which the exemption relates.
  9. All prescription drugs in solid dosage form that are possessed, distributed, sold, or offered for sale in violation of the provisions of this section must be deemed misbranded and must be seized by the department or state board of pharmacy.

Source:

S.L. 1977, ch. 193, § 1; 1979, ch. 285, §§ 1, 2; 1981, ch. 250, § 1; 1985, ch. 260, § 1; 1985, ch. 261, § 1; 1989, ch. 3, § 8; 1989, ch. 265, § 1; 1993, ch. 219, § 1; 2001, ch. 213, § 1; 2011, ch. 160, § 1.

Cross Reference.

Federal Social Security Act, title XIX, see 42 USCS § 1396 et seq.

Collateral References.

Liability of pharmacist who accurately fills prescription for harm resulting to user, 44 A.L.R.5th 393.

19-02.1-14.2. Maximum allowable cost lists for pharmaceuticals — Pharmacy benefits managers — Penalty.

  1. For the purposes of this section:
    1. “Determination” means a decision that settles and ends a controversy or the resolution of a question through appeal.
    2. “Maximum allowable cost price” means a maximum reimbursement amount for a group of therapeutically equivalent and pharmaceutically equivalent multiple source drugs.
    3. “Multiple source drug” means a therapeutically equivalent drug that is available from at least two manufacturers.
    4. “Pharmacy benefits manager” has the same meaning as in section 19-03.6-01.
  2. With respect to each contract between a pharmacy benefits manager and a pharmacy, each pharmacy benefits manager shall:
    1. Provide to the pharmacy, at the beginning of each contract and contract renewal, the sources utilized to determine the maximum allowable cost pricing of the pharmacy benefits manager.
    2. Update any maximum allowable cost price list at least every seven business days, and provide prompt notification of the pricing changes to network pharmacies.
    3. Disclose the sources utilized for setting maximum allowable cost price rates on each maximum allowable cost price list included under the contract and identify each maximum allowable cost price list that applies to the contracted pharmacy. A pharmacy benefits manager shall make the list of the maximum allowable costs available to a contracted pharmacy in a format that is readily accessible and usable to the contracted pharmacy.
    4. Ensure maximum allowable cost prices are not set below sources utilized by the pharmacy benefits manager.
    5. Provide a reasonable administrative appeals procedure to allow a dispensing pharmacy provider to contest a listed maximum allowable price rate. The pharmacy benefits manager shall provide a determination to a provider that has contested a maximum allowable price rate within seven business days. If an update to the maximum allowable price rate for an appealed drug is warranted, the pharmacy benefits manager shall make the change based on the date of the determination and make the adjustment effective for all similarly situated pharmacy providers in this state within the network.
    6. Ensure dispensing fees are not included in the calculation of maximum allowable cost price reimbursement to pharmacy providers.
  3. A pharmacy benefits manager may not place a prescription drug on a maximum allowable price list unless:
    1. The drug has at least two nationally available, therapeutically equivalent, multiple source drugs or a generic drug is available only from one manufacturer;
    2. The drug is listed as therapeutically equivalent and pharmaceutically equivalent or “A” or “B” rated in the United States food and drug administration’s most recent version of the “Orange Book” or the drug is “Z” rated; and
    3. The drug is generally available for purchase by pharmacies in the state from national or regional wholesalers and not obsolete.
  4. This section does not apply to state Medicaid programs.
  5. A pharmacy benefits manager that violates this section is guilty of a class B misdemeanor.

Source:

S.L. 2013, ch. 180, § 1.

19-02.1-14.3. Biosimilar biological products.

  1. In this section:
    1. “Biological product”, “biosimilar”, “interchangeable”, “interchangeable biological product”, “license”, and “reference product” mean the same as these terms mean under section 351 of the federal Public Health Service Act [42 U.S.C. 262].
    2. “Prescription” means a product that is subject to section 503(b) of the Federal Food, Drug, and Cosmetic Act [21 U.S.C. 353(b)].
  2. A pharmacy may not substitute a prescription biosimilar product for a prescribed product unless each of the following requirements is met:
    1. The biosimilar product has been determined by the United States food and drug administration to be interchangeable with the prescribed product.
    2. The prescribing practitioner does not specifically indicate in the practitioner’s own handwriting “brand medically necessary” on a written prescription, does not expressly indicate that an oral prescription is to be dispensed as communicated, or has not taken a specific overt action to include the “brand medically necessary” language with an electronically transmitted prescription.
    3. The pharmacist or the pharmacist’s designee informs the individual receiving the biological product that the biological product may be substituted with a biosimilar product and that the individual has a right to refuse the biosimilar product selected by the pharmacist and the individual chooses not to refuse.
    4. Within two business days following the dispensing of the biosimilar product, the pharmacist or the pharmacist’s designee notifies the prescribing practitioner of the substitution. Notification under this subdivision must include the name of the substitution product and the name of the manufacturer, and may be made using facsimile, telephone, electronic transmission, an entry into an interoperable electronic medical record accessible by the prescribing practitioner, or other prevailing means accessible by the prescribing practitioner.
    5. The pharmacy and the prescribing practitioner retain a record of the interchangeable biosimilar substitution for a period of no less than five years.
  3. Subsection 2 does not apply to a biologic product refill prescription that is not changed from the interchangeable biosimilar substitution dispensed on the previous filling of the prescription.
  4. The board of pharmacy shall maintain on the board’s public website a current list, or an internet link to a United States food and drug administration-approved list, of biosimilar biological products determined to be interchangeable under subdivision a of subsection 2.

Source:

S.L. 2013, ch. 181, § 1; 2021, ch. 170, § 1, effective August 1, 2021.

19-02.1-15. Drugs limited to dispensing on prescription.

  1. Except as authorized and provided in chapter 19-03.1, a depressant, stimulant, or hallucinogenic drug; or a drug intended for use by man which is a habit-forming drug to which subsection 4 of section 19-02.1-14 applies; or a drug that, because of its toxicity or other potentiality for harmful effect, or the method of its use, or the collateral measures necessary to its use, is not safe for use except under the supervision of a practitioner; or a drug limited by an approved application under section 505 of the federal act or section 19-02.1-16 to use under the professional supervision of a practitioner, must be dispensed by prescription of a practitioner, and such prescription may not be filled or refilled after one year from the date on which such prescription was issued; except that nothing herein may be construed as preventing a practitioner from issuing a new prescription for the same drug either in writing or orally. Any oral prescription for such drug must be promptly reduced to writing and filed by the pharmacist.
  2. Any drug dispensed by filling or refilling a written or oral prescription of a practitioner licensed by law to administer such drug is exempt from the requirements of section 19-02.1-14, except subsection 1, subdivisions b and c of subsection 10, subsections 12 and 13, and the packaging requirements of subsections 8 and 9 of section 19-02.1-14, if the drug bears a label containing the name and address of the dispenser, the serial number and date of the prescription or of its filling, the name of the prescriber and, if stated in the prescription, the name of the patient, and the directions for use and cautionary statements, if any, contained in such prescription. This exemption does not apply to any drug dispensed in the course of the conduct of a business of dispensing drugs pursuant to diagnosis by mail or electronic means, or to a drug dispensed in violation of subsection 1.
  3. The department may, by regulation, remove drugs subject to subsection 4 of section 19-02.1-14 and section 19-02.1-16 from the requirements of subsection 1 when such requirements are not necessary for the protection of the public health. Drugs removed from the prescription requirements of the federal act by regulations issued thereunder may also, by regulations issued by the department, be removed from the requirements of subsection 1.
  4. A drug which is subject to subsection 1 must be deemed to be misbranded if at any time prior to dispensing its label fails to bear the statement “Caution: Federal Law Prohibits Dispensing Without Prescription”, “Rx Only”, or “Caution: State Law Prohibits Dispensing Without Prescription”. A drug to which subsection 1 does not apply must be deemed to be misbranded if at any time prior to dispensing its label bears the caution statement quoted in the preceding sentence.
  5. Nothing in this section may be construed to relieve any person from any requirement prescribed by or under authority of law with respect to drugs now included or which may hereafter be included within the classifications of narcotic drugs or marijuana as defined in the applicable federal and state laws relating to narcotic drugs and marijuana.

Source:

S.L. 1967, ch. 168, § 16; 1969, ch. 230, § 6; 1971, ch. 235, § 47; 1979, ch. 286, § 1; 2001, ch. 213, § 2; 2009, ch. 198, § 2.

Cross-References.

Drugs, only registered pharmacist or licensed physician may sell and dispense, see N.D.C.C. §§ 43-15-14, 43-15-32.

Notes to Decisions

1-Desoxyephedrine.

1-desoxyephedrine is an isomer of methamphetamine and is controlled. State v. Erban, 429 N.W.2d 408, 1988 N.D. LEXIS 249 (N.D. 1988).

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 A.L.R.3d 748.

Liability of manufacturer of oral live polio (Sabin) vaccine for injury or death from its administration, 66 A.L.R.4th 83.

Construction and application of learned-intermediary doctrine, 57 A.L.R.5th 1.

Federal pre-emption of state common-law products liability claims pertaining to drugs, medical devices, and other health-related items, 98 A.L.R. Fed. 124.

19-02.1-15.1. Requirements for dispensing controlled substances and specified drugs — Penalty.

  1. As used in this section:
    1. “Controlled substance” has the meaning set forth in section 19-03.1-01.
    2. “Deliver, distribute, or dispense by means of the internet” refers, respectively, to delivery, distribution, or dispensing of a controlled substance or specified drug that is caused or facilitated by means of the internet.
    3. “In-person medical evaluation” means a medical evaluation that is conducted with the patient in the physical presence of the practitioner, without regard to whether portions of the evaluation are conducted by other practitioners, and must include one of the following actions:
      1. The prescribing practitioner examines the patient at the time the prescription or drug order is issued;
      2. The prescribing practitioner has performed a prior examination of the patient within twelve months;
      3. Another prescribing practitioner practicing within the same health system, group, or clinic as the prescribing practitioner has examined the patient within twelve months;
      4. A consulting practitioner to whom the prescribing practitioner has referred the patient has examined the patient within twelve months; or
      5. The referring practitioner has performed an examination in the case of a consultant practitioner issuing a prescription or drug order when providing services by means of telemedicine.
    4. “Internet” and “practice of telemedicine” have the meanings set forth in the Ryan Haight Online Pharmacy Consumer Protection Act of 2008 [Pub. L. 110-425; 21 U.S.C. 802-803].
    5. “Specified drugs” mean:
      1. A skeletal muscle relaxant containing carisoprodol, chlorphenesin, chlorzoxazone, metaxalone, or methocarbamol;
      2. A centrally acting analgesic with opioid activity such as tapentadol or tramadol;
      3. A drug containing butalbital; and
      4. Phosphodiesterase type 5 inhibitors when used to treat erectile dysfunction.
    6. “Valid prescription” means a prescription that is issued for a legitimate medical purpose in the usual course of professional practice by a practitioner who has conducted an in-person medical evaluation of the patient.
  2. A controlled substance or specified drug may not be delivered, distributed, or dispensed without a valid prescription. It is also unlawful for a person to knowingly or intentionally aid or abet in these activities. An example of such an activity includes knowingly or intentionally serving as an agent, intermediary, or other entity that causes the internet to be used to bring together a buyer and seller to engage in the dispensing of a controlled substance or specified drug.
  3. This section applies to the delivery, distribution, and dispensing of a controlled substance or specified drug by means of the internet or any other electronic means from a location whether within or outside this state to a person or an address in this state.
  4. Nothing in this section may be construed:
    1. To apply to the delivery, distribution, or dispensing of a controlled substance or specified drug by a practitioner engaged in the practice of telemedicine in accordance with applicable federal and state laws;
    2. To prohibit or limit the use of electronic prescriptions for a controlled substance or any other drug;
    3. To prohibit a physician from prescribing a controlled substance or specified drug through the use of a guideline or protocol established with an allied health professional, resident, or medical student under the direction and supervision of the physician;
    4. To prohibit a practitioner from issuing a prescription or dispensing a controlled substance or specified drug in accordance with administrative rules adopted by a state agency authorizing expedited partner therapy in the management of a sexually transmitted disease; or
    5. To limit prescription, administration, or dispensing of a controlled substance or specified drug through a distribution mechanism approved by the state health officer in order to prevent, mitigate, or treat a pandemic illness, infectious disease outbreak, or intentional or accidental release of a biological, chemical, or radiological agent.
  5. A person who violates this section is guilty of a class C felony.

Source:

S.L. 2009, ch. 198, § 1; 2013, ch. 182, § 1.

19-02.1-16. New drugs. [Effective through August 31, 2022]

  1. No person may sell, deliver, offer for sale, hold for sale, or give away any new drug unless:
    1. An application with respect thereto has been approved and said approval has not been withdrawn under section 505 of the federal act; or
    2. When not subject to the federal act, unless such drug has been tested and has been found to be safe for use and effective in use under the conditions prescribed, recommended, or suggested in the labeling thereof, and prior to selling or offering for sale such drug, there has been filed with the department an application setting forth:
      1. Full reports of investigations which have been made to show whether or not such drug is safe for use and whether such drug is effective in use.
      2. A full list of the articles used as components of such drug.
      3. A full statement of the composition of such drug.
      4. A full description of the methods used in, and the facilities and controls used for, the manufacture, processing, and packing of such drugs.
      5. Such samples of such drug and of the articles used as components thereof as the department may require.
      6. Specimens of the labeling proposed to be used for such drug.
  2. An application provided for in subdivision b of subsection 1 becomes effective on the one hundred eightieth day after the filing thereof, except that if the department finds, after due notice to the applicant and giving the applicant an opportunity for a hearing, that the drug is not safe or not effective for use under the conditions prescribed, recommended, or suggested in the proposed labeling thereof, the state department of health shall, prior to the effective date of the application, issue an order refusing to permit the application to become effective.
  3. An order refusing to permit an application under this section to become effective may be revoked by the department.
  4. This section does not apply:
    1. To a drug intended solely for investigational use by experts qualified by scientific training and experience to investigate the safety and effectiveness of drugs, provided the drug is plainly labeled in compliance with regulations issued by the department or pursuant to section 505(i) or 507(d) of the federal act;
    2. To a drug sold in this state at any time prior to the enactment of this chapter or introduced into interstate commerce at any time prior to the enactment of the federal act;
    3. To any drug which is licensed under the Virus, Serum, and Toxin Act of July 1, 1902, U.S.C. 1958 ed. Title 42 Chapter 6A Sec. 262; or
    4. To any drug which is subject to subsection 5 of section 19-02.1-14.
  5. The provisions of subsection 16 of section 19-02.1-01 do not apply to any drug which, on October 9, 1962, or on the date immediately preceding the enactment of this subsection:
    1. Was commercially sold or used in this state or in the United States;
    2. Was not a new drug as defined by subsection 16 of section 19-02.1-01 as then in force; and
    3. Was not covered by an effective application under section 19-02.1-16 or under section 505 of the federal act, when such drug is intended solely for use under conditions prescribed, recommended, or suggested in labeling with respect to such drug.

Source:

S.L. 1967, ch. 168, § 17; 1985, ch. 258, § 15; 1995, ch. 243, § 2.

19-02.1-16. New drugs. [Effective September 1, 2022]

  1. No person may sell, deliver, offer for sale, hold for sale, or give away any new drug unless:
    1. An application with respect thereto has been approved and said approval has not been withdrawn under section 505 of the federal act; or
    2. When not subject to the federal act, unless such drug has been tested and has been found to be safe for use and effective in use under the conditions prescribed, recommended, or suggested in the labeling thereof, and prior to selling or offering for sale such drug, there has been filed with the department an application setting forth:
      1. Full reports of investigations which have been made to show whether or not such drug is safe for use and whether such drug is effective in use.
      2. A full list of the articles used as components of such drug.
      3. A full statement of the composition of such drug.
      4. A full description of the methods used in, and the facilities and controls used for, the manufacture, processing, and packing of such drugs.
      5. Such samples of such drug and of the articles used as components thereof as the department may require.
      6. Specimens of the labeling proposed to be used for such drug.
  2. An application provided for in subdivision b of subsection 1 becomes effective on the one hundred eightieth day after the filing thereof, except that if the department finds, after due notice to the applicant and giving the applicant an opportunity for a hearing, that the drug is not safe or not effective for use under the conditions prescribed, recommended, or suggested in the proposed labeling thereof, the department shall, prior to the effective date of the application, issue an order refusing to permit the application to become effective.
  3. An order refusing to permit an application under this section to become effective may be revoked by the department.
  4. This section does not apply:
    1. To a drug intended solely for investigational use by experts qualified by scientific training and experience to investigate the safety and effectiveness of drugs, provided the drug is plainly labeled in compliance with regulations issued by the department or pursuant to section 505(i) or 507(d) of the federal act;
    2. To a drug sold in this state at any time prior to the enactment of this chapter or introduced into interstate commerce at any time prior to the enactment of the federal act;
    3. To any drug which is licensed under the Virus, Serum, and Toxin Act of July 1, 1902, U.S.C. 1958 ed. Title 42 Chapter 6A Sec. 262; or
    4. To any drug which is subject to subsection 5 of section 19-02.1-14.
  5. The provisions of subsection 16 of section 19-02.1-01 do not apply to any drug which, on October 9, 1962, or on the date immediately preceding the enactment of this subsection:
    1. Was commercially sold or used in this state or in the United States;
    2. Was not a new drug as defined by subsection 16 of section 19-02.1-01 as then in force; and
    3. Was not covered by an effective application under section 19-02.1-16 or under section 505 of the federal act, when such drug is intended solely for use under conditions prescribed, recommended, or suggested in labeling with respect to such drug.

Source:

S.L. 1967, ch. 168, § 17; 1985, ch. 258, § 15; 1995, ch. 243, § 2; 2021, ch. 352, § 84, effective September 1, 2022.

19-02.1-16.1. Pharmacy claim fees and pharmacy rights — Pharmacy benefits managers — Penalty.

  1. As used in this section:
    1. “Pharmacy benefits manager” has the same meaning as in section 19-03.6-01.
    2. “Plan sponsor” has the same meaning as in section 19-03.6-01.
    3. “Third-party payer” has the same meaning as in section 19-03.6-01.
  2. A pharmacy benefits manager or third-party payer may not directly or indirectly charge or hold a pharmacy responsible for a fee related to a claim:
    1. That is not apparent at the time of claim processing;
    2. That is not reported on the remittance advice of an adjudicated claim; or
    3. After the initial claim is adjudicated at the point of sale.
  3. Pharmacy performance measures or pay for performance pharmacy networks shall utilize the electronic quality improvement platform for plans and pharmacies or other unbiased nationally recognized entity aiding in improving pharmacy performance measures.
    1. A pharmacy benefits manager or third-party payer may not collect a fee from a pharmacy if the pharmacy’s performance scores or metrics fall within the criteria identified by the electronic quality improvement platform for plans and pharmacies or other unbiased nationally recognized entity aiding in improving pharmacy performance measures.
    2. If a pharmacy benefits manager or third-party payer imposes a fee upon a pharmacy for scores or metrics or both scores and metrics that do not meet those established by the electronic quality improvement platform for plans and pharmacies or other nationally recognized entity aiding in improving pharmacy performance measures, a pharmacy benefits manager or third-party payer is limited to applying the fee to the professional dispensing fee outlined in the pharmacy contract.
    3. A pharmacy benefits manager or third-party payer may not impose a fee relating to performance metrics on the cost of goods sold by a pharmacy.
  4. A pharmacy benefits manager or third-party payer may not charge a patient a copayment that exceeds the cost of the medication. If a patient pays a copayment, the dispensing provider or pharmacy shall retain the adjudicated cost and the pharmacy benefits manager or third-party payer may not redact the adjudicated cost.
  5. A pharmacy benefits manager or third-party payer may not prohibit a pharmacist or pharmacy from participating in a class action lawsuit. A pharmacy or pharmacist may disclose to the plan sponsor or to the patient information regarding the adjudicated reimbursement paid to the pharmacy which is compliant under the federal Health Insurance Portability and Accountability Act of 1996 [Pub. L. 104-191; 110 Stat. 1936; 29 U.S.C. 1181 et seq.].
  6. A pharmacist or pharmacy that belongs to a pharmacy service administration organization may receive a copy of a contract the pharmacy service administration organization entered with a pharmacy benefits manager or third-party payer on the pharmacy’s or pharmacist’s behalf.
  7. A pharmacy or pharmacist may provide relevant information to a patient if the patient is acquiring prescription drugs. This information may include the cost and clinical efficacy of a more affordable alternative drug if one is available. Gag orders of such a nature placed on a pharmacy or pharmacist are prohibited.
  8. A pharmacy or pharmacist may mail or deliver drugs to a patient as an ancillary service of a pharmacy.
  9. A pharmacy benefits manager or third-party payer may not prohibit a pharmacist or pharmacy from charging a shipping and handling fee to a patient requesting a prescription be mailed or delivered.
  10. Upon request, a pharmacy benefits manager or third-party payer shall provide a pharmacy or pharmacist with the processor control number, bank identification number, and group number for each pharmacy network established or administered by a pharmacy benefits manager to enable the pharmacy to make an informed contracting decision.
  11. A pharmacy benefits manager or third-party payer may not require pharmacy accreditation standards or recertification requirements inconsistent with, more stringent than, or in addition to federal and state requirements for licensure as a pharmacy in this state.
  12. A pharmacy benefits manager or other third-party payer that violates this section is guilty of a class B misdemeanor per violation occurrence.

History. S.L. 2017, ch. 161, § 1, effective August 1, 2017.

Note.

Section 2 of chapter 161, S.L. 2017 provides, “ APPLICATION. This Act applies to contracts and agreements in effect on and after the effective date of this Act.”

Notes to Decisions

Preemption.

North Dakota legislation was preempted because it related to ERISA plans by regulating the conduct of pharmacy benefits managers (PBMs) administering or managing pharmacy benefits; North Dakota provided no argument as to which provisions might be saved by the savings clause, and North Dakota has waived this issue. Pharm. Care Mgmt. Ass'n v. Tufte, 968 F.3d 901, 2020 U.S. App. LEXIS 24922 (8th Cir. N.D. 2020), vacated, — F.3d —, 2021 U.S. App. LEXIS 9620 (8th Cir. N.D. 2021), vacated, — U.S. —, 141 S. Ct. 1364, 209 L. Ed. 2d 114, 2021 U.S. LEXIS 927 (U.S. 2021).

N.D.C.C. § 19-02.1-16.2(2) was preempted as applied to Medicare Part D plans because in the case of Medicare, the United States Congress has enacted an express preemption provision applicable to Medicare Part C in 42 U.S.C. § 1395w-26(b)(3) and extended it to Medicare Part D in 42 U.S.C.S. § 1395w-112(g). Pharm. Care Mgmt. Ass'n v. Wehbi, — F.3d —, 2021 U.S. App. LEXIS 34064 (8th Cir. N.D. Nov. 17, 2021).

19-02.1-16.2. Specialty pharmacy services and patient access to pharmaceuticals — Pharmacy benefits managers — Penalty.

  1. As used in this section:
    1. “Pharmacy benefits manager” has the same meaning as in section 19-03.6-01.
    2. “Plan sponsor” has the same meaning as in section 19-03.6-01.
    3. “Specialty drug” means a prescription drug that:
      1. Is not available for order or purchase by a retail community pharmacy and long-term care pharmacy, regardless of whether the drug is meant to be self-administered; and
      2. Requires special storage and has distribution or inventory limitations not available at a retail community pharmacy or long-term care pharmacy.
    4. “Third-party payer” has the same meaning as in section 19-03.6-01.
  2. If requested by a plan sponsor contracted payer, a pharmacy benefits manager or third-party payer that has an ownership interest, either directly or through an affiliate or subsidiary, in a pharmacy shall disclose to the plan sponsor contracted payer any difference between the amount paid to a pharmacy and the amount charged to the plan sponsor contracted payer.
  3. A pharmacy benefits manager or a pharmacy benefits manager’s affiliates or subsidiaries may not own or have an ownership interest in a patient assistance program and a mail order specialty pharmacy, unless the pharmacy benefits manager, affiliate, or subsidiary agrees to not participate in a transaction that benefits the pharmacy benefits manager, affiliate, or subsidiary instead of another person owed a fiduciary duty.
  4. A pharmacy benefits manager or third-party payer may not require pharmacy accreditation standards or recertification requirements to participate in a network which are inconsistent with, more stringent than, or in addition to the federal and state requirements for licensure as a pharmacy in this state.
  5. A licensed pharmacy or pharmacist may dispense any and all drugs allowed under that license.
  6. A pharmacy benefits manager or other third-party payer that violates this section is guilty of a class B misdemeanor for each violation occurrence.

Source:

S.L. 2017, ch. 162, § 1, effective August 1, 2017.

Note.

Section 2 of chapter 162, S.L. 2017 provides, “ APPLICATION. This Act applies to contracts and agreements in effect on and after the effective date of this Act.”

Notes to Decisions

Preemption.

North Dakota legislation was preempted because it related to ERISA plans by regulating the conduct of pharmacy benefits managers (PBMs) administering or managing pharmacy benefits; North Dakota provided no argument as to which provisions might be saved by the savings clause, and North Dakota has waived this issue. Pharm. Care Mgmt. Ass'n v. Tufte, 968 F.3d 901, 2020 U.S. App. LEXIS 24922 (8th Cir. N.D. 2020), vacated, — F.3d —, 2021 U.S. App. LEXIS 9620 (8th Cir. N.D. 2021), vacated, — U.S. —, 141 S. Ct. 1364, 209 L. Ed. 2d 114, 2021 U.S. LEXIS 927 (U.S. 2021).

N.D.C.C. § 19-02.1-16.2(2) was preempted as applied to Medicare Part D plans because in the case of Medicare, the United States Congress has enacted an express preemption provision applicable to Medicare Part C in 42 U.S.C. § 1395w-26(b)(3) and extended it to Medicare Part D in 42 U.S.C.S. § 1395w-112(g). Pharm. Care Mgmt. Ass'n v. Wehbi, — F.3d —, 2021 U.S. App. LEXIS 34064 (8th Cir. N.D. Nov. 17, 2021).

19-02.1-16.3. Pharmacy benefits managers — Step therapy protocols — Limitations.

  1. As used in this section:
    1. “Metastatic cancer” means cancer that has spread from the primary or original site to lymph nodes, nearby tissues, or other parts of the body.
    2. “Pharmacy benefits manager” has the same meaning as in section 19-03.6-01.
    3. “Step therapy protocol” means a protocol requiring an individual use a drug, or sequence of drugs, other than the prescription drug, or sequence of prescription drugs, the individual’s health care provider recommends for the individual’s treatment, before the pharmacy benefits manager or health plan allows coverage for the recommended prescription drug, or sequence of prescription drugs.
  2. A pharmacy benefits manager or a health plan may not require a step therapy protocol for coverage of a recommended prescription drug, or sequence of prescription drugs, approved by the United States food and drug administration if:
    1. The recommended prescription drug, or sequence of prescription drugs, is prescribed to treat the individual’s diagnosis of metastatic cancer; and
    2. The use of the recommended prescription drug, or sequence of prescription drugs, is consistent with the United States food and drug administration-approved indications or is supported by peer-reviewed medical literature.
  3. This section does not require coverage of a nonformulary prescription drug.

Source:

S.L. 2019, ch. 183, § 1, effective August 1, 2019.

19-02.1-16.4 Mail order and home delivery — Prior consent — Refund.

  1. If a pharmacy offers a prescription through home delivery or mail order delivery services, the pharmacy may not initiate delivery of a refill unless:
    1. The pharmacy obtains prior consent from the patient or the patient’s authorized representative; or
    2. The pharmacy provides the patient with notice of the upcoming delivery through more than one communication attempt, by different means, and the patient or the patient’s authorized representative does not respond indicating the patient does not want the refill.
  2. If a pharmacy delivers a refill in violation of subsection 1:
    1. Within thirty days of the patient’s or the patient’s authorized representative’s notification of the pharmacy of the unwanted refill, the pharmacy shall refund all payments received by the pharmacy relating to the unwanted refill.
    2. Within thirty days of the pharmacy’s, patient’s, or patient’s authorized representative’s notification of the health plan or the pharmacy benefits manager of the unwanted refill, the health plan and pharmacy benefits manager shall refund all payments received relating to the unwanted refill.

Source:

S.L. 2019, ch. 184, § 1, effective January 1, 2020.

19-02.1-16.5. Pharmacy benefits managers — Prohibition on discrimination — Penalty.

  1. As used in this section:
    1. “Pharmacy” means a pharmacy licensed under the laws of this state.
    2. “Pharmacy benefits manager” has the same meaning as in section 19-03.6-01.
  2. A pharmacy benefits manager may not discriminate against or interfere with a covered entity participating under section 340B of the federal Public Health Service Act [42 U.S.C. 201 et seq.] or a pharmacy under contract with a covered entity under section 340B of the federal Public Health Service Act to provide pharmacy services on behalf of the covered entity. This includes refusing to contract with a pharmacy.
  3. A pharmacy benefits manager may not modify, by contract, provider manual, or other means, the definition of pharmacy as defined in this section, reimburse a lower dollar amount for a drug purchased under section 340B than if the drug had been purchased outside sections 340B, or interfere with any section 340B pharmacy service between the covered entity and the contracted pharmacy.
  4. A pharmacy benefits manager may not directly or indirectly, on behalf of a pharmacy benefits manager, a carrier, or a health plan, charge or hold a pharmacy responsible for a fee for any step, component, or mechanism related to the claims adjudication processing network.
  5. Contract and claim information between the covered entity and contracted pharmacy is confidential.
  6. A pharmacy benefits manager that violates this section is guilty of a class B misdemeanor for each violation occurrence.

Source:

S.L. 2021, ch. 171, § 1, effective April 22, 2021.

19-02.1-17. Cosmetics — Adulteration defined.

A cosmetic must be deemed to be adulterated:

  1. If it bears or contains any poisonous or deleterious substance which may render it injurious to users under the conditions of use prescribed in the labeling or advertisement thereof, or under such conditions of use as are customary or usual; provided, that this provision does not apply to coal-tar hair dye, the label of which bears the following legend conspicuously displayed thereon: “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 such preliminary testing. For the purpose of this subsection and subsection 5, the term “hair dye” does not include eyelash dyes or eyebrow dyes.
  2. If it consists in whole or in part of any filthy, putrid, or decomposed substance.
  3. If it has been produced, prepared, packed, or held under insanitary conditions whereby it may have become contaminated with filth, or whereby it may have been rendered injurious to health.
  4. If its container is composed, in whole or in part, of any poisonous or deleterious substance which may render the contents injurious to health.
  5. If it is not a hair dye and it is, or it bears or contains, a color additive which is unsafe within the meaning of subsection 1 of section 19-02.1-12.

Source:

S.L. 1967, ch. 168, § 18.

Collateral References.

Failure to warn as basis of liability under doctrine of strict liability in tort, 53 A.L.R.3d 239.

19-02.1-18. Cosmetics — Misbranding defined.

A cosmetic must be deemed to be misbranded:

  1. If its labeling is false or misleading in any particular.
  2. If in package form unless it bears a label containing:
    1. The name and place of business of the manufacturer, packer, or distributor; and
    2. An accurate statement of the quantity of the contents in terms of weight, measure, or numerical count; provided, that under this subdivision reasonable variations must be permitted, and exemptions as to small packages must be established by regulations prescribed by the department.
  3. If any word, statement, or other information required by or under authority of this chapter to appear on the label or labeling is not prominently placed thereon with such conspicuousness, as compared with other words, statements, designs, or devices, in the labeling, and in such terms as to render it likely to be read and understood by the ordinary individual under customary conditions of purchase and use.
  4. If its container is so made, formed, or filled as to be misleading.
  5. If it is a color additive, unless its packaging and labeling are in conformity with such packaging and labeling requirements applicable to such color additive prescribed under the provisions of the federal act. This subsection does not apply to packages of color additives which, with respect to their use for cosmetics, are marketed and intended for use only in or on hair dyes, as defined in the last sentence of subsection 1 of section 19-02.1-17.
  6. If its packaging or labeling is in violation of an applicable regulation issued pursuant to section 3 or 4 of the Poison Prevention Packaging Act of 1970.

Source:

S.L. 1967, ch. 168, § 19; 1989, ch. 264, § 7.

Note.

Sections 3 and 4 of the Poison Prevention Packaging Act of 1970, referred to in subsection 6 of this section, are compiled at 15 USCS, §§ 1472 and 1473, respectively.

19-02.1-19. False advertising.

  1. An advertisement of a food, drug, device, or cosmetic is false if it is false or misleading in any particular.
  2. For the purpose of this chapter, the advertisement of a drug or device representing it to have any effect in 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, sexually transmitted disease, sinus infection, smallpox, tuberculosis, tumors, typhoid, or uremia is also false, except that no advertisement not in violation of subsection 1 is false under this subsection if it is disseminated only to members of the medical, dental, pharmaceutical, or veterinary professions, 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 such drugs or devices; provided, that whenever the department determines that an advance in medical science has made any type of self-medication safe as to any of the diseases named above, the department by rule shall authorize the advertisement of drugs having curative or therapeutic effect for such disease, subject to such conditions and restrictions as the department may deem necessary in the interests of public health; and provided, further, that this subsection may not be construed as indicating that self-medication for diseases other than those named herein is safe or efficacious.

Source:

S.L. 1967, ch. 168, § 20; 1989, ch. 181, § 2.

19-02.1-20. Rules.

The authority to adopt rules for the efficient enforcement of this chapter is hereby vested in the department. The department is hereby authorized to make the rules adopted under this chapter conform, insofar as practicable, with those adopted under the federal act. Rules must conform and be consistent with the provisions of the Uniform Controlled Substances Act. When adopting any rules under this chapter, the department shall follow the procedures under chapter 28-32.

Source:

S.L. 1967, ch. 168, § 21; 1971, ch. 235, § 48; 1987, ch. 263, § 8.

Note.

The Uniform Controlled Substances Act, referred to in this section, is codified at N.D.C.C. ch. 19-03.1.

19-02.1-21. Inspections — Examinations.

The department has free access at all reasonable hours to any factory, warehouse, or establishment in which foods, drugs, devices, or cosmetics are manufactured, processed, packed, or held for introduction into commerce, or to enter any vehicle being used to transport or hold such foods, drugs, devices, or cosmetics in commerce, for the purpose of inspecting such factory, warehouse, establishment, or vehicle to determine if this chapter is being violated and to secure samples or specimens of any food, drug, device, or cosmetic after paying or offering to pay for such sample.

The department shall make or cause to be made examinations of samples secured under this section to determine whether or not this chapter is being violated.

Inspections of slaughterhouses, meatpacking, and meat processing plants where cattle, swine, sheep, goats, farmed elk, horses, or other equines are slaughtered for human food or where the carcass or the parts thereof, meat, or meat food products are salted, canned, packed, smoked, cured, rendered, or otherwise processed or prepared for human food may not be performed under this chapter if the slaughterhouses, meatpacking, or meat processing plants are inspected under the North Dakota Meat Inspection Act, or the Federal Meat Inspection Act, as amended [34 Stat. 1260-65; 21 U.S.C. 71-91].

Source:

S.L. 1967, ch. 168, § 22; 1969, ch. 322, § 9; 1983, ch. 253, § 2; 1985, ch. 258, § 16; 1987, ch. 263, § 9; 1999, ch. 321, § 1.

19-02.1-22. Publicity.

The department may cause to be published from time to time reports summarizing all judgments, decrees, and court orders which have been rendered under this chapter, including the nature of the charge and the disposition thereof.

The department may also cause to be disseminated such information regarding food, drugs, devices, and cosmetics as the department deems necessary in the interest of public health and the protection of the consumer against fraud. Nothing in this section may be construed to prohibit the department from collecting, reporting, and illustrating the results of the investigations of the department.

Source:

S.L. 1967, ch. 168, § 23.

19-02.1-23. Prohibition against manufacture of drugs — Exceptions. [Repealed]

Repealed by S.L. 1971, ch. 235, § 49.

19-02.1-24. Sale of prepackaged food from vending machines — License — Rules — Inspections.

  1. An establishment may not sell any type of prepackaged food from a food vending machine without first obtaining a license from the department. The license expires on June thirtieth of each year. The department may adopt rules establishing the amount and the procedures for the collection of license fees. License fees collected pursuant to this section must be deposited in the department’s operating fund in the state treasury and any expenditure from the fund is subject to appropriation by the legislative assembly.
  2. The department may, in accordance with chapter 28-32, revoke an establishment’s license if the establishment fails to comply with the rules adopted pursuant to subsection 3.
  3. The department may adopt, in accordance with chapter 28-32, rules which define “food vending machine” for the purposes of this section and rules governing the sanitation, maintenance, and construction of such vending machines and exempting certain types of machines from this section, if it is deemed appropriate and not materially detrimental to public health.
  4. The department may inspect any food vending machine for compliance with the rules and for the presence of a license required by this section.

Source:

S.L. 1975, ch. 194, § 1; 1983, ch. 254, § 1; 1993, ch. 27, § 7; 2005, ch. 32, § 11.

19-02.1-25. Country of origin labels.

Each retailer shall indicate, by label, to customers the country of origin of fresh beef, lamb, and pork available for sale to customers. For purposes of this section, a label means a clearly visible printed or written indication that is placed in the immediate vicinity of the food product. This section does not apply to a restaurant, cafeteria, prepared food service establishment, or mobile food unit.

Source:

S.L. 1999, ch. 213, § 1.

19-02.1-26. Limitation on exemplary damages.

  1. Exemplary damages may not be awarded against the manufacturer or seller of a product or device that caused the harm claimed by the plaintiff if:
    1. The product or device was subject to approval under 21 U.S.C. 355 or premarket approval under 21 U.S.C. 360e by the food and drug administration with respect to the safety of formulation or performance of the aspect of the product or device that caused the harm, or by the adequacy of the packaging or labeling of the product or device; or
    2. The product or device was approved by the food and drug administration.
  2. Subsection 1 does not apply in a case in which it is determined on the basis of clear and convincing evidence that the defendant:
    1. Withheld from or misrepresented to the food and drug administration information concerning the product or device which is required to be submitted under the federal act which is material and relevant to the harm suffered by the claimant;
    2. Made an illegal payment to an official of the food and drug administration for the purpose of securing approval of the product or device;
    3. Failed to use reasonable care to comply with the food and drug administration regulations concerning the manufacture of, or the investigation and correction of defects in design or manufacture of, a medical device, and the failure to comply has caused the harm suffered by the plaintiff;
    4. Made a significant or knowing departure from official food and drug administration requirements; or
    5. Acted with conscious disregard for human safety.

Source:

S.L. 1999, ch. 214, § 1.

CHAPTER 19-03 Narcotics [Repealed]

[Repealed by S.L. 1971, ch. 235, § 49]

CHAPTER 19-03.1 Uniform Controlled Substances Act

19-03.1-01. Definitions.

As used in this chapter and in chapters 19-03.2 and 19-03.4, unless the context otherwise requires:

  1. “Administer” means to apply a controlled substance, whether by injection, inhalation, ingestion, or any other means, directly to the body of a patient or research subject by:
    1. A practitioner or, in the practitioner’s presence, by the practitioner’s authorized agent; or
    2. The patient or research subject at the direction and in the presence of the practitioner.
  2. “Agent” means an authorized person who acts on behalf of or at the direction of a manufacturer, distributor, or dispenser. It does not include a common or contract carrier, public warehouseman, or employee of the carrier or warehouseman.
  3. “Anabolic steroids” means any drug or hormonal substance, chemically and pharmacologically related to testosterone, other than estrogens, progestins, and corticosteroids.
  4. “Board” means the state board of pharmacy.
  5. “Bureau” means the drug enforcement administration in the United States department of justice or its successor agency.
  6. “Controlled substance” means a drug, substance, or immediate precursor in schedules I through V as set out in this chapter.
  7. “Controlled substance analog”:
    1. Means a substance the chemical structure of which is substantially similar to the chemical structure of a controlled substance in a schedule I or II and:
      1. Which has a stimulant, depressant, or hallucinogenic effect on the central nervous system which is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II; or
      2. With respect to a particular individual, which the individual represents or intends to have a stimulant, depressant, or hallucinogenic effect on the central nervous system substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II.
    2. Does not include:
      1. A controlled substance;
      2. Any substance for which there is an approved new drug application; or
      3. With respect to a particular individual, any substance, if an exemption is in effect for investigational use, for that individual, under section 505 of the Federal Food, Drug, and Cosmetic Act [21 U.S.C. 355] to the extent conduct with respect to the substance is pursuant to the exemption.
  8. “Counterfeit substance” means a controlled substance which, or the container or labeling of which, without authorization, bears the trademark, trade name, or other identifying mark, imprint, number or device, or any likeness thereof, of a manufacturer, distributor, or dispenser other than the person who in fact manufactured, distributed, or dispensed the substance.
  9. “Deliver” or “delivery” means the actual, constructive, or attempted transfer from one person to another of a controlled substance whether or not there is an agency relationship.
  10. “Dispense” means to deliver a controlled substance to an ultimate user or research subject by or pursuant to the lawful order of a practitioner, including the prescribing, administering, packaging, labeling, or compounding necessary to prepare the substance for that delivery.
  11. “Dispenser” means a practitioner who dispenses.
  12. “Distribute” means to deliver other than by administering or dispensing a controlled substance.
  13. “Distributor” means a person who distributes.
  14. “Drug” means:
    1. Substances recognized as drugs in the official United States pharmacopeia national formulary, or the official homeopathic pharmacopeia of the United States, or any supplement to any of them;
    2. Substances intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in individuals or animals;
    3. Substances, other than food, intended to affect the structure or any function of the body of individuals or animals; and
    4. Substances intended for use as a component of any article specified in subdivision a, b, or c. The term does not include devices or their components, parts, or accessories.
  15. “Immediate precursor” means a substance:
    1. That the board has found to be and by rule designates as being the principal compound commonly used or produced primarily for use in the manufacture of a controlled substance;
    2. That is an immediate chemical intermediary used or likely to be used in the manufacture of the controlled substance; and
    3. The control of which is necessary to prevent, curtail, or limit the manufacture of the controlled substance.
  16. “Manufacture” means the production, preparation, propagation, compounding, conversion, or processing of a controlled substance, either directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis and includes any packaging or repackaging of the substance or labeling or relabeling of its container. The term does not include the preparation or compounding of a controlled substance by an individual for the individual’s own use or the preparation, compounding, packaging, or labeling of a controlled substance:
    1. By a practitioner as an incident to the practitioner’s administering or dispensing of a controlled substance in the course of the practitioner’s professional practice; or
    2. By a practitioner, or by the practitioner’s authorized agent under the practitioner’s supervision, for the purpose of, or as an incident to, research, teaching, or chemical analysis and not for sale.
  17. “Marijuana” means all parts of the plant of the genus cannabis, whether growing or not; the seeds thereof; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant. The term does not include:
    1. The tetrahydrocannabinol extracted or isolated from the plant;
    2. The mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of the plant which is incapable of germination;
    3. Hemp as defined in chapter 4.1-18.1; or
    4. A prescription drug approved by the United States food and drug administration under section 505 of the Federal Food, Drug, and Cosmetic Act [21 U.S.C. 355].
  18. “Narcotic drug” means any of the following, whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis:
    1. Opium and opiate and any salt, compound, derivative, or preparation of opium or opiate.
    2. Any salt, compound, isomer, derivative, or preparation thereof which is chemically equivalent or identical with any of the substances referred to in subdivision a, but not including the isoquinoline alkaloids of opium.
    3. Opium poppy and poppy straw.
    4. Coca leaves and any salt, compound, derivative, or preparation of coca leaves, any salt, compound, isomer, derivative, or preparation thereof which is chemically equivalent or identical with any of these substances, but not including decocainized coca leaves or extractions of coca leaves which do not contain cocaine or ecgonine.
  19. “Opiate” means any substance having an addiction-forming or addiction-sustaining liability similar to morphine or being capable of conversion into a drug having addiction-forming or addiction-sustaining liability. The term does not include, unless specifically designated as controlled under section 19-03.1-02, the dextrorotatory isomer of 3-methoxy-n-methylmorphinan and its salts (dextromethorphan). The term includes its racemic and levorotatory forms.
  20. “Opium poppy” means the plant of the species papaver somniferum L., except its seeds.
  21. “Over-the-counter sale” means a retail sale of a drug or product other than a controlled, or imitation controlled, substance.
  22. “Person” means individual, corporation, limited liability company, government or governmental subdivision or agency, business trust, estate, trust, partnership or association, or any other legal entity.
  23. “Poppy straw” means all parts, except the seeds, of the opium poppy, after mowing.
  24. “Practitioner” means:
    1. A physician, dentist, veterinarian, pharmacist, scientific investigator, or other person licensed, registered, or otherwise permitted by the jurisdiction in which the individual is practicing to distribute, dispense, conduct research with respect to, or to administer a controlled substance in the course of professional practice or research.
    2. A pharmacy, hospital, or other institution licensed, registered, or otherwise permitted to distribute, dispense, conduct research with respect to, or to administer a controlled substance in the course of professional practice or research in this state.
  25. “Production” includes the manufacturing, planting, cultivating, growing, or harvesting of a controlled substance.
  26. “Sale” includes barter, exchange, or gift, or offer therefor, and each such transaction made by a person, whether as principal, proprietor, agent, servant, or employee.
  27. “Scheduled listed chemical product” means a product that contains ephedrine, pseudoephedrin, or phenylpropanolamine, or each of the salts, optical isomers, and salts of optical isomers of each chemical, and that may be marketed or distributed in the United States under the Federal Food, Drug, and Cosmetic Act [21 U.S.C. 301 et seq.] as a nonprescription drug unless prescribed by a licensed physician.
  28. “State” when applied to a part of the United States includes any state, district, commonwealth, territory, insular possession thereof, and any area subject to the legal authority of the United States.
  29. “Ultimate user” means an individual who lawfully possesses a controlled substance for the individual’s own use or for the use of a member of the individual’s household or for administering to an animal owned by the individual or by a member of the individual’s household.

Source:

S.L. 1971, ch. 235, § 1; 1977, ch. 194, § 1; 1979, ch. 287, §§ 1, 2; 1985, ch. 262, §§ 1, 2; 1991, ch. 223, § 1; 1993, ch. 54, § 106; 1995, ch. 217, § 1; 2001, ch. 213, § 3; 2003, ch. 181, §§ 1, 2; 2007, ch. 207, § 1; 2013, ch. 183, § 4; 2019, ch. 185, § 1, effective April 9, 2019; 2021, ch. 172, § 1, effective May 3, 2021; 2021, ch. 172, § 1, effective April 16, 2021.

Note.

Section 19-03.1-01 was amended 2 times by the 2021 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 1 of Chapter 173, Session Laws 2021, Senate Bill 2059; and Section 1 of Chapter 172, Session Laws 2021, House Bill 1213.

Cross-References.

Ex parte order for wiretapping and eavesdropping upon probable cause of felony violation under this chapter, see N.D.C.C. § 29-29.2-02.

Notes to Decisions

Constitutionality.

This chapter is not unconstitutional on grounds that it makes an unreasonable classification by placing marijuana in the same schedule as opium, heroin, and LSD, or violates equal protection or due process, or grants a special privilege or immunity to users of tobacco and alcohol which it denies users of marijuana. State v. Boushee, 284 N.W.2d 423, 1979 N.D. LEXIS 303 (N.D. 1979).

Charges Dismissed.

Controlled substance charges against defendant under N.D.C.C. ch. 19-03.1 were properly dismissed because the North Dakota Board of Pharmacy did not substantially comply with the notice requirement under former N.D.C.C. § 28-32-03(5) and did not take sufficient measures to make the emergency interim final rule in N.D. Admin. Code ch. 61-13-01 known to the public at large. State v. Nickel, 2011 ND 200, 806 N.W.2d 155, 2011 N.D. LEXIS 204 (N.D. 2011).

District court erred in entering an order dismissing with prejudice felony charges of possession with intent to manufacture or deliver a controlled substance because the district court abused its discretion by determining manufacturing required evidence of producing controlled substances for a third party as the transformation of raw marijuana to hash oil was more than preparation or compounding for individual use, thereby permitting a finding of manufacturing under the acts proscribed by this statute; and the State met the burden of proving probable cause with respect to the possession with intent to deliver charge as the language used by the district court indicated a misapplication of the legal standard for a preliminary hearing. State v. Brown, 2018 ND 229, 918 N.W.2d 382, 2018 N.D. LEXIS 237 (N.D. 2018).

Conspiracy.

The conspiracy provisions of N.D.C.C. §§ 12.1-06-04 and 12.1-06-05 apply to the Uniform Controlled Substances Act, chapter 19-03.1. State v. Coutts, 364 N.W.2d 88, 1985 N.D. LEXIS 270 (N.D. 1985).

Desoxyephedrine.

1-desoxyephedrine is an isomer of methamphetamine and is controlled. State v. Erban, 429 N.W.2d 408, 1988 N.D. LEXIS 249 (N.D. 1988).

Extraction.

When charged with manufacturing a controlled substance, it is not necessary for the state to prove extraction as an element of the offense. State v. Padgett, 393 N.W.2d 754, 1986 N.D. LEXIS 413 (N.D. 1986).

Marijuana.

Evidence was sufficient to establish substance as marijuana where a state chemist, after conducting several tests to determine botanical characteristics of substance, testified that tests established substance to be marijuana; fact that state chemist had not tested for Tetrahydrocannabinols level, or potency or harmful effects of substance was irrelevant. State v. Weisz, 356 N.W.2d 462, 1984 N.D. LEXIS 399 (N.D. 1984).

The definitions of “manufacture” and “production” should be read and construed together. Manufacturing embraces production, and production embraces manufacturing and planting, cultivation, growing or harvesting. Reading these two definitions together, it becomes apparent that the legislature intended to prohibit the growing of marijuana. State v. Padgett, 393 N.W.2d 754, 1986 N.D. LEXIS 413 (N.D. 1986).

The presence of marijuana seeds in a garbage bag, which also contained bank deposit slips bearing defendant’s name, would warrant a person of reasonable caution to believe there was probably more marijuana inside his home, and the fact that the seeds were not capable of germination, or might have been derived from a package of birdseed, could be significant to trial, but was not crucial to a finding of probable cause. State v. Johnson, 531 N.W.2d 275, 1995 N.D. LEXIS 88 (N.D. 1995).

Prosecuting attorney’s statement in support of an appeal of the order granting defendant’s motion to suppress did not satisfy the requirements of N.D.C.C. § 29-28-07(5), because it did not explain the need for the suppressed evidence to proceed with the charge of unlawful possession of a controlled substance—marijuana as defined by former N.D.C.C. § 19-03.1-01(17). The trial court did not suppress evidence found in plain view of a metal cleaning rod on a bedside table with burned marijuana residue, and defendant told the officers all drugs found in the bedroom belonged to her. State v. Peterson, 2011 ND 109, 799 N.W.2d 67, 2011 N.D. LEXIS 116 (N.D. 2011).

There was sufficient evidence to sustain defendant’s convictions for possession of marijuana and delivery of marijuana, where marijuana and purchase money were found in a bag containing clothes, the bag was found in an apartment, and defendant had access to the apartment. A jury could draw a reasonable inference that the bag belonged to defendant. State v. Montano, 2012 ND 59, 813 N.W.2d 612, 2012 N.D. LEXIS 52 (N.D. 2012).

Narcotic Drug.

Although there may be some scientific basis to the argument that cocaine is not pharmacologically a narcotic drug, legislative classification of cocaine as a narcotic and schedule II drug for control and penalty purposes is constitutional. State v. Kainz, 321 N.W.2d 478, 1982 N.D. LEXIS 299 (N.D. 1982); State v. Lind, 322 N.W.2d 826, 1982 N.D. LEXIS 366 (N.D. 1982).

“Offense” Defined.

North Dakota Supreme Court defined the term “offense” for purposes of this chapter as conduct for which a term of imprisonment or a fine is authorized by statute after conviction. State v. Laib, 2002 ND 95, 644 N.W.2d 878, 2002 N.D. LEXIS 112 (N.D. 2002).

Over-the-counter Medications.

Defendant’s conviction for driving under the influence of drugs was supported by the evidence because, applying the definition of “drug” in former N.D.C.C. § 19-03.1-01(13), the statutory language regulating driving under the influence of drugs included over-the-counter medications should they impair an individual’s ability to drive safely. State v. Bitz, 2008 ND 202, 757 N.W.2d 565, 2008 N.D. LEXIS 224 (N.D. 2008).

Collateral References.

Forfeitability of property held in marital estate under uniform controlled substances act or similar statute, 84 A.L.R.4th 620.

Validity, construction, and effect of state statute regulating sale of counterfeit or imitation controlled substances, 84 A.L.R.4th 936.

Preemptive Effect of Uniform Controlled Substances Act Upon Local Ordinances, 33 A.L.R.6th 293.

Law Reviews.

Summary of significant decisions rendered by the North Dakota Supreme Court in 1990 relating to drugs and narcotics, 66 N.D. L. Rev. 753 (1990).

Methamphetamine Residue: Lack of Legislation Puts North Dakota and Minnesota Homeowners at Risk, 81 N.D. L. Rev. 525 (2005).

Comparative Legislation.

Jurisdictions which have enacted the 1970 Uniform Controlled Substances Act include:

Ala. Code §§ 20-2-1 to 20-2-190.

Alaska Stat. §§ 11.71.010 to 11.71.900, 17.30.010 to 17.30.900.

Ariz. Rev. Stat. Ann. §§ 36-2501 to 36-2553.

Colo. Rev. Stat. §§ 18-18-101 to 18-18-606.

Conn. Gen. Stat. §§ 21a-240 to 21a-308.

Del. Code Ann. tit. 16, §§ 4701 to 4798.

Fla. Stat. §§ 893.01 to 893.21.

Ga. Code §§ 16-13-20 to 16-13-56.

Hawaii Rev. Stat. §§ 329-1 to 329-128.

Idaho Code §§ 37-2701 to 37-2751.

Kan. Stat. Ann. §§ 65-4101 to 65-4140.

Ky. Rev. Stat. §§ 218A.005 to 218A.994.

La. Rev. Stat. Ann. §§ 40:961 to 40:996.7.

Mass. Gen. Laws Ann. ch. 94C, §§ 1 to 49.

Mich. Comp. Laws §§ 333.7101 to 333.7545.

Minn. Stat. §§ 152.01 to 152.37.

Miss. Code Ann. §§ 41-29-101 to 41-29-191.

Mo. Rev. Stat. §§ 195.010 to 195.375.

Mont. Code Ann. §§ 50-32-101 to 50-32-502.

Neb. Rev. Stat. § 28-401 et seq.

Nev. Rev. Stat. §§ 453.011 to 453.351.

N.J. Rev. Stat. §§ 2C:35-1 to 2C:35-23, 2C:36-1 to 2C:36-9, 24:21-1 to 24:21-53.

N.M. Stat. Ann. §§ 30-31-1 to 30-31-41.

N.Y. Pub. Health Law §§ 3300 to 3397.

N.C. Gen. Stat. §§ 90-86 to 90-113.8.

Ohio Rev. Code Ann. §§ 3719.01 to 3719.99.

Okla. Stat. tit. 63, §§ 2-101 to 2-805.

Or. Rev. Stat. §§ 475.005 to 475.295.

Pa. Stat. Ann. tit. 35, §§ 780-101 to 780-144.

P.R. Laws Ann. tit. 24, §§ 2101 to 2608.

R.I. Gen. Laws §§ 21-28-1.01 to 21-28-5.14.

S.C. Code Ann. §§ 44-53-110 to 44-53-590.

S.D. Cod. Laws §§ 34-20B-1 to 34-20B-114.

Tex. Health & Safety Code, §§ 481.001 to 482.354.

Utah Code Ann. §§ 58-37-1 to 58-37-21.

V.I. Code Ann. tit. 19, §§ 591 to 630a.

Wash. Rev. Code §§ 69.50.101 to 69.50.900.

W. Va. Code §§ 60A-1-101 to 60A-11-6.

Wis. Stat. §§ 161.001 to 161.67.

Wyo. Stat. §§ 35-7-1001 to 35-7-1063.

19-03.1-01.1. Board — Agreements — Gifts.

  1. In carrying out its duties under this chapter, the board shall consult with representatives of each of the following interests: North Dakota board of medicine, board of dental examiners, board of registry in podiatry, board of veterinary medical examiners, board of nursing, the college of pharmacy, and the school of medicine.
  2. To carry out its duties under this chapter, the board may enter into agreements or memorandums of understanding with the interests named in subsection 1. Additionally, the board may contract for and accept private contributions, gifts, and grants-in-aid from the federal government, private industry, and other sources. The income received from these sources must be spent for the purpose designated in the gift, grant, or donation.

Source:

S.L. 1985, ch. 262, § 3; 1987, ch. 263, § 10; 1993, ch. 218, § 2; 1993, ch. 220, § 1; 1995, ch. 217, § 2; 1995, ch. 243, § 2; 2015, ch. 297, § 2, effective August 1, 2015.

Effective Date.

The 2015 amendment of this section by section 2 of chapter 297, S.L. 2015 became effective August 1, 2015.

19-03.1-02. Authority to control.

  1. The board shall administer this chapter and may add substances to or delete or reschedule all substances enumerated in the schedules in sections 19-03.1-05, 19-03.1-07, 19-03.1-09, 19-03.1-11, or 19-03.1-13 pursuant to the procedures of chapter 28-32. In making a determination regarding a substance, the board shall consider the following:
    1. The actual or relative potential for abuse;
    2. The scientific evidence of its pharmacological effect, if known;
    3. The state of current scientific knowledge regarding the substance;
    4. The history and current pattern of abuse;
    5. The scope, duration, and significance of abuse;
    6. The risk to the public health;
    7. The potential of the substance to produce psychic or physiological dependence liability; and
    8. Whether the substance is an immediate precursor of a substance already controlled under this chapter.
  2. After considering the factors enumerated in subsection 1, the board shall make findings with respect thereto and issue a rule controlling the substance if it finds the substance has a potential for abuse.
  3. If the board designates a substance as an immediate precursor, substances which are precursors of the controlled precursor are not subject to control solely because they are precursors of the controlled precursor.
  4. If any substance is designated, rescheduled, or deleted as a controlled substance under federal law and notice thereof is given to the board, the board shall similarly control the substance under this chapter after the expiration of thirty days from publication in the federal register of a final order designating a substance as a controlled substance or rescheduling, or deleting a substance, unless within that thirty-day period, the board objects to inclusion, rescheduling, or deletion. In that case, the board shall publish the reasons for objection and afford all interested parties an opportunity to be heard. At the conclusion of the hearing, the board shall publish its decision, which is final unless altered by statute. Upon publication of objection to inclusion, rescheduling, or deletion under this chapter by the board, control under this chapter is stayed until the board publishes its decision.
  5. Authority to control under this section does not extend to distilled spirits, wine, malt beverages, or tobacco as those terms are defined or used in title 5.

Source:

S.L. 1971, ch. 235, § 2; 1985, ch. 262, § 4.

Notes to Decisions

Desoxyephedrine.

The federal regulation that excluded the listed over-the-counter preparation which contained a small dosage of the substance 1-desoxyephedrine listed in the schedules, did not exclude the component substance itself. State v. Erban, 429 N.W.2d 408, 1988 N.D. LEXIS 249 (N.D. 1988).

JWH-018.

Denial of post-conviction relief was proper, because an administrative rule delineated JWH-018 1-Pentyl-3 (1-naphthoyl) indole (JWH-018) as a prohibited controlled substance when petitioner committed the alleged acts, the administrative rule had force and effect of law upon becoming effective, and subsequent codification of JWH-018 as a prohibited controlled substance did not invalidate the effect of the final administrative rule. Haag v. State, 2012 ND 241, 823 N.W.2d 749, 2012 N.D. LEXIS 246 (N.D. 2012).

Law Reviews.

Up in Smoke: The Medicinal Marijuana Debate, 75 N.D. L. Rev. 555 (1999).

19-03.1-03. Nomenclature.

The controlled substances listed or to be listed in the schedules in sections 19-03.1-05, 19-03.1-07, 19-03.1-09, 19-03.1-11, and 19-03.1-13 are included by whatever official, common, usual, chemical, or trade name designated.

Source:

S.L. 1971, ch. 235, § 3.

19-03.1-04. Schedule I tests.

The board shall place a substance in schedule I if it finds that the substance:

  1. Has high potential for abuse; and
  2. Has no accepted medical use in treatment in the United States or lacks accepted safety for use in treatment under medical supervision.

Source:

S.L. 1971, ch. 235, § 4; 1985, ch. 262, § 5.

Collateral References.

Defense of necessity, duress, or coercion in prosecution for violation of state narcotics law, 1 A.L.R.5th 938.

Availability of Defense of Duress or Coercion in Prosecution for Violation of Federal Narcotics Laws,. 71 A.L.R. Fed. 2d 481.

Law Reviews.

Up in Smoke: The Medicinal Marijuana Debate, 75 N.D. L. Rev. 555 (1999).

19-03.1-05. Schedule I.

  1. The controlled substances listed in this section are included in schedule I.
  2. Schedule I consists of the drugs and other substances, by whatever official name, common or usual name, chemical name, or brand name designated, listed in this section.
  3. Opiates. Unless specifically excepted or unless listed in another schedule, any of the following opiates, including their isomers, esters, ethers, salts, and salts of isomers, esters, and ethers, whenever the existence of those isomers, esters, ethers, and salts is possible within the specific chemical designation:
    1. Acetylmethadol.
    2. Allylprodine.
    3. Alphacetylmethadol.
    4. Alphameprodine.
    5. Alphamethadol.
    6. Benzethidine.
    7. Betacetylmethadol.
    8. Betameprodine.
    9. Betamethadol.
    10. Betaprodine.
    11. Clonitazene.
    12. Dextromoramide.
    13. Diampromide.
    14. Diethylthiambutene.
    15. Difenoxin.
    16. Dimenoxadol.
    17. Dimepheptanol.
    18. Dimethylthiambutene.
    19. Dioxaphetyl butyrate.
    20. Dipipanone.
    21. Ethylmethylthiambutene.
    22. Etonitazene.
    23. Etoxeridine.
    24. Furethidine.
    25. Hydroxypethidine.
    26. Ketobemidone.
    27. Levomoramide.
    28. Levophenacylmorphan.
    29. Morpheridine.
    30. MPPP (also known as 1-methyl-4-phenyl-4-propionoxypiperidine).
    31. Noracymethadol.
    32. Norlevorphanol.
    33. Normethadone.
    34. Norpipanone.
    35. PEPAP (1-(2-Phenylethyl)-4-Phenyl-4-acetoxypiperidine).
    36. Phenadoxone.
    37. Phenampromide.
    38. Phenomorphan.
    39. Phenoperidine.
    40. Piritramide.
    41. Proheptazine.
    42. Properidine.
    43. Propiram.
    44. Racemoramide.
    45. Tilidine.
    46. Trimeperidine.
    47. 3,4-dichloro-N-[2-(dimethylamino)cyclohexyl]-N-methylbenzamide (also known as U-47700).
    48. 1-cyclohexyl-4-(1,2-diphenylethyl)piperazine (also know as MT-45).
    49. 3,4-dichloro-N-{[1-(dimethylamino)cyclohexyl]methyl}benzamide (also known as AH-7921).
    50. Fentanyl derivatives. Unless specifically excepted or unless listed in another schedule or are not FDA approved drugs, and are derived from N-(1-(2-Phenylethyl)-4-piperidinyl)-N-phenylpropanamide (Fentanyl) by any substitution on or replacement of the phenethyl group, any substitution on the piperidine ring, any substitution on or replacement of the propanamide group, any substitution on the anilido phenyl group, or any combination of the above. Examples include:
      1. N-[1-(1-methyl-2-phenethyl)-4-piperidinyl]-N-phenylacetamide (also known as Acetyl-alpha-methylfentanyl).
      2. N-[1-(alpha-methyl-beta-phenyl)ethyl-4-piperidyl]propionanilide; 1-(1-methyl-2-phenylethyl)-4-(N-propanilido)piperidine (also known as Alpha-methylfentanyl).
      3. N-[1-methyl-2-(2-thienyl)ethyl-4-piperidinyl]-N-phenylpropanamide (also known as Alpha-methylthiofentanyl).
      4. N-[1-(2-hydroxy-2-phenethyl)-4-piperidinyl]-N-phenylpropanamide (also known as Beta-hydroxyfentanyl).
      5. N-[1-(2-hydroxy-2-phenethyl)-3-methyl-4-piperidinyl]-N-phenylpropanamide (also known as Beta-hydroxy-3-methylfentanyl).
      6. N-[3-methyl-1-(2-phenylethyl)-4-piperidyl]-N-phenylpropanamide (also known as 3-Methylfentanyl).
      7. N-[3-methyl-1-(2-thienyl)ethyl-4-piperidinyl]-N-phenylpropanamide (also known as 3-Methylthiofentanyl).
      8. N-(4-fluorophenyl)-N-[1-(2-phenethyl)-4-piperidinyl]propanamide (also known as Para-fluorofentanyl).
      9. N-phenyl-N-[1-(2-thienyl)ethyl-4-piperidinyl]propanamide (also known as Thiofentanyl).
      10. N-(1-phenylethylpiperidin-4-yl)-N-phenylfuran-2-carboxamide (also known as Furanyl Fentanyl).
      11. N-(1-phenethylpiperidin-4-yl)-N-phenylbutyramide; N-(1-phenethylpiperidin-4-yl)-N-phenylbutanamide (also known as Butyryl Fentanyl).
      12. N-[1-[2-hydroxy-2-(thiophen-2-yl)ethyl]piperidin-4-yl]-N-phenylpropionamide; N-[1-[2-hydroxy-2-(2-thienyl)ethyl]-4-piperidinyl]-N-phenylpropanamide (also known as Beta-Hydroxythiofentanyl).
      13. N-(1-phenethylpiperidin-4-yl)-N-phenylacetamide (also known as Acetyl Fentanyl).
      14. N-(1-phenethylpiperidin-4-yl)-N-phenylacrylamide (also known as Acryl Fentanyl).
      15. N-(1-phenethylpiperidin-4-yl)-N-phenylpentanamide (also known as Valeryl Fentanyl).
      16. N-(4-fluorophenyl)-N-(1-phenethylpiperidin-4-yl)isobutyramide (also known as 4-Fluoroisobutyryl Fentanyl).
      17. N-(2-fluorophenyl)-N-(1-phenethylpiperidin-4-yl)propionamide (also known as Ortho-fluorofentanyl, 2-Fluorofentanyl).
      18. N-(1-phenethylpiperidin-4-yl)-N-phenyltetrahydrofuran-2-carboxamide (also known as Tetrahydrofuranyl Fentanyl).
      19. 2-methoxy-N-(1-phenethylpiperidin-4-yl)-N-phenylacetamide (also known as Methoxyacetyl Fentanyl).
      20. N-(1-phenethylpiperidin-4-yl)-N-phenylcyclopropanecarboxamide (also known as Cyclopropyl Fentanyl).
      21. N-(2-fluorophenyl)-2-methoxy-N-(1-phenethylpiperidin-4-yl)acetamide (also known as Ocfentanil).
      22. N-(1-phenethylpiperidin-4-yl)-N-phenylcyclopentanecarboxamide (also known as Cyclopentyl Fentanyl).
      23. N-(1-phenethylpiperidin-4-yl)-N-phenylisobutyramide (also known as Isobutyryl Fentanyl).
      24. N-(4-chlorophenyl)-N-(1-phenethylpiperidin-4-yl)isobutyramide (also known as Para-chloroisobutyryl Fentanyl).
      25. N-(4-methoxyphenyl)-N-(1-phenethylpiperidin-4-yl)butyramide (also known as Para-methoxybutyryl Fentanyl).
      26. N-(4-fluorophenyl)-N-(1-phenethylpiperidin-4-yl)butyramide (also known as Para-fluorobutyryl Fentanyl).
  4. Opium derivatives. Unless specifically excepted or unless listed in another schedule, any of the following opium derivatives, its salts, isomers, and salts of isomers whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation:
    1. Acetorphine.
    2. Acetyldihydrocodeine.
    3. Benzylmorphine.
    4. Codeine methylbromide.
    5. Codeine-N-Oxide.
    6. Cyprenorphine.
    7. Desomorphine.
    8. Dihydromorphine.
    9. Drotebanol.
    10. Etorphine (except hydrochloride salt).
    11. Heroin.
    12. Hydromorphinol.
    13. Methyldesorphine.
    14. Methyldihydromorphine.
    15. Morphine methylbromide.
    16. Morphine methylsulfonate.
    17. Morphine-N-Oxide.
    18. Myrophine.
    19. Nicocodeine.
    20. Nicomorphine.
    21. Normorphine.
    22. Pholcodine.
    23. Thebacon.
  5. Hallucinogenic substances. Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation containing any quantity of the following hallucinogenic substances, including their salts, isomers, and salts of isomers whenever the existence of those salts, isomers, and salts of isomers is possible within the specific chemical designation (for purposes of this subsection only, the term “isomer” includes the optical, position, and geometric isomers):
    1. Alpha-ethyltryptamine, its optical isomers, salts, and salts of isomers (also known as etryptamine; a-ethyl-1 H-indole-3-ethanamine; 3-(2-aminobutyl) indole).
    2. Alpha-methyltryptamine.
    3. 4-methoxyamphetamine (also known as 4-methoxy-a-methylphenethylamine; paramethoxyamphetamine; PMA).
    4. N-hydroxy-3,4-methylenedioxyamphetamine (also known as N-hydroxy-alpha-methyl-3,4(methylenedioxy)phenylamine, and N-hydroxy MDA.
    5. Ibogaine (also known as 7-Ethyl-6, 6 B, 7, 8, 9, 10, 12, 13-octahydro-2-methoxy-6, 9-methano-5 H-pyrido [1’, 2’:1,2] azepino (5,4-b) indole; Tabernanthe iboga).
    6. Lysergic acid diethylamide.
    7. Marijuana.
    8. Parahexyl (also known as 3-Hexyl-1-hydroxy-7,8,9,10-tetrahydro-6,6,9-trimethyl-6 H-dibenzol[b,d]pyran; Synhexyl).
    9. Peyote (all parts of the plant presently classified botanically as Lophophora williamsii Lemaire, whether growing or not, the seeds thereof, any extract from any part of such plant, and every compound, manufacture, salts, derivative, mixture, or preparation of such plant, its seeds, or its extracts).
    10. N-ethyl-3-piperidyl benzilate.
    11. N-methyl-3-piperidyl benzilate.
    12. Psilocybin.
      1. Tetrahydrocannabinols, meaning tetrahydrocannabinols naturally contained in a plant of the genus Cannabis (cannabis plant), as well as synthetic equivalents of the substances contained in the cannabis plant, or in the resinous extractives of such plant, including synthetic substances, derivatives, and their isomers with similar chemical structure and pharmacological activity to those substances contained in the plant; such as the following:
        1. Delta-1 cis or trans tetrahydrocannabinol, and their optical isomers. Other names: Delta-9-tetrahydrocannabinol.
        2. Delta-6 cis or trans tetrahydrocannabinol, and their optical isomers. Other names: Delta-8-tetrahydrocannabinol.
        3. Delta-3,4 cis or trans tetrahydrocannabinol, and its optical isomers.
      2. Tetrahydrocannabinols do not include:
        1. The allowable amount of total tetrahydrocannabinol found in hemp as defined in chapter 4.1-18.1; or
        2. A prescription drug approved by the United States food and drug administration under section 505 of the Federal Food, Drug, and Cosmetic Act [21 U.S.C. 355].
    13. Cannabinoids, synthetic. It includes the chemicals and chemical groups listed below, including their homologues, salts, isomers, and salts of isomers. The term “isomer” includes the optical, position, and geometric isomers.
      1. Indole carboxaldehydes. Any compound structurally derived from 1 H-indole-3-carboxaldehyde or 1 H-2-carboxaldehyde substituted in both of the following ways: at the nitrogen atom of the indole ring by an alkyl, haloalkyl, cyanoalkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl, 2-(4-morpholinyl)ethyl, 1-(N-methyl-2-pyrrolidinyl)methyl, 1-(N-methyl-3-morpholinyl)methyl, tetrahydropyranylmethyl, benzyl, or halo benzyl group; and, at the hydrogen of the carboxaldehyde by a phenyl, benzyl, cumyl, naphthyl, adamantyl, cyclopropyl, pyrrolidinyl, piperazinyl, or propionaldehyde group whether or not the compound is further modified to any extent in the following ways:
        1. Substitution to the indole ring to any extent; or
        2. Substitution to the phenyl, benzyl, cumyl, naphthyl, adamantyl, cyclopropyl, pyrrolidinyl, piperazinyl, or propionaldehyde group to any extent; or
        3. A nitrogen heterocyclic analog of the indole ring; or
        4. A nitrogen heterocyclic analog of the phenyl, benzyl, naphthyl, adamantyl, or cyclopropyl ring.
        5. Examples include:
          1. 1-Pentyl-3-(1-naphthoyl)indole-Other names: JWH-018 and AM-678.
          2. 1-Butyl-3-(1-naphthoyl)indole-Other names: JWH-073.
          3. 1-Pentyl-3-(4-methoxy-1-naphthoyl)indole-Other names: JWH-081.
          4. 1-[2-(4-morpholinyl)ethyl]-3-(1-naphthoyl)indole-Other names: JWH-200.
          5. 1-Propyl-2-methyl-3-(1-naphthoyl)indole-Other names: JWH-015.
          6. 1-Hexyl-3-(1-naphthoyl)indole-Other names: JWH-019.
          7. 1-Pentyl-3-(4-methyl-1-naphthoyl)indole-Other names: JWH-122.
          8. 1-Pentyl-3-(4-ethyl-1-naphthoyl)indole-Other names: JWH-210.
          9. 1-Pentyl-3-(4-chloro-1-naphthoyl)indole-Other names: JWH-398.
          10. 1-(5-fluoropentyl)-3-(1-naphthoyl)indole-Other names: AM-2201.
          11. 1-(2-cyclohexylethyl)-3-(2-methoxyphenylacetyl)indole-Other names: RCS-8.
          12. 1-Pentyl-3-(2-methoxyphenylacetyl)indole-Other names: JWH-250.
          13. 1-Pentyl-3-(2-methylphenylacetyl)indole-Other names: JWH-251.
          14. 1-Pentyl-3-(2-chlorophenylacetyl)indole-Other names: JWH-203.
          15. 1-Pentyl-3-(4-methoxybenzoyl)indole-Other names: RCS-4.
          16. (1-(5-fluoropentyl)-3-(2-iodobenzoyl)indole)-Other names: AM-694.
          17. (4-Methoxyphenyl)-[2-methyl-1-(2-(4-morpholinyl)ethyl)indol-3-yl]methanone-Other names: WIN 48,098 and Pravadoline.
          18. (1-Pentylindol-3-yl)-(2,2,3,3-tetramethylcyclopropyl)methanone—Other names: UR-144.
          19. (1-(5-fluoropentyl)indol-3-yl)-(2,2,3,3-tetramethylcyclopropyl)methanone-Other names: XLR-11.
          20. (1-(2-morpholin-4-ylethyl)-1 H-indol-3-yl)-(2,2,3,3-tetramethylcyclopropyl)methanone-Other names: A-796,260.
          21. (1-(5-fluoropentyl)-1 H-indazol-3-yl)(naphthalen-1-yl)methanone—Other names: THJ-2201.
          22. 1-naphthalenyl(1-pentyl-1 H-indazol-3-yl)-methanone—Other names: THJ-018.
          23. (1-(5-fluoropentyl)-1 H-benzo[d]imidazol-2-yl)(naphthalen-1-yl)methanone-Other names: FUBIMINA.
          24. 1-[(N-methylpiperidin-2-yl)methyl]-3-(adamant-1-oyl) indole-Other names: AM-1248.
          25. 1-Pentyl-3-(1-adamantoyl)indole-Other names: AB-001 and JWH-018 adamantyl analog.
      2. Indole carboxamides. Any compound structurally derived from 1 H-indole-3-carboxamide or 1 H-2-carboxamide substituted in both of the following ways: at the nitrogen atom of the indole ring by an alkyl, haloalkyl, cyanoalkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl, 2-(4-morpholinyl)ethyl, 1-(N-methyl-2-pyrrolidinyl)methyl, 1-(N-methyl-3-morpholinyl)methyl, tetrahydropyranylmethyl, benzyl, or halo benzyl group; and, at the nitrogen of the carboxamide by a phenyl, benzyl, cumyl, naphthyl, adamantyl, cyclopropyl, or propionaldehyde group whether or not the compound is further modified to any extent in the following ways:
        1. Substitution to the indole ring to any extent; or
        2. Substitution to the phenyl, benzyl, cumyl, naphthyl, adamantyl, cyclopropyl, or propionaldehyde group to any extent; or
        3. A nitrogen heterocyclic analog of the indole ring; or
        4. A nitrogen heterocyclic analog of the phenyl, benzyl, naphthyl, adamantyl, or cyclopropyl ring.
        5. Examples include:
          1. N-Adamantyl-1-pentyl-1 H-indole-3-carboxamide-Other names: JWH-018 adamantyl carboxamide, APICA, SDB-001, and 2 NE1.
          2. N-Adamantyl-1-fluoropentylindole-3-carboxamide-Other names: STS-135.
          3. N-Adamantyl-1-pentyl-1 H-Indazole-3-carboxamide-Other names: AKB 48 and APINACA.
          4. N-1-naphthalenyl-1-pentyl-1 H-indole-3-carboxamide-Other names: NNEI and MN-24.
          5. N-(1-Amino-3,3-dimethyl-1-oxobutan-2-yl)-1-pentyl-1 H-indole-3-carboxamide-Other names: ADBICA.
          6. (S)-N-(1-amino-3-methyl-1-oxobutan-2-yl)-1-pentyl-1 H-indazole-3-carboxamide-Other names: AB-PINACA.
          7. N-[(1 S)-1-(aminocarbonyl)-2-methylpropyl]-1-[(4-fluorophenyl)methyl]-1 H-indazole-3-carboxamide-Other names: AB-FUBINACA.
          8. N-(1-amino-3-methyl-1-oxobutan-2-yl)-1-(5-fluoropentyl)-1 H-indazole-3-carboxamide-Other names: 5-Fluoro AB-PINACA and 5 F-AB-PINACA.
          9. N-(1-amino-3,3-dimethyl-1-oxobutan-2-yl)-1-pentyl-1 H-indazole-3-carboxamide-Other names: ADB-PINACA.
          10. N-[(1 S)-1-(aminocarbonyl)-2-methylpropyl]-1-(cyclohexylmethyl)-1 H-indazole-3-carboxamide-Other names: AB-CHMINACA.
          11. N-(1-Amino-3,3-dimethyl-1-oxobutan-2-yl)-1-(4-fluorobenzyl)-1 H-indazole-3-carboxamide-Other names: ADB-FUBINACA.
          12. N-((3 s,5 s,7 s)-adamantan-1-yl)-1-(4-fluorobenzyl)-1 H-indazole-3-carboxamide-Other names: FUB-AKB48 and AKB48 N-(4-fluorobenzyl) analog.
          13. 1-(5-fluoropentyl)-N-(quinolin-8-yl)-1 H-indazole-3-carboxamide-Other names: 5-fluoro-THJ.
          14. methyl 2-(1-(5-fluoropentyl)-1 H-indazole-3-carboxamido)-3-methylbutanoate-Other names: 5-fluoro AMB and 5 F-AMB.
          15. methyl 2-(1-(4-fluorobenzyl)-1 H-indazole-3-carboxamido)-3-methylbutanoate-Other names: FUB-AMB, MMB-FUBINACA, and AMB-FUBINACA.
          16. N-[1-(aminocarbonyl)-2,2-dimethylpropyl]-1-(cyclohexylmethyl)-1 H-indazole-3-carboxamide-Other names: MAB-CHMINACA and ADB-CHMINACA.
          17. Methyl 2-(1-(5-fluoropentyl)-1 H-indazole-3-carboxamido)-3,3-dimethylbutanoate-Other names: 5 F-ADB and 5 F-MDMB-PINACA.
          18. N-(adamantan-1-yl)-1-(5-fluoropentyl)-1 H-indazole-3-carboxamide-Other names: 5 F-APINACA and 5 F-AKB48.
          19. Methyl 2-(1-(cyclohexylmethyl)-1 H-indole-3-carboxamido)-3,3-dimethylbutanoate-Other names: MDMB-CHMICA and MMB-CHMINACA.
          20. Methyl 2-(1-(4-fluorobenzyl)-1 H-indazole-3-carboxamido)-3,3-dimethylbutanoate-Other names: MDMB-FUBINACA.
          21. 1-(4-cyanobutyl)-N-(2-phenylpropan-2-yl)-1 H-indazole-3-carboxamide-Other names: 4-CN-CUMYL-BUTINACA; 4-cyano-CUMYL-BUTINACA; 4-CN-CUMYL BINACA; CUMYL-4 CN-BINACA; SGT-78.
          22. methyl 2-(1-(cyclohexylmethyl)-1 H-indole-3-carboxamido)-3-methylbutanoate-Other names: MMB-CHMICA, AMB-CHMICA.
          23. 1-(5-fluoropentyl)-N-(2-phenylpropan-2-yl)-1 H-pyrrolo[2,3-b]pyridine-3-carboxamide-Other names: 5 F-CUMYL-P7 AICA.
      3. Indole carboxylic acids. Any compound structurally derived from 1 H-indole-3-carboxylic acid or 1 H-2-carboxylic acid substituted in both of the following ways: at the nitrogen atom of the indole ring by an alkyl, haloalkyl, cyanoalkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl, 2-(4-morpholinyl)ethyl, 1-(N-methyl-2-pyrrolidinyl)methyl, 1-(N-methyl-3-morpholinyl)methyl, tetrahydropyranylmethyl, benzyl, or halo benzyl group; and, at the hydroxyl group of the carboxylic acid by a phenyl, benzyl, cumyl, naphthyl, adamantyl, cyclopropyl, or propionaldehyde group whether or not the compound is further modified to any extent in the following ways:
        1. Substitution to the indole ring to any extent; or
        2. Substitution to the phenyl, benzyl, cumyl, naphthyl, adamantyl, cyclopropyl, propionaldehyde group to any extent; or
        3. A nitrogen heterocyclic analog of the indole ring; or
        4. A nitrogen heterocyclic analog of the phenyl, benzyl, naphthyl, adamantyl, or cyclopropyl ring.
        5. Examples include:
          1. 1-(cyclohexylmethyl)-1 H-indole-3-carboxylic acid 8-quinolinyl ester-Other names: BB-22 and QUCHIC.
          2. naphthalen-1-yl 1-(4-fluorobenzyl)-1 H-indole-3-carboxylate-Other names: FDU-PB-22.
          3. 1-pentyl-1 H-indole-3-carboxylic acid 8-quinolinyl ester-Other names: PB-22 and QUPIC.
          4. 1-(5-Fluoropentyl)-1 H-indole-3-carboxylic acid 8-quinolinyl ester-Other names: 5-Fluoro PB-22 and 5 F-PB-22.
          5. quinolin-8-yl-1-(4-fluorobenzyl)-1 H-indole-3-carboxylate-Other names: FUB-PB-22.
          6. naphthalen-1-yl 1-(5-fluoropentyl)-1 H-indole-3-carboxylate-Other names: NM2201 and CBL2201.
      4. Naphthylmethylindoles. Any compound containing a 1 H-indol-3-yl-(1-naphthyl)methane structure with substitution at the nitrogen atom of the indole ring by an alkyl, haloalkyl, cyanoalkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl, 2-(4-morpholinyl)ethyl, 1-(N-methyl-2-pyrrolidinyl)methyl, 1-(N-methyl-3-morpholinyl)methyl, or (tetrahydropyran-4-yl)methyl group whether or not further substituted in the indole ring to any extent and whether or not substituted in the naphthyl ring to any extent. Examples include:
        1. 1-Pentyl-1 H-indol-3-yl-(1-naphthyl)methane-Other names: JWH-175.
        2. 1-Pentyl-1 H-indol-3-yl-(4-methyl-1-naphthyl)methane-Other names: JWH-184.
      5. Naphthoylpyrroles. Any compound containing a 3-(1-naphthoyl)pyrrole structure with substitution at the nitrogen atom of the pyrrole ring by an alkyl, haloalkyl, cyanoalkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl, 2-(4-morpholinyl)ethyl, 1-(N-methyl-2-pyrrolidinyl)methyl, 1-(N-methyl-3-morpholinyl)methyl, or (tetrahydropyran-4-yl)methyl group whether or not further substituted in the pyrrole ring to any extent, whether or not substituted in the naphthyl ring to any extent. Examples include: (5-(2-fluorophenyl)-1-pentylpyrrol-3-yl)-naphthalen-1-ylmethanone-Other names: JWH-307.
      6. Naphthylmethylindenes. Any compound containing a naphthylideneindene structure with substitution at the 3-position of the indene ring by an alkyl, haloalkyl, cyanoalkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl, 2 (4 morpholinyl)ethyl, 1-(N-methyl-2-pyrrolidinyl)methyl, 1-(N-methyl-3-morpholinyl)methyl, or (tetrahydropyran-4-yl)methyl group whether or not further substituted in the indene ring to any extent, whether or not substituted in the naphthyl ring to any extent. Examples include: E-1-[1-(1-Naphthalenylmethylene)-1 H-inden-3-yl]pentane-Other names: JWH-176.
      7. Cyclohexylphenols. Any compound containing a 2-(3-hydroxycyclohexyl)phenol structure with substitution at the 5-position of the phenolic ring by an alkyl, haloalkyl, cyanoalkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl, 2-(4-morpholinyl)ethyl, 1-(N-methyl-2-pyrrolidinyl)methyl, 1-(N-methyl-3-morpholinyl)methyl, or (tetrahydropyran-4-yl)methyl group whether or not substituted in the cyclohexyl ring to any extent. Examples include:
        1. 5-(1,1-dimethylheptyl)-2-[(1 R,3 S)-3-hydroxycyclohexyl]-phenol-Other names: CP 47,497.
        2. 5-(1,1-dimethyloctyl)-2-[(1 R,3 S)-3-hydroxycyclohexyl]-phenol-Other names: Cannabicyclohexanol and CP 47,497 C8 homologue.
        3. 5-(1,1-dimethylheptyl)-2-[(1 R,2 R)-5-hydroxy-2-(3-hydroxypropyl)cyclohexyl]-phenol-Other names: CP 55,940.
      8. Others specifically named:
        1. (6 aR,10 aR)-9-(hydroxymethyl)-6,6-dimethyl-3-(2-methyloctan-2-yl)-6 a,7,10,10 a-tetrahydrobenzo[c]chromen-1-ol-Other names: HU-210.
        2. (6 aS,10 aS)-9-(hydroxymethyl)-6,6-dimethyl-3-(2-methyloctan-2-yl)-6 a,7,10,10 a-tetrahydrobenzo[c]chromen-1-ol-Other names: Dexanabinol and HU-211.
        3. 2,3-Dihydro-5-methyl-3-(4-morpholinylmethyl)pyrrolo[1,2,3-de]-1,4-benzoxazin-6-yl]-1-napthalenylmethanone-Other names: WIN 55,212-2.
        4. Naphthalen-1-yl-(4-pentyloxynaphthalen-1-yl)methanone-Other names: CB-13.
    14. Substituted phenethylamines. This includes any compound, unless specifically excepted, specifically named in this schedule, or listed under a different schedule, structurally derived from phenylethan-2-amine by substitution on the phenyl ring in any of the following ways, that is to say, by substitution with a fused methylenedioxy ring, fused furan ring, or fused tetrahydrofuran ring; by substitution with two alkoxy groups; by substitution with one alkoxy and either one fused furan, tetrahydrofuran, or tetrahydropyran ring system; or by substitution with two fused ring systems from any combination of the furan, tetrahydrofuran, or tetrahydropyran ring systems.
      1. Whether or not the compound is further modified in any of the following ways, that is to say:
        1. By substitution of phenyl ring by any halo, hydroxyl, alkyl, trifluoromethyl, alkoxy, or alkylthio groups;
        2. By substitution at the 2-position by any alkyl groups; or
        3. By substitution at the 2-amino nitrogen atom with alkyl, dialkyl, benzyl, hydroxybenzyl, methylenedioxybenzyl, or methoxybenzyl groups.
      2. Examples include:
        1. 2-(4-Chloro-2,5-dimethoxyphenyl)ethanamine (also known as 2 C-C or 2,5-Dimethoxy-4-chlorophenethylamine).
        2. 2-(2,5-Dimethoxy-4-methylphenyl)ethanamine (also known as 2 C-D or 2,5-Dimethoxy-4-methylphenethylamine).
        3. 2-(2,5-Dimethoxy-4-ethylphenyl)ethanamine (also known as 2 C-E or 2,5-Dimethoxy-4-ethylphenethylamine).
        4. 2-(2,5-Dimethoxyphenyl)ethanamine (also known as 2 C-H or 2,5-Dimethoxyphenethylamine).
        5. 2-(4-Iodo-2,5-dimethoxyphenyl)ethanamine (also known as 2 C-I or 2,5-Dimethoxy-4-iodophenethylamine).
        6. 2-(2,5-Dimethoxy-4-nitro-phenyl)ethanamine (also known as 2 C-N or 2,5-Dimethoxy-4-nitrophenethylamine).
        7. 2-(2,5-Dimethoxy-4-(n)-propylphenyl)ethanamine (also known as 2 C-P or 2,5-Dimethoxy-4-propylphenethylamine).
        8. 2-[4-(Ethylthio)-2,5-dimethoxyphenyl]ethanamine (also known as 2 C-T-2 or 2,5-Dimethoxy-4-ethylthiophenethylamine).
        9. 2-[4-(Isopropylthio)-2,5-dimethoxyphenyl]ethanamine (also known as 2 C-T-4 or 2,5-Dimethoxy-4-isopropylthiophenethylamine).
        10. 2-(4-bromo-2,5-dimethoxyphenyl)ethanamine (also known as 2 C-B or 2,5-Dimethoxy-4-bromophenethylamine).
        11. 2-(2,5-dimethoxy-4-(methylthio)phenyl)ethanamine (also known as 2 C-T or 4-methylthio-2,5-dimethoxyphenethylamine).
        12. 1-(2,5-dimethoxy-4-iodophenyl)-propan-2-amine (also known as DOI or 2,5-Dimethoxy-4-iodoamphetamine).
        13. 1-(4-Bromo-2,5-dimethoxyphenyl)-2-aminopropane (also known as DOB or 2,5-Dimethoxy-4-bromoamphetamine).
        14. 1-(4-chloro-2,5-dimethoxy-phenyl)propan-2-amine (also known as DOC or 2,5-Dimethoxy-4-chloroamphetamine).
        15. 2-(4-bromo-2,5-dimethoxyphenyl)-N-[(2-methoxyphenyl)methyl]ethanamine (also known as 2 C-B-NBOMe; 2,5 B-NBOMe or 2,5-Dimethoxy-4-bromo-N-(2-methoxybenzyl)phenethylamine).
        16. 2-(4-iodo-2,5-dimethoxyphenyl)-N-[(2-methoxyphenyl)methyl]ethanamine (also known as 2 C-I-NBOMe; 2,5 I-NBOMe or 2,5-Dimethoxy-4-iodo-N-(2-methoxybenzyl)phenethylamine).
        17. N-(2-Methoxybenzyl)-2-(3,4,5-trimethoxyphenyl)ethanamine (also known as mescaline-NBOMe or 3,4,5-trimethoxy-N-(2-methoxybenzyl)phenethylamine).
        18. 2-(4-chloro-2,5-dimethoxyphenyl)-N-[(2-methoxyphenyl)methyl]ethanamine (also known as 2 C-C-NBOMe; 2,5 C-NBOMe or 2,5-Dimethoxy-4-chloro-N-(2-methoxybenzyl)phenethylamine).
        19. 2-(7-Bromo-5-methoxy-2,3-dihydro-1-benzofuran-4-yl)ethanamine (also known as 2 CB-5-hemiFLY).
        20. 2-(8-bromo-2,3,6,7-tetrahydrofuro [2,3-f][1]benzofuran-4-yl)ethanamine (also known as 2 C-B-FLY).
        21. 2-(10-Bromo-2,3,4,7,8,9-hexahydropyrano[2,3-g]chromen-5-yl)ethanamine (also known as 2 C-B-butterFLY).
        22. N-(2-Methoxybenzyl)-1-(8-bromo-2,3,6,7-tetrahydrobenzo[1,2-b:4,5-b’]difuran-4-yl)-2-aminoethane (also known as 2 C-B-FLY-NBOMe).
        23. 1-(4-Bromofuro[2,3-f][1]benzofuran-8-yl)propan-2-amine (also known as bromo-benzodifuranyl-isopropylamine or bromo-dragonFLY).
        24. N-(2-Hydroxybenzyl)-4-iodo-2,5-dimethoxyphenethylamine (also known as 2 C-I-NBOH or 2,5 I-NBOH).
        25. 5-(2-Aminopropyl)benzofuran (also known as 5-APB).
        26. 6-(2-Aminopropyl)benzofuran (also known as 6-APB).
    15. Substituted tryptamines. This includes any compound, unless specifically excepted, specifically named in this schedule, or listed under a different schedule, structurally derived from 2-(1 H-indol-3-yl)ethanamine (i.e., tryptamine) by mono-or di-substitution of the amine nitrogen with alkyl or alkenyl groups or by inclusion of the amino nitrogen atom in a cyclic structure whether or not the compound is further substituted at the alpha-position with an alkyl group or whether or not further substituted on the indole ring to any extent with any alkyl, alkoxy, halo, hydroxyl, or acetoxy groups. Examples include:
      1. 5-methoxy-N,N-diallyltryptamine (also known as 5-MeO-DALT).
      2. 4-acetoxy-N,N-dimethyltryptamine (also known as 4-AcO-DMT or O-Acetylpsilocin).
      3. 4-hydroxy-N-methyl-N-ethyltryptamine (also known as 4-HO-MET).
      4. 4-hydroxy-N,N-diisopropyltryptamine (also known as 4-HO-DIPT).
      5. 5-methoxy-N-methyl-N-isopropyltryptamine (also known as 5-MeO-MiPT).
      6. 5-methoxy-N,N-dimethyltryptamine (also known as 5-MeO-DMT).
      7. Bufotenine (also known as 3-(Beta-Dimethyl-aminoethyl)-5-hydroxyindole; 3-(2-dimethylaminoethyl)-5-indolol; N, N-dimethylserotonin; 5-hydroxy-N,N-dimethyltryptamine; mappine).
      8. 5-methoxy-N,N-diisopropyltryptamine (also known as 5-MeO-DiPT).
      9. Diethyltryptamine (also known as N,N-Diethyltryptamine; DET).
      10. Dimethyltryptamine (also known as DMT).
      11. Psilocyn.
    16. 1-[3-(trifluoromethylphenyl)]piperazine (also known as TFMPP).
    17. 1-[4-(trifluoromethylphenyl)]piperazine.
    18. 6,7-dihydro-5 H-indeno-(5,6-d)-1,3-dioxol-6-amine (also known as 5,6-Methylenedioxy-2-aminoindane or MDAI).
    19. 2-(Ethylamino)-2-(3-methoxyphenyl)cyclohexanone (also known as Methoxetamine or MXE).
    20. Ethylamine analog of phencyclidine (also known as N-ethyl-1-phenylcyclohexylamine, (1-phenylcyclohexyl) ethylamine, N-(1-phenylcyclohexyl) ethylamine, cyclohexamine, PCE).
    21. Pyrrolidine analog of phencyclidine (also known as 1-(1-phenylcyclohexyl)-pyrrolidine, PCPy, PHP).
    22. Thiophene analog of phencyclidine (also known as (1-[1-(2-thienyl) cyclohexyl] piperidine; 2-Thienylanalog of phencyclidine; TPCP, TCP).
    23. 1-[1-(2-thienyl)cyclohexyl]pyrrolidine (also known as TCPy).
    24. Salvia divinorum, salvinorin A, or any of the active ingredients of salvia divinorum.
  6. Depressants. Unless specifically excepted or unless listed in another schedule, any material compound, mixture, or preparation which contains any quantity of the following substances having a depressant effect on the central nervous system, whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation:
    1. Gamma-hydroxybutyric acid.
    2. Mecloqualone.
    3. Methaqualone.
  7. Stimulants. Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances having a stimulant effect on the central nervous system, including its salts, isomers, and salts of isomers:
    1. Aminorex (also known as 2-amino-5-phenyl-2-oxazoline, or 4,5-dihydro-5-phenyl-2-oxazolamine).
    2. Cathinone.
    3. Substituted cathinones. Any compound, material, mixture, preparation, or other product, unless listed in another schedule or an approved food and drug administration drug (e.g., buproprion, pyrovalerone), structurally derived from 2-aminopropan-1-one by substitution at the 1-position with either phenyl, naphthyl, or thiophene ring systems, whether or not the compound is further modified in any of the following ways:
      1. By substitution in the ring system to any extent with alkyl, alkylenedioxy, alkoxy, haloalkyl, hydroxyl, or halide substituents, whether or not further substituted in the ring system by one or more other univalent substitutents;
      2. By substitution at the 3-position with an acyclic alkyl substituent;
      3. By substitution at the 2-amino nitrogen atom with alkyl, dialkyl, benzyl, or methoxybenzyl groups; or
      4. By inclusion of the 2-amino nitrogen atom in a cyclic structure.
        1. 3,4-Methylenedioxy-alpha-pyrrolidinopropiophenone (also known as MDPPP).
        2. 3,4-Methylenedioxy-N-ethylcathinone (also known as Ethylone, MDEC, or bk-MDEA).
        3. 3,4-Methylenedioxy-N-methylcathinone (also known as Methylone or bk-MDMA).
        4. 3,4-Methylenedioxypyrovalerone (also known as MDPV).
        5. 3,4-Dimethylmethcathinone (also known as 3,4-DMMC).
        6. 2-(methylamino)-1-phenylpentan-1-one (also known as Pentedrone).
        7. 2-Fluoromethcathinone (also known as 2-FMC).
        8. 3-Fluoromethcathinone (also known as 3-FMC).
        9. 4-Methylethcathinone (also known as 4-MEC and 4-methyl-N-ethylcathinone).
        10. 4-Fluoromethcathinone (also known as Flephedrone and 4-FMC).
        11. 4-Methoxy-alpha-pyrrolidinopropiophenone (also known as MOPPP).
        12. 4-Methoxymethcathinone (also known as Methedrone; bk-PMMA).
        13. 4’-Methyl-alpha-pyrrolidinobutiophenone (also known as MPBP).
        14. Alpha-methylamino-butyrophenone (also known as Buphedrone or MABP).
        15. Alpha-pyrrolidinobutiophenone (also known as alpha-PBP).
        16. Alpha-pyrrolidinopropiophenone (also known as alpha-PPP).
        17. Alpha-pyrrolidinopentiophenone (also known as Alpha-pyrrolidinovalerophenone or alpha-PVP).
        18. Beta-keto-N-methylbenzodioxolylbutanamine (also known as Butylone or bk-MBDB).
        19. Ethcathinone (also known as N-Ethylcathinone).
        20. 4-Methylmethcathinone (also known as Mephedrone or 4-MMC).
        21. Methcathinone.
        22. N,N-dimethylcathinone (also known as metamfepramone).
        23. Naphthylpyrovalerone (naphyrone).
        24. B-Keto-Methylbenzodioxolylpentanamine (also known as Pentylone).
        25. 4-Methyl-alpha-pyrrolidinopropiophenone (also known as 4-MePPP and MPPP).
        26. 1-(1,3-benzodioxol-5-yl)-2-(ethylamino)-pentan-1-one (also known as Ephylone and N-Ethylpentylone).
    4. Fenethylline.
    5. Fluoroamphetamine.
    6. Fluoromethamphetamine.
      1. cis-4-methylaminorex (also known as (1)cis-4,5-dihydro-4-methyl-5-phenyl-2-oxazolamine).
    7. N-Benzylpiperazine (also known as BZP, 1-benzylpiperazine).
    8. N-ethylamphetamine.
    9. N, N-dimethylamphetamine (also known as N,N-alpha-trimethyl-benzeneethanamine; N,N-alpha-trimethylphenethylamine).

(Since nomenclature of these substances is not internationally standardized, compounds of these structures, regardless of numerical designation of atomic positions covered.)

(aa) 5-(2-Aminopropyl)-2,3-dihydrobenzofuran (also known as 5-APDB).

(bb) 6-(2-Aminopropyl)-2,3,-dihydrobenzofuran (also known as 6-APDB).

(cc) 2,5-dimethoxy-amphetamine (also known as 2,5-dimethoxy-a-methylphenethylamine; 2,5-DMA).

(dd) 2,5-dimethoxy-4-ethylamphetamine (also known as DOET).

(ee) 2,5-dimethoxy-4-(n)-propylthiophenethylamine (also known as 2 C-T-7).

(ff) 5-methoxy-3,4-methylenedioxy-amphetamine.

(gg) 4-methyl-2,5-dimethoxy-amphetamine (also known as 4-methyl-2,5-dimethoxy-a-methylphenethylamine; DOM and STP).

(hh) 3,4-methylenedioxy amphetamine (also known as MDA).

(ii) 3,4-methylenedioxymethamphetamine (also known as MDMA).

(jj) 3,4-methylenedioxy-N-ethylamphetamine (also known as N-ethyl-alpha-methyl-3,4(methylenedioxy)phenethylamine, MDE, MDEA).

(kk) 3,4,5-trimethoxy amphetamine.

(ll) Mescaline (also known as 3,4,5-trimethoxyphenethylamine).

Some trade or other names:

Source:

S.L. 1971, ch. 235, § 5; 1977, ch. 194, § 2; 1979, ch. 287, § 3; 1979, ch. 288, § 1; 1985, ch. 265, § 1; 1987, ch. 264, § 1; 1989, ch. 266, § 1; 1991, ch. 223, § 2; 1993, ch. 220, § 2; 1995, ch. 217, § 3; 1997, ch. 123, § 3; 2001, ch. 213, § 4; 2007, ch. 208, § 1; 2007, ch. 209, § 1; 2011, ch. 161, § 1; 2013, ch. 184, § 1; 2015, ch. 169, § 1, effective March 19, 2015; 2017, ch. 163, § 1, effective March 13, 2017; 2019, ch. 185, § 2, effective April 9, 2019; 2021, ch. 173, § 2, effective April 16, 2021; 2021, ch. 172, § 2, effective May 3, 2021.

Note.

Section 19-03.1-05 was amended 2 times by the 2021 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 2 of Chapter 173, Session Laws 2021, Senate Bill 2059; and Section 2 of Chapter 172, Session Laws 2021, House Bill 1213.

Effective Date.

The 2015 amendment of this section by section 1 of chapter 169, S.L. 2015 became effective March 19, 2015, pursuant to an emergency clause in section 4 of chapter 169, S.L. 2015.

Notes to Decisions

JWH-018.

Denial of post-conviction relief was proper, because an administrative rule delineated JWH-018 1-Pentyl-3 (1-naphthoyl) indole (JWH-018) as a prohibited controlled substance when petitioner committed the alleged acts, the administrative rule had force and effect of law upon becoming effective, and subsequent codification of JWH-018 as a prohibited controlled substance did not invalidate the effect of the final administrative rule. Haag v. State, 2012 ND 241, 823 N.W.2d 749, 2012 N.D. LEXIS 246 (N.D. 2012).

Marijuana.

Classifying marijuana as a schedule I drug does not constitute an arbitrary nor irrational classification in violation of Fifth Amendment rights to equal protection and due process. State v. Ennis, 334 N.W.2d 827, 1983 N.D. LEXIS 423 (N.D.), cert. denied, 464 U.S. 992, 104 S. Ct. 484, 78 L. Ed. 2d 681, 1983 U.S. LEXIS 2474 (U.S. 1983).

In a case involving two defendants who were convicted of possession of marijuana with intent to deliver, the district court did not abuse its discretion by refusing to admit defendants' medical marijuana prescriptions from the State of Washington as a lawful defense under the Uniform Controlled Substances Act. State v. Kuruc, 2014 ND 95, 846 N.W.2d 314, 2014 N.D. LEXIS 97 (N.D. 2014).

19-03.1-06. Schedule II tests.

The board shall place a substance in schedule II if it finds that:

  1. The substance has high potential for abuse;
  2. The substance has currently accepted medical use in treatment in the United States or currently accepted medical use with severe restrictions; and
  3. The abuse of the substance may lead to severe psychic or physical dependence.

Source:

S.L. 1971, ch. 235, § 6; 1985, ch. 262, § 6.

19-03.1-07. Schedule II.

  1. The controlled substances listed in this section are included in schedule II.
  2. Schedule II consists of the drugs and other substances, by whatever official name, common or usual name, chemical name, or brand name designated, listed in this section.
  3. Substances, vegetable origin or chemical synthesis. Unless specifically excepted or unless listed in another schedule, any of the following substances whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis:
    1. Opium and opiate, and any salt, compound, derivative, or preparation of opium or opiate, excluding apomorphine, thebaine-derived butorphanol, dextrorphan, nalbuphine, naldemedine, nalmefene, naloxegol, naloxone, 6 beta-naltrexol, naltrexone, and samidorphan and their respective salts, but including the following:
      1. Codeine.
      2. Dihydroetorphine.
      3. Ethylmorphine.
      4. Etorphine hydrochloride.
      5. Granulated opium.
      6. Hydrocodone.
      7. Hydromorphone.
      8. Metopon.
      9. Morphine.
      10. Noroxymorphone.
      11. Opium extracts.
      12. Opium fluid.
      13. Oripavine.
      14. Oxycodone.
      15. Oxymorphone.
      16. Powder opium.
      17. Raw opium.
      18. Thebaine.
      19. Tincture of opium.
    2. Any salt, compound, derivative, or preparation thereof which is chemically equivalent or identical with any of the substances referred to in subdivision a, but not including the isoquinoline alkaloids of opium.
    3. Opium poppy and poppy straw.
    4. Coca leaves and any salt, compound, derivative, or preparation of coca leaves, including cocaine and ecgonine and their salts, isomers, derivatives, and salts of isomers and derivatives, and any salt, compound, derivative, or preparation thereof that is chemically equivalent or identical with any of these substances, except that the nondosage substances must include decocainized coca leaves or extractions of coca leaves which do not contain cocaine or ecgonine.
    5. Concentrate of poppy straw (the crude extract of poppy straw in either liquid, solid, or powder form which contains the phenanthrine alkaloids of the opium poppy).
  4. Opiates. Unless specifically excepted or unless in another schedule, any of the following opiates, including their isomers, esters, ethers, salts, and salts of isomers, esters, and ethers whenever the existence of those isomers, esters, ethers, and salts is possible within the specific chemical designation, dextrophan and levopropoxyphene excepted:
    1. Alfentanil.
    2. Alphaprodine.
    3. Anileridine.
    4. Bezitramide.
    5. Bulk dextropropoxyphene (nondosage forms).
    6. Carfentanil.
    7. Dihydrocodeine.
    8. Diphenoxylate.
    9. Fentanyl.
    10. Isomethadone.
    11. Levo-alphaacetylmethadol (LAAM).
    12. Levomethorphan.
    13. Levorphanol.
    14. Metazocine.
    15. Methadone.
    16. Methadone-Intermediate, 4-cyano-2-dimethylamino-4, 4-diphenyl butane.
    17. Moramide-Intermediate, 2-methyl-3-morpholino-1, 1-diphenylpropane-carboxylic acid.
    18. Oliceridine (N-[(3-methoxythiophen-2-yl)methyl] ({2-[(9 R)-9-(pyridin-2-yl)-6-oxaspiro [4.5]decan-9-yl]ethyl})amine fumarate).
    19. Pethidine (also known as meperidine).
    20. Pethidine-Intermediate-A, 4-cyano-1-methyl-4-phenylpiperidine.
    21. Pethidine-Intermediate-B, ethyl-4-phenylpiperidine-4-carboxylate.
    22. Pethidine-Intermediate-C, 1-methyl-4-phenylpiperidine-4-carboxylic acid.
    23. Phenazocine.
    24. Priminodine.
    25. Racemethorphan.
    26. Racemorphan.
  5. Stimulants. Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances having a stimulant effect on the central nervous system:
    1. Amphetamine, its salts, optical isomers, and salts of its optical isomers.
    2. Lisdexamfetamine, its salts, isomers, and salts of isomers.
    3. Methamphetamine, its salts, isomers, and salts of isomers.
    4. Phenmetrazine and its salts.
    5. Methylphenidate.
  6. Depressants. Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances having a depressant effect on the central nervous system, including its salts, isomers, and salts of isomers whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation:
    1. Amobarbital.
    2. Glutethimide.
    3. Pentobarbital.
    4. Phencyclidine.
    5. Secobarbital.
  7. Hallucinogenic substances.
    1. Nabilone [another name for nabilone (1)-trans-3-(1, 1-dimethylheptyl)-6, 6a, 7, 8, 10, 10 a-hexahydro-1-hydroxy-6, 6-dimethyl-9 Hdibenzo [b, d] pyran-9-one].
    2. Dronabinol [(-)-delta-9-trans tetrahydrocannabinol] in an oral solution in a drug product approved for marketing by the federal food and drug administration.
  8. Immediate precursors. Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation that contains any quantity of the following substances:
    1. Immediate precursor to amphetamine and methamphetamine: Phenylacetone. Some trade or other names: phenyl-2-propanone; P2P, benzyl methyl ketone; methyl benzyl ketone.
    2. Immediate precursors to phencyclidine (PCP):
      1. 1-phenylcyclohexylamine.
      2. 1-piperidinocyclohexanecarbonitrile (PCC).
    3. Immediate precursors to fentanyl:
      1. 4-anilino-N-phenethylpiperidine (ANPP).
      2. N -phenyl- N -(piperidin-4-yl)propionamide (norfentanyl) .

aa. Remifentanil.

bb. Sufentanil.

cc. Tapentadol.

dd. Thiafentanil.

Source:

S.L. 1971, ch. 235, § 7; 1977, ch. 194, § 3; 1979, ch. 288, § 2; 1985, ch. 265, § 2; 1987, ch. 264, § 2; 1989, ch. 266, § 3; 1991, ch. 223, §§ 3, 4; 1997, ch. 123, § 4; 2007, ch. 208, § 2; 2009, ch. 199, § 1; 2011, ch. 161, § 2; 2017, ch. 163, § 2, effective March 13, 2017; 2019, ch. 185, § 3, effective April 9, 2019; 2021, ch. 173, § 3, effective April 16, 2021.

Notes to Decisions

Cocaine.

Although there may be some scientific basis to the argument that cocaine is not pharmacologically a narcotic drug, legislative classification of cocaine as a narcotic drug and schedule II drug for control and penalty purposes is constitutional. State v. Kainz, 321 N.W.2d 478, 1982 N.D. LEXIS 299 (N.D. 1982); State v. Lind, 322 N.W.2d 826, 1982 N.D. LEXIS 366 (N.D. 1982).

Desoxyephedrine.

1-desoxyephedrine was not deleted from the federal schedules of controlled substances, and it therefore remained controlled under this section. State v. Erban, 429 N.W.2d 408, 1988 N.D. LEXIS 249 (N.D. 1988).

1-desoxyephedrine is an isomer of methamphetamine and is controlled. State v. Erban, 429 N.W.2d 408, 1988 N.D. LEXIS 249 (N.D. 1988).

19-03.1-08. Schedule III tests.

The board shall place a substance in schedule III if it finds that:

  1. The substance has a potential for abuse less than the substances listed in schedules I and II;
  2. The substance has currently accepted medical use in treatment in the United States; and
  3. Abuse of the substance may lead to moderate or low physical dependence or high psychological dependence.

Source:

S.L. 1971, ch. 235, § 8; 1985, ch. 262, § 7.

19-03.1-09. Schedule III.

  1. The controlled substances listed in this section are included in schedule III.
  2. Schedule III consists of the drugs and other substances, by whatever official name, common or usual name, chemical name, or brand name designated, listed in this section.
  3. Stimulants. Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances having a stimulant effect on the central nervous system, including its salts, isomers (whether optical, position, or geometric), and salts of such isomers whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation:
    1. Those compounds, mixtures, or preparations in dosage unit form containing any stimulant substances listed in schedule II and any other drug of the quantitative composition shown in that schedule for those drugs or which is the same except that it contains a lesser quantity of controlled substances.
    2. Benzphetamine.
    3. Chlorphentermine.
    4. Clortermine.
    5. Phendimetrazine.
  4. Depressants. Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation that contains any quantity of the following substances having a depressant effect on the central nervous system:
    1. Any compound, mixture, or preparation containing:
      1. Amobarbital;
      2. Secobarbital;
      3. Pentobarbital;
    2. Any suppository dosage form containing:
      1. Amobarbital;
      2. Secobarbital;
      3. Pentobarbital;
    3. Any substance that contains any quantity of a derivative of barbituric acid, or any salt of a derivative of barbituric acid, except those substances which are specifically listed in other schedules thereof.
    4. Chlorhexadol.
    5. Embutramide.
    6. Gamma-hydroxybutyric acid in a United States food and drug administration-approved drug product.
    7. Ketamine.
    8. Lysergic acid.
    9. Lysergic acid amide.
    10. Methyprylon.
    11. Perampanel.
    12. Sativex or its successor name as determined by the federal food and drug administration.
    13. Sulfondiethylmethane.
    14. Sulfonethylmethane.
    15. Sulfonmethane.
    16. Tiletamine and zolazepam or any salt thereof. Some trade or other names for a tiletamine-zolazepam combination product: Telazol. Some trade or other names for tiletamine: 2-(ethylamino)-2-(2-thienyl)-cyclohexanone. Some trade or other names for zolazepam: 4-2(2-fluorophenyl)-6, 8-dihydro-1,3,8-trimethylpyrazolo-[3,4-e][1,4]-diazepin-7(1H)-one, flupyrazapon.
  5. Nalorphine.
  6. Narcotic drugs. Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation that contains any of the following narcotic drugs, or their salts calculated as the free anhydrous base or alkaloid, in limited quantities as set forth below:
      1. Not more than 1.80 grams of codeine per 100 milliliters or not more than 90 milligrams per dosage unit, with an equal or greater quantity of an isoquinoline alkaloid of opium.
      2. Not more than 1.80 grams of codeine per 100 milliliters or not more than 90 milligrams per dosage unit, with one or more active, non-narcotic ingredients in recognized therapeutic amounts.
      3. Not more than 1.80 grams of dihydrocodeine per 100 milliliters or not more than 90 milligrams per dosage unit, with one or more active, non-narcotic ingredients in recognized therapeutic amounts.
      4. Not more than 300 milligrams of ethylmorphine per 100 milliliters or not more than 15 milligrams per dosage unit, with one or more active, non-narcotic ingredients in recognized therapeutic amounts.
      5. Not more than 500 milligrams of opium per 100 milliliters or per 100 grams, or not more than 25 milligrams per dosage unit, with one or more active, non-narcotic ingredients in recognized therapeutic amounts.
      6. Not more than 50 milligrams of morphine per 100 milliliters or per 100 grams with one or more active, non-narcotic ingredients in recognized therapeutic amounts.
    1. Buprenorphine.
  7. Anabolic steroids. Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation that contains any of the following anabolic steroids:
    1. 3beta,17-dihydroxy-5a-androstane;
    2. 3alpha,17beta-dihydroxy-5a-androstane;
    3. 5alpha-androstan-3,17-dione;
    4. 1-androstenediol (3beta,17beta-dihydroxy-5alpha-androst-1-ene);
    5. 1-androstenediol (3alpha,17beta-dihydroxy-5alpha-androst-1-ene);
    6. 4-androstenediol (3beta,17beta-dihydroxy-4-ene);
    7. 5-androstenediol (3beta,17beta-dihydroxy-androst-5-ene);
    8. 1-androstenedione ([5alpha]-androst-1-en-3,17-dione);
    9. 4-androstenedione (androst-4-en-3,17-dione);
    10. 5-androstenedione (androst-5-en-3,17-dione);
    11. Bolasterone (7alpha,17alpha-dimethyl-17beta-hydroxyandrost-4-en-3-one);
    12. Boldenone (17beta-hydroxyandrost-1,4,-diene-3-one);
    13. Boldione (androsta-1,4-diene-3,17-dione);
    14. Calusterone (7beta,17alpha-dimethyl-17beta-hydroxyandrost-4-en-3-one);
    15. Clostebol (4-chloro-17beta-hydroxyandrost-4-en-3-one);
    16. Dehydrochloromethyltestosterone (4-chloro-17beta-hydroxy-17alpha-methyl-androst-1,4-dien-3-one);
    17. Delta-1-dihydrotestosterone (also known as ‘1-testosterone’) (17beta-hydroxy-5alpha-androst-1-en-3-one);
    18. Desoxymethyltestosterone (17a-methyl-5a-androst-2-en-17ol) (also known as madol);
    19. 4-dihydrotestosterone (17beta-hydroxy-androstan-3-one);
    20. Drostanolone (17beta-hydroxy-2alpha-methyl-5alpha-androstan-3-one);
    21. Ethylestrenol (17alpha-ethyl-17beta-hydroxyestr-4-ene);
    22. Fluoxymesterone (9-fluoro-17alpha-methyl-11beta, 17beta-dihydroxyandrost-4-en-3-one);
    23. Formebolone (2-formyl-17alpha-methyl-11alpha, 17beta-dihydroxyandrost-1,4-dien-3-one);
    24. Furazabol (17alpha-methyl-17beta-hydroxyandrostano[2,3-c]-furazan);
    25. 13beta-ethyl-17alpha-hydroxygon-4-en-3-one;
    26. 4-hydroxytestosterone (4,17beta-dihydroxy-androst-4-en-3-one);
    27. Norboletheone (13beta,17alpha-diethyl-17beta-hydroxygon-4-en-3-one);
    28. Norclostebol (4-chloro-17beta-hydroxyestr-4-en-3-one);
  8. Hallucinogenic substances.
    1. Dronabinol (synthetic) [(-)-delta-9-(trans)-tetrahydrocannabinol] in sesame oil and encapsulated in a soft gelatin capsule in a United States food and drug administration-approved drug product.
    2. Any product in hard or soft gelatin capsule form containing natural dronabinol (derived from the cannabis plant) or synthetic dronabinol (produced from synthetic materials) in sesame oil, for which an abbreviated new drug application has been approved by the food and drug administration under section 505(j) of the Federal Food, Drug, and Cosmetic Act [21 U.S.C. 355(j)] which references as its listed drug the drug product referred to in subdivision a.
  9. The board may except by rule any compound, mixture, or preparation containing any stimulant or depressant substance listed in subsections 3 and 4 from the application of all or any part of this chapter if the compound, mixture, or preparation contains one or more active medicinal ingredients not having a stimulant or depressant effect on the central nervous system, and if the admixtures are included therein in combinations, quantity, proportion, or concentration that vitiate the potential for abuse of the substances which have a stimulant or depressant effect on the central nervous system.

or any salt thereof and one or more other active medicinal ingredients which are not listed in any schedule.

or any salt of any of these drugs and approved by the food and drug administration for marketing only as a suppository.

aa. 4-hydroxy-19-nortestosterone (4,17beta-dihydroxy-estr-4-en-3-one);

bb. Mestanolone (17alpha-methyl-17beta-hydroxy-5-androstan-3-one);

cc. Mesterolone (1alpha-methyl-17beta-hydroxy-[5alpha]-androstan-3-one);

dd. Methandienone (17alpha-methyl-17beta-dihydroxyandrost-1,4-dien-3-one);

ee. Methandriol (17alpha-methyl-3beta,17beta-dihydroxyandrost-5-ene);

ff. Methasterone (2[alpha],17[alpha]-dimethyl-5[alpha]-androstan-17[beta]-ol-3-one);

gg. Methenolone (1-methyl-17beta-hydroxy-5alpha-androst-1-en-3-one);

hh. 17alpha-methyl-3beta,17beta-dihydroxy-5a-androstane;

ii. 17alpha-methyl-3alpha,17beta-dihydroxy-5a-androstane;

jj. 17alpha-methyl-3beta,17beta-dihyroxyandrost-4-ene;

kk. 17alpha-methyl-4-hydroxynandrolone (17alpha-methyl-4-hydroxy-17beta-hydroxyestr-4-en-3-one);

ll. Methyldienolone (17alpha-methyl-17beta-hydroxyestra-4,9(10)-dien-3-one);

mm. Methyltrienolone (17alpha-methyl-17beta-hydroxyestra-4,9(11)-trien-3-one);

nn. Methyltestosterone (17alpha-methyl-17beta-hydroxyandrost-4-en-3-one);

oo. Mibolerone (7alpha,17alpha-dimethyl-17beta-hydroxyestr-4-en-3-one);

pp. 17alpha-methyl-delta1-dihydrotestosterone (17bbeta-hydroxy-17alpha-methyl-5alpha-androst-1-en-3-one) (also known as ‘17-alpha-methyl-1-testosterone’);

qq. Nandrolone (17beta-hydroxyestr-4-en-3-one);

rr. 19-nor-4-androstenediol (3beta,17beta-dihydroxyestr-4-ene);

ss. 19-nor-4-androstenediol (3alpha,17beta-dihydroxyestr-4-ene);

tt. 19-nor-5-androstenediol (3beta,17beta-dihydroxyestr-5-ene);

uu. 19-nor-5-androstenediol (3alpha,17-beta-dihydroxyester-5-ene);

vv. 19-nor-4-androstenedione (estr-4-en-3,17-dione);

ww. 19-nor-4,9(10)-androstadienedione (estra-4,9(10)-diene-3,17-dione);

xx. 19-nor-5-androstenedione (estr-5-en-3,17-dione);

aaa. Norethandrolone (17alpha-ethyl-17beta-hydroxyestr-4-en-3-one);

bbb. Normethandrolone (17alpha-methyl-17beta-hydroxyestr-4-en-3-one);

ccc. Oxandrolone (17alpha-methyl-17beta-hydroxy-2-oxa-[5alpha]-androstan-3-one);

ddd. Oxymesterone (17alpha-methyl-4-17beta-dihydroxyandrost-4-en-3-one);

eee. Oxymetholone (17alpha-methyl-2-hydroxymethylene-17beta-hydroxy [5alpha]-androstan-3-one);

fff. Stanozolol (17alpha-methyl-17beta-hydroxy[5alpha]-androst-2-eno[3,2-c]-pyrazole);

ggg. Stenbolone (17beta-hydroxy-2-methyl-[5alpha]-androst-1-en-3-one);

hhh. Prostanozol (17[beta]- hydroxy-5[alpha]-androstano[3,2-c]pyrazole);

iii. Testolactone (13-hydroxy-3-oxo-13,17-secoandrosta-1,4-dien-17-oic acid lactone);

jjj. Testosterone (17beta-hydroxyandrost-4-en-3-one);

kkk. Tetrahydrogestrinone (13beta,17alpha-diethyl-17beta-hydroxygon-4,9,11-trien-3-one);

lll. Trenbolone (17 beta-hydroxyestr-4,9,11-trien-3-one);

or any salt, ester, or isomer of a drug or substance described or listed in this subsection, if that salt, ester, or isomer promotes muscle growth.

The term does not include an anabolic steroid that is expressly intended for administration through implants to cattle or other nonhuman species and which has been approved by the secretary of health and human services for administration unless any person prescribes, dispenses, possesses, delivers, or distributes for human use.

Source:

S.L. 1971, ch. 235, § 9; 1977, ch. 194, § 4; 1979, ch. 288, § 3; 1985, ch. 258, § 17; 1985, ch. 262, § 8; 1985, ch. 265, § 3; 1987, ch. 264, § 3; 1989, ch. 266, § 4; 1991, ch. 223, § 5; 2001, ch. 213, § 5; 2003, ch. 182, § 1; 2007, ch. 208, § 3; 2009, ch. 199, § 2; 2011, ch. 161, § 3; 2013, ch. 184, § 2; 2015, ch. 169, § 2, effective March 19, 2015; 2019, ch. 185, § 4, effective April 9, 2019.

Effective Date.

The 2015 amendment of this section by section 2 of chapter 169, S.L. 2015 became effective March 19, 2015, pursuant to an emergency clause in section 4 of chapter 169, S.L. 2015.

Notes to Decisions

Elements of Proof.

Under this section, state is not required to prove that methamphetamine was of sufficient quantity to produce a stimulating effect or that it had a potential for abuse but only that it was present in the substance. State v. Allesi, 216 N.W.2d 805, 1974 N.D. LEXIS 235 (N.D. 1974).

19-03.1-10. Schedule IV tests.

The board shall place a substance in schedule IV if it finds that:

  1. The substance has a low potential for abuse relative to substances in schedule III;
  2. The substance has currently accepted medical use in treatment in the United States; and
  3. Abuse of the substance may lead to limited physical dependence or psychological dependence relative to the substances in schedule III.

Source:

S.L. 1971, ch. 235, § 10; 1985, ch. 262, § 9.

19-03.1-11. Schedule IV.

  1. The controlled substances listed in this section are included in schedule IV.
  2. Schedule IV consists of the drugs and other substances, by whatever official name, common or usual name, chemical name, or brand name designated, listed in this section.
  3. Narcotic drugs. Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation containing any of the following narcotic drugs or their salts calculated as the free anhydrous base or alkaloid, in limited quantities as set forth below:
    1. Not more than 1 milligram of difenoxin and not less than 25 micrograms of atropine sulfate per dosage unit.
    2. Dextropropoxyphene (also known as alpha-(+)-4-dimethylamino- 1,2-diphenyl-3-methyl-2-propionoxybutane).
    3. 2-[(dimethylamino)methyl]-1-(3-methoxyphenyl)cyclohexanol, its salts, optical and geometric isomers and salts of these isomers including Tramadol.
  4. Depressants. Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation containing any quantity of the following substances, including their salts, isomers, and salts of isomers whenever the existence of those salts, isomers, and salts of isomers is possible within the specific chemical designation:
    1. Alprazolam.
    2. Alfaxalone.
    3. Barbital.
    4. Brexanolone.
    5. Bromazepam.
    6. Camazepam.
    7. Carisoprodol.
    8. Chloral betaine.
    9. Chloral hydrate.
    10. Chlordiazepoxide.
    11. Clobazam.
    12. Clonazepam.
    13. Clorazepate.
    14. Clotiazepam.
    15. Cloxazolam.
    16. Delorazepam.
    17. Diazepam.
    18. Dichloralphenazone.
    19. Estazolam.
    20. Ethchlorvynol.
    21. Ethinamate.
    22. Ethyl loflazepate.
    23. Fludiazepam.
    24. Flunitrazepam.
    25. Flurazepam.
    26. Fospropofol.
  5. Fenfluramine. Any material, compound, mixture, or preparation which contains any quantity of the following substances, including its salts, isomers (whether optical, position, or geometric), and salts of such isomers, whenever the existence of such salts, isomers, and salts of isomers is possible: Fenfluramine.
  6. Stimulants. Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances having a stimulant effect on the central nervous system, including its salts, isomers, and salts of isomers:
    1. Cathine.
    2. Diethylpropion.
    3. Fencamfamin.
    4. Fenproporex.
    5. Mazindol.
    6. Mefenorex.
    7. Modafinil.
    8. Pemoline (including organometallic complexes and chelates thereof).
    9. Phentermine.
    10. Pipradrol.
    11. Sibutramine.
    12. Solriamfetol.
    13. SPA ((-)-1-dimethylamino-1, 2-diphenylethane).
  7. Other substances. Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of:
    1. Pentazocine, including its salts.
    2. Butorphanol, including its optical isomers.
    3. Eluxadoline (5-[[[(2S)-2-amino-3-[4-aminocarbonyl)-2,6-dimethylphenyl]-1-oxopropyl] [(1S)-1-(4-phenyl-1H-imidazol-2-yl)ethyl]amino]methyl]-2-methoxybenzoic acid) (including its optical isomers) and its salts, isomers, and salts of isomers.
  8. The board may except by rule any compound, mixture, or preparation containing any depressant substance listed in subsection 2 from the application of all or any part of this chapter if the compound, mixture, or preparation contains one or more active medicinal ingredients not having a depressant effect on the central nervous system, and if the admixtures are included therein in combinations, quantity, proportion, or concentration that vitiate the potential for abuse of the substances which have a depressant effect on the central nervous system.

aa. Halazepam.

bb. Haloxazolam.

cc. Indiplon.

dd. Ketazolam.

ee. Lemborexant.

ff. Loprazolam.

gg. Lorazepam.

hh. Lorcaserin.

ii. Lormetazepam.

jj. Mebutamate.

kk. Medazepam.

ll. Meprobamate.

mm. Methohexital.

nn. Methylphenobarbital (also known as mephobarbital).

oo. Midazolam.

pp. Nimetazepam.

qq. Nitrazepam.

rr. Nordiazepam.

ss. Oxazepam.

tt. Oxazolam.

uu. Paraldehyde.

vv. Petrichloral.

ww. Phenobarbital.

xx. Pinazepam.

yy. Propofol.

zz. Prazepam.

aaa. Quazepam.

bbb. Remimazolam.

ccc. Suvorexant.

ddd. Temazepam.

eee. Tetrazepam.

fff. Triazolam.

ggg. Zaleplon.

hhh. Zolpidem.

iii. Zopiclone.

Source:

S.L. 1971, ch. 235, § 11; 1977, ch. 194, § 5; 1979, ch. 288, § 4; 1985, ch. 262, § 10; 1985, ch. 265, § 4; 1987, ch. 264, § 4; 1989, ch. 266, § 5; 1991, ch. 223, § 6; 1993, ch. 220, § 3; 1997, ch. 123, § 5; 1999, ch. 379, § 2; 2001, ch. 213, § 6; 2003, ch. 182, § 2; 2007, ch. 208, § 4; 2009, ch. 199, § 3; 2011, ch. 161, § 4; 2013, ch. 184, § 3; 2015, ch. 169, § 3, effective March 19, 2015; 2017, ch. 163, § 3, effective March 13, 2017; 2019, ch. 185, § 5, effective April 9, 2019; 2021, ch. 173, § 4, effective April 16, 2021.

Effective Date.

The 2015 amendment of this section by section 3 of chapter 169, S.L. 2015 became effective March 19, 2015, pursuant to an emergency clause in section 4 of chapter 169, S.L. 2015.

19-03.1-12. Schedule V tests.

The board shall place a substance in schedule V if it finds that:

  1. The substance has low potential for abuse relative to the controlled substances listed in schedule IV;
  2. The substance has currently accepted medical use in treatment in the United States; and
  3. The substance has limited physical dependence or psychological dependence liability relative to the controlled substances listed in schedule IV.

Source:

S.L. 1971, ch. 235, § 12; 1985, ch. 262, § 11.

19-03.1-13. Schedule V.

  1. The controlled substances listed in this section are included in schedule V.
  2. Schedule V consists of the drugs and other substances, by whatever official name, common or usual name, chemical name, or brand name designated, listed in this section.
  3. Narcotic drugs. Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation containing any of the following narcotic drugs and their salts.
  4. Narcotic drugs containing non-narcotic active medicinal ingredients. Any compound, mixture, or preparation containing any of the following narcotic drugs, or their salts calculated as the free anhydrous base or alkaloid, in limited quantities as set forth below, which includes one or more non-narcotic active medicinal ingredients in sufficient proportion to confer upon the compound, mixture, or preparation valuable medicinal qualities other than those possessed by narcotic drugs alone.
    1. Not more than 200 milligrams of codeine per 100 milliliters or per 100 grams.
    2. Not more than 100 milligrams of dihydrocodeine per 100 milliliters or per 100 grams.
    3. Not more than 100 milligrams of ethylmorphine per 100 milliliters or per 100 grams.
    4. Not more than 2.5 milligrams of diphenoxylate and not less than 25 micrograms of atropine sulfate per dosage unit.
    5. Not more than 100 milligrams of opium per 100 milliliters or per 100 grams.
    6. Not more than 0.5 milligram of difenoxin and not less than 25 micrograms of atropine sulfate per dosage unit.
  5. Depressants. Unless specifically exempted or excluded or unless listed in another schedule, any material, compound, mixture, or preparation that contains any quantity of the following substances having a depressant effect on the central nervous system, including its salts, isomers, and salts of isomers whenever the existence of such salts, isomers, and salts of isomers is possible:
    1. Brivaracetam ((2 S)-2-[(4 R)-2-oxo-4-propylpyrrolidin-1-yl]butanamide) (also referred to as BRV; UCB-34714; Briviact) (including its salts).
    2. Cenobamate [(1R)-1-(2-chlorophenyl)-2-(tetrazol-2-yl)ethyl] carbamate; 2 H-tetrazole-2- ethanol, alpha-(2-chlorophenyl)-, carbamate (ester), (alphaR)-; carbamic acid (R)-(+)-1- (2-chlorophenyl)-2-(2 H-tetrazol-2-yl)ethyl ester).
    3. Ezogabine N-[2-amino-4-(4-fluorobenzylamino)-phenyl]-carbamic acid ethyl ester.
    4. Lacosamide [(R)-2-acetoamido-N-benzyl-3-methoxy-propionamide].
    5. Lasmiditan [2,4,6-trifluoro-N-(6-(1-methylpiperidine-4-carbonyl)pyridine-2-yl-benzamide].
    6. Pregabalin [(S)-3-(aminomethyl)-5-methylhexanoic acid].
    7. Gabapentin [2-[1-(aminomethyl) cyclohexyl] acetic acid].
  6. Stimulants. Unless specifically exempted or excluded or unless listed in another schedule, any material, compound, mixture, or preparation containing any quantity of the following substances having a stimulant effect on the central nervous system, including their salts, isomers, and salts of isomers: Pyrovalerone.

Source:

S.L. 1971, ch. 235, § 13; 1979, ch. 288, § 5; 1985, ch. 258, § 18; 1985, ch. 265, § 5; 1987, ch. 264, § 5; 1989, ch. 266, § 6; 1991, ch. 223, § 7; 1993, ch. 220, § 4; 2007, ch. 208, § 5; 2011, ch. 161, § 5; 2013, ch. 184, § 4; 2017, ch. 163, § 4, effective March 13, 2017; 2019, ch. 185, § 6, effective April 9, 2019; 2021, ch. 173, § 5, effective April 16, 2021.

19-03.1-14. Republishing of schedules.

The board shall revise and republish the schedules annually.

Source:

S.L. 1971, ch. 235, § 14; 1985, ch. 262, § 12.

19-03.1-15. Rules.

The board may adopt rules pursuant to chapter 28-32 and charge reasonable fees relating to the registration and control of the manufacture, distribution, and dispensing of controlled substances within this state.

Source:

S.L. 1971, ch. 235, § 15; 1981, ch. 336, § 10; 1985, ch. 262, § 13.

19-03.1-16. Registration requirements.

  1. Every person who manufactures, distributes, or dispenses any controlled substance within this state or who proposes to engage in the manufacture, distribution, or dispensing of any controlled substance within this state shall obtain annually a registration issued by the board in accordance with its rules.
  2. Persons registered by the board under this chapter to manufacture, distribute, dispense, or conduct research with controlled substances may possess, manufacture, distribute, dispense, or conduct research with those substances to the extent authorized by their registration and in conformity with the other provisions of this chapter.
  3. The following persons need not register and may lawfully possess controlled substances under this chapter:
    1. An agent or employee of any registered manufacturer, distributor, or dispenser of any controlled substance if an agent or employee is acting in the usual course of an agent’s or employee’s business or employment.
    2. A common or contract carrier or warehouseman, or an employee thereof, whose possession of any controlled substance is in the usual course of business or employment.
    3. An ultimate user or a person in possession of any controlled substance pursuant to a lawful order of a practitioner or in lawful possession of a schedule V substance.
  4. The board may waive by rule the requirement for registration of certain manufacturers, distributors, or dispensers if it finds it consistent with the public health and safety.
  5. A separate registration is required at each principal place of business or professional practice where the applicant manufactures, distributes, or dispenses controlled substances.
  6. The board may inspect the establishment of a registrant or applicant for registration in accordance with the rules of the board.

Source:

S.L. 1971, ch. 235, § 16; 1985, ch. 258, § 19; 1985, ch. 262, § 14; 1985, ch. 265, § 6.

19-03.1-17. Registration. [Effective through August 31, 2022]

  1. The board shall register an applicant to manufacture or distribute controlled substances included in sections 19-03.1-05, 19-03.1-07, 19-03.1-09, 19-03.1-11, and 19-03.1-13 unless it determines that the issuance of that registration would be inconsistent with the public interest. In determining the public interest, the board shall consider the following factors:
    1. Maintenance of effective controls against diversion of controlled substances into other than legitimate medical, scientific, or industrial channels;
    2. Compliance with applicable state and local laws;
    3. Any convictions of the applicant under any federal and state laws relating to any controlled substance;
    4. Past experience in the manufacture or distribution of controlled substances and the existence in the applicant’s establishment of effective controls against diversion;
    5. Furnishing by the applicant of false or fraudulent material in any application filed under this chapter;
    6. Suspension or revocation of the applicant’s federal registration to manufacture, distribute, or dispense controlled substances as authorized by federal law; and
    7. Any other factors relevant to and consistent with the public health and safety.
  2. Registration under subsection 1 does not entitle a registrant to manufacture and distribute controlled substances in schedule I or II other than those specified in the registration.
  3. Practitioners must be registered to dispense any controlled substances or to conduct research with controlled substances in schedules II through V if they are authorized to dispense or conduct research under the laws of this state. The board need not require separate registration under this chapter for practitioners engaging in research with non-narcotic controlled substances in schedules II through V where the registrant is already registered under this chapter in another capacity. Practitioners registered under federal law to conduct research with schedule I substances may conduct research with schedule I substances within this state upon furnishing the state department of health evidence of that federal registration.
  4. Compliance by manufacturers and distributors with the provisions of the federal law respecting registration (excluding fees) entitles them to be registered under this chapter.

Source:

S.L. 1971, ch. 235, § 17; 1985, ch. 262, § 15; 1995, ch. 243, § 2.

19-03.1-17. Registration. [Effective September 1, 2022]

  1. The board shall register an applicant to manufacture or distribute controlled substances included in sections 19-03.1-05, 19-03.1-07, 19-03.1-09, 19-03.1-11, and 19-03.1-13 unless it determines that the issuance of that registration would be inconsistent with the public interest. In determining the public interest, the board shall consider the following factors:
    1. Maintenance of effective controls against diversion of controlled substances into other than legitimate medical, scientific, or industrial channels;
    2. Compliance with applicable state and local laws;
    3. Any convictions of the applicant under any federal and state laws relating to any controlled substance;
    4. Past experience in the manufacture or distribution of controlled substances and the existence in the applicant’s establishment of effective controls against diversion;
    5. Furnishing by the applicant of false or fraudulent material in any application filed under this chapter;
    6. Suspension or revocation of the applicant’s federal registration to manufacture, distribute, or dispense controlled substances as authorized by federal law; and
    7. Any other factors relevant to and consistent with the public health and safety.
  2. Registration under subsection 1 does not entitle a registrant to manufacture and distribute controlled substances in schedule I or II other than those specified in the registration.
  3. Practitioners must be registered to dispense any controlled substances or to conduct research with controlled substances in schedules II through V if they are authorized to dispense or conduct research under the laws of this state. The board need not require separate registration under this chapter for practitioners engaging in research with non-narcotic controlled substances in schedules II through V where the registrant is already registered under this chapter in another capacity. Practitioners registered under federal law to conduct research with schedule I substances may conduct research with schedule I substances within this state upon furnishing the department evidence of that federal registration.
  4. Compliance by manufacturers and distributors with the provisions of the federal law respecting registration (excluding fees) entitles them to be registered under this chapter.

Source:

S.L. 1971, ch. 235, § 17; 1985, ch. 262, § 15; 1995, ch. 243, § 2; 2021, ch. 352, § 85, effective September 1, 2022.

19-03.1-17.1. Criminal history record checks.

The board may require an applicant for registration or a registrant whose registration is subject to revocation or suspension or employees or officers of an applicant or registrant to submit to a statewide and nationwide criminal history record check. The nationwide criminal history record check must be conducted in the manner provided by section 12-60-24. All costs associated with obtaining a background check are the responsibility of the applicant or registrant.

Source:

S.L. 2007, ch. 115, § 7.

19-03.1-18. Revocation and suspension of registration.

  1. A registration under section 19-03.1-17 to manufacture, distribute, or dispense a controlled substance may be suspended or revoked by the board upon a finding that the registrant:
    1. Has furnished false or fraudulent material information in any application filed under this chapter;
    2. Has been convicted of a felony under any state or federal law relating to any controlled substance; or
    3. Has had the registrant’s federal registration suspended or revoked to manufacture, distribute, or dispense controlled substances.
  2. The board may limit revocation or suspension of a registration to the particular controlled substance with respect to which grounds for revocation or suspension exist.
  3. If the board suspends or revokes a registration, all controlled substances owned or possessed by the registrant at the time of suspension or the effective date of the revocation order may be placed under seal. No disposition may be made of substances under seal until the time for taking an appeal has elapsed or until all appeals have been concluded unless a court, upon application therefor, orders the sale of perishable substances and the deposit of the proceeds of the sale with the court. Upon a revocation order becoming final, all controlled substances may be forfeited to the state.
  4. The board shall promptly notify the bureau of all orders suspending or revoking registration and all forfeitures of controlled substances.

Source:

S.L. 1971, ch. 235, § 18; 1985, ch. 258, § 20; 1985, ch. 262, § 16.

19-03.1-19. Order to show cause.

  1. Before denying, suspending, or revoking a registration, or refusing a renewal of registration, the board shall serve upon the applicant or registrant an order to show cause why registration should not be denied, revoked, or suspended, or why the renewal should not be refused. The order to show cause must contain a statement of the basis therefor and must call upon the applicant or registrant to appear before the board at a time and place not less than thirty days after the date of service of the order, but in the case of a denial or renewal of registration the show cause order must be served not later than thirty days before the expiration of the registration. These proceedings must be conducted in accordance with chapter 28-32 without regard to any criminal prosecution or other proceeding. Proceedings to refuse renewal of registration do not abate the existing registration which remains in effect pending the outcome of the administrative hearing.
  2. The board may suspend, without an order to show cause, any registration simultaneously with the institution of proceedings under section 19-03.1-18, or where renewal of registration is refused, if it finds that there is an imminent danger to the public health or safety which warrants this action. The suspension continues in effect until the conclusion of the proceedings, including judicial review thereof, unless sooner withdrawn by the board or dissolved by a court of competent jurisdiction.

Source:

S.L. 1971, ch. 235, § 19; 1985, ch. 262, § 17.

19-03.1-20. Records of registrants.

Persons registered to manufacture, distribute, or dispense controlled substances under this chapter shall keep records and maintain inventories in conformance with the recordkeeping and inventory requirements of federal law and with any additional rules the board issues.

Source:

S.L. 1971, ch. 235, § 20; 1985, ch. 262, § 18.

19-03.1-20.1. Report of any theft or loss.

The registrant shall immediately, within one business day, notify the state board of pharmacy of any theft or significant loss of controlled substances. This report may be telephoned, faxed, or electronic mailed to the state board of pharmacy. In addition, significant loss has been further defined to include a list of factors that are relevant in deciding whether a loss was significant. This list is as follows:

  1. The actual quantity of controlled substances lost in relation to the type of business;
  2. The specific controlled substances lost;
  3. Whether the loss of the controlled substances can be associated with access to those controlled substances by specific individuals, or whether the loss can be attributed to unique activities that may take place involving the controlled substances;
  4. A pattern of losses over a specific time period, whether the losses appear to be random, and the results of efforts taken to resolve the losses; and, if known
  5. Whether specific controlled substances are likely candidates for diversion; and
  6. Local trends and other indicators of the diversion potential of the missing controlled substance.

Source:

S.L. 2007, ch. 208, § 6.

19-03.1-21. Order forms.

Controlled substances in schedules I and II must be distributed by a registrant to another registrant only pursuant to an order form. Compliance with the provisions of federal law respecting order forms must be deemed compliance with this section.

Source:

S.L. 1971, ch. 235, § 21.

19-03.1-22. Prescriptions.

  1. Except when dispensed directly by a practitioner, other than a pharmacy, to an ultimate user, no controlled substance in schedule II may be dispensed without the written prescription of a practitioner. When the patient is a hospice patient or resides in a licensed long-term care facility and the prescription has been signed by the practitioner before faxing, the facsimile may serve as the original prescription without another signature. The prescription may not be filled more than six months after the date it was written.
  2. In emergency situations, as defined by rule of the board, schedule II drugs may be dispensed upon oral prescription of a practitioner, reduced promptly to writing, and filed by the pharmacy. Prescriptions must be retained in conformity with the requirements of section 19-03.1-20. No prescription for a schedule II substance may be refilled.
  3. Except when dispensed directly by a practitioner, other than a pharmacy, to an ultimate user, a controlled substance included in schedule III or IV, which is a prescription drug as determined under this chapter or chapter 19-02.1, may not be dispensed without a written or oral prescription of a practitioner. The prescription may not be filled or refilled more than six months after the date thereof or be refilled more than five times, unless renewed by the practitioner. Any oral prescription for such drugs must be promptly reduced to writing by the pharmacist, intern, or technician on a new prescription blank. When the patient is a hospice patient or resides in a licensed long-term care facility and the prescription has been signed by the practitioner before faxing, the facsimile may serve as the original prescription without another signature.
  4. Except when dispensed directly by a practitioner, other than a pharmacy, to an ultimate user, no controlled substance included in schedule V must be dispensed without the written or oral prescription of a practitioner. The prescription may not be filled or refilled more than six months after the date thereof or be refilled more than five times unless renewed by the practitioner. Any oral prescription for such compound, mixture, or preparation must be promptly reduced to writing by the pharmacist, intern, or technician on a new prescription blank. When the patient is a hospice patient or resides in a licensed long-term care facility and the prescription has been signed by the practitioner before faxing, the facsimile may serve as the original prescription without another signature.

Source:

S.L. 1971, ch. 235, § 22; 1975, ch. 195, § 1; 1985, ch. 262, § 19; 1999, ch. 379, § 3; 2001, ch. 213, § 7; 2007, ch. 208, § 7.

Collateral References.

Prescriptions: construction of provision of Uniform Narcotic Drug Act requiring a physician’s prescription as a prerequisite to a pharmacist’s sale of narcotics, 10 A.L.R.3d 560.

Construction of provision of Uniform Narcotic Drug Act or similar statute dealing with obtaining or procuring the administration of a narcotic drug by fraud or deceit, 25 A.L.R.3d 1118.

Giving, selling, or prescribing dangerous drugs as contributing to the delinquency of a minor, 36 A.L.R.3d 1292.

Promotional efforts directed towards prescribing physician as affecting prescription drug manufacturer’s liability for product-caused injury, 94 A.L.R.3d 1080.

Defense of necessity, duress, or coercion in prosecution for violation of state narcotics law, 1 A.L.R.5th 938.

State law criminal liability of licensed physician for prescribing or dispensing drug or similar controlled substance, 13 A.L.R.5th 1.

Physician’s liability for injury or death resulting from side effects of drugs intentionally administered to or prescribed for patient, 47 A.L.R.5th 433.

19-03.1-22.1. Volatile chemicals — Inhalation of vapors prohibited — Definitions — Penalty.

  1. An individual is guilty of a class B misdemeanor if that individual intentionally inhales the vapors of a volatile chemical in a manner designed to affect the individual’s central nervous system; to create or induce a condition of intoxication, hallucination, or elation; or to distort, disturb, or change the individual’s eyesight, thinking processes, balance, or coordination. An individual is guilty of a class A misdemeanor if that individual violates this section for a third or subsequent offense within one year of the first offense. For a third or subsequent offense, the sentence must include an order for an addiction evaluation by, and compliance with recommendations from, an appropriate licensed addiction treatment program.
  2. This section does not apply to inhalations specifically prescribed for medical, dental, or optometric treatment purposes or to controlled substances described in this chapter. For the purposes of this section, “volatile chemical” includes the following chemicals or their isomers:
    1. Acetone.
    2. Aliphatic hydrocarbons.
    3. Amyl nitrite.
    4. Butane.
    5. Butyl nitrite.
    6. Carbon tetrachloride.
    7. Chlorinated hydrocarbons.
    8. Chlorofluorocarbons.
    9. Chloroform.
    10. Cyclohexane.
    11. Diethyl ether.
    12. Ethyl acetate.
    13. Fluorocarbon.
    14. Glycol ether inter solvent.
    15. Glycol ether solvent.
    16. Hexane.
    17. Ketone solvent.
    18. Methanol.
    19. Methyl cellosolve acetate.
    20. Methyl ethyl ketone.
    21. Methyl isobutyl ketone.
    22. Nitrous oxide.
    23. Petroleum distillate.
    24. Toluene.
    25. Trichloroethane.
    26. Trichloroethylene.

aa. Xylol or xylene.

Source:

S.L. 2001, ch. 214, § 3; 2021, ch. 174, § 1, effective August 1, 2021.

19-03.1-22.2. Endangerment of child or vulnerable adult.

  1. For purposes of this section:
    1. “Chemical substance” means a substance intended to be used as a precursor in the manufacture of a controlled substance or any other chemical intended to be used in the manufacture of a controlled substance. Intent under this subsection may be demonstrated by the substance’s use, quantity, manner of storage, or proximity to other precursors or to manufacturing equipment.
    2. “Child” means an individual who is under the age of eighteen years.
    3. “Controlled substance” means the same as that term is defined in section 19-03.1-01, except the term does not include less than one-half ounce [14.175 grams] of marijuana or less than two grams of tetrahydrocannabinol.
    4. “Drug paraphernalia” means the same as that term is defined in section 19-03.4-01.
    5. “Prescription” means the same as that term is described in section 19-03.1-22.
    6. “Vulnerable adult” means a vulnerable adult as the term is defined in section 50-25.2-01.
  2. Unless a greater penalty is otherwise provided by law, a person who knowingly or intentionally causes or permits a child or vulnerable adult to be exposed to, to ingest or inhale, or to have contact with a controlled substance, chemical substance, or drug paraphernalia as defined in subsection 1, is guilty of a class C felony.
  3. Unless a greater penalty is otherwise provided by law, a person who violates subsection 2, and a child or vulnerable adult actually suffers bodily injury by exposure to, ingestion of, inhalation of, or contact with a controlled substance, chemical substance, or drug paraphernalia, is guilty of a class B felony unless the exposure, ingestion, inhalation, or contact results in the death of the child or vulnerable adult, in which case the person is guilty of a class A felony.
  4. It is an affirmative defense to a violation of this section that the controlled substance was provided by lawful prescription for the child or vulnerable adult and that it was administered to the child or vulnerable adult in accordance with the prescription instructions provided with the controlled substance.

Source:

S.L. 2003, ch. 183, § 1; 2017, ch. 74, § 5, effective August 1, 2017; 2021, ch. 172, § 3, effective May 3, 2021.

Notes to Decisions

Definition of “Child”

When defendant, who was 29 weeks pregnant, overdosed on prescription pills, a trial court erred in not granting defendant’s motion to dismiss a charge of endangerment of a child because “child” was not defined as an unborn child for the purposes of N.D.C.C. § 19-03.1-22.2(1)(b). State v. Geiser, 2009 ND 36, 763 N.W.2d 469, 2009 N.D. LEXIS 57 (N.D. 2009).

Unborn child is not included in the definition of a child, under N.D.C.C. § 19-03.1-22.2(1)(b). State v. Geiser, 2009 ND 36, 763 N.W.2d 469, 2009 N.D. LEXIS 57 (N.D. 2009).

Interpretation.

Charge of endangerment of a child under N.D.C.C. § 19-03.1-22.2 does not apply to acts committed by the mother against an unborn child. State v. Stegall, 2013 ND 49, 828 N.W.2d 526, 2013 N.D. LEXIS 52 (N.D. 2013).

Offense of endangerment of a child under N.D.C.C. § 19-03.1-22.2 does not apply to acts committed on an unborn child, regardless if the child is subsequently born alive or dies in utero. State v. Stegall, 2013 ND 49, 828 N.W.2d 526, 2013 N.D. LEXIS 52 (N.D. 2013).

There is no distinction between a factual scenario in which a pregnant woman prenatally ingests a controlled substance and the child subsequently dies in utero and the factual scenario in which the child is born alive for purposes of criminal prosecution of the mother. Therefore, a mother is not criminally liable for endangerment of a child under N.D.C.C. § 19-03.1-22.2 for acts the mother commits that expose her unborn child to controlled substances. State v. Stegall, 2013 ND 49, 828 N.W.2d 526, 2013 N.D. LEXIS 52 (N.D. 2013).

Pregnant woman is not criminally liable for endangerment of a child for prenatal conduct that ultimately harms a child born alive. State v. Stegall, 2013 ND 49, 828 N.W.2d 526, 2013 N.D. LEXIS 52 (N.D. 2013).

Law Reviews.

North Dakota Supreme Court Review, (State v. Geiser, 2009 ND 36, 763 N.W.2d 469 (2009)), see 85 N. Dak. L. Rev. 503 (2009).

19-03.1-22.3. Ingesting a controlled substance — Venue for violation-Penalty.

  1. Except as provided in subsection 2, a person who intentionally ingests, inhales, injects, or otherwise takes into the body a controlled substance, unless the substance was obtained directly from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of the practitioner’s professional practice, is guilty of a class A misdemeanor. This subsection does not apply to ingesting, inhaling, injecting, or otherwise taking into the body marijuana or tetrahydrocannabinol.
  2. A person who is under twenty-one years of age and intentionally ingests, inhales, injects, or otherwise takes into the body a controlled substance that is marijuana or tetrahydrocannabinol, unless the substance was medical marijuana obtained in accordance with chapter 19-24.1, is guilty of a class B misdemeanor.
  3. The venue for a violation of this section exists in either the jurisdiction in which the controlled substance was ingested, inhaled, injected, or otherwise taken into the body or the jurisdiction in which the controlled substance was detected in the body of the accused.

Source:

S.L. 2005, ch. 193, § 1; 2017, ch. 108, § 10, effective April 21, 2017; 2017, ch. 164, § 5, effective August 1, 2017; 2019, ch. 186, § 2, effective August 1, 2019; 2021, ch. 172, § 4, effective May 3, 2021.

19-03.1-22.4. Controlled substances dispensed by means of the internet.

  1. As used in this section:
    1. “Covering practitioner” means, with respect to a patient, a practitioner who conducts a medical evaluation, other than an in-person medical evaluation, at the request of a practitioner who:
      1. Has conducted at least one in-person medical evaluation of the patient or an evaluation of the patient through the practice of telemedicine, within the previous twenty-four months; and
      2. Is temporarily unavailable to conduct the evaluation of the patient.
    2. “Deliver, distribute, or dispense by means of the internet” refers, respectively, to delivery, distribution, or dispensing of a controlled substance that is caused or facilitated by means of the internet.
    3. “In-person medical evaluation” means a medical evaluation that is conducted with the patient in the physical presence of the practitioner, without regard to whether portions of the evaluation are conducted by other health professionals.
    4. “Internet” and “practice of telemedicine” have the meanings set forth in the Ryan Haight Online Pharmacy Consumer Protection Act of 2008 [Pub. L. 110-425; 21 U.S.C. 802-803].
    5. “Valid prescription” means a prescription that is issued for a legitimate medical purpose in the usual course of professional practice by a:
      1. Practitioner who has conducted at least one in-person medical evaluation of the patient; or
      2. Covering practitioner.
  2. A controlled substance that is a prescription drug may not be delivered, distributed, or dispensed by means of the internet without a valid prescription, but nothing in this subsection may be construed to imply that one in-person medical evaluation by itself demonstrates that a prescription has been validly issued for a legitimate medical purpose within the usual course of professional practice.
  3. This section applies to the delivery, distribution, and dispensing of a controlled substance by means of the internet from a location whether within or outside this state to a person or an address in this state.
  4. Nothing in this section applies to the delivery, distribution, or dispensing of a controlled substance by a practitioner engaged in the practice of telemedicine in accordance with applicable federal and state laws.
  5. Nothing in this section may be construed as authorizing, prohibiting, or limiting the use of electronic prescriptions for controlled substances.

Source:

S.L. 2009, ch. 198, § 3.

19-03.1-22.5. Controlled substance analog use — Venue for violation — Penalty.

  1. The use of controlled substance analog includes the ingestion, inhalation, absorption, or any other method of taking the controlled substance analog into the body. An individual who intentionally uses a controlled substance analog is guilty of a class A misdemeanor for a first offense and a class C felony for a second or subsequent offense, unless the individual obtains the analog directly from a practitioner or pursuant to a valid prescription or order of a practitioner.
  2. The venue for a violation under this section exists in the jurisdiction in which the substance was used or in which the substance was detected.

Source:

S.L. 2013, ch. 183, § 7; 2017, ch. 108, § 11, effective April 21, 2017.

19-03.1-23. Prohibited acts — Penalties. [Effective through August 31, 2022]

  1. Except as authorized by this chapter, it is unlawful for a person to willfully, as defined in section 12.1-02-02, manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance, or to deliver, distribute, or dispense a controlled substance by means of the internet, but a person who violates section 12-46-24 or 12-47-21 may not be prosecuted under this subsection. A person who violates this subsection with respect to:
    1. A controlled substance classified in schedule I or II which is a narcotic drug, or methamphetamine, is guilty of a class B felony.
    2. Any other controlled substance classified in schedule I, II, or III, or a controlled substance analog, except marijuana or tetrahydrocannabinol is guilty of a class B felony.
    3. Marijuana, tetrahydrocannabinol, or a substance classified in schedule IV, is guilty of a class C felony.
    4. A substance classified in schedule V, is guilty of a class A misdemeanor.
  2. A prior misdemeanor conviction under subsection 7 or a prior conviction under subsection 3 or 4 of section 19-03.4-03 may not be considered a prior offense under subsection 1.
  3. Except as authorized by this chapter, it is unlawful for any person to willfully, as defined in section 12.1-02-02, create, deliver, distribute, or dispense a counterfeit substance by means of the internet or any other means, or possess with intent to deliver, a counterfeit substance by means of the internet or any other means, but any person who violates section 12-46-24 or 12-47-21 may not be prosecuted under this subsection. Any person who violates this subsection with respect to:
    1. A counterfeit substance classified in schedule I, II, or III, is guilty of a class B felony.
    2. A counterfeit substance classified in schedule IV, is guilty of a class C felony.
    3. A counterfeit substance classified in schedule V, is guilty of a class A misdemeanor.
  4. A person at least eighteen years of age who solicits, induces, intimidates, employs, hires, or uses a person under eighteen years of age to aid or assist in the manufacture, delivery, or possession with intent to manufacture or deliver a controlled substance for the purpose of receiving consideration or payment for the manufacture or delivery of any controlled substance is guilty of a class B felony.
  5. Except for a prior conviction equivalent to a misdemeanor violation of subsection 7 or a prior conviction under subsection 3 or 4 of section 19-03.4-03, a violation of this title or a law of another state or the federal government which is equivalent to an offense with respect to the manufacture, delivery, or intent to deliver a controlled substance under this title committed while the offender was an adult and which resulted in a plea or finding of guilt must be considered a prior offense under subsection 1. The prior offense must be alleged in the complaint, information, or indictment. The plea or finding of guilt for the prior offense must have occurred before the date of the commission of the offense or offenses charged in the complaint, information, or indictment.
  6. It is unlawful for a person to willfully, as defined in section 12.1-02-02:
    1. Serve as an agent, intermediary, or other entity that causes the internet to be used to bring together a buyer and seller to engage in the delivery, distribution, or dispensing of a controlled substance in a manner not authorized by this chapter; or
    2. Offer to fill or refill a prescription for a controlled substance based solely on a consumer’s completion of an online medical questionnaire.
    1. It is unlawful for any person to willfully, as defined in section 12.1-02-02, possess a controlled substance or a controlled substance analog unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of the practitioner’s professional practice, or except as otherwise authorized by this chapter, but any person who violates section 12-46-24 or 12-47-21 may not be prosecuted under this subsection.
    2. Except as otherwise provided in this subsection, any person who violates this subsection is guilty of a class A misdemeanor for the first offense under this subsection and a class C felony for a second or subsequent offense under this subsection.
    3. If, at the time of the offense the person is in or on the real property comprising a public or private elementary or secondary school or a public career and technical education school, the person is guilty of a class B felony, unless the offense involves marijuana or tetrahydrocannabinol.
    4. A person who violates this subsection by possessing:
      1. Marijuana:
        1. In an amount of less than one-half ounce [14.175 grams] is guilty of an infraction.
        2. At least one-half ounce [14.175 grams] but not more than 500 grams of marijuana is guilty of a class B misdemeanor.
        3. More than 500 grams of marijuana is guilty of a class A misdemeanor.
      2. Tetrahydrocannabinol:
        1. In an amount less than two grams is guilty of an infraction.
        2. At least two grams but not more than six grams of tetrahydrocannabinol is guilty of a class B misdemeanor.
        3. More than six grams of tetrahydrocannabinol is guilty of a class A misdemeanor.
    5. If an individual is sentenced to the legal and physical custody of the department of corrections and rehabilitation under this subsection, the department may place the individual in a drug and alcohol treatment program designated by the department. Upon the successful completion of the drug and alcohol treatment program, the department shall release the individual from imprisonment to begin any court-ordered period of probation.
    6. If the individual is not subject to any court-ordered probation, the court shall order the individual to serve the remainder of the sentence of imprisonment on supervised probation subject to the terms and conditions imposed by the court.
    7. Probation under this subsection may include placement in another facility, treatment program, or drug court. If an individual is placed in another facility or treatment program upon release from imprisonment, the remainder of the sentence must be considered as time spent in custody.
    8. An individual incarcerated under this subsection as a result of a second probation revocation is not eligible for release from imprisonment upon the successful completion of treatment.
    9. A person who violates this subsection regarding possession of five or fewer capsules, pills, or tablets of a schedule II, III, IV, or V controlled substance or controlled substance analog is guilty of a class A misdemeanor.
  7. Except as provided by section 19-03.1-45, a court may order a person who violates this chapter or chapter 19-03.4 to undergo a drug addiction evaluation by a licensed addiction counselor. The evaluation must indicate the prospects for rehabilitation and whether addiction treatment is required. If ordered, the evaluation must be submitted to the court before imposing punishment for a felony violation or a misdemeanor violation.
  8. If a person pleads guilty or is found guilty of a first offense regarding possession of one ounce [28.35 grams] or less of marijuana or two grams or less of tetrahydrocannabinol and a judgment of guilt is entered, a court, upon motion, shall seal the court record of that conviction if the person is not subsequently convicted within two years of a further violation of this chapter. Once sealed, the court record may not be opened even by order of the court.
  9. Upon successful completion of a drug court program, a person who has been convicted of a felony under this section and sentenced to drug court is deemed to have been convicted of a misdemeanor.
  10. If a person convicted of a misdemeanor under this section is sentenced to drug court and successfully completes a drug court program, the court shall dismiss the case and seal the file in accordance with section 12.1-32-07.2.

It is not a defense to a violation of this subsection that the defendant did not know the age of a person protected under this subsection.

A person who violates this subsection is guilty of a class C felony.

Source:

S.L. 1971, ch. 235, § 23; 1973, ch. 199, §§ 1, 2; 1975, ch. 106, § 168; 1975, ch. 110, §§ 9 to 11; 1979, ch. 172, § 28; 1979, ch. 187, § 29; 1979, ch. 287, § 4; 1983, ch. 255, § 1; 1989, ch. 267, § 1; 1993, ch. 128, § 3; 1995, ch. 120, § 18; 1997, ch. 131, § 3; 1997, ch. 205, § 1; 1999, ch. 16, § 7; 2001, ch. 214, § 4; 2001, ch. 215, § 1; 2003, ch. 138, § 70; 2005, ch. 196, § 2; 2007, ch. 210, § 1; 2007, ch. 211, § 1; 2009, ch. 198, § 4; 2011, ch. 162, § 1; 2013, ch. 183, §§ 5, 6; 2015, ch. 170, § 1, effective August 1, 2015; 2017, ch. 108, § 12, effective April 21, 2017; 2017, ch. 164, § 6, effective August 1, 2017; 2017, ch. 165, §§ 1, 2, effective August 1, 2017; 2019, ch. 186, § 3, effective August 1, 2019; 2019, ch. 187, § 2, effective August 1, 2019; 2019, ch. 188, § 2, effective August 1, 2019; 2021, ch. 172, § 5, effective May 3, 2021.

Effective Date.

The 2015 amendment of this section by section 1 of chapter 170, S.L. 2015 became effective August 1, 2015.

Note.

Section 19-03.1-23 was amended 4 times by the 2021 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 2 of Chapter 110, Session Laws 2021, Senate Bill 2246; Section 2 of Chapter 176, Session Laws 2021, Senate Bill 2264; Section 5 of Chapter 172, Session Laws 2021, House Bill 1213; and Section 3 of Chapter 175, Session Laws 2021, Senate Bill 2283.

Section 19-03.1-23 was amended 3 times by the 2019 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 2 of Chapter 188, Session Laws 2019, House Bill 1164; Section 3 of Chapter 186, Session Laws 2019, House Bill 1050; and Section 2 of Chapter 187, Session Laws 2019, House Bill 1183.

Section 19-03.1-23 was amended 4 times by the 2017 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Sections 1 and 2 of Chapter 165, Session Laws 2017, House Bill 1341; Section 12 of Chapter 108, Session Laws 2017, House Bill 1041; Section 6 of Chapter 164, Session Laws 2017, House Bill 1269.

Cross-References.

Giving alcoholic beverages to prisoner, see N.D.C.C. § 12-44.1-21.

Penitentiary, alcoholic beverages and controlled substances prohibited, see N.D.C.C. § 12-47-21.

Youth correctional center, prohibition on delivery or possession of alcoholic beverages or controlled substances to or by students, see N.D.C.C. § 12-46-24.

Notes to Decisions

Constitutionality.

Fact that offense defined in subsection 1 of this section is a strict liability offense does not make this section unconstitutional. State v. Rippley, 319 N.W.2d 129, 1982 N.D. LEXIS 273 (N.D. 1982).

Applicability.

Finding that an amendment to N.D.C.C. § 19-03.1-23(5) did not apply at the time of sentencing was error because as ameliorating penal legislation, it applied retroactively, and because his right to appeal had not been exhausted before the statute’s effective date, appellant had not been finally convicted. State v. Cook, 2018 ND 100, 910 N.W.2d 179, 2018 N.D. LEXIS 106 (N.D. 2018).

Attempted Manufacture.

Where the defendant's criminal purpose was clearly demonstrated; he had gone as far as he could in implementing that purpose; and, as a result, his dangerousness was plainly manifested, he could not escape prosecution because he clumsily used the wrong brand of inhaler in attempting to manufacture a methamphetamine isomer. State v. Erban, 429 N.W.2d 408, 1988 N.D. LEXIS 249 (N.D. 1988)

If the substance intended to be manufactured was not controlled, it would have had a clear impact on the verdict and conviction would be a serious injustice; one cannot be convicted of attempt to manufacture a controlled substance if the intended substance is not controlled, therefore the issue whether the intended substance is controlled can be reviewed although not raised in trial court. State v. Erban, 429 N.W.2d 408, 1988 N.D. LEXIS 249 (N.D. 1988).

Evidence was sufficient to convict defendant of criminal attempt to manufacture methamphetamine because (1) an agent with a narcotics task force testified that defendant possessed two prepared precursors of methamphetamine - cold pills and anhydrous ammonia; (2) those two of the six required chemical components of methamphetamine were the most difficult elements of methamphetamine to obtain, because each was regulated by state law; (3) although he still needed the over-the-counter items to complete the manufacturing process, the agent testified that defendant possessed enough of each of those two ingredients to manufacture methamphetamine; and (4) methamphetamine residue was found on a coffee filter found in defendant’s vehicle. State v. Stensaker, 2007 ND 6, 725 N.W.2d 883, 2007 N.D. LEXIS 7 (N.D. 2007).

Cocaine.

Cocaine is a controlled substance classified in schedule II and is a narcotic drug; delivery of cocaine in violation of subsection 1 of this section is a class A felony. State v. Kainz, 321 N.W.2d 478, 1982 N.D. LEXIS 299 (N.D. 1982).

Construction.

Subsection 3a does not enhance the penalty for delivery of a controlled substance within 1000 feet of school property, but merely removes a sentencing court’s discretion to sentence a convicted defendant to less than four years of imprisonment with a range of up to twenty years. State v. Freed, 1999 ND 185, 599 N.W.2d 858, 1999 N.D. LEXIS 203 (N.D. 1999).

Desoxyephedrine.

1-desoxyephedrine is an isomer of methamphetamine and is controlled. State v. Erban, 429 N.W.2d 408, 1988 N.D. LEXIS 249 (N.D. 1988).

Expert Testimony.

An experienced, well-trained, and knowledgeable law officer, testifying as an expert witness, may give his opinion that a certain quantity of marijuana would normally be possessed for purposes of sale rather than for personal use. State v. Morris, 331 N.W.2d 48, 1983 N.D. LEXIS 243 (N.D. 1983).

Failure to Allege Prior Offenses.

Despite the State’s failure to allege in the information the prior offenses upon which it was relying to satisfy (1)(a)(3) of this section, defendant’s conviction was not reversed because the irregularity did not affect a substantial right where defendant had actual knowledge that the State intended to use prior Minnesota convictions to seek the mandatory minimum sentence when he received certified copies of the record relating to his prior convictions during discovery. State v. Mora, 2000 ND 179, 617 N.W.2d 478, 2000 N.D. LEXIS 190 (N.D. 2000).

Formula for Controlled Substance.

Where no methamphetamine was found in search of the premises or the search of defendant, the recipe for that substance found on defendant’s person was relevant to show the identity of the controlled substance that he allegedly injected into another person. State v. Raywalt, 444 N.W.2d 688, 1989 N.D. LEXIS 161 (N.D. 1989).

Impossibility Defense.

N.D.C.C. § 12.1-06-01(1) is intended to abolish impossibility as a defense whether based upon fact, law, or a combination of both. State v. Erban, 429 N.W.2d 408, 1988 N.D. LEXIS 249 (N.D. 1988).

Jury Instructions.

Where the jury instructions, as a whole, adequately advised the jury of the law, and there would have been no confusion as to the person to whom the controlled substance was delivered, any error in the jury instructions was harmless. State v. Raywalt, 444 N.W.2d 688, 1989 N.D. LEXIS 161 (N.D. 1989).

Although defendant, who claimed her intoxication negated the culpability requirement of “willfully,” objected to the court giving any intoxication instruction, the defendant did not propose additional or more detailed instructions, and could not predicate error on the court’s failure to more fully instruct. State v. Barnes, 551 N.W.2d 279, 1996 N.D. LEXIS 173 (N.D. 1996).

There was no relevant evidence upon which a jury could find defendant was so intoxicated as to negate the culpability element of the crime, and a defendant is entitled to an instruction based on a legal defense only if there is evidence to support it. State v. Barnes, 551 N.W.2d 279, 1996 N.D. LEXIS 173 (N.D. 1996).

Trial court properly instructed the jury as to the essential elements of the offense of possession of a controlled substance with intent to deliver; because the Michlitsch affirmative defense jury instruction no longer applies to this section it could not have been ineffective assistance of counsel for defendant’s attorney not to have requested the instruction. State v. Bell, 2002 ND 130, 649 N.W.2d 243, 2002 N.D. LEXIS 174 (N.D. 2002).

Medical Marijuana Defense.

In a case involving two defendants who were convicted of possession of marijuana with intent to deliver, the district court did not abuse its discretion by refusing to admit defendants' medical marijuana prescriptions from the State of Washington as a lawful defense under the Uniform Controlled Substances Act. State v. Kuruc, 2014 ND 95, 846 N.W.2d 314, 2014 N.D. LEXIS 97 (N.D. 2014)

Motion to Suppress.

Although the penalty for possession of less than one-half ounce, or 14.175 grams, of marijuana had been reduced to an infraction offense, because an infraction was a criminal offense, the officer detected an odor of raw marijuana emanating from the interior of the vehicle during the traffic stop, and the officer was trained in identifying the odor of marijuana in its raw and burnt form, there was probable cause to believe criminal activity was afoot, and to deny defendant’s motion to suppress. State v. Bolme, 2020 ND 255, 952 N.W.2d 75, 2020 N.D. LEXIS 258 (N.D. 2020).

Possession.

In both offenses of simple possession of a controlled substance and possession of a controlled substance with intent to deliver, the state is not required to prove the accused had knowledge of the presence of the drug or knowledge of the identity of the drug. State v. Morris, 331 N.W.2d 48, 1983 N.D. LEXIS 243 (N.D. 1983).

Possession of a controlled substance may be actual or constructive, exclusive or joint, and may be shown entirely by circumstantial evidence; constructive possession requires proof that accused had the power and capability to exercise dominion and control over the controlled substance, and can be inferred from the totality of circumstances associated with a particular case. State v. Morris, 331 N.W.2d 48, 1983 N.D. LEXIS 243 (N.D. 1983).

Possession may be actual or constructive, exclusive or joint, and may be shown entirely by circumstantial evidence. State v. Connery, 441 N.W.2d 651, 1989 N.D. LEXIS 112 (N.D. 1989).

There was sufficient circumstantial evidence to sustain a guilty verdict for possession of marijuana where a container of marijuana was found in the general vicinity of similar contraband. State v. Connery, 441 N.W.2d 651, 1989 N.D. LEXIS 112 (N.D. 1989).

Although other persons had been in defendant’s car where a controlled substance was located, the presence of others did not preclude an inference of possession of something found in the car that defendant had recently driven. State v. Shores, 444 N.W.2d 701, 1989 N.D. LEXIS 175 (N.D. 1989).

—Constructive Possession.

Constructive possession may be established by showing that the accused had the power and capability to exercise dominion and control over the contraband. State v. Connery, 441 N.W.2d 651, 1989 N.D. LEXIS 112 (N.D. 1989).

There was sufficient evidence of constructive possession under this section where heroin was found in dresser drawer in bedroom occupied by defendant and his wife, and defendant and his wife lived in their home alone, though defendant was not present at the time of search. State v. Dymowski, 458 N.W.2d 490, 1990 N.D. LEXIS 135 (N.D. 1990).

There was corroborating evidence to support the testimony of an accomplice in a drug case where police found clothes apparently belonging to defendant at a residence where an alleged assault occurred and drugs were found; moreover, the damage to the residence and the blood evidence found further supported the victim’s story that a violent incident involving defendant had occurred. The evidence placing defendant at the scene was sufficient to connect him with the drugs found under the doctrine of constructive possession; therefore, he was properly convicted of possession of methamphetamine with intent to manufacture, possession of drug paraphernalia for use with methamphetamine, and possession of methamphetamine. State v. Falconer, 2007 ND 89, 732 N.W.2d 703, 2007 N.D. LEXIS 84 (N.D. 2007).

—Evidence of Possession.

Prosecuting attorney’s statement in support of an appeal of the order granting defendant’s motion to suppress did not satisfy the requirements of N.D.C.C. § 29-28-07(5), because it did not explain the need for the suppressed evidence to proceed with the charge of unlawful possession of a controlled substance in violation of N.D.C.C. § 19-03.1-23. The trial court did not suppress evidence found in plain view of a metal cleaning rod on a bedside table with burned marijuana residue, and defendant told the officers all drugs found in the bedroom belonged to her. State v. Peterson, 2011 ND 109, 799 N.W.2d 67, 2011 N.D. LEXIS 116 (N.D. 2011).

There was sufficient evidence to support a conviction for possession of methamphetamine with intent to deliver because law enforcement officers discovered a substantial amount of methamphetamine, as well as drug paraphernalia, on defendant's person and inside the vehicle in which he was the sole occupant. State v. Ostby, 2014 ND 180, 853 N.W.2d 556, 2014 N.D. LEXIS 184 (N.D. 2014).

—With Intent to Deliver.

Neither the intent to possess a controlled substance nor knowledge that the item possessed is a controlled substance is an essential element of the offense of possession of a controlled substance with intent to deliver; however, intent to deliver is an essential element of the offense. State v. Morris, 331 N.W.2d 48, 1983 N.D. LEXIS 243 (N.D. 1983).

On an appeal of a controlled substance conviction where there was conflicting evidence regarding the informant’s conduct, whether or not the informant initiated the sale of marijuana and whether or not the informant improperly coerced commission of the offense, in viewing the evidence in the light most favorable to the verdict, there was substantial evidence to support the jury verdict of guilt. State v. Rehling, 426 N.W.2d 6, 1988 N.D. LEXIS 166 (N.D. 1988).

Evidence held sufficient to establish the crime of possession of a controlled substance with intent to deliver. State v. Rodriguez, 454 N.W.2d 726, 1990 N.D. LEXIS 93 (N.D. 1990).

Probable Cause Supporting Charge.

District court erred in dismissing with prejudice a class B felony charge of possession of a controlled substance with intent to deliver against defendant for lack of probable cause as there was sufficient evidence presented at the preliminary hearing to establish probable cause that defendant committed the offense as a matter of law because an officer testified that he found a sizable amount of marijuana that looked like it had been processed into smaller, equal pieces for distribution; a box to a small pocket scale; a grinder; baggies containing marijuana; and $379 in cash in defendant's bedroom. State v. Turbeville, 2017 ND 139, 895 N.W.2d 758, 2017 N.D. LEXIS 146 (N.D. 2017).

Search Warrants.

District court, in a bench trial, properly found defendant guilty of possession of a controlled substance and possession of drug paraphernalia because law enforcement relied on an Ohio search warrant in good faith by checking its validity numerous times, circumstantial evidence provided proof of defendant’s intent to use paraphernalia where he hindered law enforcement’s efforts to pat down his leg, and when the object was found, first said the object in his sock was a knife, and then admitted it was a methamphetamine pipe, the pipe tested positive for methamphetamine, defendant was a known drug user. State v. Marcum, 2020 ND 50, 939 N.W.2d 840, 2020 N.D. LEXIS 48 (N.D. 2020).

—Insufficient Evidence.

Evidence submitted in support of the search warrant, consisting of an investigator’s unsupported statement of defendant’s reputation, records of higher than normal water usage, and electrical consumption did not establish a substantial basis to believe that evidence connected with criminal activity would be found at the defendant’s house. State v. Ennen, 496 N.W.2d 46, 1993 N.D. LEXIS 21 (N.D. 1993).

—Probable Cause.

The presence of marijuana seeds in a garbage bag, which also contained bank deposit slips bearing defendant’s name, would warrant a person of reasonable caution to believe there was probably more marijuana inside his home, and the fact that the seeds were not capable of germination, or might have been derived from a package of birdseed, could be significant to trial, but was not crucial to a finding of probable cause. State v. Johnson, 531 N.W.2d 275, 1995 N.D. LEXIS 88 (N.D. 1995).

Second Offense.

When a defendant is charged in a single information with two counts of delivery of a controlled substance for two separate incidents, the mandatory minimum sentence for a second offense under subsection (1)(a)(2) applies to the second count. State v. Jones, 1999 ND 61, 591 N.W.2d 135, 1999 N.D. LEXIS 62 (N.D. 1999).

Sentencing.

Sentence of ten years, with four years suspended and five years of supervised probation, for defendant’s conviction of unlawful delivery of a controlled substance was affirmed because defendant’s sentence was within the range of sentences for a Class A Felony, and defendant failed to show that the district court substantially relied upon an impermissible factor in sentencing; the trial court determined defendant was engaged in an ongoing enterprise of selling drugs and this was a reasonable inference based upon the evidence in the record and was a factor the trial court could consider during sentencing, and the trial court also considered at least seven other factors in sentencing defendant, all of which were listed in N.D.C.C. § 12.1-32-04. State v. Hoverson, 2006 ND 49, 710 N.W.2d 890, 2006 N.D. LEXIS 53 (N.D. 2006).

Defendant’s conviction for possession of marijuana with intent to deliver was not subject to enhancement under N.D.C.C. § 19-03.1-23.1(1)(a) as this statute provided an offense enhancement only for the manufacture and distribution of a controlled substance within 1,000 feet of a school. The inclusion of manufacture and distribution in this provision implied that possession with intent to deliver was excluded. Furthermore, possession of a controlled substance with the intent to deliver could not have “involved” distribution of a controlled substance by the defendant, because the defendant had not yet distributed it; instead, only circumstances that indicated an intent to deliver the controlled substance existed. State v. Dennis, 2007 ND 87, 733 N.W.2d 241, 2007 N.D. LEXIS 88 (N.D. 2007).

Defendant’s conviction and sentence under N.D.C.C. § 19-03.1-23(1)(a) was reversed as the trial court should not have required his prior cocaine-related conviction to be admitted at trial because, under N.D.C.C. § 19-03.1-23(1)(a)(1), one prior conviction for possession of a controlled substance with intent to deliver enhances a defendant’s sentence, but it does not enhance the offense from a class A felony to a more serious class and a prior conviction that enhances a sentence, but not the seriousness of the offense, is generally not regarded as an element of the offense; thus, Apprendi did not require the prior conviction be proved “beyond a reasonable doubt to a unanimous jury”. Furthermore, it was ineffective assistance for defense counsel to succumb to the trial court’s misunderstanding of Apprendi and to stipulate to sending the prior conviction to the jury; admission of that evidence constituted prejudicial and reversible error. State v. Tutt, 2007 ND 77, 732 N.W.2d 382, 2007 N.D. LEXIS 79 (N.D. 2007).

Defendant’s mandatory minimum sentences of 20 years in prison on each of two counts of delivery of methamphetamine, with the sentences to run concurrently, were proper because the sentences were within the range authorized by the statute. State v. Loh, 2010 ND 66, 780 N.W.2d 719, 2010 N.D. LEXIS 57 (N.D. 2010).

Defendant’s sentence was properly enhanced to a 20-year mandatory minimum under N.D.C.C. § 19-03.1-23(1) because although defendant was convicted of three prior offenses all on the same date, defendant was convicted of those offenses before the criminal conduct before the court occurred; the convictions did not have to all be sequential. State v. Charbonneau, 2010 ND 246, 792 N.W.2d 530, 2010 N.D. LEXIS 242 (N.D. 2010).

District court substantially complied with N.D. R. Crim. P. 11 in accepting defendant's guilty plea where, although the district court did not specifically inform defendant of the additional mandatory eight-year consecutive sentence under this section before accepting his plea, the transcripts of the hearings plainly showed that defendant was informed and understood he was facing the possibility of a mandatory minimum sentence of 28-years in prison for delivery of cocaine within 1,000 feet of a school. State v. Murphy, 2014 ND 202, 855 N.W.2d 647, 2014 N.D. LEXIS 206 (N.D. 2014).

Plain language of N.D.C.C. § 19-03.1-23.2 allows the court the discretion to suspend the defendant's sentence for a “first violation,” without including an “equivalent” offense. That is not to say, however, a court would not consider an “equivalent” offense as contemplated under this section because the court must still find “extenuating or mitigating circumstances” to justify any suspension of a sentence; a district court's analysis could still include consideration of a defendant's “equivalent” convictions in any other state or federal jurisdiction. State v. Murphy, 2014 ND 202, 855 N.W.2d 647, 2014 N.D. LEXIS 206 (N.D. 2014).

In a case in which defendant was convicted of possession of cocaine with intent to deliver, the district court's denial of defendant's motion to strike his 20-year mandatory minimum sentence did not amount to obvious error. Defendant had been previously convicted for two offenses of prior criminal conduct - delivery of marijuana and delivery of marijuana within 1,000 feet of a school. State v. Smith, 2015 ND 133, 864 N.W.2d 259, 2015 N.D. LEXIS 118 (N.D. 2015).

Appellant’s sentence was affirmed where the amended information alleged two prior convictions, appellant was sentenced prior to the effective date of a statutory amendment reducing the mandatory minimum sentence for a third offense, and the sentence was within the limits prescribed by N.D.C.C. § 19-03.1-23(1)(a) as it read at the time of sentencing. State v. Cook, 2018 ND 100, 910 N.W.2d 179, 2018 N.D. LEXIS 106 (N.D. 2018).

It was error to impose a mandatory minimum sentence because defendant’s prior deferred imposition of sentence could not be used to trigger the sentence once defendant completed probation and the case was dismissed, as the phrase “the prior conviction for which imposition of sentence is deferred” in N.D.C.C. § 12.1-32-02(4) referred to a deferred sentence that had not been dismissed. State v. Nelson, 2019 ND 204, 932 N.W.2d 101, 2019 N.D. LEXIS 208 (N.D. 2019).

Strict Liability Offense.

Offense defined in subsection 1 of this section is a strict liability offense. State v. Rippley, 319 N.W.2d 129, 1982 N.D. LEXIS 273 (N.D. 1982).

Where defendant did not request an affirmative-defense instruction on the grounds that he “unknowingly or unwittingly” possessed cocaine, nor present any evidence in support of such a defense, but rather, sought to make “knowingly” an essential culpability element under this section, contrary to previous decisions of Supreme Court, the district court did not err in denying his proposed jury instructions. State v. Rodriguez, 454 N.W.2d 726, 1990 N.D. LEXIS 93 (N.D. 1990) (decided under law in effect prior to 1989 amendments).

Sufficiency of Evidence.

Denial of defendant’s motion for acquittal on charges of possession and control of controlled substance was justified by evidence, both direct and circumstantial, that police officer gave marked bills to person who used them to buy marijuana from defendant, and that subsequent search of defendant’s residence revealed marijuana and the marked bills. State v. Berger, 285 N.W.2d 533, 1979 N.D. LEXIS 308 (N.D. 1979).

There was substantial evidence in the record to support defendant’s conviction of possession of a controlled substance with intent to deliver where (1) law enforcement received anonymous tips alleging drug trafficking activities at defendant’s residence; (2) evidence of drugs was found during a search of garbage outside the home; (3) a subsequent search of the home produced drug paraphernalia and large amounts of marijuana packaged for resale; and (4) the officers found an address book and a business card containing evidence of drug transactions; and (5) defendant and co-defendant’s testimony asserting that the calculations in the address book and business card involved home purchase and improvements were inconsistent at times and could easily have been found by the jury to be incredible. State v. Bell, 2002 ND 130, 649 N.W.2d 243, 2002 N.D. LEXIS 174 (N.D. 2002).

Evidence was sufficient to support convictions for possession of drug paraphernalia and possession of marijuana with intent to deliver where police were informed that defendant, who was wanted in connection with another drug offense, was staying at a motel, defendant was found in the hallway, defendant’s wife was found inside of a room where drugs, cash, and paraphernalia were found during a search warrant’s execution, and the amount of drugs and the way they were packaged were inconsistent with personal use. State v. Myers, 2006 ND 242, 724 N.W.2d 168, 2006 N.D. LEXIS 248 (N.D. 2006).

Trial court properly denied appellant’s application for postconviction relief, where there was a sufficient factual basis to support appellant’s guilty plea for possession of a controlled substance with intent to deliver. In addition to the amount of methamphetamine (80 grams), the trial court had items such as pay-owe sheets, scales, shipping documents, and plastic bags that police officers believed were for repackaging methamphetamine. Eaton v. State, 2011 ND 35, 793 N.W.2d 790, 2011 N.D. LEXIS 28 (N.D.), cert. denied, 565 U.S. 847, 132 S. Ct. 166, 181 L. Ed. 2d 79, 2011 U.S. LEXIS 6281 (U.S. 2011).

Pursuant to N.D.C.C. §§ 19-03.1-23(1)(a) and 19-03.1-23.1(1)(a) and (2), the evidence was sufficient to sustain defendant’s conviction for delivery of methamphetamine within one thousand feet of a university, which was a class AA felony because it was his third drug-related offense, as the State introduced as an exhibit an aerial photograph map of the university property and the apartment building where the delivery of the methamphetamine took place; the police detective who prepared the map testified that he combined a parcel map and an aerial map of the area to determine distances and the calculations were accurate plus and minus three feet to every mile; and the map showed it was 904 feet from the university building to the apartment building and 778 feet from the university property line to the apartment building property line. State v. Hinojosa, 2011 ND 116, 798 N.W.2d 634, 2011 N.D. LEXIS 109 (N.D. 2011).

Circumstantial evidence that pen barrels used for cocaine, which tested positive for the drug, were found in defendant’s night stand and in a common area in the house where defendant lived provided sufficient evidence to convict defendant of possession of a controlled substance, N.D.C.C. § 19-03.1-23(7), and possession of drug paraphernalia, N.D.C.C. § 19-03.4-03. State v. Christian, 2011 ND 56, 795 N.W.2d 702, 2011 N.D. LEXIS 48 (N.D. 2011).

Evidence was sufficient to support defendant’s conviction for possession of a controlled substance, Psilocyn, because defendant failed to produce a valid prescription under N.D.C.C. § 19-03.1-23(7). State v. Holly, 2013 ND 94, 833 N.W.2d 15, 2013 N.D. LEXIS 94 (N.D. 2013).

There was sufficient evidence to convict defendant for possession of cocaine with intent to deliver, where the evidence showed cocaine was found under a mattress in a bedroom next to a wallet containing defendant's identification, there was a notebook found in the search indicating a person with defendant's name was involved in drug trafficking, and there were text messages on defendant's cell phone indicating he was selling cocaine. State v. Smith, 2015 ND 133, 864 N.W.2d 259, 2015 N.D. LEXIS 118 (N.D. 2015).

Third Offense.

Defendant’s two prior convictions for delivery of marijuana clearly qualified as prior violations of N.D.C.C. ch. 19-03.1, and under the plain meaning of this section defendant was subject to the mandatory minimum 20-year sentence of imprisonment. State v. Laib, 2002 ND 95, 644 N.W.2d 878, 2002 N.D. LEXIS 112 (N.D. 2002).

Warrantless Search.

A spouse does not forfeit all rights to the marital home, including the “common authority” to consent to a search there, when driven out by domestic violence; spouse still possessed “common authority” over farmstead, and validly consented to warrantless search that discovered marijuana. State v. Huffman, 542 N.W.2d 718, 1996 N.D. LEXIS 33 (N.D. 1996).

Where an officer told defendant that he would accompany him to the back of the apartment, defendant’s failure to object did not amount to a consent to search, and the consent given after defendant was in handcuffs was not valid because the arrest was based on improperly obtained evidence. Therefore, his conviction for possession of marijuana with intent to deliver was reversed. State v. Mitzel, 2004 ND 157, 685 N.W.2d 120, 2004 N.D. LEXIS 286 (N.D. 2004).

—Exigent Circumstances.

Officers’ testimony about feared destruction of evidence, upon which they based their right to enter a home without a warrant, was nothing more than speculation and did not demonstrate exigent circumstances that would overcome the presumption of unreasonableness that attaches to all warrantless home entries. State v. Ackerman, 499 N.W.2d 882, 1993 N.D. LEXIS 87 (N.D. 1993).

DECISIONS UNDER PRIOR LAW

“Sale.”

On appeal from conviction of selling marijuana, contention that transaction did not constitute a “sale” was without merit since the word, as used in chapter on narcotics violations, was broader in scope than definition usually given to it; consequently, transfer of marijuana and money between defendant and another constituted a “sale” within the chapter. State v. Dwyer, 172 N.W.2d 591, 1969 N.D. LEXIS 68 (N.D. 1969).

Sentencing.

Subdivisions a and b of subsection 1 and subsection 3 of this section which, except for the possession of marijuana, prescribed only the duration of permissible punishment without stating the classification of the offenses, conferred jurisdiction to sentence convicted persons to the penitentiary. State v. Farrell, 214 N.W.2d 503, 1973 N.D. LEXIS 100, 1974 N.D. LEXIS 251 (N.D. 1973).

Collateral References.

Marijuana, psilocybin, peyote or similar drugs of vegetable origin as narcotics for purposes of drug prosecution, 50 A.L.R.3d 1164.

Permitting unlawful use of narcotics in private home as criminal offense, 54 A.L.R.3d 1297.

Conviction of possession of illicit drugs found in premises of which defendant was in nonexclusive possession, 56 A.L.R.3d 948.

Constitutionality of state legislation imposing criminal penalties for personal possession or use of marijuana, 96 A.L.R.3d 225.

Admissibility, in criminal prosecution, of expert opinion allegedly stating whether drugs were possessed with intent to distribute — state cases, 83 A.L.R.4th 629.

Validity, construction, and effect of state statute regulating sale of counterfeit or imitation controlled substances, 84 A.L.R.4th 936.

Validity, construction, and application of state laws imposing tax or license fee on possession, sale, or the like, of illegal narcotics, 12 A.L.R.5th 89.

Criminality of act of directing to, or recommending, source from which illicit drugs may be purchased, 34 A.L.R.5th 125.

Propriety of execution of search warrant at nighttime, 41 A.L.R.5th 171.

What constitutes “Aggravated Felony” for which alien can be deported or removed under § 237(a)(2)(A)(iii) of Immigration and Nationality Act (8 U.S.C. § 1227(a)(2)(A)(iii)) — Marijuana offenses under 8 U.S.C. § 1101(a)(43)(B), 76 A.L.R. Fed. 2d 1.

What constitutes “Aggravated Felony” for which alien can be deported or removed under § 237(a)(2)(A)(iii) of Immigration and Nationality Act (8 U.S.C. § 1227(a)(2)(A)(iii)) — Cocaine and crack cocaine offenses under 8 U.S.C. § 1101(a)(43)(B), 76 A.L.R. Fed. 2d 61.

What constitutes “Aggravated Felony” for which alien can be deported or removed under § 237(a)(2)(A)(iii) of the Immigration and Nationality Act (8 U.S.C. § 1227(a)(2)(A)(iii)) — Heroin offenses under 8 U.S.C. § 1101(a)(43)(B), 78 A.L.R. Fed. 2d 133.

What constitutes “Aggravated Felony” for which aliens can be deported or removed under § 237(a)(2)(A)(iii) of the Immigration and Nationality Act (8 U.S.C. § 1227(a)(2)(A)(iii)) — Illicit methamphetamine offenses under 8 U.S.C. § 1101(a)(43)(B), 78 A.L.R. Fed. 2d 151.

What constitutes “Aggravated Felony” for which alien can be deported or removed under § 237(a)(2)(A)(iii) of Immigration and Nationality Act (8 U.S.C. § 1227(a)(2)(A)(iii)) — Miscellaneous or unspecified narcotics offenses under 8 U.S.C. § 1101(a)(43)(B), 79 A.L.R. Fed. 2d 335.

Law Reviews.

North Dakota Supreme Court Review (State v. Laib, 2002 ND 95, 644 N.W.2d 878), see 79 N.D. L. Rev. 589 (2003).

Up in Smoke: The Medicinal Marijuana Debate, 75 N.D. L. Rev. 555 (1999).

North Dakota Supreme Court Review ((State v. Dennis, 2007 ND 87, 733 N.W.2d 241 (2007)), see 84 N.D. L. Rev. 567 (2008).

19-03.1-23. Prohibited acts — Penalties. [Effective September 1, 2022]

  1. Except as authorized by this chapter, it is unlawful for a person to willfully, as defined in section 12.1-02-02, manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance, or to deliver, distribute, or dispense a controlled substance by means of the internet, but a person who violates section 12-46-24 or 12-47-21 may not be prosecuted under this subsection. A person who violates this subsection with respect to:
    1. A controlled substance classified in schedule I or II which is a narcotic drug, or methamphetamine, is guilty of a class B felony.
    2. Any other controlled substance classified in schedule I, II, or III, or a controlled substance analog, except marijuana or tetrahydrocannabinol is guilty of a class B felony.
    3. Marijuana, tetrahydrocannabinol, or a substance classified in schedule IV, is guilty of a class C felony.
    4. A substance classified in schedule V, is guilty of a class A misdemeanor.
  2. A prior misdemeanor conviction under subsection 7 or a prior conviction under subsection 3 or 4 of section 19-03.4-03 may not be considered a prior offense under subsection 1.
  3. Except as authorized by this chapter, it is unlawful for any person to willfully, as defined in section 12.1-02-02, create, deliver, distribute, or dispense a counterfeit substance by means of the internet or any other means, or possess with intent to deliver, a counterfeit substance by means of the internet or any other means, but any person who violates section 12-46-24 or 12-47-21 may not be prosecuted under this subsection. Any person who violates this subsection with respect to:
    1. A counterfeit substance classified in schedule I, II, or III, is guilty of a class B felony.
    2. A counterfeit substance classified in schedule IV, is guilty of a class C felony.
    3. A counterfeit substance classified in schedule V, is guilty of a class A misdemeanor.
  4. A person at least eighteen years of age who solicits, induces, intimidates, employs, hires, or uses a person under eighteen years of age to aid or assist in the manufacture, delivery, or possession with intent to manufacture or deliver a controlled substance for the purpose of receiving consideration or payment for the manufacture or delivery of any controlled substance is guilty of a class B felony. It is not a defense to a violation of this subsection that the defendant did not know the age of a person protected under this subsection.
  5. Except for a prior conviction equivalent to a misdemeanor violation of subsection 7 or a prior conviction under subsection 3 or 4 of section 19-03.4-03, a violation of this title or a law of another state or the federal government which is equivalent to an offense with respect to the manufacture, delivery, or intent to deliver a controlled substance under this title committed while the offender was an adult and which resulted in a plea or finding of guilt must be considered a prior offense under subsection 1. The prior offense must be alleged in the complaint, information, or indictment. The plea or finding of guilt for the prior offense must have occurred before the date of the commission of the offense or offenses charged in the complaint, information, or indictment.
  6. It is unlawful for a person to willfully, as defined in section 12.1-02-02:
    1. Serve as an agent, intermediary, or other entity that causes the internet to be used to bring together a buyer and seller to engage in the delivery, distribution, or dispensing of a controlled substance in a manner not authorized by this chapter; or
    2. Offer to fill or refill a prescription for a controlled substance based solely on a consumer’s completion of an online medical questionnaire.
    1. It is unlawful for any person to willfully, as defined in section 12.1-02-02, possess a controlled substance or a controlled substance analog unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of the practitioner’s professional practice, or except as otherwise authorized by this chapter, but any person who violates section 12-46-24 or 12-47-21 may not be prosecuted under this subsection.
    2. Except as otherwise provided in this subsection, any person who violates this subsection is guilty of a class A misdemeanor for the first offense under this subsection and a class C felony for a second or subsequent offense under this subsection.
    3. If, at the time of the offense the person is in or on the real property comprising a public or private elementary or secondary school or a public career and technical education school, the person is guilty of a class B felony, unless the offense involves marijuana or tetrahydrocannabinol.
    4. A person who violates this subsection by possessing:
      1. Marijuana:
        1. In an amount of less than one-half ounce [14.175 grams] is guilty of an infraction.
        2. At least one-half ounce [14.175 grams] but not more than 500 grams of marijuana is guilty of a class B misdemeanor.
        3. More than 500 grams of marijuana is guilty of a class A misdemeanor.
      2. Tetrahydrocannabinol:
        1. In an amount less than two grams is guilty of an infraction.
        2. At least two grams but not more than six grams of tetrahydrocannabinol is guilty of a class B misdemeanor.
        3. More than six grams of tetrahydrocannabinol is guilty of a class A misdemeanor.
    5. If an individual is sentenced to the legal and physical custody of the department of corrections and rehabilitation under this subsection, the department may place the individual in a drug and alcohol treatment program designated by the department. Upon the successful completion of the drug and alcohol treatment program, the department shall release the individual from imprisonment to begin any court-ordered period of probation.
    6. If the individual is not subject to any court-ordered probation, the court shall order the individual to serve the remainder of the sentence of imprisonment on supervised probation subject to the terms and conditions imposed by the court.
    7. Probation under this subsection may include placement in another facility, treatment program, drug court, or veterans treatment docket. If an individual is placed in another facility or treatment program upon release from imprisonment, the remainder of the sentence must be considered as time spent in custody.
    8. An individual incarcerated under this subsection as a result of a second probation revocation is not eligible for release from imprisonment upon the successful completion of treatment.
    9. A person who violates this subsection regarding possession of five or fewer capsules, pills, or tablets of a schedule II, III, IV, or V controlled substance or controlled substance analog is guilty of a class A misdemeanor.
  7. Except as provided by section 19-03.1-45, a court may order a person who violates this chapter or chapter 19-03.4 to undergo a drug addiction evaluation by a licensed addiction counselor. The evaluation must indicate the prospects for rehabilitation and whether addiction treatment is required. If ordered, the evaluation must be submitted to the court before imposing punishment for a felony violation or a misdemeanor violation.
  8. If a person pleads guilty or is found guilty of a first offense regarding possession of one ounce [28.35 grams] or less of marijuana or two grams or less of tetrahydrocannabinol and a judgment of guilt is entered, a court, upon motion, shall seal the court record of that conviction if the person is not subsequently convicted within two years of a further violation of this chapter. Once sealed, the court record may not be opened even by order of the court.
  9. Upon successful completion of a drug court program or veterans treatment docket, a person who has been convicted of a felony under this section and sentenced to drug court or veterans treatment docket is deemed to have been convicted of a misdemeanor.
  10. If a person convicted of a misdemeanor under this section is sentenced to drug court or veterans treatment docket and successfully completes a drug court program or veterans treatment docket, the court shall dismiss the case and seal the file in accordance with section 12.1-32-07.2.
  11. If an individual under the age of twenty-one pleads guilty or is found guilty of a first offense regarding possession of one-half ounce [14.175 grams] or less of marijuana, the court also may sentence the individual to an evidence-based alcohol and drug education program operated under rules adopted by the department of human services under section 50-06-44. For a second or subsequent offense regarding possession of one-half ounce [14.175 grams] or less of marijuana, the court also shall sentence the individual to an evidence-based alcohol and drug education program operated under rules adopted by the department of human services under section 50-06-44 .

A person who violates this subsection is guilty of a class C felony.

Source:

S.L. 1971, ch. 235, § 23; 1973, ch. 199, §§ 1, 2; 1975, ch. 106, § 168; 1975, ch. 110, §§ 9 to 11; 1979, ch. 172, § 28; 1979, ch. 187, § 29; 1979, ch. 287, § 4; 1983, ch. 255, § 1; 1989, ch. 267, § 1; 1993, ch. 128, § 3; 1995, ch. 120, § 18; 1997, ch. 131, § 3; 1997, ch. 205, § 1; 1999, ch. 16, § 7; 2001, ch. 214, § 4; 2001, ch. 215, § 1; 2003, ch. 138, § 70; 2005, ch. 196, § 2; 2007, ch. 210, § 1; 2007, ch. 211, § 1; 2009, ch. 198, § 4; 2011, ch. 162, § 1; 2013, ch. 183, §§ 5, 6; 2015, ch. 170, § 1, effective August 1, 2015; 2017, ch. 108, § 12, effective April 21, 2017; 2017, ch. 164, § 6, effective August 1, 2017; 2017, ch. 165, §§ 1, 2, effective August 1, 2017; 2019, ch. 186, § 3, effective August 1, 2019; 2019, ch. 187, § 2, effective August 1, 2019; 2019, ch. 188, § 2, effective August 1, 2019; 2021, ch. 110, § 2, effective August 1, 2021; 2021, ch. 172, § 5, effective May 3, 2021; 2021, ch. 175, § 3, effective August 1, 2021; 2021, ch. 176, § 2, effective August 1, 2021.

19-03.1-23.1. Increased penalties for aggravating factors in drug offenses.

  1. A person who violates section 19-03.1-23 is subject to the penalties provided in subsection 2 if:
    1. The offense was committed during a school sponsored activity or was committed during the hours of six a.m. to ten p.m. if school is in session, the offense involved the manufacture, delivery, or possession, with intent to manufacture or deliver a controlled substance in, on, or within three hundred feet [91.4 meters] of the real property comprising a preschool facility, a public or private elementary or secondary school, or a public career and technical education school, the defendant was at least twenty-one years of age at the time of the offense, and the offense involved the delivery of a controlled substance to a minor;
    2. The offense involved:
      1. Fifty grams or more of a mixture or substance containing a detectable amount of heroin;
      2. Fifty grams or more of a mixture or substance containing a detectable amount of:
        1. Coca leaves, except coca leaves and extracts of coca leaves from which cocaine, ecgonine, and derivatives of ecgonine or their salts have been removed;
        2. Cocaine, its salts, optical and geometric isomers, and salts of isomers;
        3. Ecgonine, its derivatives, their salts, isomers, and salts of isomers; or
        4. Any compound, mixture, or preparation that contains any quantity of any of the substance referred to in subparagraphs a through c;
      3. Twenty-eight grams or more of a mixture or substance described in paragraph 2 which contains cocaine base;
      4. Ten grams or more of phencyclidine or one hundred grams or more of a mixture or substance containing a detectable amount of phencyclidine;
      5. One gram, one hundred dosage units, or one-half liquid ounce or more of a mixture or substance containing a detectable amount of lysergic acid diethylamide;
      6. Forty grams or more of a mixture or substance containing a detectable amount of N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide or ten grams or more of a mixture or substance containing a detectable amount of any analog of N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide;
      7. Fifty grams or more of a mixture or substance containing a detectable amount of methamphetamine;
      8. Ten grams, one hundred dosage units, or one-half liquid ounce or more of a mixture or substance containing a detectable amount of 3,4-methylenedioxy-N-methylamphetamine, C11H15NO2;
      9. One hundred dosage units or one-half liquid ounce of a mixture or substance containing a detectable amount of gamma-hydroxybutyrate or gamma-butyrolactone or 1,4 butanediol or any substance that is an analog of gamma-hydroxybutyrate; or
      10. One hundred dosage units or one-half liquid ounce of a mixture or substance containing a detectable amount of flunitrazepam; or
    3. The defendant had a firearm in the defendant’s actual possession at the time of the offense.
    4. The defendant sells, distributes, delivers, or conspires to deliver a controlled substance to an individual which results in the death of the individual due to the use of that controlled substance and the death of the individual would not have occurred in the absence of the defendant’s conduct. This subdivision does not apply to an individual who is immune from prosecution under section 19-03.1-23.4.
  2. The offense is:
    1. A class A felony if the violation of section 19-03.1-23 is designated as a class B felony.
    2. A class B felony if the violation of section 19-03.1-23 is designated as a class C felony.
    3. A class C felony if the violation of section 19-03.1-23 is designated as a class A misdemeanor.

Source:

S.L. 1989, ch. 399, § 6; 2001, ch. 216, § 1; 2003, ch. 138, § 71; 2005, ch. 194, § 1; 2011, ch. 162, § 2; 2011, ch. 163, § 1; 2017, ch. 108, § 13, effective April 21, 2017; 2017, ch. 167, § 1, effective August 1, 2017; 2017, ch. 164, § 7, effective August 1, 2017; 2017, ch. 165, § 3, effective August 1, 2017; 2021, ch. 175, § 4, effective August 1, 2021; 2021, ch. 177, § 1, effective August 1, 2021.

Note.

Section 19-03.1-23.1 was amended 2 times by the 2021 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 1 of Chapter 177, Session Laws 2021, House Bill 1287; and Section 4 of Chapter 175, Session Laws 2021, Senate Bill 2283.

Section 19-03.1-23.1 was amended 4 times by the 2017 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 3 of Chapter 165, Session Law 2017, House Bill 1341; Section 1 of Chapter 167, Session Law 2017, House Bill 1270; Section 13 of Chapter 108, Session Law 2017, House Bill 1041; and Section 7 of Chapter 164, Session Laws 2017, House Bill 1269.

Notes to Decisions

Applicability.

Defendant’s conviction for possession of marijuana with intent to deliver was not subject to enhancement under N.D.C.C. § 19-03.1-23.1(1)(a) as this statute provided an offense enhancement only for the manufacture and distribution of a controlled substance within 1,000 feet of a school. The inclusion of manufacture and distribution in this provision implied that possession with intent to deliver was excluded. Furthermore, possession of a controlled substance with the intent to deliver could not have “involved” distribution of a controlled substance by the defendant, because the defendant had not yet distributed it; instead, only circumstances that indicated an intent to deliver the controlled substance existed. State v. Dennis, 2007 ND 87, 733 N.W.2d 241, 2007 N.D. LEXIS 88 (N.D. 2007).

Sufficiency of Evidence.

Pursuant to N.D.C.C. §§ 19-03.1-23(1)(a) and 19-03.1-23.1(1)(a) and (2), the evidence was sufficient to sustain defendant’s conviction for delivery of methamphetamine within one thousand feet of a university, which was a class AA felony because it was his third drug-related offense, as the State introduced as an exhibit an aerial photograph map of the university property and the apartment building where the delivery of the methamphetamine took place; the police detective who prepared the map testified that he combined a parcel map and an aerial map of the area to determine distances and the calculations were accurate plus and minus three feet to every mile; and the map showed it was 904 feet from the university building to the apartment building and 778 feet from the university property line to the apartment building property line. State v. Hinojosa, 2011 ND 116, 798 N.W.2d 634, 2011 N.D. LEXIS 109 (N.D. 2011).

Collateral References.

Validity, Construction, and Application of State Statutes Enhancing Penalty for Sale or Possession of Controlled Substances Within Specified Distance of Playgrounds. 23 A.L.R.6th 679.

What constitutes “Aggravated Felony” for which alien can be deported or removed under § 237(a)(2)(A)(iii) of Immigration and Nationality Act (8 U.S.C. § 1227(a)(2)(A)(iii)) — Marijuana offenses under 8 U.S.C. § 1101(a)(43)(B), 76 A.L.R. Fed. 2d 1.

What constitutes “Aggravated Felony” for which alien can be deported or removed under § 237(a)(2)(A)(iii) of Immigration and Nationality Act (8 U.S.C. § 1227(a)(2)(A)(iii)) — Cocaine and crack cocaine offenses under 8 U.S.C. § 1101(a)(43)(B), 76 A.L.R. Fed. 2d 61.

What constitutes “Aggravated Felony” for which alien can be deported or removed under § 237(a)(2)(A)(iii) of Immigration and Nationality Act (8 U.S.C. § 1227(a)(2)(A)(iii)) — Miscellaneous or unspecified narcotics offenses Under 8 U.S.C. § 1101(a)(43)(B), 79 A.L.R. Fed. 2d 335.

Law Reviews.

North Dakota Supreme Court Review ((State v. Dennis, 2007 ND 87, 733 N.W.2d 241 (2007)), see 84 N.D. L. Rev. 567 (2008).

19-03.1-23.2. Mandatory terms of imprisonment — Deferred or suspended sentence limited. [Repealed]

Source:

S.L. 1993, ch. 128, § 4; 2001, ch. 214, § 5; 2001, ch. 215, § 2; repealed by 2019, ch. 187, § 9, effective August 1, 2019.

19-03.1-23.3. Drug currency forfeiture.

  1. There is a presumption of forfeiture for money, coin, currency, and everything of value, furnished or intended to be furnished, in exchange for a controlled substance in violation of chapter 19-03.1 or imitation controlled substance in violation of chapter 19-03.2, if the state offers a reasonable basis to believe, based on the following circumstances, that there is a substantial connection between the property and an offense listed in chapter 19-03.1 or 19-03.2:
    1. The property at issue is currency in excess of ten thousand dollars which, at the time of seizure, was being transported through an airport, on a highway, or at a port-of-entry, and the property was packaged or concealed in a highly unusual manner, the person transporting the property provided false information to any law enforcement officer who lawfully stopped the person for investigative purposes, the property was found in close proximity to a measurable quantity of any controlled substance, or the property was the subject of a positive alert by a properly trained dog;
    2. The property at issue was acquired during a period of time when the person who acquired the property was engaged in an offense under chapter 19-03.1 or 19-03.2 or within a reasonable time after the period, and there is no likely source for the property other than that offense;
    3. The property at issue was, or was intended to be, transported, transmitted, or transferred to or from a major drug-transit country, a major illicit drug-producing country, or a major money-laundering country, and the transaction giving rise to the forfeiture:
      1. Occurred in part in a state or foreign country whose bank secrecy laws render this state unable to obtain records relating to the transaction; or
      2. Was conducted by, to, or through a corporation that does not conduct any ongoing and significant commercial or manufacturing business or any other form of commercial operation which was not engaged in any legitimate business activity; or
    4. A person involved in the transaction giving rise to the forfeiture action has been convicted in a federal, state, or foreign jurisdiction of an offense equivalent to an offense under chapter 19-03.1 or 19-03.2 or a felony involving money laundering, or is a fugitive from prosecution for any of these offenses.
  2. The presumption in this section does not preclude the use of other presumptions or the establishment of probable cause based on criteria other than those set forth in this section.

Source:

S.L. 1999, ch. 215, § 1.

Notes to Decisions

Presumptions.

Since the property owner involved in a currency forfeiture case did not raise an issue in the trial court about the applicability of presumptions in N.D.C.C. § 19-03.1-23.3 regarding forfeiture, the property owner could not raise the issue for the first time on appeal. Even so, the trial court’s findings supporting forfeiture were not clearly erroneous and, thus, the forfeiture had to be upheld. State v. $44,140.00 United States Currency, 2012 ND 176, 820 N.W.2d 697, 2012 N.D. LEXIS 181 (N.D. 2012).

19-03.1-23.4. Overdose prevention and immunity.

An individual is immune from criminal prosecution under sections 19-03.1-22.1, 19-03.1-22.3, 19-03.1-22.5, subsection 7 of section 19-03.1-23, subsection 3 of section 19-03.2-03, and section 19-03.4-03 if in good faith that individual seeks medical assistance for another individual in need of emergency medical assistance due to a drug overdose. To receive immunity under this section, the individual receiving immunity must have remained on the scene until assistance arrived, cooperated with the medical treatment of the reported drug overdosed individual, and the overdosed individual must have been in a condition a layperson would reasonably believe to be a drug overdose requiring immediate medical assistance. Neither the individual who experiences a drug-related overdose and is in need of emergency medical assistance nor the cooperating individual seeking medical assistance may be charged or prosecuted for the criminal offenses listed in this section or for the sharing of controlled substances among those present. Immunity from prosecution under this section does not apply unless the evidence for the charge or prosecution was obtained as a result of the drug-related overdose and the need for emergency medical assistance. Good faith does not include seeking medical assistance during the course of the execution of an arrest warrant or search warrant or during a lawful search.

History. S.L. 2015, ch. 172, § 1, effective August 1, 2015; 2017, ch. 164, § 8, effective August 1, 2017; 2019, ch. 187, § 3, effective August 1, 2019.

Effective Date.

This section became effective August 1, 2015.

19-03.1-24. Prohibited acts B — Penalties.

  1. It is unlawful for any person:
    1. Who is subject to the provisions of sections 19-03.1-15 through 19-03.1-22 to distribute or dispense a controlled substance in violation of section 19-03.1-22;
    2. Who is a registrant, to manufacture a controlled substance not authorized by their registration, or to distribute or dispense a controlled substance not authorized by their registration to another registrant or other authorized person;
    3. To refuse or fail to make, keep, or furnish any record, notification, order form, statement, invoice, or information required under this chapter;
    4. To refuse an entry into any premises for any inspection authorized by this chapter; or
    5. Knowingly to keep or maintain any store, shop, warehouse, dwelling, building, vehicle, boat, aircraft, or other structure or place, which is resorted to by persons using controlled substances in violation of this chapter for the purpose of using these substances, or which is used for keeping or selling them in violation of this chapter.
  2. Any person who violates this section is guilty of a class C felony.

Source:

S.L. 1971, ch. 235, § 24; 1975, ch. 106, § 169; 1985, ch. 258, § 21.

19-03.1-25. Prohibited acts C — Penalties.

  1. It is unlawful for any person:
    1. To distribute as a registrant a controlled substance classified in schedule I or II, except pursuant to an order form as required by section 19-03.1-21;
    2. To use in the course of the manufacture or distribution of a controlled substance a registration number which is fictitious, revoked, suspended, or issued to another person;
    3. To acquire or obtain possession of a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge;
    4. To furnish false or fraudulent material information in, or omit any material information from, any application, report, or other document required to be kept or filed under this chapter, or any record required to be kept by this chapter; or
    5. To make, distribute, or possess any punch, die, plate, stone, or other thing designed to print, imprint, or reproduce the trademark, trade name, or other identifying mark, imprint, or device of another or any likeness of any of the foregoing upon any drug or container or labeling thereof so as to render the drug a counterfeit substance.
  2. Any person who violates this section is guilty of a class C felony.

Source:

S.L. 1971, ch. 235, § 25; 1975, ch. 106, § 170.

Collateral References.

Fraud or deceit: construction of provision of Uniform Narcotic Drug Act or similar statute dealing with obtaining or procuring the administration of a narcotic drug by fraud or deceit, 25 A.L.R.3d 1118.

Propriety of lesser included offense charge in state prosecution of narcotics defendant-Marijuana cases,1 A.L.R.6th 549.

Propriety of lesser included offense charge in state prosecution of narcotics defendant-Cocaine cases, 2 A.L.R.6th 551.

What constitutes “Aggravated Felony” for which alien can be deported or removed under § 237(a)(2)(A)(iii) of Immigration and Nationality Act (8 U.S.C. § 1227(a)(2)(A)(iii)) — Marijuana offenses under 8 U.S.C. § 1101(a)(43)(B), 76 A.L.R. Fed. 2d 1.

What constitutes “Aggravated Felony” for which alien can be deported or removed under § 237(a)(2)(A)(iii) of Immigration and Nationality Act (8 U.S.C. § 1227(a)(2)(A)(iii)) — Cocaine and crack cocaine offenses under 8 U.S.C. § 1101(a)(43)(B), 76 A.L.R. Fed. 2d 61.

What constitutes “Aggravated Felony” for which alien can be deported or removed under § 237(a)(2)(A)(iii) of the Immigration and Nationality Act (8 U.S.C. § 1227(a)(2)(A)(iii)) — Heroin offenses under 8 U.S.C. § 1101(a)(43)(B), 78 A.L.R. Fed. 2d 133.

What constitutes “Aggravated Felony” for which aliens can be deported or removed under § 237(a)(2)(A)(iii) of the Immigration and Nationality Act (8 U.S.C. § 1227(a)(2)(A)(iii)) — Illicit methamphetamine offenses under 8 U.S.C. § 1101(a)(43)(B), 78 A.L.R. Fed. 2d 151.

What constitutes “Aggravated Felony” for which alien can be deported or removed under § 237(a)(2)(A)(iii) of Immigration and Nationality Act (8 U.S.C. § 1227(a)(2)(A)(iii)) — Miscellaneous or unspecified narcotics offenses under 8 U.S.C. § 1101(a)(43)(B), 79 A.L.R. Fed. 2d 335.

19-03.1-26. Disposing of needles and paraphernalia — Penalty.

Any registrant who shall use, administer, or dispense or cause to be used, administered, or dispensed any drug or controlled substance in a manner requiring the use of any type of syringe, needle, eyedropper, or other similar paraphernalia shall destroy and dispose of said syringe, needle, eyedropper, or other similar paraphernalia in a manner that will prevent its reuse by any person other than the registrant. The board may adopt rules pursuant to chapter 28-32 setting out the specific manner in which the provisions of this section must be carried out. Any registrant who violates the provisions of this section is guilty of a class A misdemeanor.

Source:

S.L. 1971, ch. 235, § 26; 1975, ch. 106, § 171; 1981, ch. 336, § 11; 1985, ch. 262, § 20.

19-03.1-27. Penalties under other laws.

Any penalty imposed for violation of this chapter is in addition to, and not in lieu of, any civil or administrative penalty or sanction otherwise authorized by law.

Source:

S.L. 1971, ch. 235, § 27.

Collateral References.

Validity, construction, and application of state laws imposing tax or license fee on possession, sale, or the like, of illegal narcotics, 12 A.L.R.5th 89.

19-03.1-28. Bar to prosecution.

If a violation of this chapter is a violation of a federal law or the law of another state, a conviction or acquittal under federal law or the law of another state for the same act is a bar to prosecution in this state.

Source:

S.L. 1971, ch. 235, § 28.

Notes to Decisions

Conspiracy.

This section does not bar prosecution in this state of one who has been convicted of a related conspiracy charge in another state; this section is inapplicable to a charge of conspiracy. State v. Mayer, 356 N.W.2d 149, 1984 N.D. LEXIS 403 (N.D. 1984).

19-03.1-29. Distribution to persons under age eighteen. [Repealed]

Repealed by S.L. 1975, ch. 106, § 673.

19-03.1-30. Conditional discharge for possession as first offense. [Repealed]

Repealed by S.L. 2005, ch. 196, § 4.

19-03.1-31. Second or subsequent offenses. [Repealed]

Repealed by S.L. 1975, ch. 106, § 673.

19-03.1-32. Powers of enforcement personnel — Search warrants.

  1. Any officer of the bureau of criminal investigation designated by the attorney general of this state may:
    1. Carry firearms in the performance of official duties.
    2. Execute and serve search warrants, arrest warrants, administrative inspection warrants, subpoenas, and summonses issued under the authority of this state.
    3. Make arrests without warrant for any offense under this chapter committed in the officer’s presence, or if the officer has probable cause to believe that the person to be arrested has committed or is committing a violation of this chapter which may constitute a felony.
    4. Make seizures of property pursuant to this chapter.
    5. Perform other law enforcement duties as the attorney general designates.
  2. A search warrant relating to offenses involving controlled substances may be issued and executed at any time of the day or night, if the judge or magistrate issuing the warrant so specifies in the warrant.
  3. Any officer authorized to execute a search warrant, without notice of the officer’s authority and purpose, may break open an outer or inner door or window of a building, or any part of the building, or anything therein, if the judge or magistrate issuing the warrant has probable cause to believe that if such notice were to be given the property sought in the case may be easily and quickly destroyed or disposed of, or that danger to the life or limb of the officer or another may result, and has included in the warrant a direction that the officer executing it is not required to give such notice. Any officers acting under such warrant, as soon as practicable after entering the premises, shall identify themselves and state the purpose of entering the premises and the authority for doing so.

Source:

S.L. 1971, ch. 235, § 32; 1979, ch. 289, § 1; 1979, ch. 540, § 3; 1985, ch. 258, § 23; 2009, ch. 125, § 2.

Cross-References.

Execution of search warrant, use of force, see N.D.C.C. § 29-29-08.

Notes to Decisions

Conflict with § 29-29-08.

Insofar as there may be a conflict between N.D.C.C. § 29-29-08, a more general statute governing no-knock warrants, and this section, this section prevails with respect to offenses involving controlled substances. State v. Herrick, 1997 ND 155, 567 N.W.2d 336, 1997 N.D. LEXIS 174 (N.D. 1997).

Defective Warrant.

Conviction for illegal possession of narcotic drugs was reversed, where evidence used in conviction was acquired through use of search warrant based on defective information charging burglary; the evidence was inadmissible because it was acquired during unlawful search in violation of the United States Constitution and Art. I, § 18 of the state constitution of 1889 (see now N.D. Const., art. I, § 8). State v. Erdman, 170 N.W.2d 872, 1969 N.D. LEXIS 84 (N.D. 1969).

Knock-and-Announce Requirement.

Compliance with the knock-and-announce requirement does not hinder law enforcement. Under the proper circumstances, a no-knock warrant may be issued. Furthermore, even without a no-knock warrant, announcement prior to entry may be excused under certain exigent circumstances. State v. Sakellson, 379 N.W.2d 779, 1985 N.D. LEXIS 456 (N.D. 1985).

Nighttime Search Warrants.

Trial court’s determination that all of the issues the petitioner raised in his application for postconviction relief had already been raised in his previous appeal was error, because the petitioner’s claims of ineffective assistance of his trial and appellate counsel had never been addressed, and the merit of the petitioner’s claim, that had counsel raised the issue of lack of probable cause to support a nighttime search there was a reasonable probability the evidence against him would have been suppressed, was never considered. Roth v. State, 2006 ND 106, 713 N.W.2d 513, 2006 N.D. LEXIS 102 (N.D. 2006).

No-Knock Warrant.

Mere allegations that drugs are present cannot automatically result in the issuance of a no-knock warrant. State v. Herrick, 1997 ND 155, 567 N.W.2d 336, 1997 N.D. LEXIS 174 (N.D. 1997).

Evidence obtained in drug search made under an invalid no-knock warrant was admissible under the good faith exception to the exclusionary rule where sheriff’s deputy acted on information that defendant was selling drugs from the apartment and had a weapon, evidence of drugs was found in defendant’s garbage, and legal precedent at the time of the search permitted the per-se issuance of no-knock drug search warrants. State v. Hughes, 1999 ND 24, 589 N.W.2d 912, 1999 N.D. LEXIS 26 (N.D.), cert. denied, 528 U.S. 846, 120 S. Ct. 119, 145 L. Ed. 2d 101, 1999 U.S. LEXIS 5434 (U.S. 1999).

Fact that defendant may have had a firearm was insufficient by itself to provide probable cause for a no-knock entry, but only the no-knock aspect of the search warrant was invalid, not the search warrant as a whole; and as the officer functionally excised its invalid portion by knocking and announcing his entry, suppression of evidence seized in the search was not required. State v. Roth, 2004 ND 23, 674 N.W.2d 495, 2004 N.D. LEXIS 42 (N.D. 2004).

The police officer’s reasonable belief that the defendant would destroy drug evidence if officers knocked before entering was insufficient to support issuance of a no-knock warrant without particularized information about the type of drugs at issue and their disposability; the information was particular enough, however, to defeat the conclusion that the warrant was issued on a per se basis. State v. Utvick, 2004 ND 36, 675 N.W.2d 387, 2004 N.D. LEXIS 59 (N.D. 2004).

Probable Cause.

Probable cause is required for issuance of a no-knock warrant under this section. State v. Herrick, 1997 ND 155, 567 N.W.2d 336, 1997 N.D. LEXIS 174 (N.D. 1997).

Searches conducted pursuant to a no-knock warrant issued on a per se basis where the presence of drugs was suspected, prior to the Supreme Court’s decision in State v. Herrick, 1997 ND 155, 567 N.W.2d 336 (1997) (“Herrick I”), are subject to the good faith exception to the exclusionary rule. State v. Herrick, 1999 ND 1, 588 N.W.2d 846, 76 N.D. L. Rev. 123 (2000).

No probable cause existed to issue a no-knock drug search warrant where police officer failed to allege that she believed drugs might be quickly disposed of, and the mere mention of a handgun in the defendant’s apartment was insufficient to establish probable cause that knocking and announcing would endanger police officers or others. State v. Hughes, 1999 ND 24, 589 N.W.2d 912, 1999 N.D. LEXIS 26 (N.D.), cert. denied, 528 U.S. 846, 120 S. Ct. 119, 145 L. Ed. 2d 101, 1999 U.S. LEXIS 5434 (U.S. 1999).

Extensive evidence of drug activity and gun possession contained in 26-page affidavit supporting warrant request was sufficient to establish probable cause for issuance of a no-knock drug search warrant. State v. Johnson, 1999 ND 33, 590 N.W.2d 192, 1999 N.D. LEXIS 35 (N.D. 1999).

Probable cause is not established for a no-knock search warrant where the reviewing court is given information indicating nothing more than probable cause that an easily disposable drug is located in a suspect’s residence. State v. Van Beek, 1999 ND 53, 591 N.W.2d 112, 1999 N.D. LEXIS 43 (N.D. 1999).

Where an officer-affiant vouched for a confidential informant’s reliability and veracity, the informant had provided reliable information about drug traffickers in the past, and supplied detailed information about defendant’s manufacture of methamphetamine, the fact that the information was old was not fatal, since it indicated ongoing criminal activity involving defendant and supported a finding of probable cause for issuance of a search warrant. State v. Roth, 2004 ND 23, 674 N.W.2d 495, 2004 N.D. LEXIS 42 (N.D. 2004).

Collateral References.

Application of Leon good faith exception to exclusionary rule where police fail to comply with knock and announce requirement during execution of search warrant, 2 A.L.R.6th 169.

Sufficiency of Showing to Support No-Knock Search Warrant — Cases Decided After Richards v. Wisconsin, 520 U.S. 385, 117 S. Ct. 1416, 137 L. Ed. 2d 615 (1997).50 A.L.R.6th 455.

Law Reviews.

When Should Ignorance Trump the Constitution? Another Dissent from Herrick II. 75 N.D. L. Rev. 747 (1999).

Criminal Law — Evidence “I Hear You Knocking, But You Can’t Come In”: The North Dakota Supreme Court Again Declines to Decide Whether the State Constitution Precludes a Good Faith Exception to the Exclusionary Rule: Comment on State v. Herrick, 1999 N.D. 1, 588 N.W.2d. 846, 76 N.D. L. Rev. 123 (2000).

19-03.1-33. Administrative inspections and warrants.

  1. Issuance and execution of administrative inspection warrants must be as follows:
    1. A district judge within a district judge’s jurisdiction, and upon proper oath or affirmation showing probable cause, may issue warrants for the purpose of conducting administrative inspections authorized by this chapter or rules hereunder and seizures of property appropriate to the inspections. For purposes of the issuance of administrative inspection warrants, probable cause exists upon showing a valid public interest in the effective enforcement of this chapter or rules thereunder, sufficient to justify administrative inspection of the area, premises, building, or conveyance in the circumstances specified in the application for the warrant.
    2. A warrant may issue only upon an affidavit of a designated officer or employee having knowledge of the facts alleged, sworn to before the judge or magistrate and establishing the grounds for issuing the warrant. If the judge or magistrate is satisfied that grounds for the application exist or that there is probable cause to believe they exist, the judge or magistrate shall issue a warrant identifying the area, premises, building, or conveyance to be inspected, the purpose of the inspection, and, if appropriate, the type of property to be inspected, if any. The warrant must:
      1. State the grounds for its issuance and the name of each person whose affidavit has been taken in support thereof;
      2. Be directed to a person authorized to execute it;
      3. Command the person to whom it is directed to inspect the area, premises, building, or conveyance identified for the purpose specified and, if appropriate, direct the seizure of the property specified;
      4. Identify the item or types of property to be seized, if any; and
      5. Direct that it be served during normal business hours and designate the judge or magistrate to whom it shall be returned.
    3. A warrant issued pursuant to this section must be executed and returned within ten days of its date unless, upon a showing of a need for additional time, the court orders otherwise. If property is seized pursuant to a warrant, a copy must be given to the person from whom or from whose premises the property is taken, together with a receipt for the property taken. The return of the warrant must be made promptly, accompanied by a written inventory of any property taken. The inventory must be made in the presence of the person executing the warrant and of the person from whose possession or premises the property was taken, if present, or in the presence of at least one credible person other than the person executing the warrant. A copy of the inventory must be delivered to the person from whom or from whose premises the property was taken and to the applicant for the warrant.
    4. The judge or magistrate who has issued a warrant shall attach thereto a copy of the return and all papers returnable in connection therewith and file them with the clerk of the district court for the county in which the inspection was made.
  2. The board may make administrative inspections of controlled premises in accordance with the following provisions:
    1. For purposes of this section only, “controlled premises” means:
      1. Places where persons registered or exempted from registration requirements under this chapter are required to keep records; and
      2. Places, including factories, warehouses, establishments, and conveyances in which persons registered or exempted from registration requirements under this chapter are permitted to hold, manufacture, compound, process, sell, deliver, or otherwise dispose of any controlled substance.
    2. When authorized by an administrative inspection warrant issued pursuant to subsection 1, an officer or employee designated by the board, upon presenting the warrant and appropriate credentials to the owner, operator, or agent in charge, may enter controlled premises for the purpose of conducting an administrative inspection.
    3. When authorized by an administrative inspection warrant, an officer or employee designated by the board may:
      1. Inspect and copy records required by this chapter to be kept;
      2. Inspect, within reasonable limits and in a reasonable manner, controlled premises and all pertinent equipment, finished and unfinished material, containers and labeling found therein, and, except as provided in subdivision e, all other things therein, including records, files, papers, processes, controls, and facilities bearing on violation of this chapter; and
      3. Inventory any stock of any controlled substance therein and obtain samples thereof.
    4. This section does not prevent the inspection without a warrant of books and records pursuant to an administrative subpoena issued in accordance with section 28-32-33, nor does it prevent entries and administrative inspections, including seizures of property, without a warrant:
      1. If the owner, operator, or agent in charge of the controlled premises consents;
      2. In situations presenting imminent danger to health or safety;
      3. In situations involving inspection of conveyances if there is reasonable cause to believe that the mobility of the conveyance makes it impracticable to obtain a warrant;
      4. In any other exceptional emergency circumstances in which time or opportunity to apply for a warrant is lacking; or
      5. In all other situations in which a warrant is not constitutionally required.
    5. An inspection authorized by this section may not extend to financial data, sales data, other than shipment data, or pricing data unless the owner, operator, or agent in charge of the controlled premises consents in writing.

Source:

S.L. 1971, ch. 235, § 33; 1985, ch. 258, § 24; 1985, ch. 262, § 21; 2001, ch. 293, § 6.

19-03.1-34. Injunctions.

  1. The district courts of this state shall have jurisdiction to restrain or enjoin violations of this chapter.
  2. The defendant may demand trial by jury for an alleged violation of an injunction or restraining order under this section.

Source:

S.L. 1971, ch. 235, § 34.

19-03.1-35. Cooperative arrangements and confidentiality.

  1. The board shall cooperate with federal and other state agencies in discharging its responsibilities concerning traffic in controlled substances and in suppressing the abuse of controlled substances. To this end, it may:
    1. Arrange for exchange of information among governmental officials concerning the use and abuse of controlled substances.
    2. Coordinate and cooperate in training programs concerning controlled substance law enforcement at local and state levels.
    3. Cooperate with the bureau by establishing a centralized unit to accept, catalog, file, and collect statistics, including records of drug-dependent persons and other controlled substance law offenders within the state, and make the information available for federal, state, and local law enforcement purposes. It may not furnish the name or identity of a patient or research subject whose identity could not be obtained under subsection 3.
    4. Conduct programs of eradication aimed at destroying wild or illicit growth of plant species from which controlled substances may be extracted.
  2. Results, information, and evidence received from the bureau relating to regulatory functions of this chapter, including results of inspections conducted by it, may be relied and acted upon by the board in the exercise of its regulatory functions under this chapter.
  3. A practitioner engaged in medical practice or research is not required or compelled to furnish the name or identity of a patient or research subject to the board nor may the practitioner be compelled in any state or local civil, criminal, administrative, legislative, or other proceedings to furnish the name or identity of an individual that the practitioner is obligated to keep confidential.

Source:

S.L. 1971, ch. 235, § 35; 1979, ch. 289, § 2; 1985, ch. 258, § 25; 1985, ch. 262, § 22.

19-03.1-36. Forfeitures.

  1. The following are subject to forfeiture:
    1. All controlled substances which have been manufactured, distributed, dispensed, or acquired in violation of this chapter.
    2. All imitation controlled substances as defined by sections 19-03.2-01 and 19-03.2-02.
    3. All raw materials, products, and equipment of any kind which are used, or intended for use, in manufacturing, compounding, processing, delivering, importing, or exporting any controlled substance in violation of this chapter.
    4. All property which is used, or intended for use, as a container for property described in subdivision a, b, or c.
    5. All conveyances, including aircraft, vehicles, or vessels, which are used, or intended for use, to transport, or in any manner to facilitate the transportation, for the purpose of sale or receipt of property described in subdivision a, b, or c, but:
      1. No conveyance used by any person as a common carrier in the transaction of business as a common carrier is subject to forfeiture under this section unless it appears that the owner or other person in charge of the conveyance is a consenting party or privy to a violation of this chapter.
      2. No conveyance is subject to forfeiture under this section by reason of any act or omission established by the owner thereof to have been committed or omitted without the owner’s knowledge or consent.
      3. A conveyance is not subject to forfeiture for a violation of subsection 7 of section 19-03.1-23 or subsection 3 of section 19-03.2-03.
      4. A forfeiture of a conveyance encumbered by a bona fide security interest is subject to the interest of the secured party if the secured party neither had knowledge of nor consented to the act or omission.
    6. All books, records, and research products and materials, including formulas, microfilm, tapes, and data which are used, or intended for use, in violation of this chapter.
    7. All drug paraphernalia as defined in chapter 19-03.4.
    8. All money, coin, currency, and everything of value furnished, or intended to be furnished, in exchange for a controlled substance in violation of this chapter or an imitation controlled substance in violation of chapter 19-03.2, and all real and personal property, assets, profits, income, proceeds, or an interest therein, acquired or derived from the unlawful purchase, attempted purchase, delivery, attempted delivery, manufacturing, or attempted manufacturing of any controlled substance or imitation controlled substance.
  2. Property subject to forfeiture under this chapter, except conveyances, may be seized by the board upon process issued by any district court having jurisdiction over the property. A conveyance subject to forfeiture under this chapter may be seized by a state, county, or city law enforcement agency upon process issued by any district court having jurisdiction over the conveyance. Seizure without process may be made if:
    1. The seizure is incident to an arrest or a search under a search warrant or an inspection under an administrative inspection warrant.
    2. The property subject to seizure has been the subject of a prior judgment in favor of the state in a criminal injunction or forfeiture proceedings based upon this chapter.
    3. The board or a law enforcement agency has probable cause to believe that the property is directly or indirectly dangerous to health or safety.
    4. The board or a law enforcement agency has probable cause to believe that the property was used or is intended to be used in violation of this chapter.
  3. In the event of seizure pursuant to subsection 2, proceedings under subsection 4 must be instituted promptly.
  4. Property taken or detained under this section is not subject to replevin, but is deemed to be in custody of the board or a law enforcement agency subject only to the orders and decrees of the district court having jurisdiction over the forfeiture proceedings as set out in subsection 2. When property is seized under this chapter, the board or a law enforcement agency may:
    1. Place the property under seal.
    2. Remove the property to a place designated by it.
    3. Require the attorney general to take custody of the property and remove it to an appropriate location for disposition in accordance with law.
  5. When property is forfeited under this chapter, the board or a law enforcement agency may:
    1. Retain it for official use or transfer the custody or ownership of any forfeited property to any federal, state, or local agency. The board shall ensure the equitable transfer of any forfeited property to the appropriate federal, state, or local law enforcement agency so as to reflect generally the contribution of that agency participating directly in any of the acts that led to the seizure or forfeiture of the property. A decision to transfer the property is not subject to review.
    2. Sell that which is not required to be destroyed by law and which is not harmful to the public. The proceeds must be used for payment of all proper expenses of the proceedings for forfeiture and sale, including expenses of seizure, maintenance of custody, advertising, and court costs, with any remaining proceeds to be deposited, subject to section 54-12-14, in the appropriate state, county, or city general fund. When two or more law enforcement agencies are involved in seizing a conveyance, the remaining proceeds may be divided proportionately.
    3. Require the attorney general to take custody of property and remove it for disposition in accordance with law.
    4. Forward it to the bureau for disposition.
    5. Use the property, including controlled substances, imitation controlled substances, and plants forfeited under subsections 6 and 7, in enforcement of this chapter. However, in a case involving the delivery of a forfeited controlled substance by a law enforcement officer or a person acting as an agent of a law enforcement officer, no prosecution or conviction for simple possession of a controlled substance under subsection 5 of section 19-03.1-23 may be based upon the forfeited controlled substances supplied by the law enforcement officer or the officer’s agent.
  6. Controlled substances as defined in this chapter and imitation controlled substances as defined in chapter 19-03.2 that are possessed, transferred, sold, or offered for sale in violation of this chapter and drug paraphernalia as defined in chapter 19-03.4 are contraband and must be seized and summarily forfeited to the state. Controlled substances as defined in this chapter and imitation controlled substances as defined in chapter 19-03.2, which are seized or come into the possession of the state and drug paraphernalia as defined in chapter 19-03.4, the owners of which are unknown, are contraband and must be summarily forfeited to the state.
  7. Species of plants from which controlled substances in schedules I and II may be derived which have been planted or cultivated in violation of this chapter, or of which the owners or cultivators are unknown, or which are wild growths, may be seized and summarily forfeited to the state.
  8. The failure, upon demand by the board, or its authorized agent, of the person in occupancy or in control of land or premises upon which the species of plants are growing or being stored to produce an appropriate registration, or proof that the person is the holder thereof, constitutes authority for the seizure and forfeiture of the plants.

Source:

S.L. 1971, ch. 235, § 36; 1979, ch. 290, § 1; 1981, ch. 160, § 7; 1983, ch. 256, § 1; 1983, ch. 257, § 4; 1985, ch. 82, § 33; 1985, ch. 258, § 26; 1985, ch. 262, § 3; 1987, ch. 266, § 1; 1989, ch. 268, § 1; 1993, ch. 221, § 1; 1995, ch. 54, § 10; 2001, ch. 214, § 6; 2003, ch. 48, § 11; 2003, ch. 184, §§ 2, 3; 2017, ch. 164, §§ 9, 10, effective August 1, 2017; 2019, ch. 187, §§ 4, 5, effective August 1, 2019.

Note.

Section 19-03.1-36 was amended 2 times by the 2019 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 5 of Chapter 187, Session Laws 2019, House Bill 1183; and Section 4 of Chapter 187, Session Laws 2019, House Bill 1183.

Notes to Decisions

Construction with Other Law.

The “promptness” requirement in subsection 3 of this section does not apply to forfeitures under N.D.C.C. ch. 29-31.1, which addresses the forfeiture of property held as evidence. State v. Koble, 2000 ND 29, 606 N.W.2d 521, 2000 N.D. LEXIS 30 (N.D. 2000).

Due Process.
—Post-Seizure Proceeding.

In cases where the state does not provide pre-seizure notice and hearing, due process requires that the state not “unduly delay” the bringing of post-seizure proceedings; there is no bright line dictating when a post-seizure hearing must occur. State v. One Black 1989 Cadillac, 522 N.W.2d 457, 1994 N.D. LEXIS 210 (N.D. 1994).

Hearing.

It was no error to grant an offender summary judgment against the State in a forfeiture proceeding without a hearing because nothing showed the State scheduled a hearing on the offender’s summary judgment motion. State v. $3260.00 United States Currency, 2018 ND 112, 910 N.W.2d 839, 2018 N.D. LEXIS 117 (N.D. 2018).

Money.

Where state, by a preponderance of evidence, connected seized money to illegal drug sales and thereby established a prima facie case for forfeiture of money as being profits from illegal drug sales, person claiming return of money had burden to show that money was not related to illegal drug sales, and when that burden was not satisfied money was forfeited to state. State v. Ronngren, 356 N.W.2d 903, 1984 N.D. LEXIS 415 (N.D. 1984).

Prompt Action.
—Applicability.

The “promptness” requirement in subsection 3 of this section does not apply to forfeitures under N.D.C.C. ch. 29-31.1, which addresses the forfeiture of property held as evidence. State v. Koble, 2000 ND 29, 606 N.W.2d 521, 2000 N.D. LEXIS 30 (N.D. 2000).

—Not Shown.

One hundred seventy four day delay between seizure of Cadillac and initiation of proceedings was a significant lapse of time, weighing heavily against a finding of promptness. State v. One Black 1989 Cadillac, 522 N.W.2d 457, 1994 N.D. LEXIS 210 (N.D. 1994).

—Standard.

The appropriate standard to evaluate if the state has fulfilled the statutory requirement of prompt action in forfeiture cases involves a balancing of: (1) the length of delay, (2) the reason for the delay, (3) the conduct of the property owner in pursuing prompt action, and (4) the prejudice to the property owner. State v. One Black 1989 Cadillac, 522 N.W.2d 457, 1994 N.D. LEXIS 210 (N.D. 1994).

Summary Judgment.

Offender was entitled to summary judgment against the State because the State did not support the State’s position with competent admissible evidence showing there was probable cause to believe the currency in question was forfeitable property, so the State did not make a showing sufficient to establish the existence of an element essential to the State’s case and on which the State bore the burden of proof at a hearing. State v. $3260.00 United States Currency, 2018 ND 112, 910 N.W.2d 839, 2018 N.D. LEXIS 117 (N.D. 2018).

Summary judgment was proper in a forfeiture proceeding because the North Dakota Rules of Civil Procedure applied. State v. $3260.00 United States Currency, 2018 ND 112, 910 N.W.2d 839, 2018 N.D. LEXIS 117 (N.D. 2018).

Collateral References.

Forfeiture of money to state or local authorities based on its association with or proximity to other contraband, 38 A.L.R.4th 496.

Necessity of conviction of offense associated with property seized in order to support forfeiture of property to state or local authorities, 38 A.L.R.4th 515.

Timeliness of institution of proceedings for forfeiture under Uniform Controlled Substances Act or similar statute, 90 A.L.R.4th 493.

Validity, construction, and application of state laws imposing tax or license fee on possession, sale, or the like, of illegal narcotics, 12 A.L.R.5th 89.

Burden of proof and presumptions in tracing currency, bank account, or cash equivalent to illegal drug trafficking so as to permit forfeiture, or declaration as contraband, under state law, 104 A.L.R.5th 229.

Evidence considered in tracing currency, bank account, or cash equivalent to illegal drug trafficking so as to permit forfeiture, or declaration as contraband, under state law-Explanation or lack thereof, 4 A.L.R.6th 113.

Preemptive Effect of Uniform Controlled Substances Act Upon Local Ordinances, 33 A.L.R.6th 293.

Evidence Considered in Tracing Currency, Bank Account, or Cash Equivalent to Illegal Drug Trafficking so as to Permit Forfeiture, or Declaration as Contraband, Under State Law — Amount and Packaging of Money and Drugs, 34 A.L.R.6th 539.

Law Reviews.

Criminal Law — Entrapment; Illegal Police Conduct Get Stung by the Entrapment Defense in State v. Kummer, 69 N.D. L. Rev. 969 (1993).

Constitutional Issues in North Dakota Asset Forfeiture Law After Austin v. United States, Alexander v. United States, and United States v. Good Real Property, 70 N.D. L. Rev. 851 (1994).

19-03.1-36.1. Manner of forfeiture.

Property subject to forfeiture under this chapter, other than property that may be summarily forfeited, may be forfeited by order of a district court only after:

  1. A written consent to forfeiture executed by the owner of the property and all persons with a legal interest in the property to be forfeited has been filed with the court; or
  2. Commencement of forfeiture proceedings.

Source:

S.L. 1989, ch. 268, § 2.

Collateral References.

Forfeitability of property, under uniform controlled substances act or similar statute, where property or evidence supporting forfeiture was illegally seized, 1 A.L.R.5th 346.

Application of forfeiture provisions of uniform controlled substances act or similar statute where drugs were possessed for personal use, 1 A.L.R.5th 375.

Burden of proof and presumptions in tracing currency, bank account, or cash equivalent to illegal drug trafficking so as to permit forfeiture, or declaration as contraband, under state law, 104 A.L.R.5th 229.

19-03.1-36.2. Forfeiture proceeding as civil action — Standard of proof.

  1. Forfeiture proceedings are civil actions against the property to be forfeited and the standard of proof is clear and convincing evidence.
  2. Forfeiture proceedings are separate and distinct from any related criminal action, and may not be initiated until the owner of the property has been convicted of or pled guilty to a criminal offense, or the individual has died, fled the jurisdiction, been deported by the United States government, been granted immunity or a reduced sentence in exchange for testifying or assisting a law enforcement investigation or prosecution, has abandoned the property, or it can be established beyond a reasonable doubt the property was used in the commission of a crime or constituted the proceeds of criminal activity. As used in this subsection, “abandoned the property” or “fled the jurisdiction” means for a period of more than one year, the owner has not responded to any of the reasonable efforts made by the seizing agency to contact the owner or has not contacted the seizing agency.
  3. Two or more law enforcement agencies and courts from different jurisdictions may coordinate, cooperate, and engage in interjurisdictional prosecution under this section.

Source:

S.L. 1989, ch. 268, § 3; 2019, ch. 189, § 1, effective August 1, 2019.

Notes to Decisions

Failure of Proof.

Because district court erred in its due process analysis of whether a claimant’s due process rights had been violated by a delay in the forfeiture of items seized as evidence for his criminal trial and because findings of fact were inadequate to provide an understanding of the basis used to reach its decision that the State had probable cause to bring the forfeiture action, case was remanded for a new hearing at which the court, after reviewing all the evidence, must then specifically find facts as to whether there was probable cause for the forfeiture action and whether, by a preponderance of the evidence, the cash at issue was proceeds of a criminal offense. State v. Bergstrom, 2006 ND 45, 710 N.W.2d 407, 2006 N.D. LEXIS 44 (N.D. 2006).

Given the extensive evidence at the property owner’s residence that the property owner was involved in the manufacture and possession of marijuana, as well as the sale of that marijuana, the State showed that probable cause existed for it to forfeit the $44,140 in currency that it found during the execution of a search warrant there, as required by N.D.C.C. § 19-03.1-36.6. As a result, the burden of proof shifted to the property owner to show by a preponderance of the evidence as dictated by N.D.C.C. § 19-03.1-36.2 that the property was not subject to forfeiture and the trial court’s finding that the property owner did not meet that burden of proof had to be upheld since it was not clearly erroneous, especially given the reviewing court’s deference to the trial court pursuant to N.D.R.Civ.P. 52(a)(6) regarding findings as to the credibility of witnesses. State v. $44,140.00 United States Currency, 2012 ND 176, 820 N.W.2d 697, 2012 N.D. LEXIS 181 (N.D. 2012).

Collateral References.

Burden of proof and presumptions in tracing currency, bank account, or cash equivalent to illegal drug trafficking so as to permit forfeiture, or declaration as contraband, under state law, 104 A.L.R.5th 229.

Evidence Considered in Tracing Currency, Bank Account, or Cash Equivalent to Illegal Drug Trafficking so as to Permit Forfeiture, or Declaration as Contraband, Under State Law — Amount and Packaging of Money and Drugs, 34 A.L.R.6th 539.

19-03.1-36.3. Summons and complaint for forfeiture of property — Contents of complaint — Notice.

When property described in subsection 1 of section 19-03.1-36 is to be forfeited, other than property described in subsection 6 of section 19-03.1-36, and in the absence of a written consent to forfeiture, forfeiture proceedings must be commenced by the filing of a summons and complaint for forfeiture of the property in the district court of the county in which the property was seized, is being held, or is located. In the case of real property, the summons and complaint must be filed in the county in which the real property, or some part of the real property, is located. The proceedings must be brought in the name of the state. The complaint must describe the property, state its location, state its present custodian, state the name of each owner if known, state the name of each party with a legal interest in the property if known or of legal record, allege the essential elements of the violation that is claimed to exist, and must conclude with a prayer to enforce the forfeiture. Notice of the forfeiture proceedings must be given to each known owner and known person with a legal interest in the property to be forfeited by serving a copy of the summons and complaint in accordance with the North Dakota Rules of Civil Procedure. The procedure governing the proceedings, except as otherwise provided in this chapter, is the same as that prescribed for civil proceedings.

Source:

S.L. 1989, ch. 268, § 4.

Notes to Decisions

Notice.

Owner of property sought to be forfeited had a due process right to have the notice to appear for the forfeiture hearing mailed to his last known address, and that due process right was violated when that notice was sent to the owner at a residential address rather at his in-custody address where he was incarcerated. State v. One 2002 Dodge Intrepid Auto., 2013 ND 234, 841 N.W.2d 239, 2013 N.D. LEXIS 253 (N.D. 2013).

19-03.1-36.4. Answer by claimant of property — Time for filing.

Within twenty days after the service of the summons and complaint for forfeiture, the owner of the property to be forfeited and any other person with a legal interest in the property may file an answer claiming an interest in that property and claiming that person’s interest is not subject to forfeiture under this chapter.

Source:

S.L. 1989, ch. 268, § 5.

Collateral References.

Effect of forfeiture proceedings under uniform controlled substances act or similar statute on lien against property subject to forfeiture, 1 A.L.R.5th 317.

Forfeitability of property, under uniform controlled substances act or similar statute, where property or evidence supporting forfeiture was illegally seized, 1 A.L.R.5th 346.

Application of forfeiture provisions of uniform controlled substances act or similar statute where drugs were possessed for personal use, 1 A.L.R.5th 375.

19-03.1-36.5. Disposition of property if no answer filed.

If at the end of twenty days after the summons and complaint have been served there is no answer filed with the court against the complaint for forfeiture, the court shall order the forfeiture and disposition of the property as prayed for in the complaint.

Source:

S.L. 1989, ch. 268, § 6.

19-03.1-36.6. Hearing on contested forfeiture — Order releasing or forfeiting property.

  1. If an answer is filed within the time limits in this chapter, the forfeiture proceedings must be set for hearing before the court. At the hearing, the state shall establish a valid seizure of the property to be forfeited, and the property meets the requirements of subsection 2 of section 19-03.1-36.2. Following the state’s case, any owner or person with a legal interest in the property to be forfeited who has filed an answer to the complaint has the burden of proving that the property to be forfeited is not subject to forfeiture under this chapter. If the court finds that the property is not subject to forfeiture under this chapter, the court shall order the property released to the owner or other person with a legal interest in the property as that person’s right, title, or interest appears. The court shall order the property forfeited if it determines that such property or an interest therein is subject to forfeiture.
  2. A court ordering property forfeited under subsection 1 may order only the forfeited property or proceeds from the sale of forfeited property to be deposited with a political subdivision if the political subdivision has created a civil asset forfeiture fund. If the political subdivision does not have a civil asset forfeiture fund, any forfeited property and proceeds from the sale of forfeited property must be deposited in the attorney general’s asset forfeiture fund.
  3. A political subdivision that has a civil asset forfeiture fund shall establish an application process, including eligibility criteria, to accept and process applications from law enforcement agencies within the political subdivision’s jurisdiction for an appropriation from the civil asset forfeiture fund.
  4. This section does not prohibit the state and a political subdivision from entering an agreement to divide forfeited property and the proceeds from the sale of forfeited property.

Source:

S.L. 1989, ch. 268, § 7; 2019, ch. 189, § 2, effective August 1, 2019.

Notes to Decisions

Burden of Proof.

Once the State established probable cause to believe the property at issue, more than $17,500 in cash, was forfeitable, the burden of proof shifted to the appellant inmate to prove that the property was not forfeitable; when the appellant could not show that the money had not come from illegal drug sales, the forfeiture was upheld. State v. $ 17,515.00 in Cash Money, 2003 ND 168, 670 N.W.2d 826, 2003 N.D. LEXIS 178 (N.D. 2003).

Given the extensive evidence at the property owner’s residence that the property owner was involved in the manufacture and possession of marijuana, as well as the sale of that marijuana, the State showed that probable cause existed for it to forfeit the $44,140 in currency that it found during the execution of a search warrant there, as required by N.D.C.C. § 19-03.1-36.6. As a result, the burden of proof shifted to the property owner to show by a preponderance of the evidence as dictated by N.D.C.C. § 19-03.1-36.2 that the property was not subject to forfeiture and the trial court’s finding that the property owner did not meet that burden of proof had to be upheld since it was not clearly erroneous, especially given the reviewing court’s deference to the trial court pursuant to N.D.R.Civ.P. 52(a)(6) regarding findings as to the credibility of witnesses. State v. $44,140.00 United States Currency, 2012 ND 176, 820 N.W.2d 697, 2012 N.D. LEXIS 181 (N.D. 2012).

Hearing.

It was no error to grant an offender summary judgment against the State in a forfeiture proceeding without a hearing because nothing showed the State scheduled a hearing on the offender’s summary judgment motion. State v. $3260.00 United States Currency, 2018 ND 112, 910 N.W.2d 839, 2018 N.D. LEXIS 117 (N.D. 2018).

Insufficient Findings.

Because district court erred in its due process analysis of whether a claimant’s due process rights had been violated by a delay in the forfeiture of items seized as evidence for his criminal trial and because findings of fact were inadequate to provide an understanding of the basis used to reach its decision that the State had probable cause to bring the forfeiture action, case was remanded for a new hearing. State v. Bergstrom, 2006 ND 45, 710 N.W.2d 407, 2006 N.D. LEXIS 44 (N.D. 2006).

No Right to Jury Trial.

This section created proceedings and remedies unknown when the state constitution was adopted; accordingly, there was no constitutional right to a jury trial in those proceedings. State v. $ 17,515.00 in Cash Money, 2003 ND 168, 670 N.W.2d 826, 2003 N.D. LEXIS 178 (N.D. 2003).

Collateral References.

Evidence considered in tracing currency, bank account, or cash equivalent to illegal drug trafficking so as to permit forfeiture, or declaration as contraband, under state law — Proximity of asset to drugs, paraphernalia, or records, 115 A.L.R.5th 403.

Evidence considered in tracing currency, bank account, or cash equivalent to illegal drug trafficking so as to permit forfeiture, or declaration as contraband, under state law — Odor of drugs, 116 A.L.R.5th 325.

Evidence Considered in Tracing Currency, Bank Account, or Cash Equivalent to Illegal Drug Trafficking so as to Permit Forfeiture, or Declaration as Contraband, Under State Law — Amount and Packaging of Money and Drugs, 34 A.L.R.6th 539.

19-03.1-36.7. Legal interest in property.

  1. A person alleging a bona fide legal interest in property to be forfeited must establish by a preponderance of the evidence that such legal interest existed at the time of seizure or taking of custody of the property. In the case of a claimed bona fide security interest in the property, the person claiming such interest must establish by a preponderance of the evidence that the security interest in the property to be forfeited existed or was of public record at the time of seizure or taking of custody of the property.
  2. Upon a determination by the court that property is subject to forfeiture, the owner of the property to be forfeited or any other person with a legal interest in the property may petition the court to determine whether the forfeiture is unconstitutionally excessive.
    1. A vehicle valued at less than two thousand dollars may not be forfeited unless the court finds the vehicle has been modified to conceal contraband or currency.
    2. Real property constituting a homestead may not be forfeited.
    3. In determining whether a forfeiture is excessive, the court shall consider all factors, including the fair market value of the property, the extent to which the owner or person participated in the offense, the extent to which the property was used or received in committing the offense, and the possible penalty that could be imposed for the alleged or committed offense subject to forfeiture.
    4. The court may not consider the value of the property to the state in determining whether the forfeiture is unconstitutionally excessive.

Source:

S.L. 1989, ch. 268, § 8; 2019, ch. 189, § 3, effective August 1, 2019.

19-03.1-36.8 Reporting.

  1. As used in this section, “law enforcement agency” means a nonfederal public agency authorized by law or by a government agency or branch to enforce the law and to conduct or engage in investigations or prosecutions for violations of law, including the authority to conduct or engage in seizure and forfeiture of property or to collaborate with a federal agency under federal law to conduct or engage in seizure and forfeiture of property. The term includes a multijurisdictional task force.
  2. Every civil forfeiture judgment issued by a district court must be made publicly available and include the following information in the findings of fact:
    1. Case number of the forfeiture proceeding and the district court where the case was filed.
    2. Location of the seizure, including whether the location was a residence or business or occurred during a traffic stop.
    3. The crime with which the suspect was charged.
    4. The disposition of the suspect’s criminal case.
    5. Who filed a claim or counterclaim for the seized property, or whether there was a default in the litigation of the seized property.
    6. Date the forfeiture order was issued.
    7. Whether a forfeiture settlement agreement was reached.
    8. The date and the final disposition of the property.
    9. Estimated value of the forfeited property.
    10. Estimate of the total costs accrued by the law enforcement agency for storage and disposal of the civilly forfeited property.
    11. Amount of any attorney fees awarded to owners of seized and forfeited property.
  3. Annually, any law enforcement agency that seizes property shall provide to the attorney general a completed civil asset forfeiture case report form for every seizure and the total value of the forfeited property held by the agency at the end of the reporting period.
  4. By November first of each year, the attorney general shall submit to the legislative management and the governor a written report summarizing activity in the state for the preceding fiscal year, the type, approximate value, and disposition of any civilly forfeited property, and the amount of proceeds received.
    1. Summary data and civilly forfeited property must be disaggregated by agency.
    2. The attorney general shall make the report available on the attorney general’s website.
    3. The report must include the case reports provided by the law enforcement agencies.
  5. The attorney general may recover any costs under this section by withdrawing money from the asset forfeiture fund.
  6. A law enforcement agency may use forfeiture proceeds to pay the costs of compiling and reporting data under this section.
  7. The data and reports compiled under this section are public information and not exempt from disclosure.
  8. The attorney general may require the reporting of additional information not specified in this section. The attorney general shall develop standard forms, processes, and deadlines for annual submission of forfeiture data by law enforcement agencies.
  9. If a law enforcement agency fails to file a report within thirty days after the report is due, the attorney general may compel compliance by any means until the report is filed.
  10. Any property seized with a value of less than fifty dollars is not required to be included in the written report submitted by the attorney general.
  11. A state’s attorney may establish a minimum value amount for seizures in the interests of justice and efficient use of governmental resources in the state’s attorney’s jurisdiction. The minimum value amount may be based on the state’s attorney’s determination of the:
    1. Type and number of occurrences of offenses that include the seizure of property; and
    2. Average value of seized property less the costs to seize and forfeit the property.

Source:

S.L. 2019, ch. 189, § 4, effective August 1, 2019; 2021, ch. 178, § 1, effective August 1, 2021.

19-03.1-37. Burden of proof — Liabilities.

  1. It is not necessary for the state to negate any exemption or exception in this chapter in any complaint, information, indictment, or other pleading or in any trial, hearing, or other proceeding under this chapter. The burden of proof of any exemption or exception is upon the person claiming it.
  2. In the absence of proof that a person is the duly authorized holder of an appropriate registration or order form issued under this chapter, the person is presumed not to be the holder of the registration or form. The burden of proof is upon the person to rebut the presumption.
  3. No liability is imposed by this chapter upon any authorized state, county, or municipal officer engaged in the lawful performance of the officer’s duties.
  4. In all prosecutions under this chapter, chapter 19-03.2, or chapter 19-03.4 involving the analysis of a substance or sample thereof, a certified copy of the analytical report signed by the director of the state crime laboratory or the director’s designee, or electronically posted by the director of the state crime laboratory or the director’s designee on the crime laboratory information management system and certified by a law enforcement officer or individual who has authorized access to the crime laboratory information management system through the criminal justice data information sharing system, must be accepted as prima facie evidence of the results of the analytical findings.
  5. Superseded by N.D.R.Ev, Rule 707.
  6. In all cases of conspiracy to violate chapter 19-03.1, 19-03.2, or 19-03.4, the state is not required to prove or establish that a conspirator knew the other person to the agreement intended to deliver or possess with intent to deliver a controlled substance, an imitation controlled substance, or drug paraphernalia to a third person.

Source:

S.L. 1971, ch. 235, § 37; 1975, ch. 196, § 1; 1985, ch. 258, § 27; 1987, ch. 263, § 11; 1989, ch. 266, § 7; 1993, ch. 218, § 3; 1993, ch. 220, § 5; 1993, ch. 222, § 1; 1995, ch. 243, § 2; 1997, ch. 206, § 1; 2001, ch. 214, §§ 7, 8; 2003, ch. 469, § 2; 2005, ch. 195, § 1; 2015, ch. 168, § 2, effective August 1, 2015.

Effective Date.

The 2015 amendment of this section by section 1 of chapter 168, S.L. 2015 became effective August 1, 2015.

Notes to Decisions

Admissibility of State Lab Reports.

State laboratory report certified by Director of State Department of Health and prepared by chemist, is hearsay as defined by N.D.R.Ev. 801(c), because it contains statements made by a nontestifying declarant which were offered as proof of the truth of the matter asserted, more particularly, that the substance taken from defendant was illegal. However subsection 4 of this section makes a certified copy of a state laboratory analytical report, for purposes of prosecutions under N.D.C.C. ch. 19-03.1, prima facie evidence of the results of the report’s findings, and constitutes an express statutory exception to the hearsay rule. State v. Fischer, 459 N.W.2d 818, 1990 N.D. LEXIS 173 (N.D. 1990).

The Legislature clearly has power to make evidence admissible. State v. Fischer, 459 N.W.2d 818, 1990 N.D. LEXIS 173 (N.D. 1990).

Certified Copy of Report.

The rule of admissibility in subsection 4 of this section is independent of North Dakota’s Rules of Evidence and is perforce not exclusive. State v. Schneider, 389 N.W.2d 604, 1986 N.D. LEXIS 340 (N.D. 1986).

Prescription Defense.

Evidence was sufficient to support defendant’s conviction for possession of a controlled substance, Psilocyn, because defendant failed to produce a valid prescription. State v. Holly, 2013 ND 94, 833 N.W.2d 15, 2013 N.D. LEXIS 94 (N.D. 2013).

Proof of Nature of Substance.

Where the controlled substance itself is not introduced into evidence, the witness called by the state to identify the controlled substance must be qualified as an expert in accordance with North Dakota Rule of Evidence 702. State v. Garvey, 283 N.W.2d 153, 1979 N.D. LEXIS 284 (N.D. 1979), overruled in part, State v. Himmerick, 499 N.W.2d 568, 1993 N.D. LEXIS 77 (N.D. 1993).

Right to Confrontation.

Defendants’ right to confrontation was not violated by the admission of a state crime laboratory report on the ground that the report was a testimonial statement under the holding of Crawford—that the admission of out-of-court testimonial statements in criminal cases is precluded, unless, when the witness is unavailable to testify, the accused has had a prior opportunity to cross-examine the declarant—because under N.D.C.C. § 19-03.1-37(5), defendants could have subpoenaed the laboratory report’s author but failed to do so and there was no evidence that the forensic scientist was unavailable. State v. Campbell, 2006 ND 168, 719 N.W.2d 374, 2006 N.D. LEXIS 171 (N.D. 2006), cert. denied, 549 U.S. 1180, 127 S. Ct. 1150, 166 L. Ed. 2d 993, 2007 U.S. LEXIS 1177 (U.S. 2007).

19-03.1-38. Judicial review.

All final determinations, findings, and conclusions of the board under this chapter are final and conclusive decisions of the matters involved. Any person aggrieved by the decision may obtain review of the decision in the district court. Findings of fact by the board, if supported by substantial evidence, are conclusive.

Source:

S.L. 1971, ch. 235, § 38; 1985, ch. 262, § 24.

19-03.1-39. Education and research.

  1. The board shall carry out educational programs designed to prevent and deter misuse of controlled substances. In connection with these programs it may:
    1. Promote better recognition of the problems of misuse and abuse of controlled substances within the regulated industry and among interested groups and organizations.
    2. Assist the regulated industry and interested groups and organizations in contributing to the reduction of misuse and abuse of controlled substances.
    3. Consult with interested groups and organizations to aid them in solving administrative and organizational problems.
    4. Evaluate procedures, projects, techniques, and controls conducted or proposed as part of educational programs on misuse and abuse of controlled substances.
    5. Disseminate the results of research on misuse and abuse of controlled substances to promote a better public understanding of what problems exist and what can be done to combat them.
    6. Assist in the education and training of state and local law enforcement officials in their efforts to control misuse and abuse of controlled substances.
  2. The board shall encourage research on misuse and abuse of controlled substances. In connection with the research, and in furtherance of the enforcement of this chapter, it may:
    1. Establish methods to assess accurately the effects of controlled substances and identify and characterize those with potential for abuse.
    2. Make studies and undertake programs of research to:
      1. Develop new or improved approaches, techniques, systems, equipment, and devices to strengthen the enforcement of this chapter.
      2. Determine patterns of misuse and abuse of controlled substances and the social effects thereof.
      3. Improve methods for preventing, predicting, understanding, and dealing with the misuse and abuse of controlled substances.
    3. Enter contracts with public agencies, institutions of higher education, and private organizations or individuals for the purpose of conducting research, demonstrations, or special projects which bear directly on misuse and abuse of controlled substances.
  3. The board may enter into contracts for educational and research activities without performance bonds and without regard to statutory provisions affecting such contracts.
  4. The board may authorize persons engaged in research on the use and effects of controlled substances to withhold the names and other identifying characteristics of individuals who are the subjects of the research. Persons who obtain this authorization are not compelled in any civil, criminal, administrative, legislative, or other proceeding to identify the individuals who are the subjects of research for which the authorization was obtained.
  5. The board may authorize the possession and distribution of controlled substances by persons engaged in research. Persons who obtain this authorization are exempt from state prosecution for possession and distribution of controlled substances to the extent of the authorization.

Source:

S.L. 1971, ch. 235, § 39; 1985, ch. 262, § 25.

19-03.1-40. Pending proceedings. [Repealed]

Repealed by S.L. 1985, ch. 262, § 27.

19-03.1-41. Continuation of rules.

Any orders and rules promulgated under any law affected by this chapter in effect on July 1, 1971, and not in conflict with it continue in effect until modified, superseded, or repealed.

Source:

S.L. 1971, ch. 235, § 41.

19-03.1-42. Uniformity of interpretation. [Repealed]

Repealed by S.L. 1983, ch. 82, § 154.

19-03.1-43. Short title.

This chapter may be cited as the Uniform Controlled Substances Act.

Source:

S.L. 1971, ch. 235, § 43.

19-03.1-44. Comprehensive status and trends report. [Repealed]

Source:

S.L. 2001, ch. 217, § 1; 2007, ch. 75, § 3; repealed by 2017, ch. 366, § 6, effective February 23, 2017.

19-03.1-45. Drug abuse assessment and treatment — Presentence investigation — Certified drug abuse treatment programs. [Effective through August 31, 2022]

  1. If a person has pled guilty or has been found guilty of a felony violation of subsection 7 of section 19-03.1-23, if that person has not previously pled guilty or been found guilty of any offense involving the use, possession, manufacture, or delivery of a controlled substance or of any other felony offense of this or another state or the federal government, the court shall impose a period of probation up to the length authorized under section 12.1-32-06.1 with a suspended execution of a sentence of imprisonment, a sentence to probation, or an order deferring imposition of sentence.
  2. Upon a plea or finding of guilt of a person subject to subsection 1, the court shall order a presentence investigation to be conducted by the department. The presentence investigation must include a drug and alcohol evaluation conducted by a licensed addiction counselor.
  3. If the licensed addiction counselor recommends treatment, the court shall require the person to participate in an addiction program licensed by the department of human services as a condition of the probation. The court shall commit the person to treatment through a licensed addiction program until determined suitable for discharge by the court. The term of treatment may not exceed eighteen months and may include an aftercare plan. During the commitment and while subject to probation, the department shall supervise the person.
  4. If the person fails to participate in, or has a pattern of intentional conduct that demonstrates the person’s refusal to comply with or participate in the treatment program, as established by judicial finding, the person is subject to revocation of the probation. Notwithstanding subsection 2 of section 12.1-32-02, the amount of time participating in the treatment program under this section is not “time spent in custody” and will not be a credit against any sentence to term of imprisonment.
  5. In this section:
    1. “Department” means the department of corrections and rehabilitation; and
    2. “Licensed addiction counselor” is a person licensed pursuant to section 43-45-05.1.

Source:

S.L. 2005, ch. 196, § 1; 2007, ch. 15, § 6; 2015, ch. 171, § 1, effective August 1, 2015; 2017, ch. 164, § 11, effective August 1, 2017; 2019, ch. 187, § 6, effective August 1, 2019.

Effective Date.

The 2015 amendment of this section by section 1 of chapter 171, S.L. 2015 became effective August 1, 2015.

19-03.1-45. Drug abuse assessment and treatment — Presentence investigation — Certified drug abuse treatment programs. [Effective September 1, 2022]

  1. If a person has pled guilty or has been found guilty of a felony violation of subsection 7 of section 19-03.1-23, if that person has not previously pled guilty or been found guilty of any offense involving the use, possession, manufacture, or delivery of a controlled substance or of any other felony offense of this or another state or the federal government, the court shall impose a period of probation up to the length authorized under section 12.1-32-06.1 with a suspended execution of a sentence of imprisonment, a sentence to probation, or an order deferring imposition of sentence.
  2. Upon a plea or finding of guilt of a person subject to subsection 1, the court shall order a presentence investigation to be conducted by the department. The presentence investigation must include a drug and alcohol evaluation conducted by a licensed addiction counselor.
  3. If the licensed addiction counselor recommends treatment, the court shall require the person to participate in an addiction program licensed by the department as a condition of the probation. The court shall commit the person to treatment through a licensed addiction program until determined suitable for discharge by the court. The term of treatment may not exceed eighteen months and may include an aftercare plan. During the commitment and while subject to probation, the department shall supervise the person.
  4. If the person fails to participate in, or has a pattern of intentional conduct that demonstrates the person’s refusal to comply with or participate in the treatment program, as established by judicial finding, the person is subject to revocation of the probation. Notwithstanding subsection 2 of section 12.1-32-02, the amount of time participating in the treatment program under this section is not “time spent in custody” and will not be a credit against any sentence to term of imprisonment.
  5. In this section:
    1. “Department” means the department of corrections and rehabilitation; and
    2. “Licensed addiction counselor” is a person licensed pursuant to section 43-45-05.1.

Source:

S.L. 2005, ch. 196, § 1; 2007, ch. 15, § 6; 2015, ch. 171, § 1, effective August 1, 2015; 2017, ch. 164, § 11, effective August 1, 2017; 2019, ch. 187, § 6, effective August 1, 2019; 2021, ch. 352, § 86, effective September 1, 2022.

19-03.1-46. Bail — Additional conditions of release.

A court shall impose as a condition of release or bail that an individual who has been arrested upon a felony violation of this chapter or chapter 19-03.4 not use a controlled substance without a valid prescription from a licensed medical practitioner and that the individual submit to a medical examination or other reasonable random testing for the purpose of determining the person’s use of a controlled substance. The court shall order the frequency of the random testing and the location at which random testing must occur. The court shall provide notice to the selected provider of the required examination or testing. The provider shall notify the court if the individual fails to appear for the examination or testing. The testing must be at the individual’s own cost. Submission of an individual to a medical examination or other reasonable random testing as a condition for release is not required if the court makes a specific finding on the record that:

  1. The individual has not been arrested for a felony offense relating to the use, possession, manufacture, or delivery of methamphetamine;
  2. The individual will appear as required by the court and will comply with all conditions of release without submission to an examination or testing; and
  3. Not imposing examination or testing as a condition of release will pose no danger to the individual or to the community.

Source:

S.L. 2005, ch. 197, § 1.

Notes to Decisions

Constitutionality.

Appellate court vacated an order holding the provisions for random drug testing as a condition of bail in N.D.C.C. § 19-03.1-46 unconstitutional where the trial court failed to follow established procedures and orderly process; the trial court had raised the issue of the constitutionality of the statute without briefing by any party and without notice to the attorney general. State v. Hansen, 2006 ND 139, 717 N.W.2d 541, 2006 N.D. LEXIS 137 (N.D. 2006).

Law Reviews.

North Dakota Supreme Court Review (State v. Hanson), 83 N.D. L. Rev. 1085 (2007).

CHAPTER 19-03.2 Imitation Controlled Substances

19-03.2-01. Definitions.

  1. “Controlled substance” means a substance as defined in section 19-03.1-01.
  2. “Distribute” means the actual, constructive, or attempted transfer, delivery, or dispensing to another of an imitation controlled substance.
  3. “Imitation controlled substance” means a substance that is not a controlled substance, but which by appearance, including color, shape, size, markings, or packaging, or by representations made, would lead a reasonable person to believe that the substance is a controlled substance.
  4. “Manufacture” means producing, preparing, compounding, processing, encapsulating, packaging, repackaging, labeling, or relabeling of an imitation controlled substance.

Source:

S.L. 1983, ch. 257, § 1.

Collateral References.

Validity, construction, and effect of state statute regulating sale of counterfeit or imitation controlled substances, 84 A.L.R.4th 936.

19-03.2-02. Determination of imitation controlled substance.

When the appearance of the dosage unit is not reasonably sufficient to establish that the substance is an “imitation controlled substance” as in the case of a powder or a liquid substance, the court or authority concerned should consider, in addition to all other logically relevant factors, all of the following factors as related to “representations made” in determining whether the substance is an “imitation controlled substance”:

  1. Statements made by an owner or by anyone else in control of the substance concerning the nature of the substance or its use or effect.
  2. Statements made to the recipient that the substance may be resold for inordinate profit.
  3. Whether the substance is packaged in a manner normally used for illicit controlled substances.
  4. Evasive tactics or actions utilized by the owner or person in control of the substance to avoid detection by law enforcement authorities.
  5. Prior convictions, if any, of an owner, or anyone in control of the object, under state or federal law related to controlled substances, imitation controlled substances, or fraud.
  6. The proximity of the substances to controlled substances.

Source:

S.L. 1983, ch. 257, § 2.

Collateral References.

Validity, construction, and effect of state statute regulating sale of counterfeit or imitation controlled substances, 84 A.L.R.4th 936.

19-03.2-03. Prohibited acts — Penalties — Exception.

  1. It is a class C felony for any person to manufacture, distribute, or possess with intent to distribute, an imitation controlled substance.
  2. It is a class C felony for a person to place in any newspaper, magazine, handbill, or other publication, or to post or distribute in any public place, any advertisement or solicitation with reasonable knowledge that the purpose of the advertisement or solicitation is to promote the distribution of imitation controlled substances.
  3. It is a class B misdemeanor for a person to use, or to possess with intent to use, an imitation controlled substance.
  4. It is not a defense that the defendant believed the substance actually to be a controlled substance.
  5. No civil or criminal liability may be imposed by virtue of this chapter on any person registered under chapter 19-03.1 who manufactures, distributes, or possesses an imitation controlled substance for use as a placebo by a registered practitioner in the course of professional practice or research.

Source:

S.L. 1983, ch 257, § 3.

Collateral References.

Validity, construction, and effect of state statute regulating sale of counterfeit or imitation controlled substances, 84 A.L.R.4th 936.

CHAPTER 19-03.3 Controlled Substances for Care and Treatment

19-03.3-01. Definitions.

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

  1. “Board” means the North Dakota board of medicine.
  2. “Pain” means acute pain and chronic pain. Acute pain is the normal, predicted physiological response to a noxious chemical or thermal or mechanical stimulus and typically is associated with invasive procedures, trauma, or disease, and is generally time-limited. Chronic pain is a state that persists beyond the usual course of an acute disease or healing of an injury or that may or may not be associated with an acute or chronic pathologic process that causes continuous or intermittent pain over months or years.
  3. “Physician” means a physician licensed by the board.

Source:

S.L. 1995, ch. 218, § 1; 2005, ch. 198, § 1; 2015, ch. 297, § 3, effective August 1, 2015.

Effective Date.

The 2015 amendment of this section by section 3 of chapter 297, S.L. 2015 became effective August 1, 2015.

19-03.3-02. Prescription or administration of drugs by physician.

Notwithstanding any other provision of law, a physician may prescribe or administer controlled substances to a patient in the course of the physician’s treatment of the patient for pain. A physician shall keep records of purchases and disposals of controlled substances prescribed or administered under this section. The records must include the date of purchase, the date of sale or administration by the physician, the name and address of the patient, and the reason for the prescribing or the administering of the substances to the patient.

Source:

S.L. 1995, ch. 218, § 2; 2005, ch. 198, § 2.

19-03.3-03. Restriction by hospital or health care facility of prescribed drug use prohibited.

No hospital or health care facility may forbid or restrict the use of controlled substances when prescribed or administered by a physician having staff privileges at that hospital or health care facility for a patient diagnosed and treated by a physician for pain.

Source:

S.L. 1995, ch. 218, § 3; 2005, ch. 198, § 3.

19-03.3-04. Disciplinary action for prescribing or administering drug treatment prohibited.

The board may not discipline a physician for prescribing or administering controlled substances in the course of treatment of a patient for pain under this chapter.

Source:

S.L. 1995, ch. 218, § 4; 2005, ch. 198, § 4.

19-03.3-05. Application.

This chapter does not apply to a person being treated by a physician for a substance use disorder because of the person’s use of controlled substances not related to treatment for pain. This chapter does not authorize a physician to prescribe or administer any drug legally classified as a controlled substance or as an addictive or dangerous drug for other than medically accepted therapeutic purposes. A person to whom controlled substances are prescribed or administered for pain is not exempt from section 39-08-01 or 39-20-04.1.

Source:

S.L. 1995, ch. 218, § 5; 2005, ch. 198, § 5; 2019, ch. 225, § 4, effective August 1, 2019.

19-03.3-06. Cancellation, revocation, or suspension of physician’s license.

This chapter does not limit the authority of the board to cancel, revoke, or suspend the license of any physician who:

  1. Prescribes or administers a drug or treatment that is nontherapeutic in nature or nontherapeutic in the manner the drug or treatment is administered or prescribed.
  2. Fails to keep complete and accurate records of purchases and disposals of controlled substances listed in chapter 19-03.1.
  3. Writes false or fictitious prescriptions for controlled substances scheduled in chapter 19-03.1.

Source:

S.L. 1995, ch. 218, § 6.

CHAPTER 19-03.4 Drug Paraphernalia

19-03.4-01. Definition — Drug paraphernalia.

In this chapter, unless the context otherwise requires, “drug paraphernalia” means all equipment, products, and materials of any kind which are used, intended for use, or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance in violation of chapter 19-03.1. The term includes:

  1. Kits used, intended for use, or designed for use in planting, propagating, cultivating, growing, or harvesting of any species of plant which is a controlled substance or from which a controlled substance can be derived.
  2. Kits used, intended for use, or designed for use in manufacturing, compounding, converting, producing, processing, or preparing controlled substances.
  3. Isomerization devices used, intended for use, or designed for use in increasing the potency of any species of plant which is a controlled substance.
  4. Testing equipment used, intended for use, or designed for use in identifying or in analyzing the strength, effectiveness, or purity of controlled substances.
  5. Scales and balances used, intended for use, or designed for use in weighing or measuring controlled substances.
  6. Diluents and adulterants, including quinine hydrochloride, mannitol, dextrose, and lactose, used, intended for use, or designed for use in cutting controlled substances.
  7. Separation gins and sifters used, intended for use, or designed for use in removing twigs and seeds from, or in otherwise cleaning or refining, marijuana.
  8. Blenders, bowls, containers, spoons, grinders, and mixing devices used, intended for use, or designed for use in compounding, manufacturing, producing, processing, or preparing controlled substances.
  9. Capsules, balloons, envelopes, and other containers used, intended for use, or designed for use in packaging small quantities of controlled substances.
  10. Containers and other objects used, intended for use, or designed for use in storing or concealing controlled substances or products or materials used or intended for use in manufacturing, producing, processing, or preparing controlled substances.
  11. Hypodermic syringes, needles, and other objects used, intended for use, or designed for use in parenterally injecting controlled substances into the human body.
  12. Objects used, intended for use, or designed for use in ingesting, inhaling, or otherwise introducing marijuana, cocaine, or tetrahydrocannabinol into the human body, including:
    1. Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, or punctured metal bowls.
    2. Water pipes.
    3. Carburetion tubes and devices.
    4. Smoking and carburetion masks.
    5. Objects, sometimes commonly referred to as roach clips, used to hold burning material, for example, a marijuana cigarette, that has become too small or too short to be held in the hand.
    6. Miniature cocaine spoons and cocaine vials.
    7. Chamber pipes.
    8. Carburetor pipes.
    9. Electric pipes.
    10. Air-driven pipes.
    11. Chillums.
    12. Bongs.
    13. Ice pipes or chillers.
  13. Ingredients or components to be used or intended or designed to be used in manufacturing, producing, processing, preparing, testing, or analyzing a controlled substance, whether or not otherwise lawfully obtained, including anhydrous ammonia, nonprescription medications, methamphetamine precursor drugs, or lawfully dispensed controlled substances.

Source:

S.L. 2001, ch. 214, § 9; 2003, ch. 181, § 3; 2021, ch. 172, § 6, effective May 3, 2021.

Notes to Decisions

Cutting Agent.

A cutting agent for controlled substances (Inositol) is illegal drug paraphernalia. State v. Mische, 448 N.W.2d 415, 1989 N.D. LEXIS 222 (N.D. 1989).

Scales.

N.D.C.C. § 19-03.4-01(5) implicitly recognizes scales are used to weigh or measure controlled substances when categorized as drug paraphernalia. 2021 ND 200, 2021 N.D. LEXIS 202.

Evidence Sufficient.

A defendant who was found with a recipe for manufacturing methamphetamine in his jacket pocket, who had a recent conviction for delivery of methamphetamine, and who admitted to arresting officers that he and two others intended to set up a drug lab to manufacture methamphetamine, was properly convicted of possession of drug paraphernalia. State v. Raywalt, 436 N.W.2d 234, 1989 N.D. LEXIS 28 (N.D. 1989).

Syringes.

Although a trooper might not have been certain that defendant’s syringes were for drug use, when combined with the butane lighters, they were enough to warrant a belief that they might be drug paraphernalia and evidence of drug activity; based on the presence of butane lighters and syringes that the trooper saw on the front passenger’s seat, both known by the trooper to be used for drug production and use, and defendant’s statements, a reasonable person in the trooper’s position would have concluded that there was probable cause to search defendant’s vehicle. State v. Doohen, 2006 ND 239, 724 N.W.2d 158, 2006 N.D. LEXIS 252 (N.D. 2006).

Collateral References.

Construction and Application of State Drug Paraphernalia Acts. 23 A.L.R.6th 307.

19-03.4-02. Drug paraphernalia — Guidelines.

In determining whether an object is drug paraphernalia, a court or other authority shall consider, in addition to all other logically relevant factors:

  1. Statements by an owner or by anyone in control of the object concerning its use.
  2. Prior convictions, if any, of an owner, or of anyone in control of the object, under any state or federal law relating to any controlled substance.
  3. The proximity of the object, in time and space, to a direct violation of chapter 19-03.1.
  4. The proximity of the object to controlled substances.
  5. The existence of any residue of controlled substances on the object.
  6. Direct or circumstantial evidence of the intent of an owner, or of any person in control of the object, to deliver the object to another person whom the owner or person in control of the object knows, or should reasonably know, intends to use the object to facilitate a violation of chapter 19-03.1. The innocence of an owner, or of any person in control of the object, as to a direct violation of chapter 19-03.1 may not prevent a finding that the object is intended or designed for use as drug paraphernalia.
  7. Instructions, oral or written, provided with the object concerning the object’s use.
  8. Descriptive materials accompanying the object which explain or depict the object’s use.
  9. National and local advertising concerning the object’s use.
  10. The manner in which the object is displayed for sale.
  11. Whether the owner, or anyone in control of the object, is a legitimate supplier of like or related items to the community, for example, a licensed distributor or dealer of tobacco products.
  12. Direct or circumstantial evidence of the ratio of sales of the object or objects to the total sales of the business enterprise.
  13. The existence and scope of legitimate uses for the object in the community.
  14. Expert testimony concerning the object’s use.
  15. The actual or constructive possession by the owner or by a person in control of the object or the presence in a vehicle or structure where the object is located of written instructions, directions, or recipes to be used, or intended or designed to be used, in manufacturing, producing, processing, preparing, testing, or analyzing a controlled substance.
  16. Whether the object is a needle or syringe collected during the operation of a needle exchange program under chapter 23-01 to aid in the prevention of bloodborne diseases.

Source:

S.L. 2001, ch. 214, § 9; 2017, ch. 166, § 1, effective August 1, 2017.

Notes to Decisions

Evidence Sufficient.

A defendant who was found with a recipe for manufacturing methamphetamine in his jacket pocket, who had a recent conviction for delivery of methamphetamine, and who admitted to arresting officers that he and two others intended to set up a drug lab to manufacture methamphetamine, was properly convicted of possession of drug paraphernalia. State v. Raywalt, 436 N.W.2d 234, 1989 N.D. LEXIS 28 (N.D. 1989).

Prior Drug Convictions.

Subsection (2) of this section deals with relevance of prior drug convictions rather than their admissibility; therefore, in determining whether an object is drug paraphernalia, the trial court must employ the balancing test of N.D.R.Ev. 403 to determine whether the probative value of such evidence is outweighed by its prejudicial effect. State v. Raywalt, 436 N.W.2d 234, 1989 N.D. LEXIS 28 (N.D. 1989).

N.D.C.C. § 19-03.4-02 is not inconsistent with the rules of evidence. Rather, in applying N.D.C.C. § 19-03.4-02, district courts must apply N.D.R.Ev. 403 and 404. State v. Schmeets, 2009 ND 163, 772 N.W.2d 623, 2009 N.D. LEXIS 169 (N.D. 2009).

19-03.4-03. Unlawful possession of drug paraphernalia — Penalty.

  1. A person may not use or possess with intent to use drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, or conceal a controlled substance in violation of chapter 19-03.1. A person violating this subsection is guilty of a class C felony if the drug paraphernalia is used, or possessed with intent to be used, to manufacture, compound, convert, produce, process, prepare, test, or analyze a controlled substance, other than marijuana or tetrahydrocannabinol, classified in schedule I, II, or III of chapter 19-03.1.
  2. A person may not use or possess with the intent to use drug paraphernalia to inject, ingest, inhale, or otherwise induce into the human body a controlled substance, other than marijuana or tetrahydrocannabinol, classified in schedule I, II, or III of chapter 19-03.1. A person violating this subsection is guilty of a class A misdemeanor. If a person previously has been convicted of an offense under this title, other than an offense related to marijuana or tetrahydrocannabinol, or an equivalent offense from another court in the United States, a violation of this subsection is a class C felony.
  3. A person may not use or possess with intent to use drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, or repack marijuana or tetrahydrocannabinol in violation of chapter 19-03.1. A person violating this subsection is guilty of a class A misdemeanor.
  4. A person may not use or possess with the intent to use drug paraphernalia to ingest, inhale, or otherwise introduce into the human body marijuana or tetrahydrocannabinol or possess with the intent to use drug paraphernalia to store or contain marijuana or tetrahydrocannabinol in violation of chapter 19-03.1. A person violating this subsection is guilty of an infraction.
  5. A person sentenced to the legal and physical custody of the department of corrections and rehabilitation under this section may be placed in a drug and alcohol treatment program as designated by the department. Upon the successful completion of the drug and alcohol treatment program, the department shall release the person from imprisonment to begin any court-ordered period of probation. If the person is not subject to court-ordered probation, the court may order the person to serve the remainder of the sentence of imprisonment on supervised probation subject to the terms and conditions imposed by the court.
  6. Probation under this section may include placement in another facility, treatment program, or drug court. If the person is placed in another facility or treatment program upon release from imprisonment, the remainder of the sentence must be considered as time spent in custody.

Source:

S.L. 2001, ch. 214, § 9; 2015, ch. 114, § 3, effective August 1, 2015; 2015, ch. 173, § 1, effective August 1, 2015; 2019, ch. 186, § 4, effective August 1, 2019; 2021, ch. 172, § 7, effective May 3, 2021.

Effective Date.

The 2015 amendment of this section by section 3 of chapter 114, S.L. 2015 became effective August 1, 2015.

The 2015 amendment of this section by section 1 of chapter 173, S.L. 2015 became effective August 1, 2015.

Note.

Section 19-03.4-03 was amended 2 times by the 2015 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 3 of Chapter 114, Session Laws 2015, House Bill 1367; and Section 1 of Chapter 173, Session Laws 2015, Senate Bill 2030.

Notes to Decisions

Effect of Dismissal of Deferred Imposition of Sentence.

District court erred in denying defendant’s motion to dismiss a charge for unlawful possession of drug paraphernalia as a class C felony second offense as he did not have a prior conviction for enhancement purposes because a deferred imposition of sentence for a prior charge for unlawful possession of drug paraphernalia resulted in a dismissal of that charge; and the State could not use the prior dismissed deferred imposition of sentence to enhance the charge against defendant. State v. Johns, 2019 ND 227, 932 N.W.2d 893, 2019 N.D. LEXIS 230 (N.D. 2019).

Evidence Sufficient.

A defendant who was found with a recipe for manufacturing methamphetamine in his jacket pocket, who had a recent conviction for delivery of methamphetamine, and who admitted to arresting officers that he and two others intended to set up a drug lab to manufacture methamphetamine, was properly convicted of possession of drug paraphernalia. State v. Raywalt, 436 N.W.2d 234, 1989 N.D. LEXIS 28 (N.D. 1989).

Evidence was sufficient to support convictions for possession of drug paraphernalia and possession of marijuana with intent to deliver where police were informed that defendant, who was wanted in connection with another drug offense, was staying at a motel, defendant was found in the hallway, defendant’s wife was found inside of the room where drugs, cash, and paraphernalia were found during a search warrant’s execution, and the amount of drugs and the way they were packaged were inconsistent with personal use. State v. Myers, 2006 ND 242, 724 N.W.2d 168, 2006 N.D. LEXIS 248 (N.D. 2006).

There was corroborating evidence to support the testimony of an accomplice in a drug case where police found clothes apparently belonging to defendant at a residence where an alleged assault occurred and drugs were found; moreover, the damage to the residence and the blood evidence found further supported the victim’s story that a violent incident involving defendant had occurred. The evidence placing defendant at the scene was sufficient to connect him with the drugs found under the doctrine of constructive possession; therefore, he was properly convicted of possession of methamphetamine with intent to manufacture, possession of drug paraphernalia for use with methamphetamine, and possession of methamphetamine. State v. Falconer, 2007 ND 89, 732 N.W.2d 703, 2007 N.D. LEXIS 84 (N.D. 2007).

Evidence, including officers finding the drug paraphernalia in a woman’s purse inside defendant’s house in a bedroom that she shared with her boyfriend, the purse being inside a dresser drawer that contained women’s undergarments, and defendant stating that the pipe would be the only thing that officers would find when they found a glass pipe in the purse, was sufficient to convict defendant of possession of drug paraphernalia in violation of N.D.C.C. § 19-03.4-03. State v. Demarais, 2009 ND 143, 770 N.W.2d 246, 2009 N.D. LEXIS 149 (N.D. 2009).

Circumstantial evidence that pen barrels used for cocaine, which tested positive for the drug, were found in defendant’s night stand and in a common area in the house where defendant lived provided sufficient evidence to convict defendant of possession of a controlled substance, N.D.C.C. § 19-03.1-23(7), and possession of drug paraphernalia, N.D.C.C. § 19-03.4-03. State v. Christian, 2011 ND 56, 795 N.W.2d 702, 2011 N.D. LEXIS 48 (N.D. 2011).

District court, in a bench trial, properly found defendant guilty of possession of a controlled substance and possession of drug paraphernalia because law enforcement relied on an Ohio search warrant in good faith by checking its validity numerous times, circumstantial evidence provided proof of defendant’s intent to use paraphernalia where he hindered law enforcement’s efforts to pat down his leg, and when the object was found, first said the object in his sock was a knife, and then admitted it was a methamphetamine pipe, the pipe tested positive for methamphetamine, defendant was a known drug user. State v. Marcum, 2020 ND 50, 939 N.W.2d 840, 2020 N.D. LEXIS 48 (N.D. 2020).

Suppression of Evidence.

Prosecuting attorney’s statement in support of an appeal of the order granting defendant’s motion to suppress did not satisfy the requirements of N.D.C.C. § 29-28-07(5), because it did not explain the need for the suppressed evidence. The State could proceed with the charge of possession of drug paraphernalia in violation of N.D.C.C. § 19-03.4-03 using the non-suppressed evidence, because the trial court did not suppress evidence found in plain view of a metal cleaning rod on a bedside table with burned marijuana residue, and defendant told the officers all drugs and drug paraphernalia found in the bedroom belonged to her. State v. Peterson, 2011 ND 109, 799 N.W.2d 67, 2011 N.D. LEXIS 116 (N.D. 2011).

19-03.4-04. Unlawful manufacture or delivery of drug paraphernalia — Penalty.

A person may not deliver, possess with intent to deliver, or manufacture with intent to deliver, drug paraphernalia, if that person knows or should reasonably know that the drug paraphernalia will be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of chapter 19-03.1. Any person violating this section is guilty of a class C felony if the drug paraphernalia will be used to manufacture, compound, convert, produce, process, prepare, test, inject, ingest, inhale, or analyze a controlled substance, other than marijuana or tetrahydrocannabinol, classified in schedule I, II, or III of chapter 19-03.1. Otherwise, a violation of this section is a class A misdemeanor.

Source:

S.L. 2001, ch. 214, § 9; 2021, ch. 172, § 8, effective May 3, 2021.

19-03.4-05. Unlawful delivery of drug paraphernalia to a minor — Penalty.

A person eighteen years of age or over may not deliver drug paraphernalia, in violation of this chapter, to a person under eighteen years of age who is at least three years the deliverer’s junior. Any person violating this section is guilty of a class C felony.

Source:

S.L. 2001, ch. 214, § 9.

19-03.4-06. Unlawful advertisement of drug paraphernalia — Penalty.

A person may not place an advertisement in any newspaper, magazine, handbill, or other publication if that person knows or should reasonably know that the purpose of the advertisement, in whole or in part, is to promote the sale of objects designed or intended for use as drug paraphernalia. Any person violating this section is guilty of a class A misdemeanor.

Source:

S.L. 2001, ch. 214, § 9.

19-03.4-07. Prima facie proof of intent.

Possession of more than twenty-four grams of a methamphetamine precursor drug or combination of methamphetamine precursor drugs calculated in terms of ephedrine HCl and pseudoephedrine HCl is prima facie evidence of intent to violate sections 19-03.4-03 and 19-03.4-04. This section does not apply to a practitioner as defined in section 19-03.1-01 or to a product possessed in the course of a legitimate and lawful business.

Source:

S.L. 2003, ch. 181, § 4.

19-03.4-08. Retail or over-the-counter sale of scheduled listed chemical products — Penalty.

  1. The retail sale of scheduled listed chemical products is limited to:
    1. Sales in packages containing not more than a total of two and four-tenths grams of one or more scheduled listed chemical products, calculated in terms of ephedrine base, pseudoephedrine base, and phenylpropanolamine base; and
    2. Sales in blister packs, each blister containing not more than two dosage units, or when the use of blister packs is technically infeasible, sales in unit dose packets or pouches.
  2. A person may not:
    1. Deliver in a single over-the-counter sale more than two packages of a scheduled listed chemical product or a combination of scheduled listed chemical products; or
    2. Without regard to the number of over-the-counter sales, deliver more than a daily amount of three and six-tenths grams of scheduled listed chemical products, calculated in terms of ephedrine base, pseudoephedrine base, and phenylpropanolamine base, to a purchaser.
  3. When offering scheduled listed chemical products for sale, the person shall place the products behind a counter or other barrier, or in a locked cabinet, where purchasers do not have direct access to the products before the sale is made.
    1. When offering scheduled listed chemical products for retail sale, a person shall require, obtain, and make a written record of the identification of the person purchasing the scheduled listed chemical product, the identification being a document issued by a government agency as described in subdivisions a and b of subsection 6, and shall deliver the product directly into the custody of the purchaser.
    2. The person shall maintain a written list of sales that identifies the product by name, the quantity sold, the names and addresses of the purchasers, the dates and times of the sales, a unique identification number relating to the electronic record submitted into the electronic recordkeeping system described in subsection 13, and a notice to a purchaser that the making of false statements or misrepresentations may subject the purchaser to federal and state criminal penalties. The purchaser shall sign the written list of sales and enter the purchaser’s name, address, and the date and time of the sale. The person making the sale shall determine that the name entered by the purchaser corresponds with the name on the identification provided by the purchaser and that the date and time of the purchase is correct. The person making the sale shall enter the name of the product and the quantity sold on the list.
    3. Before completing the transaction, the person making the sale shall submit all the information from the written record into the electronic recordkeeping system described in subsection 13.
    4. The person shall maintain the record of identification required by this section for three years, after which the record must be destroyed. The person may not use or maintain the record for any private or commercial purpose or disclose the record to any person, except as required by law. The person shall disclose the record, upon request, to a law enforcement agency for a law enforcement purpose. A person who in good faith releases the information in the record of identification to federal, state, or local law enforcement authorities is immune from civil liability for such release unless the release constitutes gross negligence or intentional, wanton, or willful misconduct.
  4. A person may not deliver in an over-the-counter sale a scheduled listed chemical product to a person under the age of eighteen years.
  5. It is a prima facie case of a violation of subsection 5 if the person making the sale did not require and obtain proof of age from the purchaser. “Proof of age” means a document issued by a governmental agency which:
    1. Contains a description of the person or a photograph of the person, or both, and gives the person’s date of birth; and
    2. Includes a passport, military identification card, or driver’s license.
  6. It is an affirmative defense to a violation of subsection 5 if:
    1. The person making the sale required and obtained proof of age from the purchaser;
    2. The purchaser falsely represented the purchaser’s proof of age by use of a false, forged, or altered document;
    3. The appearance of the purchaser was such that an ordinary and prudent person would believe the purchaser to be at least eighteen years of age; and
    4. The sale was made in good faith and in reliance upon the appearance and representation of proof of age of the purchaser.
  7. This section does not apply to a product that the state board of pharmacy, upon application of a manufacturer, exempts from this section because the product has been formulated in such a way as to effectively prevent the conversion of the active ingredient into methamphetamine, or its salts or precursors.
  8. A person may not:
    1. Make a false statement or misrepresentation in the written list of sale that is prepared and maintained as required by subsection 4; or
    2. Purchase more than nine grams of ephedrine base, pseudoephedrine base, or phenylpropanolamine base in scheduled listed chemical products in a thirty-day period.
  9. A person who willfully violates subsection 1 or 9 is guilty of a class A misdemeanor. A person who willfully violates subsection 2, 3, 4, or 5 is guilty of an infraction.
  10. A person who is the owner, operator, or manager of the retail outlet or who is the supervisor of the employee or agent committing a violation of this section of the outlet where scheduled listed chemical products are available for sale is not subject to the penalties of this section if the person:
    1. Did not have prior knowledge of, participate in, or direct the employee or agent to commit, the violation of this section; and
    2. Certifies to the attorney general that the employee or agent, at the time of initial employment and each calendar year thereafter, participated in a training program approved by the attorney general providing the employee or agent with information regarding the state and federal regulations governing the sale, possession, and packaging of such products.
  11. A political subdivision, including a home rule city or county, may not enact any ordinance relating to the sale by a retail distributor of over-the-counter products containing ephedrine, pseudoephedrine, or phenylpropanolamine. Any existing ordinance is void.
    1. The bureau of criminal investigation shall provide retailers of listed chemical products access to a real-time electronic recordkeeping system to enter into the record system any transaction required to be recorded by subsection 4.
    2. The real-time electronic recordkeeping system must be maintained in a central repository as defined in subsection 1 of section 19-03.5-01, and must have the capability to calculate state and federal ephedrine base, pseudoephedrine base, and phenylpropanolamine base purchase limitations.
    3. The electronic recordkeeping system must include a record of all the information in the written record, the unique identification number, and certification that a signature has been obtained.
    4. The information entered into the electronic recordkeeping system is subject to subdivision d of subsection 4.
    5. If feasible, the prescription drug monitoring system utilized under chapter 19-03.5 may be used as the electronic recordkeeping system. The bureau of criminal investigation may contract with a private vendor to implement this subsection. A contractor shall comply with the confidentiality requirements of this chapter and is subject to sanctions for violation of confidentiality requirements, including termination of the contract.
    6. The bureau of criminal investigation may not charge a retailer a fee for the establishment of, maintenance of, or access to, the electronic recordkeeping system.

The approval of the training program by the attorney general is not subject to chapter 28-32.

Source:

S.L. 2003, ch. 181, § 5; 2005, ch. 199, § 1; 2007, ch. 207, § 2; 2011, ch. 164, §§ 1, 2; 2021, ch. 179, § 1, effective August 1, 2021.

CHAPTER 19-03.5 Prescription Drug Monitoring Program

19-03.5-01. Definitions.

  1. “Board” means the state board of pharmacy.
  2. “Central repository” means a place where electronic data related to the prescribing and dispensing of controlled substances is collected.
  3. “Controlled substance” means a drug, substance, or immediate precursor defined in section 19-03.1-01 and nonscheduled substances containing gabapentin.
  4. “De-identified information” means health information that is not individually identifiable information because an expert has made that determination under title 45, Code of Federal Regulations, section 164.514 or direct identifiers and specified demographic information have been removed in accordance with the requirements of that section.
  5. “Dispense” means to deliver a controlled substance to an ultimate user by or pursuant to the lawful order of a practitioner, including the prescribing, administering, packaging, labeling, or compounding necessary to prepare the substance for delivery.
  6. “Dispenser” means an individual who delivers a controlled substance to the ultimate user but does not include a licensed hospital pharmacy that provides a controlled substance for the purpose of inpatient hospital care or a licensed health care practitioner or other authorized individual in those instances when the practitioner administers a controlled substance to a patient.
  7. “Individually identifiable health information” has the meaning set forth in title 45, Code of Federal Regulations, section 160.103.
  8. “Patient” means an individual or the owner of an animal who is the ultimate user of a controlled substance for whom a prescription is issued or for whom a controlled substance is dispensed.
  9. “Prescriber” means an individual licensed, registered, or otherwise authorized by the jurisdiction in which the individual is practicing to prescribe drugs in the course of professional practice.
  10. “Program” means the prescription drug monitoring program implemented under this chapter.

Source:

S.L. 2007, ch. 212, § 1; 2017, ch. 168, § 1, effective August 1, 2017.

19-03.5-02. Requirements for prescription drug monitoring program.

  1. The board shall establish and maintain a program for the monitoring of prescribing and dispensing of all controlled substances.
  2. Each dispenser shall submit to the board by electronic means information regarding each prescription dispensed for a controlled substance. The board shall establish and update rules to direct dispensers on the version of the American Society for Automation in Pharmacy Rules-Based Standard Implementation Guide for Prescription Monitoring Programs in which the dispensing history must be submitted to the central repository.
  3. Each dispenser shall submit the information in accordance with transmission methods and frequency established by the board.
  4. The board may issue an extension of time to a dispenser that is unable to submit prescription information by electronic means.

Source:

S.L. 2007, ch. 212, § 1; 2013, ch. 185, § 1.

19-03.5-03. Access to prescription information. [Effective through August 31, 2022]

  1. Information submitted to the central repository is confidential and may not be disclosed except as provided in this section.
  2. The board shall maintain procedures to ensure that the privacy, confidentiality, and security of patient information collected, recorded, transmitted, and maintained is not disclosed except as provided in this section.
  3. Unless disclosure is prohibited by law, the board may provide data in the central repository to:
    1. A prescriber for the purpose of providing medical care to a patient, a dispenser for the purpose of filling a prescription or providing pharmaceutical care for a patient, a prescriber or dispenser inquiring about the prescriber’s or dispenser’s own prescribing activity, or a prescriber or dispenser in order to further the purposes of the program;
    2. An individual who requests the prescription information of the individual or the individual’s minor child;
    3. State boards and regulatory agencies that are responsible for the licensing of individuals authorized to prescribe or dispense controlled substances if the board or regulatory agency is seeking information from the central repository that is relevant to an investigation of an individual who holds a license issued by that board or regulatory agency;
    4. Local, state, and federal law enforcement or prosecutorial officials engaged in the enforcement of laws relating to controlled substances who seek information for the purpose of an investigation or prosecution of the drug-related activity or probation compliance of an individual;
    5. The department of human services for purposes regarding the utilization of controlled substances by a Medicaid recipient or establishment and enforcement of child support and medical support;
    6. Workforce safety and insurance for purposes regarding the utilization of controlled substances by a claimant;
    7. Judicial authorities under grand jury subpoena or court order or equivalent judicial process for investigation of criminal violations of controlled substances laws;
    8. Public or private entities for statistical, research, or educational purposes after the information is de-identified with respect to any prescriber, dispenser, or patient who received a prescription for a controlled substance;
    9. A peer review committee which means any committee of a health care organization, composed of health care providers, employees, administrators, consultants, agents, or members of the health care organization’s governing body, which conducts professional peer review as defined in chapter 23-34; or
    10. A licensed addiction counselor for the purpose of providing services for a licensed treatment program in this state.
  4. The board shall maintain a record of each person who requests information from the central repository. The board may use the records to document and report statistics and outcomes. The board may provide records of the requests for information to:
    1. A board or regulatory agency responsible for the licensing of individuals authorized to prescribe or dispense controlled substances that is engaged in an investigation of the individual who submitted the request for information from the central repository; and
    2. Local, state, and federal law enforcement or prosecutorial officials engaged in the enforcement of laws relating to controlled substances for the purpose of an active investigation of an individual who requested information from the central repository.

Source:

S.L. 2007, ch. 212, § 1; 2011, ch. 165, § 1; 2013, ch. 185, § 2.

19-03.5-03. Access to prescription information. [Effective September 1, 2022]

  1. Information submitted to the central repository is confidential and may not be disclosed except as provided in this section.
  2. The board shall maintain procedures to ensure that the privacy, confidentiality, and security of patient information collected, recorded, transmitted, and maintained is not disclosed except as provided in this section.
  3. Unless disclosure is prohibited by law, the board may provide data in the central repository to:
    1. A prescriber for the purpose of providing medical care to a patient, a dispenser for the purpose of filling a prescription or providing pharmaceutical care for a patient, a prescriber or dispenser inquiring about the prescriber’s or dispenser’s own prescribing activity, or a prescriber or dispenser in order to further the purposes of the program;
    2. An individual who requests the prescription information of the individual or the individual’s minor child;
    3. State boards and regulatory agencies that are responsible for the licensing of individuals authorized to prescribe or dispense controlled substances if the board or regulatory agency is seeking information from the central repository that is relevant to an investigation of an individual who holds a license issued by that board or regulatory agency;
    4. Local, state, and federal law enforcement or prosecutorial officials engaged in the enforcement of laws relating to controlled substances who seek information for the purpose of an investigation or prosecution of the drug-related activity or probation compliance of an individual;
    5. The department for purposes regarding the utilization of controlled substances by a Medicaid recipient or establishment and enforcement of child support and medical support;
    6. Workforce safety and insurance for purposes regarding the utilization of controlled substances by a claimant;
    7. Judicial authorities under grand jury subpoena or court order or equivalent judicial process for investigation of criminal violations of controlled substances laws;
    8. Public or private entities for statistical, research, or educational purposes after the information is de-identified with respect to any prescriber, dispenser, or patient who received a prescription for a controlled substance;
    9. A peer review committee which means any committee of a health care organization, composed of health care providers, employees, administrators, consultants, agents, or members of the health care organization’s governing body, which conducts professional peer review as defined in chapter 23-34; or
    10. A licensed addiction counselor for the purpose of providing services for a licensed treatment program in this state.
  4. The board shall maintain a record of each person who requests information from the central repository. The board may use the records to document and report statistics and outcomes. The board may provide records of the requests for information to:
    1. A board or regulatory agency responsible for the licensing of individuals authorized to prescribe or dispense controlled substances that is engaged in an investigation of the individual who submitted the request for information from the central repository; and
    2. Local, state, and federal law enforcement or prosecutorial officials engaged in the enforcement of laws relating to controlled substances for the purpose of an active investigation of an individual who requested information from the central repository.

Source:

S.L. 2007, ch. 212, § 1; 2011, ch. 165, § 1; 2013, ch. 185, § 2; 2021, ch. 352, § 87, effective September 1, 2022.

19-03.5-04. Authority to contract.

The board is authorized to contract with another agency of this state or with a private vendor to facilitate the effective operation of the prescription drug monitoring program. Any contractor is bound to comply with the provisions regarding confidentiality of prescription drug information in this chapter and is subject to termination or sanction or both for unlawful acts.

Source:

S.L. 2007, ch. 212, § 1.

19-03.5-05. Immunity.

Nothing in this chapter requires a prescriber or dispenser to obtain information about a patient from the central repository prior to prescribing or dispensing a controlled substance. A prescriber, dispenser, or other health care practitioner may not be held liable in damages to any person in any civil action on the basis that the prescriber, dispenser, or other health care practitioner did or did not seek to obtain information from the central repository. Unless there is shown a lack of good faith, the board, any other state agency, a prescriber, dispenser, or any other individual in proper possession of information provided under this chapter may not be subject to any civil liability by reason of:

  1. The furnishing of information under the conditions provided in this chapter;
  2. The receipt and use of, or reliance on, such information;
  3. The fact that any such information was not furnished; or
  4. The fact that such information was factually incorrect or was released by the board to the wrong person or entity.

Source:

S.L. 2007, ch. 212, § 1.

19-03.5-06. Data review and referral — Corrections.

    1. The board shall review the information received by the central repository to determine if there is reason to believe:
      1. A prescriber or dispenser may have engaged in an activity that may be a basis for disciplinary action by the board or regulatory agency responsible for the licensing of the prescriber or dispenser; or
      2. A patient may have misused, abused, or diverted a controlled substance.
    2. If the board determines that there is reason to believe that any of the acts described in subdivision a may have occurred, the board may notify the appropriate law enforcement agency or the board or regulatory agency responsible for the licensing of the prescriber or dispenser. The advisory council described in section 19-03.5-07 shall recommend guidelines to the board for reviewing data and making determinations with respect to the referral of patients, prescribers, or dispensers to law enforcement or appropriate regulatory authorities.
  1. A patient, dispenser, or prescriber may request that erroneous information contained in the central repository be corrected or deleted. The board shall review the request to determine if the information is erroneous with respect to the patient, prescriber, or dispenser. The board shall correct any erroneous information the board discovers due to the request for review by a patient, prescriber, or dispenser.
  2. The board shall adopt a procedure to allow information contained in the central repository to be shared with officials in other states acting for the purpose of controlled substance monitoring and for requesting and receiving similar controlled substance monitoring information from other states.

Source:

S.L. 2007, ch. 212, § 1.

19-03.5-07. Advisory council. [Effective through August 31, 2022]

  1. An advisory council is established to advise and make recommendations to the board regarding how to best use the program to improve patient care and foster the goal of reducing misuse, abuse, and diversion of controlled substances; to encourage cooperation and coordination among state, local, and federal agencies and other states to reduce the misuse, abuse, and diversion of controlled substances; and to provide advice and recommendations to the board regarding any other matters as requested by the board. The advisory council may have access to central repository information to fulfill its duties.
  2. The advisory council must consist of:
    1. One dispenser selected by the board;
    2. One physician selected by the North Dakota medical association;
    3. One prescriber selected by the board of nursing;
    4. A designee of the attorney general;
    5. A designee of the department of human services;
    6. One prescriber selected by the North Dakota board of medicine;
    7. One prescriber selected by the North Dakota nurses association; and
    8. Any other prescriber or dispenser determined by the board to be necessary to meet a mandate of, or avoid a delay in implementing, an appropriations measure. The number of additional members selected by the board must be limited to the number necessary to meet the mandate or avoid the delay of an appropriation.
  3. The advisory council shall make recommendations to the board regarding:
    1. Safeguards for the release of information to individuals who have access to the information contained in the central repository;
    2. The confidentiality of program information and the integrity of the patient’s relationship with the patient’s health care provider;
    3. Advancing the purposes of the program, including enhancement of the quality of health care delivery in this state; and
    4. The continued benefits of maintaining the program in relationship to the cost and other burdens to the state.
  4. The board may provide reimbursement of expenses and per diem to members of the advisory council within the limits provided in state law.

Source:

S.L. 2007, ch. 212, § 1; 2015, ch. 297, § 4, effective August 1, 2015.

Effective Date.

The 2015 amendment of this section by section 4 of chapter 297, S.L. 2015 became effective August 1, 2015.

19-03.5-07. Advisory council. [Effective September 1, 2022]

  1. An advisory council is established to advise and make recommendations to the board regarding how to best use the program to improve patient care and foster the goal of reducing misuse, abuse, and diversion of controlled substances; to encourage cooperation and coordination among state, local, and federal agencies and other states to reduce the misuse, abuse, and diversion of controlled substances; and to provide advice and recommendations to the board regarding any other matters as requested by the board. The advisory council may have access to central repository information to fulfill its duties.
  2. The advisory council must consist of:
    1. One dispenser selected by the board;
    2. One physician selected by the North Dakota medical association;
    3. One prescriber selected by the board of nursing;
    4. A designee of the attorney general;
    5. A designee of the department;
    6. One prescriber selected by the North Dakota board of medicine;
    7. One prescriber selected by the North Dakota nurses association; and
    8. Any other prescriber or dispenser determined by the board to be necessary to meet a mandate of, or avoid a delay in implementing, an appropriations measure. The number of additional members selected by the board must be limited to the number necessary to meet the mandate or avoid the delay of an appropriation.
  3. The advisory council shall make recommendations to the board regarding:
    1. Safeguards for the release of information to individuals who have access to the information contained in the central repository;
    2. The confidentiality of program information and the integrity of the patient’s relationship with the patient’s health care provider;
    3. Advancing the purposes of the program, including enhancement of the quality of health care delivery in this state; and
    4. The continued benefits of maintaining the program in relationship to the cost and other burdens to the state.
  4. The board may provide reimbursement of expenses and per diem to members of the advisory council within the limits provided in state law.

Source:

S.L. 2007, ch. 212, § 1; 2015, ch. 297, § 4, effective August 1, 2015; 2021, ch. 352, § 88, effective September 1, 2022.

19-03.5-08. Extraterritorial application.

The board may provide data in the central repository to a practitioner or controlled substances monitoring system in another state, if the disclosure to a practitioner or the prescription drug monitoring program located in this state is authorized by this chapter.

Source:

S.L. 2007, ch. 212, § 1.

19-03.5-09. Authority to adopt rules — Rules adopted by professional licensing boards.

  1. The state board of pharmacy may adopt rules that set forth the procedures and methods for implementing the prescription drug monitoring program under this chapter.
  2. Each professional licensing board that is responsible for the licensing of individuals authorized to prescribe or dispense controlled substances for human consumption shall adopt rules under chapter 28-32 to require licensed individuals under that board’s jurisdiction who prescribe or dispense controlled substances to humans to utilize the prescription drug monitoring program. In drafting rules required under this subsection, each professional licensing board shall consult with the state board of pharmacy, the other boards required to adopt rules under this subsection, and the advisory council in order to maximize the uniformity among the rules for each profession. All or any of the professional licensing boards subject to the rulemaking requirement of this subsection may conduct a joint rulemaking proceeding under chapter 28-32 to implement rules required by this subsection.

Source:

S.L. 2007, ch. 212, § 1; 2015, ch. 174, § 1, effective August 1, 2015.

Effective Date.

The 2015 amendment of this section by section 1 of chapter 174, S.L. 2015 became effective August 1, 2015.

19-03.5-10. Reporting unlawful acts and penalties.

  1. The board may report to a dispenser’s licensing board any dispenser who knowingly fails to submit prescription drug monitoring information to the board as required by this chapter or by administrative rule or who knowingly submits incorrect prescription information to the board.
  2. A person, including a vendor, that uses or discloses prescription drug monitoring information in violation of this chapter is subject to the penalty provided in section 12.1-13-01.

Source:

S.L. 2007, ch. 212, § 1; 2015, ch. 174, § 2, effective August 1, 2015.

Effective Date.

The 2015 amendment of this section by section 2 of chapter 174, S.L. 2015 became effective August 1, 2015.

CHAPTER 19-03.6 Pharmacy Records Audits

19-03.6-01. Definitions.

For the purposes of this chapter:

  1. “Entity” means a managed care company, an insurance company, a third-party payer, a pharmacy benefits manager, or any other organization that represents an insurance company, a third-party payer, or a pharmacy benefits manager.
  2. “Insurance company” includes any corporation, association, benefit society, exchange, partnership, or individual engaged as principal in the business of insurance.
  3. “Managed care company” is an entity that handles both health care and health care financing.
  4. “Pharmacy benefits manager” means a person that performs pharmacy benefits management and includes any other person acting for such person under a contractual or employment relationship in the performance of pharmacy benefits management for a managed care company, nonprofit hospital or medical service organization, insurance company, third-party payer, or health program administered by a state agency.
  5. “Plan sponsor” means the employer in the case of an employee benefit plan established or maintained by a single employer, or the employee organization in the case of a plan established or maintained by an employee organization, an association, joint board of trustees, committee, or other similar group that establishes or maintains the plan.
  6. “Third-party payer” means an organization other than the patient or health care provider involved in the financing of personal health services.

Source:

S.L. 2011, ch. 166, § 1.

19-03.6-02. Pharmacy benefits manager audit — Rules.

  1. An entity conducting an audit of a pharmacy shall:
    1. If conducting an onsite audit, give the pharmacy a written notice at least fourteen business days before conducting an initial audit.
    2. If the audit involves clinical or professional judgment, ensure the audit is conducted by or in consultation with a pharmacist licensed in any state and employed by or contracted with the pharmacy benefits manager.
    3. Limit the audit to no more than twenty-four months from the date that the claim was submitted to or adjudicated by the entity. A claim may not be reviewed that is older than twenty-four months from the date of the audit, unless a longer period is permitted under federal law.
    4. Refrain from conducting the audit during the first five business days of the month unless otherwise consented to by the pharmacy.
    5. Refrain from entering the pharmacy area where patient-specific information is available and remain out of sight and hearing range of the pharmacy customers. The pharmacy shall designate an area for auditors to conduct their business.
    6. Allow the pharmacy to use the records, including a medication administration record, of a hospital, physician, or other authorized practitioner to validate the pharmacy record and delivery.
    7. Allow the pharmacy to use any legal prescription, including medication administration records, electronic documents, or documented telephone calls from the prescriber or the prescriber’s agents, to validate claims in connection with prescriptions and refills or changes in prescriptions.
  2. An audit may not allow a recoupment to be assessed for items on the face of a prescription not required by rules adopted by the state board of pharmacy with respect to patient hard copy prescription forms for controlled and uncontrolled drugs.
  3. A finding of overpayment or underpayment may be based only on the actual overpayment or underpayment and not on a projection based on the number of patients served having a similar diagnosis or on the number of similar orders or refills for similar drugs. A calculation of an overpayment may not include dispensing fees, unless a prescription was not dispensed or the prescriber denied authorization. In the case of an error that has no financial harm to the patient or plan, the pharmacy benefits manager may not assess any chargeback. The entity conducting the audit may not use extrapolation in calculating the recoupment or penalties for audits. Any recoupment may not be deducted against future remittances and must be invoiced to the pharmacy for payment. An entity performing an audit may not receive payment based on a percentage of the amount recovered. Interest may not accrue during the audit period, which begins with the notice of audit and ends with the final audit report.
  4. A clerical or recordkeeping error may not be considered fraud, but may be subject to recoupment. A person is not subject to any criminal penalty for a clerical or recordkeeping error without proof of intent to commit fraud.
  5. The parameters of an audit must comply with consumer-oriented parameters based on manufacturer listings or recommendations for the following:
    1. The day supply for eye drops must be calculated so that the consumer pays only one 30-day copayment if the bottle of eye drops is intended by the manufacturer to be a thirty-day supply.
    2. The day supply for insulin must be calculated so that the highest dose prescribed is used to determine the day supply and consumer copayment.
    3. The day supply for a topical product must be determined by the judgment of the pharmacist based upon the treated area.
  6. Unless an alternate price is published in a provider contract and signed by both parties, the usual and customary price charged by a pharmacy for compounded medications is considered to be the reimbursable cost.
  7. An entity conducting an audit shall utilize the same standards and parameters in auditing a pharmacy the entity uses with other similarly situated pharmacies.
  8. An entity conducting an audit shall establish a written appeals process.

Source:

S.L. 2011, ch. 166, § 2.

19-03.6-03. Audit reports — Disclosure — Distribution of recouped funds — Review of auditor.

  1. A preliminary audit report must be delivered to the pharmacy within one hundred twenty days after the conclusion of the audit.
  2. A pharmacy must be allowed at least sixty days following receipt of the preliminary audit to provide documentation to address any discrepancy found in the audit.
  3. A final audit report must be delivered to the pharmacy within ninety days after receipt of the preliminary audit report or final appeal, whichever is later.
  4. No chargeback, recoupment, or other penalty may be assessed until the appeal process has been exhausted and the final report issued.
  5. An entity shall remit any money due to a pharmacy or pharmacist as a result of an underpayment of a claim within thirty days after the appeals process has been exhausted and the final audit report has been issued.
  6. An auditing entity shall provide a copy of the final report to the plan sponsor for which claims were included in the audit. Any funds recouped must be returned to the plan sponsor.

Source:

S.L. 2011, ch. 166, § 3.

19-03.6-04. Applicability.

  1. This chapter applies to claims adjudicated after July 31, 2011.
  2. This chapter does not apply to any audit, review, or investigation that is initiated based upon alleged fraud, willful misrepresentation, or abuse, including:
    1. Insurance fraud as defined in chapter 26.1-02.1.
    2. Billing for services not furnished or supplies not provided.
    3. Billing that appears to be a deliberate application for duplicate payment for the same services or supplies, billing both the beneficiary and the pharmacy benefits manager or payer for the same service.
    4. Altering claim forms, electronic claim records, or medical documentation to obtain a higher payment amount.
    5. Soliciting, offering, or receiving a kickback or bribe.
    6. Participating in any scheme that involves collusion between a provider and a beneficiary or between a supplier and a provider which results in higher costs or charges to the entity.
    7. Misrepresenting a date or description of services furnished or the identity of the beneficiary or the individual who furnished the services.
    8. Billing for a prescription without a prescription on file in a situation in which an over-the-counter item is dispensed.
    9. Dispensing a prescription using an out-of-date drug.
    10. Billing with an incorrect national drug code or billing for a brand name when a generic drug is dispensed.
    11. Failing to credit the payer for a medication or a portion of a prescription that was not obtained by the payer within fourteen days unless extenuating circumstances exist.
    12. Billing the payer a higher price than the usual and customary charge of the pharmacy to the general public.
    13. Billing for a product without proof that the purchaser purchased the product.
  3. Any case of suspected fraud or violation of law must be reported by an auditor to the licensing board.
  4. This chapter does not apply to state Medicaid programs.

Source:

S.L. 2011, ch. 166, § 4.

19-03.6-05. Penalty.

Any person violating this chapter is guilty of a class B misdemeanor.

Source:

S.L. 2011, ch. 166, § 5.

CHAPTER 19-04 Poisons and Deleterious Preparations

19-04-01. Selling certain enumerated poisons regulated — Penalty.

Every person who, at retail, without receiving a physician’s prescription specifying that such prescription shall contain a poison and giving the name thereof, sells, furnishes, gives away, or delivers to another:

  1. Arsenic or any preparation thereof, corrosive sublimate, white precipitate, red precipitate, biniodide of mercury, cyanide of potassium, hydrocyanic acid, strychnia, or any other poison or vegetable alkaloid, or the salts thereof, or essential oil of bitter almonds; or
  2. Aconite, belladonna, colchicum, conium, formaldehyde, nux vomica, henbane, savin, ergot, cotton root, cantharides, creosote, digitalis, or the pharmaceutical preparations of any of them, croton oil, chloroform, sulfate of zinc, mineral acids, carbolic acid, or oxalic acid,

without affixing to the bottle, box, vessel, or package containing the same, the name of the contents, the word “poison”, and the person’s name and place of business, is guilty of a class A misdemeanor. Any storekeeper, however, may sell in original, unbroken packages, fungicides and insecticides, including formaldehyde and Paris green, generally used for agricultural purposes which have been designated as such by the state board of pharmacy.

Source:

Pen. C. 1877, §§ 447, 448; S.L. 1890, ch. 108, § 14; R.C. 1895, §§ 7282, 7283, 7303, 7304; R.C. 1899, §§ 7282, 7283, 7303, 7304; S.L. 1903, ch. 137, § 1; R.C. 1905, §§ 9022, 9023, 9043, 9044; S.L. 1907, ch. 182, §§ 28, 29; C.L. 1913, §§ 502, 503, 9737, 9738, 9759, 9760; S.L. 1931, ch. 212, § 3; R.C. 1943, § 19-0401; S.L. 1975, ch. 106, § 173; 1985, ch. 258, § 28.

Cross-References.

Poisons may be sold or dispensed only by a licensed physician or registered pharmacist, see N.D.C.C. § 43-15-14.

19-04-02. Chloral hydrate not to be sold without prescription. [Repealed]

Repealed by S.L. 1975, ch. 106, § 673.

19-04-03. Records to be kept of poisons dispensed — Examination of records — Penalty.

Every person who sells at retail, furnishes, gives away, or delivers to another any of the articles or preparations mentioned in section 19-04-01 or any drug, chemical, or preparation which, according to the standard works on medicine or materia medica, is liable, in quantities of sixty grains [388.80 centigrams] or less, to destroy adult human life, and who:

  1. Fails or neglects, before delivering the same, to enter or cause to be entered in a book kept for that purpose, the date of sale, the name and address of the person to whom the article or preparation is delivered or sold, the name, quantity, and quality of the article or preparation delivered or sold, and the name of the dispenser; or
  2. Fails, neglects, or refuses, during business hours, to exhibit such book, and every part thereof, for inspection, and to permit the same to be inspected, upon demand, by any physician, coroner, peace officer, or magistrate of the county,

is guilty of a class A misdemeanor.

Source:

Pen. C. 1877, §§ 447, 448; S.L. 1890, ch. 108, § 14; R.C. 1895, §§ 7284, 7303 to 7305; R.C. 1899, §§ 7284, 7303 to 7305; R.C. 1905, §§ 9024, 9043 to 9045; S.L. 1907, ch. 182, § 28; C.L. 1913, §§ 502, 9739, 9759 to 9761; R.C. 1943, § 19-0403; S.L. 1975, ch. 106, § 174.

19-04-04. Distribution of certain drugs and preparations prohibited — Penalty.

No person, for the purpose of advertising or inviting or suggesting the use of any such article, may leave, throw, or deposit upon the doorstep or premises of another, or within the dwelling, barn, or other building owned or occupied by another, without a special personal request, samples or any quantities of any of the following preparations:

  1. Patent or proprietary medicines; or
  2. Any preparation, pill, tablet, powder, capsule, cosmetic, disinfectant, antiseptic, drug, medicine, or condiment that contains poison or any ingredient that is deleterious to health, or that contains an ingredient the name of which has to be printed upon the label or to be disclosed otherwise under any law of this state or of the United States.

Any person who violates any provision of this section is guilty of a class B misdemeanor.

Source:

S.L. 1903, ch. 81, § 1; R.C. 1905, § 9452; S.L. 1913, ch. 147, § 1; C.L. 1913, § 10260; R.C. 1943, § 19-0404; S.L. 1975, ch. 106, § 175.

19-04-05. Definitions of terms used in preceding section.

The terms “drug”, “medicine”, “patent or proprietary medicine”, “pill”, “tablet”, “powder”, “capsule”, “cosmetic”, “disinfectant”, “antiseptic”, or “condiment” as used in section 19-04-04 include all remedies for internal, external, or technical use, either in package or bulk, simple, mixed, or compound.

Source:

S.L. 1903, ch. 81, § 2; R.C. 1905, § 9452; S.L. 1913, ch. 147, § 1; C.L. 1913, § 10260; R.C. 1943, § 19-0405.

19-04-06. Preparations a nuisance — May be destroyed.

The samples of goods described in section 19-04-04 must be deemed a nuisance and a danger and menace to the safety of children, members of the household, or livestock. If such samples are not removed upon notice by a member of the household, or if they are left behind purposely and not removed within twenty-four hours without notice, such samples may be removed, destroyed, or annihilated and disposed of by any member of the household and no accounting will have to be rendered, and an action demanding such accounting may not be maintained in any court. A defense for a violation of section 19-04-04 may not be sustained unless a receipt or a request for the goods, dated and signed by the householder, is produced as evidence.

Source:

S.L. 1903, ch. 81, § 1; R.C. 1905, § 9452; S.L. 1913, ch. 147, § 1; C.L. 1913, § 10260; R.C. 1943, § 19-0406.

Cross-References.

Abatement of nuisance, see N.D.C.C. ch. 42-02.

19-04-07. Penalty. [Repealed]

Repealed by S.L. 1975, ch. 106, § 673.

19-04-08. Distribution of anabolic steroids prohibited — Exception — Penalty.

A person who distributes or possesses with the intent to distribute an anabolic steroid for any use in humans other than the treatment of disease under the prescription of a physician is guilty of a class B felony.

Source:

S.L. 1989, ch. 269, § 1.

19-04-09. Distribution of substance or device to defraud urine test prohibited — Penalty.

A person is guilty of a class A misdemeanor if that person willfully manufactures, advertises, sells, or distributes any substance or device that is intended to defraud a urine test designed to detect the presence of a chemical substance or a controlled substance.

Source:

S.L. 2005, ch. 113, § 3.

CHAPTER 19-05 Oleomargarine [Repealed]

[Repealed by S.L. 1973, ch. 201, § 1; 1975, ch. 106, § 673; 1977, ch. 195, § 1; 1979, ch. 291, § 1]

CHAPTER 19-05.1 Food Donated to Charity

19-05.1-01. Definitions.

As used in this chapter:

  1. “Gleaner” means a person that harvests for free distribution an agricultural crop that has been donated by the owner.
  2. “Perishable food” means any food that may spoil or otherwise become unfit for human consumption because of its nature, type, or physical condition or any food not readily marketable due to appearance, freshness, grade, surplus, or other considerations. The term includes fresh or processed meats, poultry, seafood, dairy products, bakery products, eggs in the shell, fresh fruits, or vegetables and foods that have been packaged, canned, refrigerated, or frozen.

Source:

S.L. 1983, ch. 258, § 1.

19-05.1-02. Donor or gleaner liability for injury.

The good-faith donor of any perishable food, apparently fit for human consumption at the time of donation, to a bona fide charitable or nonprofit organization for free distribution, or a gleaner of any perishable food apparently fit for human consumption at the time of donation, is not subject to criminal penalty or civil damages arising from the condition of the food, unless an injury is caused by the grossly negligent or willful conduct of the donor or gleaner.

Source:

S.L. 1983, ch. 258, § 2.

19-05.1-03. Charitable or nonprofit organization liability for injury.

A bona fide charitable or nonprofit organization which in good faith receives food, apparently fit for human consumption, and distributes it at no charge, is not subject to criminal penalty or civil damages resulting from the condition of the food unless an injury results from the negligent or willful conduct of the organization.

Source:

S.L. 1983, ch. 258, § 3.

19-05.1-04. Sale of food prohibited — Unlawful sale or use — Penalty.

  1. Any bona fide charitable or nonprofit organization, that receives any perishable food pursuant to this chapter, may not sell or offer to sell any of the food. This subsection does not apply to food products which comply with all maturity, quality, size, standard pack container, and labeling requirements of this title.
  2. No person, other than the recipient of the food provided as charitable assistance, may sell, offer for sale, use, or consume any food donated pursuant to this chapter.
  3. Any violation of this section is punishable by a civil penalty not to exceed one thousand dollars.

Source:

S.L. 1983, ch. 258, § 4.

19-05.1-05. Inspection of food. [Effective through August 31, 2022]

Upon the request made by a bona fide charitable or nonprofit organization receiving perishable food under this chapter, a representative from the county health district where the organization is located or the state department of health shall provide inspection of the food received to determine whether the food may be used for human consumption. This chapter does not restrict the authority of any appropriate agency to inspect, regulate, or ban the use of perishable food.

Source:

S.L. 1983, ch. 258, § 5; 1995, ch. 243, § 2.

19-05.1-05. Inspection of food. [Effective September 1, 2022]

Upon the request made by a bona fide charitable or nonprofit organization receiving perishable food under this chapter, a representative from the county health district where the organization is located or the department shall provide inspection of the food received to determine whether the food may be used for human consumption. This chapter does not restrict the authority of any appropriate agency to inspect, regulate, or ban the use of perishable food.

Source:

S.L. 1983, ch. 258, § 5; 1995, ch. 243, § 2; 2021, ch. 352, § 89, effective September 1, 2022.

CHAPTER 19-06 Imitation Ice Cream [Repealed]

[Repealed by S.L. 1979, ch. 105, § 18]

CHAPTER 19-06.1 Honey

19-06.1-01. Definitions.

In this chapter, unless the context or subject matter otherwise indicates:

  1. The terms “honey”, “liquid or extracted honey”, “strained honey”, or “pure honey” are interchangeable and mean the nectar of plants that has been transformed by and is the natural product of the honeybee.
  2. “Person” means any individual, partnership, firm, association, company, corporation, or limited liability company.

Source:

S.L. 1977, ch. 196, § 1; 1993, ch. 54, § 106.

Collateral References.

Liability for injury or damage caused by bees, 86 A.L.R.3d 829.

Keeping bees as nuisance, 88 A.L.R.3d 992.

19-06.1-02. Prohibited acts.

No person may sell, keep for sale, or offer for sale any product which:

  1. Resembles honey and is labeled as “honey”.
  2. Is not pure honey and is labeled with a picture or drawing of a bee, beehive, or honeycomb.
  3. Contains a mixture of honey and any other ingredient and is labeled as “honey”.
  4. Contains honey and any other ingredient unless the container bears a label which lists the ingredients in their order of predominance. In the ingredients statement, the word “honey” must appear in the same type size as the other ingredients.

Source:

S.L. 1977, ch. 196, § 3.

19-06.1-03. Use of word honey in products not resembling honey.

Products which do not resemble honey but which contain honey as an ingredient may include the word “honey” in the name of the product. The relative position of the word “honey” in the product name must be determined by the predominance of honey as an ingredient.

Source:

S.L. 1977, ch. 196, § 4.

19-06.1-04. Use of word imitation prohibited.

Notwithstanding subsection 3 of section 19-02.1-10, the word “imitation” may not be used in the name of a product which resembles honey regardless of whether or not the product contains honey.

Source:

S.L. 1977, ch. 196, § 5.

19-06.1-05. Enforcement authority. [Effective through August 31, 2022]

The state department of health shall enforce the provisions of this chapter.

Source:

S.L. 1977, ch. 196, § 2; 1989, ch. 264, § 8; 1995, ch. 243, § 2.

19-06.1-05. Enforcement authority. [Effective September 1, 2022]

The department shall enforce the provisions of this chapter.

Source:

S.L. 1977, ch. 196, § 2; 1989, ch. 264, § 8; 1995, ch. 243, § 2; 2021, ch. 352, § 90, effective September 1, 2022.

19-06.1-06. Penalty.

Any person who violates any provision of this chapter is guilty of a class B misdemeanor.

Source:

S.L. 1977, ch. 196, § 6.

CHAPTER 19-07 Eggs [Repealed]

19-07-01. Eggs to be graded — Exemption. [Repealed]

Source:

S.L. 1921, ch. 60, §§ 1, 3, 4; 1925 Supp., §§ 2863c1, 2863c3, 2863c4; R.C. 1943, § 19-0701; S.L. 1957, ch. 167, § 1; 1957 Supp., § 19-0701; S.L. 1985, ch. 258, § 29; 2017, ch. 191, § 1, effective August 1, 2017; repealed by 2017, ch. 61, § 13, effective July 1, 2017.

19-07-02. Rulemaking power. [Repealed]

Source:

S.L. 1921, ch. 60, § 7; 1925 Supp., § 2863c7; R.C. 1943, § 19-0702; S.L. 1957, ch. 167, § 1; 1957 Supp., § 19-0702; S.L. 1971, ch. 237, § 1; 1979, ch. 187, § 30; 1981, ch. 336, § 12; 1983, ch. 254, § 2; 1991, ch. 224, § 1; 1995, ch. 243, § 2; 1997, ch. 67, § 2; repealed by 2017, ch. 61, § 13, effective July 1, 2017.

19-07-03. Egg advisory commission. [Repealed]

Repealed by S.L. 1971, ch. 237, § 2.

19-07-04. Egg dealers’ licenses. [Repealed]

Repealed by S.L. 1983, ch. 254, § 11.

19-07-05. Bond. [Repealed]

Repealed by S.L. 1989, ch. 264, § 15.

19-07-06. Penalty. [Repealed]

Source:

S.L. 1921, ch. 60, § 4; 1925 Supp., § 2863c4; R.C. 1943, § 19-0706; S.L. 1957, ch. 167, § 1; 1957 Supp., § 19-0706; S.L. 1975, ch. 106, § 178; 1983, ch. 254, § 4; repealed by 2017, ch. 61, § 13, effective July 1, 2017.

19-07-07. Candling — Maintaining adequate place for — Candling certificate. [Repealed]

Repealed by S.L. 1957, ch. 167, § 2.

19-07-08. Candling record — Statement to seller. [Repealed]

Repealed by S.L. 1957, ch. 167, § 2.

19-07-09. Contents of return statement of first buyer. [Repealed]

Repealed by S.L. 1957, ch. 167, § 2.

19-07-10. Contents of return statement of subsequent buyers. [Repealed]

Repealed by S.L. 1957, ch. 167, § 2.

19-07-11. Penalty. [Repealed]

Repealed by S.L. 1957, ch. 167, § 2.

CHAPTER 19-08 Beverages

19-08-01. Certain beverages unlawful to sell.

A person may not sell, offer, or expose for sale, or have in possession with intent to sell within this state, any beverage of whatever nature that contains any ingredient that is injurious to health, or is adulterated, misbranded, or insufficiently or improperly labeled within the meaning of chapter 19-02.1, or that is not licensed as provided in this chapter.

Source:

S.L. 1923, ch. 221, § 2; 1925 Supp., § 10169a2; R.C. 1943, § 19-0801; S.L. 1983, ch. 253, § 3; 1985, ch. 258, § 30.

19-08-02. Beverage — Definition.

The term “beverage” as used in this chapter includes carbonated and noncarbonated soda water, ginger ale, root beer, aromatic flavors, cereal or malt beverages, apple cider, tomato juice, grape juice, and other fruit juices, imitations or compounds of any of these, concentrated extracts and essences from which beverages are made, mineral or spring water sold under private label, and potable water sold by a private individual, firm, corporation, or limited liability company for household or culinary purposes.

Source:

S.L. 1923, ch. 221, § 4; 1925 Supp., § 10169a4; S.L. 1939, ch. 104, § 1; R.C. 1943, § 19-0802; S.L. 1963, ch. 208, § 1; 1989, ch. 264, § 9; 1993, ch. 54, § 106.

19-08-03. Requirements for labeling — Standards of purity and quality.

The requirements for labeling and standards of purity and quality of all beverages included in this chapter are the same as those required under chapter 19-02.1, together with such other standards and rules the department may adopt pursuant to chapter 28-32 to carry out the intent of this chapter.

Source:

S.L. 1923, ch. 221, § 3; 1925 Supp., § 10169a3; R.C. 1943, § 19-0803; S.L. 1981, ch. 336, § 13; 1983, ch. 253, § 4.

Collateral References.

Liability for injury or death allegedly caused by foreign substance in beverage, 90 A.L.R.4th 12.

19-08-04. License required.

The department may require manufacturers, importers, jobbers, or other retailers to furnish suitable samples to the department for inspection and chemical analysis. If any beverage does not meet all requirements of law, the department shall refuse to license the beverage and shall prevent sale of the beverage. The license fee must be paid annually during the month of December or before placing the beverage on the market. The license expires December thirty-first next following its issuance. If the manufacturer or jobber secures a license for a product, subsequent sellers, including retailers and dispensers, need not again secure a license for the same product, and no dispenser may be required to secure a license for a product prepared for the dispenser’s own use from a product already licensed. The department may adopt rules establishing the amount and the procedures for the collection of annual license fees. License fees collected pursuant to this section must be deposited in the department’s operating fund in the state treasury and any expenditure from the fund is subject to appropriation by the legislative assembly.

Source:

S.L. 1923, ch. 221, § 5; 1925 Supp., § 10169a5; S.L. 1939, ch. 104, § 2; R.C. 1943, § 19-0804; S.L. 1967, ch. 166, § 2; 1985, ch. 258, § 31; 2005, ch. 32, § 12.

19-08-05. License fees. [Repealed]

Repealed by S.L. 2005, ch. 32, § 19.

19-08-06. Penalty.

Any person violating any of the provisions of this chapter or any rule or regulation issued pursuant thereto is guilty of a class B misdemeanor.

Source:

S.L. 1923, ch. 221, § 9; 1925 Supp., § 10169a9; R.C. 1943, § 19-0806; S.L. 1975, ch. 106, § 179.

19-08-07. Penalty for sale, use, or purchase of bottles when brand recorded. [Repealed]

Repealed by S.L. 1999, ch. 108, § 16.

CHAPTER 19-09 Cosmetics [Repealed]

[Repealed by S.L. 1967, ch. 168, § 24]

CHAPTER 19-10 Petroleum Products [Repealed]

19-10-01. Definitions. [Repealed]

Source:

S.L. 1923, ch. 223, §§ 3, 13; 1925 Supp., §§ 3080a3, 3080a13; S.L. 1933, ch. 165, §§ 1, 3; 1939, ch. 148, §§ 1, 3, 4; R.C. 1943, § 19-1001; S.L. 1977, ch. 197, § 1; 1989, ch. 264, § 10; 1995, ch. 243, § 2; 2007, ch. 213, § 1; 2011, ch. 460, § 5; repealed by 2017, ch. 199, § 74, effective April 29, 2019.

19-10-02. Department to enforce law — Regulation of petroleum products. [Repealed]

Source:

S.L. 1923, ch. 223, § 2; 1925 Supp., § 3080a2; S.L. 1939, ch. 148, § 6; R.C. 1943, § 19-1002; S.L. 1981, ch. 336, § 14; repealed by 2017, ch. 199, § 74, effective April 29, 2019.

19-10-03. Sale of adulterated and misbranded gasoline, kerosene, tractor fuel, heating oil, diesel fuel, or lubricating oil prohibited. [Repealed]

Source:

S.L. 1923, ch. 223, § 3; 1925 Supp., § 3080a3; S.L. 1933, ch. 165, § 1; 1939, ch. 148, § 1; R.C. 1943, § 19-1003; S.L. 1977, ch. 197, § 2; repealed by 2017, ch. 199, § 74, effective April 29, 2019.

19-10-03.1. Retail sale of alcohol-blended gasoline — Label requirements. [Repealed]

Source:

S.L. 1985, ch. 263, § 1; 1987, ch. 267, § 1; 1999, ch. 216, § 1; 2007, ch. 214, § 1; 2011, ch. 167, § 1; repealed by 2017, ch. 199, § 74, effective April 29, 2019.

19-10-03.2. Retail sale of gasoline containing methyl tertiary butyl ether — Restriction. [Repealed]

Source:

S.L. 2005, ch. 200, § 1; repealed by 2017, ch. 199, § 74, effective April 29, 2019.

19-10-03.3. Retail sale of alternative fuels — Notice required. [Repealed]

Source:

S.L. 2007, ch. 213, § 2; repealed by 2017, ch. 199, § 74, effective April 29, 2019.

19-10-04. Labeling gasoline containers — Gasoline pipeline. [Repealed]

Source:

S.L. 1923, ch. 223, § 4; 1925 Supp., § 3080a4; S.L. 1935, ch. 147, § 1; R.C. 1943, § 19-1004; S.L. 1953, ch. 154, § 1; 1957 Supp., § 19-1004; repealed by 2017, ch. 199, § 74, effective April 29, 2019.

19-10-05. Labeling kerosene — Containers — Pipeline. [Repealed]

Source:

S.L. 1923, ch. 223, § 4; 1925 Supp., § 3080a4; S.L. 1935, ch. 147, § 1; R.C. 1943, § 19-1005; repealed by 2017, ch. 199, § 74, effective April 29, 2019.

19-10-06. Labeling tractor fuel. [Repealed]

Source:

S.L. 1933, ch. 165, § 2; R.C. 1943, § 19-1006; S.L. 1953, ch. 154, § 1; 1957 Supp., § 19-1006; repealed by 2017, ch. 199, § 74, effective April 29, 2019.

19-10-07. Labeling heating oil. [Repealed]

Source:

S.L. 1939, ch. 148, § 2; R.C. 1943, § 19-1007; S.L. 1953, ch. 154, § 1; 1957 Supp., § 19-1007; repealed by 2017, ch. 199, § 74, effective April 29, 2019.

19-10-08. Labeling diesel fuel. [Repealed]

Source:

S.L. 1939, ch. 148, § 2; R.C. 1943, § 19-1008; S.L. 1953, ch. 154, § 1; 1957 Supp., § 19-1008; repealed by 2017, ch. 199, § 74, effective April 29, 2019.

19-10-09. Specifications — Gasoline and kerosene. [Repealed]

Repealed by S.L. 1951, ch. 154, § 2.

19-10-10. Specifications for petroleum products — Tests used. [Repealed]

Source:

S.L. 1923, ch. 223, § 5; 1925 Supp., § 3080a5; R.C. 1943, § 19-1010; S.L. 1951, ch. 154, § 1; 1957 Supp., § 19-1010; S.L. 1977, ch. 197, § 3; 2007, ch. 213, § 3; repealed by 2017, ch. 199, § 74, effective April 29, 2019.

19-10-11. Specifications — Tractor fuel. [Repealed]

Repealed by S.L. 1951, ch. 154, § 2.

19-10-12. Specifications — Diesel fuel. [Repealed]

Repealed by S.L. 1951, ch. 154, § 2.

19-10-13. Specifications — Heating oil. [Repealed]

Repealed by S.L. 1951, ch. 154, § 2.

19-10-14. How heating oil specifications modified. [Repealed]

Repealed by S.L. 1951, ch. 154, § 2.

19-10-15. How volume of heating oil determined. [Repealed]

Source:

S.L. 1939, ch. 148, § 5; R.C. 1943, § 19-1015; repealed by 2017, ch. 199, § 74, effective April 29, 2019.

19-10-16. Department may prohibit sale of certain gasolines or motor fuels. [Repealed]

Source:

S.L. 1927, ch. 177, § 1; R.C. 1943, § 19-1016; S.L. 1989, ch. 264, § 11; repealed by 2017, ch. 199, § 74, effective April 29, 2019.

19-10-17. Coloring of gasoline. [Repealed]

Repealed by S.L. 1957, ch. 168, § 1.

19-10-18. Sale of prohibited gasolines — Penalty. [Repealed]

Source:

S.L. 1927, ch. 177, § 4; R.C. 1943, § 19-1018; S.L. 1975, ch. 106, § 180; repealed by 2017, ch. 199, § 74, effective April 29, 2019.

19-10-19. Inspection fees. [Repealed]

Source:

S.L. 1923, ch. 223, §§ 6, 7; 1925 Supp., §§ 3080a6, 3080a7; S.L. 1933, ch. 165, §§ 4, 5; 1939, ch. 148, §§ 7, 8; R.C. 1943, § 19-1019; S.L. 1973, ch. 36, § 6; 1989, ch. 270, § 1; 1997, ch. 207, § 1; 2009, ch. 193, § 2; repealed by 2017, ch. 199, § 74, effective April 29, 2019.

19-10-20. Report to tax commissioner of petroleum products — Contents. [Repealed]

Source:

S.L. 1923, ch. 223, § 6; 1925 Supp., § 3080a6; S.L. 1933, ch. 165, § 4; 1939, ch. 148, § 7; R.C. 1943, § 19-1020; S.L. 1989, ch. 270, § 2; 2009, ch. 193, § 3; repealed by 2017, ch. 199, § 74, effective April 29, 2019.

19-10-21. Bond may be required of dealer in petroleum products. [Repealed]

Source:

S.L. 1923, ch. 223, § 7; 1925 Supp., § 3080a7; S.L. 1933, ch. 165, § 5; 1939, ch. 148, § 8; R.C. 1943, § 19-1021; S.L. 1975, ch. 197, § 1; 1985, ch. 258, § 32; 1987, ch. 263, § 12; 1989, ch. 270, § 3; 2009, ch. 193, § 4; repealed by 2017, ch. 199, § 74, effective April 29, 2019.

19-10-22. Department may designate ports of entry and hold cars for inspection — Penalty. [Repealed]

Source:

S.L. 1923, ch. 223, § 2; 1925 Supp., § 3080a2; R.C. 1943, § 19-1022; S.L. 1975, ch. 106, § 181; repealed by 2017, ch. 199, § 74, effective April 29, 2019.

19-10-22.1. Aboveground storage tanks permitted — Limitations. [Repealed]

Repealed by S.L. 1993, ch. 218, § 10.

19-10-23. Penalties. [Repealed]

Source:

S.L. 1923, ch. 223, § 11; 1925 Supp., § 3080a11; S.L. 1939, ch. 148, § 12; R.C. 1943, § 19-1023; S.L. 1975, ch. 106, § 182; repealed by 2017, ch. 199, § 74, effective April 29, 2019.

CHAPTER 19-11 Paints, Varnishes, and Linseed Oils [Repealed]

[Repealed by S.L. 1989, ch. 264, § 15]

CHAPTER 19-12 Insecticides and Fungicides [Repealed]

[Repealed by S.L. 1947, ch. 182, § 13]

CHAPTER 19-13 Commercial Feeding Stuffs [Repealed]

[Repealed by S.L. 1967, ch. 171, § 15]

CHAPTER 19-13.1 North Dakota Commercial Feed Law [Repealed]

19-13.1-01. Enforcing official. [Repealed]

Repealed by S.L. 2013, ch. 186, § 18.

19-13.1-02. Definitions. [Repealed]

Source:

S.L. 1967, ch. 171, § 3; 1987, ch. 263, § 13; 1991, ch. 225, § 2; 1993, ch. 54, § 106; 1995, ch. 219, § 2; 2013, ch. 186, § 1; repealed by 2017, ch. 68, § 18, effective July 1, 2017.

19-13.1-03. Registration and license. [Repealed]

Repealed by S.L. 2013, ch. 186, § 18.

19-13.1-03.1. Manufacturer’s license — Retailer’s license. [Repealed]

Source:

S.L. 2013, ch. 186, § 2; repealed by 2017, ch. 68, § 18, effective July 1, 2017.

19-13.1-03.2. Product registration. [Repealed]

Source:

S.L. 2013, ch. 186, § 3; repealed by 2017, ch. 68, § 18, effective July 1, 2017.

19-13.1-03.3. License — Registration — Hearing. [Repealed]

Source:

S.L. 2013, ch. 186, § 4; repealed by 2017, ch. 68, § 18, effective July 1, 2017.

19-13.1-03.4. Pet food — Specialty pet food — Registration — Penalty. [Repealed]

Source:

S.L. 2013, ch. 186, § 5; repealed by 2017, ch. 68, § 18, effective July 1, 2017.

19-13.1-04. Commercial feed — Label — Content. [Repealed]

Source:

S.L. 1967, ch. 171, § 5; 1985, ch. 264, § 1; 1987, ch. 268, § 1; 1991, ch. 225, § 4; 2013, ch. 186, § 6; repealed by 2017, ch. 68, § 18, effective July 1, 2017.

19-13.1-04.1. Customer-formula feed — Label — Content. [Repealed]

Source:

S.L. 2013, ch. 186, § 7; repealed by 2017, ch. 68, § 18, effective July 1, 2017.

19-13.1-05. Additional labeling requirements. [Repealed]

Repealed by S.L. 1991, ch. 225, § 13.

19-13.1-06. Inspection fee. [Repealed]

Source:

S.L. 1967, ch. 171, § 7; 1975, ch. 198, § 1; 1983, ch. 254, § 5; 1991, ch. 225, § 5; 1993, ch. 223, § 1; 1995, ch. 219, § 4; 1995, ch. 220, § 2; 2005, ch. 201, § 2; 2013, ch. 186, § 8; repealed by 2017, ch. 68, § 18, effective July 1, 2017.

19-13.1-06.1. Inspection fee — Responsibility for payment — Penalty. [Repealed]

Source:

S.L. 2013, ch. 186, § 9; repealed by 2017, ch. 68, § 18, effective July 1, 2017.

19-13.1-06.2. Inspection fee — Records. [Repealed]

Source:

S.L. 2013, ch. 186, § 10; repealed by 2017, ch. 68, § 18, effective July 1, 2017.

19-13.1-07. Adulteration. [Repealed]

Source:

S.L. 1967, ch. 171, § 8; 1991, ch. 225, § 6; 1995, ch. 219, § 5; 2001, ch. 218, § 1; 2013, ch. 186, § 11; repealed by 2017, ch. 68, § 18, effective July 1, 2017.

19-13.1-08. Misbranding. [Repealed]

Source:

S.L. 1967, ch. 171, § 9; 1991, ch. 225, § 7; 1995, ch. 219, § 6; 2013, ch. 186, § 12; repealed by 2017, ch. 68, § 18, effective July 1, 2017.

19-13.1-09. Inspection, sampling, analysis. [Repealed]

Source:

S.L. 1967, ch. 171, § 10; 1985, ch. 258, § 34; 1987, ch. 263, § 14; 1991, ch. 225, § 8; 1995, ch. 219, § 7; 2013, ch. 186, § 13; repealed by 2017, ch. 68, § 18, effective July 1, 2017.

19-13.1-10. Rules. [Repealed]

Repealed by S.L. 2013, ch. 186, § 18.

19-13.1-11. Detained commercial feeds. [Repealed]

Source:

S.L. 1967, ch. 171, § 12; 1985, ch. 258, § 35; 1987, ch. 263, § 15; 1995, ch. 219, § 9; 2013, ch. 186, § 14; repealed by 2017, ch. 68, § 18, effective July 1, 2017.

19-13.1-12. Penalties. [Repealed]

Source:

S.L. 1967, ch. 171, § 13; 1975, ch. 106, § 184; 1985, ch. 258, § 36; 1987, ch. 263, § 16; 1991, ch. 225, § 10; 1993, ch. 218, § 4; 1995, ch. 219, § 10; 1995, ch. 243, § 2; 2013, ch. 186, § 15; repealed by 2017, ch. 68, § 18, effective July 1, 2017.

19-13.1-13. Publications. [Repealed]

Source:

S.L. 1967, ch. 171, § 14; 1979, ch. 292, § 1; 1991, ch. 225, § 11; 1995, ch. 219, § 11; 2013, ch. 186, § 16; repealed by 2017, ch. 68, § 18, effective July 1, 2017.

19-13.1-14. Cooperation with other entities. [Repealed]

Source:

S.L. 1991, ch. 225, § 12; 1995, ch. 219, § 12; repealed by 2017, ch. 68, § 18, effective July 1, 2017.

19-13.1-15. Certificates — Fees. [Repealed]

Source:

S.L. 2013, ch. 186, § 17; repealed by 2017, ch. 68, § 18, effective July 1, 2017.

19-13.1-16. Deposit of fees. [Repealed]

Source:

S.L. 2013, ch. 9, § 9; repealed by 2017, ch. 68, § 18, effective July 1, 2017.

CHAPTER 19-14 Livestock Medicine [Repealed]

19-14-01. Definitions. [Repealed]

Source:

S.L. 1937, ch. 7, § 2; R.C. 1943, § 19-1401; S.L. 2003, ch. 185, § 1; repealed by 2017, ch. 68, § 18, effective July 1, 2017.

19-14-02. Registration of livestock medicine. [Repealed]

Source:

S.L. 1937, ch. 7, § 4; R.C. 1943, § 19-1402; S.L. 1975, ch. 199, § 1; 1995, ch. 219, § 13; 1997, ch. 208, § 1; 2003, ch. 185, § 2; repealed by 2017, ch. 68, § 18, effective July 1, 2017.

19-14-03. Regulations for sale. [Repealed]

Source:

S.L. 1937, ch. 7, § 3; R.C. 1943, § 19-1403; S.L. 1945, ch. 181, § 1; 1957 Supp., § 19-1403; S.L. 1985, ch. 258, § 37; 1995, ch. 54, § 11; 1995, ch. 219, § 14; 2003, ch. 185, § 3; repealed by 2017, ch. 68, § 18, effective July 1, 2017.

19-14-04. Registration fee. [Repealed]

Source:

S.L. 1937, ch. 7, § 6; R.C. 1943, § 19-1404; S.L. 1983, ch. 254, § 6; 1995, ch. 219, § 15; 1997, ch. 208, § 2; 2003, ch. 30, § 11; 2003, ch. 185, § 4; repealed by 2017, ch. 68, § 18, effective July 1, 2017.

19-14-05. Commissioner may cancel registration. [Repealed]

Source:

S.L. 1937, ch. 7, § 4, subs. 2; R.C. 1943, § 19-1405; S.L. 1995, ch. 219, § 16; 2003, ch. 185, § 5; repealed by 2017, ch. 68, § 18, effective July 1, 2017.

19-14-06. Commissioner may adopt rules, take testimony, grant public hearings. [Repealed]

Source:

S.L. 1937, ch. 7, § 4, subs. 3; R.C. 1943, § 19-1406; S.L. 1981, ch. 336, § 15; 1985, ch. 258, § 38; 1995, ch. 219, § 17; 2003, ch. 185, § 6; repealed by 2017, ch. 68, § 18, effective July 1, 2017.

19-14-07. Enforcement of chapter. [Repealed]

Source:

S.L. 1937, ch. 7, § 5, subs. 1; R.C. 1943, § 19-1407; 1995, ch. 219, § 18; 2003, ch. 185, § 7; repealed by 2017, ch. 68, § 18, effective July 1, 2017.

19-14-08. Penalty — Criminal — Civil. [Repealed]

Source:

S.L. 1937, ch. 7, § 7; R.C. 1943, § 19-1408; S.L. 1975, ch. 106, § 185; 1985, ch. 258, § 39; 2003, ch. 185, § 8; repealed by 2017, ch. 68, § 18, effective July 1, 2017.

CHAPTER 19-15 Commercial Fertilizers [Repealed]

[Repealed by S.L. 1949, ch. 172, § 19]

CHAPTER 19-16 Antifreeze [Repealed]

[Repealed by S.L. 1971, ch. 238, § 2]

CHAPTER 19-16.1 Antifreeze Regulation [Repealed]

CHAPTER 19-17 Flour and Bread Standards

19-17-01. Definitions.

When used in this chapter, unless the context otherwise requires:

  1. “Flour” includes and is limited to the foods commonly known in the milling and baking industries as:
    1. White flour, also known as wheat flour or plain flour;
    2. Bromated flour;
    3. Self-rising flour, also known as self-rising white flour or self-rising wheat flour; and
    4. Phosphated flour, also known as phosphated white flour or phosphated wheat flour,
  2. “Person” means an individual, a corporation, a limited liability company, a partnership, an association, a joint stock company, a trust, or any group of persons whether incorporated or not, engaged in the commercial manufacture or sale of flour, white bread, or rolls.
  3. “Rolls” includes plain white rolls and buns of the semibread dough type, namely soft rolls, such as hamburger rolls, hot dog rolls, parkerhouse rolls, and hard rolls, such as Vienna rolls and kaiser rolls, but does not include yeast-raised sweet rolls or sweet buns made with fillings or coatings, such as cinnamon rolls or buns and butterfly rolls.
  4. “White bread” means any bread made with flour whether baked in a pan or on a hearth or screen, which is commonly known or usually represented and sold as white bread, including Vienna bread, French bread, and Italian bread.

but excludes whole wheat flour and also excludes special flours not used for bread, roll, bun, or biscuit baking, such as specialty, cake, pancake, and pastry flours.

Source:

S.L. 1945, ch. 177, § 1; R.C. 1943, 1957 Supp., § 19-1701; S.L. 1989, ch. 264, § 14; 1993, ch. 54, § 106.

19-17-02. Flour standards.

It is unlawful for any person to manufacture, mix, compound, sell, or offer for sale, for human consumption in this state, flour unless vitamin and mineral levels are in conformity with the legally established governing interstate shipments of enriched flour. However, the terms of this section do not apply to flour sold to distributors, bakers, or other processors, if the purchaser furnishes to the seller a certificate, in such form as the department shall by regulation prescribe, certifying that such flour will be:

  1. Resold to a distributor, baker, or other processor;
  2. Used in the manufacture, mixing, or compounding of flour, white bread, or rolls enriched to meet the requirements of this chapter; or
  3. Used in the manufacture of products other than flour, white bread, or rolls.

It is unlawful for any such purchaser so furnishing any such certificate to use or resell the flour so purchased in any manner other than as prescribed.

Source:

S.L. 1945, ch. 177, § 2; R.C. 1943, 1957 Supp., § 19-1702; S.L. 1985, ch. 258, § 41.

19-17-03. White bread standards.

It is unlawful for any person to manufacture, bake, sell, or offer for sale, for human consumption in this state, any white bread or rolls as defined in section 19-17-01 unless vitamin and mineral levels are in conformity with the legally established governing interstate shipments of enriched flour.

Source:

S.L. 1945, ch. 177, § 3; R.C. 1943, 1957 Supp., § 19-1703; S.L. 1985, ch. 258, § 42.

19-17-04. Enforcement.

  1. The department shall enforce this chapter and the department may adopt rules, regulations, and orders pursuant to chapter 28-32 for the efficient enforcement of this chapter.
  2. Whenever the vitamin and mineral requirements set forth in sections 19-17-02 and 19-17-03 are no longer in conformity with the legally established standards governing the interstate shipments of enriched flour and enriched white bread or enriched rolls, the department, in order to maintain uniformity between intrastate and interstate vitamin and mineral requirements for the foods within the provisions of this chapter, shall modify or revise such requirements to conform with amended standards governing interstate shipments.
  3. In the event of findings by the department that there is an existing or imminent shortage of any ingredient required by sections 19-17-02 and 19-17-03, and that because of such shortage the sale and distribution of flour or white bread or rolls may be impeded by the enforcement of this chapter, the department shall issue an order, to be effective immediately upon issuance, permitting the omission of such ingredients from flour or white bread or rolls, and if the department finds it necessary or appropriate, excepting such foods from labeling requirements until the further order of the department. Any such findings may be made without hearing, on the basis of an order or of factual information supplied by the appropriate federal agency or officer. In the absence of any such order of the appropriate federal agency or factual information supplied by it, the department on the department’s own motion may, and upon receiving the sworn statements of ten or more persons subject to this chapter that they believe such a shortage exists or is imminent shall, within twenty days thereafter hold a public hearing with respect thereto at which any interested person may present evidence, and shall make findings based upon the evidence presented. The department shall publish notice of any such hearing at least ten days prior thereto. Whenever the department has reason to believe that such shortage no longer exists, the department shall hold a public hearing, after at least ten days’ notice has been given, at which any interested person may present evidence, and the department shall make findings based upon the evidence so presented. If the department’s findings be that such shortage no longer exists, the department shall issue an order to become effective not less than thirty days after the publication thereof, revoking such previous order; provided, however, that undisposed floor stocks of flour on hand at the effective date of such revocation order, or flour manufactured prior to such effective date, for sale in this state may thereafter be lawfully sold or disposed of.
  4. For the purpose of this chapter, the department is authorized to take samples for analysis and to conduct examinations and investigations, and to enter, at reasonable times, any factory, mill, bakery, warehouse, shop, or establishment where flour, white bread, or rolls are manufactured, processed, packed, sold, or held, or any vehicle being used for the transportation thereof, and to inspect any such place or vehicle and any flour, white bread, or rolls therein, and all pertinent equipment, materials, containers, and labeling.

Source:

S.L. 1945, ch. 177, § 4; R.C. 1943, 1957 Supp., § 19-1704; S.L. 1981, ch. 336, § 17; 1985, ch. 258, § 43; 1987, ch. 263, § 17.

19-17-05. Penalty. [Effective through August 31, 2022]

Any person who violates any of the provisions of this chapter or the orders, rules, or regulations promulgated by the state department of health under authority thereof, is, unless a specific penalty has been provided, guilty of a class B misdemeanor.

Source:

S.L. 1945, ch. 177, § 5; R.C. 1943, 1957 Supp., § 19-1705; S.L. 1975, ch. 106, § 188; 1995, ch. 243, § 2.

19-17-05. Penalty. [Effective September 1, 2022]

Any person who violates any of the provisions of this chapter or the orders, rules, or regulations promulgated by the department under authority thereof, is, unless a specific penalty has been provided, guilty of a class B misdemeanor.

Source:

S.L. 1945, ch. 177, § 5; R.C. 1943, 1957 Supp., § 19-1705; S.L. 1975, ch. 106, § 188; 1995, ch. 243, § 2; 2021, ch. 352, § 91, effective September 1, 2022.

19-17-06. Weights of containers for flour, cornmeal, and grits — Penalty. [Repealed]

Repealed by S.L. 1985, ch. 258, § 66.

CHAPTER 19-18 Pesticide Registration [Repealed]

19-18-01. Short title. [Repealed]

Repealed by S.L. 1995, ch. 219, § 52.

19-18-02. Definitions. [Repealed]

Source:

S.L. 1947, ch. 182, § 2; R.C. 1943, 1957 Supp., § 19-1802; S.L. 1971, ch. 239, §§ 1, 2, 4; 1985, ch. 258, §§ 44, 45; 1987, ch. 263, § 18; 1989, ch. 34, § 19; 1989, ch. 272, § 1; 1993, ch. 54, § 106; 1995, ch. 219, § 19; 1995, ch. 243, § 2; 2003, ch. 186, § 2; repealed by 2017, ch. 67, § 13, effective July 1, 2017.

19-18-02.1. Environment and rangeland protection fund. [Repealed]

Source:

S.L. 1991, ch. 227, § 1; 2001, ch. 9, § 4; repealed by 2017, ch. 67, § 13, effective July 1, 2017.

19-18-02.2. Advisory board — Creation — Duties. [Repealed]

Repealed by S.L. 2003, ch. 186, § 6.

19-18-03. Prohibited acts. [Repealed]

Source:

S.L. 1947, ch. 182, § 3; R.C. 1943, 1957 Supp., § 19-1803; S.L. 1971, ch. 239, § 5; 1985, ch. 258, § 46; 1985, ch. 267, § 1; 1989, ch. 272, § 2; 1995, ch. 219, § 21; repealed by 2017, ch. 67, § 13, effective July 1, 2017.

19-18-04. Registration — Fees. [Repealed]

Source:

S.L. 1947, ch. 182, § 4; R.C. 1943, 1957 Supp., § 19-1804; S.L. 1971, ch. 239, § 6; 1983, ch. 254, § 8; 1985, ch. 258, § 47; 1987, ch. 263, § 19; 1989, ch. 69, § 11; 1989, ch. 272, § 3; 1991, ch. 227, § 3; 1995, ch. 219, § 22; 1995, ch. 221, § 1; 1997, ch. 208, § 3; 1999, ch. 31, § 4; 2001, ch. 9, § 5; 2003, ch. 186, § 3; 2003, ch. 187, § 1; 2005, ch. 9, § 12; 2007, ch. 215, § 1; 2009, ch. 9, § 12; repealed by 2017, ch. 67, § 13, effective July 1, 2017.

19-18-04.1. Reporting requirements. [Repealed]

Source:

S.L. 1991, ch. 226, § 1; 1995, ch. 219, § 23; 2003, ch. 186, § 4; repealed by 2017, ch. 67, § 13, effective July 1, 2017.

19-18-04.2. Protection of trade secrets. [Repealed]

Source:

S.L. 1991, ch. 226, § 2; 1995, ch. 219, § 24; repealed by 2017, ch. 67, § 13, effective July 1, 2017.

19-18-05. Determinations — Rules — Uniformity. [Repealed]

Source:

S.L. 1947, ch. 182, § 5; R.C. 1943, 1957 Supp., § 19-1805; S.L. 1971, ch. 239, § 7; 1981, ch. 336, § 18; 1985, ch. 258, § 48; 1989, ch. 272, § 4; 1995, ch. 219, § 25; repealed by 2017, ch. 67, § 13, effective July 1, 2017.

19-18-06. Enforcement. [Repealed]

Source:

S.L. 1947, ch. 182, § 6; R.C. 1943, 1957 Supp., § 19-1806; S.L. 1985, ch. 258, § 49; 1989, ch. 272, § 5; 1995, ch. 219, § 26; repealed by 2017, ch. 67, § 13, effective July 1, 2017.

19-18-06.1. Stop-sale orders. [Repealed]

Source:

S.L. 1971, ch. 239, § 3; 1985, ch. 258, § 50; 1989, ch. 272, § 6; 1995, ch. 219, § 27; repealed by 2017, ch. 67, § 13, effective July 1, 2017.

19-18-07. Exemptions. [Repealed]

Source:

S.L. 1947, ch. 182, § 7; R.C. 1943, 1957 Supp., § 19-1807; S.L. 1985, ch. 258, § 51; 1987, ch. 263, § 20; 1989, ch. 272, § 7; 1995, ch. 219, § 28; 2003, ch. 186, § 5; repealed by 2017, ch. 67, § 13, effective July 1, 2017.

19-18-08. Penalties. [Repealed]

Source:

S.L. 1947, ch. 182, § 8; R.C. 1943, 1957 Supp., § 19-1808; S.L. 1975, ch. 106, § 190; 1989, ch. 272, § 8; 1991, ch. 226, § 3; 1995, ch. 219, § 29; repealed by 2017, ch. 67, § 13, effective July 1, 2017.

19-18-09. Seizures. [Repealed]

Source:

S.L. 1947, ch. 182, § 9; R.C. 1943, 1957 Supp., § 19-1809; S.L. 1989, ch. 272, § 9; repealed by 2017, ch. 67, § 13, effective July 1, 2017.

19-18-10. Delegation of duties. [Repealed]

Source:

S.L. 1947, ch. 182, § 10; R.C. 1943, 1957 Supp., § 19-1810; S.L. 1989, ch. 272, § 10; 1995, ch. 219, § 30; repealed by 2017, ch. 67, § 13, effective July 1, 2017.

19-18-11. Cooperation. [Repealed]

Source:

S.L. 1947, ch. 182, § 11; R.C. 1943, 1957 Supp., § 19-1811; S.L. 1971, ch. 239, § 8; 1989, ch. 272, § 11; 1995, ch. 219, § 31; repealed by 2017, ch. 67, § 13, effective July 1, 2017.

19-18-12. Experimental use permits. [Repealed]

Source:

S.L. 2003, ch. 188, § 1; repealed by 2017, ch. 67, § 13, effective July 1, 2017.

19-18-13. Minimum-risk pesticide — Certificate of exemption. [Repealed]

Source:

S.L. 2005, ch. 202, § 1; repealed by 2017, ch. 67, § 13, effective July 1, 2017.

CHAPTER 19-19 Barbiturates [Repealed]

[Repealed by S.L. 1975, ch. 106, § 673]

CHAPTER 19-20 Commercial Fertilizers [Repealed]

[Repealed by S.L. 1967, ch. 172, § 21]

CHAPTER 19-20.1 Fertilizer and Soil Conditioner Law [Repealed]

19-20.1-01. Enforcing official. [Repealed]

Repealed by S.L. 2013, ch. 187, § 18.

19-20.1-02. Definitions of words and terms. [Repealed]

Source:

S.L. 1967, ch. 172, § 3; 1977, ch. 198, § 1; 1985, ch. 258, § 52; 1985, ch. 268, §§ 1, 2; 1991, ch. 228, § 3; 1995, ch. 219, § 33; 1995, ch. 222, § 1; 2013, ch. 187, § 1; repealed by 2017, ch. 67, § 13, effective July 1, 2017.

19-20.1-03. Product registration — Fees. [Repealed]

Source:

S.L. 1967, ch. 172, § 4; 1977, ch. 198, § 2; 1985, ch. 258, § 53; 1991, ch. 228, § 4; 1995, ch. 219, § 34; 1995, ch. 222, § 2; 2003, ch. 189, § 1; 2011, ch. 35, § 13; 2013, ch. 187, § 2; repealed by 2017, ch. 67, § 13, effective July 1, 2017.

19-20.1-03.1. Distributor’s license — Fees. [Repealed]

Source:

S.L. 1977, ch. 198, § 3; 1985, ch. 268, § 3; 1991, ch. 228, § 5; 1995, ch. 219, § 35; 1997, ch. 208, § 4; 2003, ch. 189, § 2; 2011, ch. 35, § 14; 2013, ch. 187, § 3; repealed by 2017, ch. 67, § 13, effective July 1, 2017.

19-20.1-03.2. Proof of effectiveness. [Repealed]

Source:

S.L. 1977, ch. 198, § 4; 1991, ch. 228, § 6; 1995, ch. 219, § 36; repealed by 2017, ch. 67, § 13, effective July 1, 2017.

19-20.1-03.3. Protected information. [Repealed]

Repealed by S.L. 2013, ch. 187, § 18.

19-20.1-03.4. Guaranteed analysis. [Repealed]

Source:

S.L. 1991, ch. 228, § 8; 1995, ch. 219, § 38; 1995, ch. 222, § 3; 2013, ch. 187, § 4; repealed by 2017, ch. 67, § 13, effective July 1, 2017.

19-20.1-04. Label requirement. [Repealed]

Source:

S.L. 1967, ch. 172, § 5; 1977, ch. 198, § 5; 1991, ch. 228, § 9; 1995, ch. 219, § 39; 2013, ch. 187, § 5; repealed by 2017, ch. 67, § 13, effective July 1, 2017.

19-20.1-05. Labeling soil conditioners. [Repealed]

Repealed by S.L. 1977, ch. 198, § 18.

19-20.1-05.1. Fertilizer in bulk storage. [Repealed]

Repealed by S.L. 2013, ch. 187, § 18.

19-20.1-06. Inspection fees — Tonnage reports — Penalty. [Repealed]

Source:

S.L. 1967, ch. 172, § 7; 1977, ch. 198, § 6; 1983, ch. 254, § 9; 1985, ch. 258, § 54; 1985, ch. 268, § 4; 1991, ch. 228, § 11; 1993, ch. 224, § 1; 1995, ch. 219, § 40; 1995, ch. 222, § 4; 2003, ch. 189, § 3; 2011, ch. 35, § 15; 2011, ch. 168, § 1; 2013, ch. 187, § 6; repealed by 2017, ch. 67, § 13, effective July 1, 2017.

19-20.1-07. Inspection fees and tonnage reports. [Repealed]

Repealed by S.L. 2013, ch. 187, § 18.

19-20.1-08. Inspection, sampling, analysis. [Repealed]

Source:

S.L. 1967, ch. 172, § 9; 1977, ch. 198, § 8; 1985, ch. 258, § 55; 1987, ch. 263, § 21; 1991, ch. 228, § 13; 1995, ch. 219, § 42; 2013, ch. 187, § 7; repealed by 2017, ch. 67, § 13, effective July 1, 2017.

19-20.1-09. Minimum plant food content. [Repealed]

Repealed by S.L. 1977, ch. 198, § 18.

19-20.1-10. Misbranding. [Repealed]

Source:

S.L. 1967, ch. 172, § 11; 1977, ch. 198, § 9; 1985, ch. 258, § 56; 1985, ch. 268, § 5; 1991, ch. 228, § 14; 1995, ch. 219, § 43; 2013, ch. 187, § 8; repealed by 2017, ch. 67, § 13, effective July 1, 2017.

19-20.1-11. Publications. [Repealed]

Source:

S.L. 1967, ch. 172, § 12; 1977, ch. 198, § 10; 1979, ch. 292, § 2; 1985, ch. 258, § 57; 1991, ch. 228, § 15; 1995, ch. 219, § 44; 2013, ch. 187, § 9; repealed by 2017, ch. 67, § 13, effective July 1, 2017.

19-20.1-12. Rules. [Repealed]

Source:

S.L. 1967, ch. 172, § 13; 1977, ch. 198, § 11; 1985, ch. 258, § 58; 1991, ch. 228, § 16; 1995, ch. 219, § 45; 2013, ch. 187, § 10; repealed by 2017, ch. 67, § 13, effective July 1, 2017.

19-20.1-13. Deficiencies. [Repealed]

Source:

S.L. 1967, ch. 172, § 14; 1977, ch. 198, § 12; 1985, ch. 258, § 59; 1991, ch. 228, § 17; 1995, ch. 219, § 46; 1995, ch. 222, § 5; 2013, ch. 187, § 11; repealed by 2017, ch. 67, § 13, effective July 1, 2017.

19-20.1-14. Cancellation of registrations. [Repealed]

Source:

S.L. 1967, ch. 172, § 15; 1977, ch. 198, § 13; 1985, ch. 258, § 60; 1991, ch. 228, § 18; 1995, ch. 219, § 47; 2013, ch. 187, § 12; repealed by 2017, ch. 67, § 13, effective July 1, 2017.

19-20.1-15. Stop-sale orders. [Repealed]

Source:

S.L. 1967, ch. 172, § 16; 1977, ch. 198, § 14; 1985, ch. 258, § 61; 1991, ch. 228, § 19; 1995, ch. 219, § 48; 2013, ch. 187, § 13; repealed by 2017, ch. 67, § 13, effective July 1, 2017.

19-20.1-16. Seizure, condemnation, and sale. [Repealed]

Source:

S.L. 1967, ch. 172, § 17; 1977, ch. 198, § 15; 1985, ch. 258, § 62; 1991, ch. 228, § 20; 1995, ch. 219, § 49; 2013, ch. 187, § 14; repealed by 2017, ch. 67, § 13, effective July 1, 2017.

19-20.1-17. Violations — Criminal penalty. [Repealed]

Source:

S.L. 1967, ch. 172, § 18; 1975, ch. 106, § 191; 1977, ch. 198, § 16; 1985, ch. 258, § 63; 1987, ch. 263, § 22; 1991, ch. 228, § 21; 1993, ch. 218, § 5; 1995, ch. 219, § 50; 2013, ch. 187, § 15; repealed by 2017, ch. 67, § 13, effective July 1, 2017.

19-20.1-17.1. Violations — Civil penalty. [Repealed]

Source:

S.L. 2013, ch. 187, § 16; repealed by 2017, ch. 67, § 13, effective July 1, 2017.

19-20.1-18. Exchanges between manufacturers. [Repealed]

Source:

S.L. 1967, ch. 172, § 19; 1977, ch. 198, § 17; 1985, ch. 268, § 6; 1991, ch. 228, § 22; 2013, ch. 187, § 17; repealed by 2017, ch. 67, § 13, effective July 1, 2017.

CHAPTER 19-20.2 Anhydrous Ammonia Facilities [Repealed]

19-20.2-01. Anhydrous ammonia safety rules. [Repealed]

Source:

S.L. 1985, ch. 269, § 1; 1991, ch. 229, § 1; 1995, ch. 223, § 2; 1997, ch. 209, § 1; repealed by 2017, ch. 67, § 13, effective July 1, 2017.

19-20.2-01.1. Definition. [Repealed]

Source:

S.L. 1995, ch. 223, § 1; repealed by 2017, ch. 67, § 13, effective July 1, 2017.

19-20.2-02. License required — Existing anhydrous ammonia storage facilities. [Repealed]

Source:

S.L. 1985, ch. 269, § 2; 1995, ch. 223, § 3; repealed by 2017, ch. 67, § 13, effective July 1, 2017.

19-20.2-03. License required — Anhydrous ammonia facilities constructed after June 30, 1985. [Repealed]

Source:

S.L. 1985, ch. 269, § 3; 1995, ch. 223, § 4; 2003, ch. 190, § 1; 2011, ch. 168, § 2; repealed by 2017, ch. 67, § 13, effective July 1, 2017.

19-20.2-04. State license fee. [Repealed]

Source:

S.L. 1985, ch. 269, § 4; 1995, ch. 223, § 5; repealed by 2017, ch. 67, § 13, effective July 1, 2017.

19-20.2-05. State siting requirements — Anhydrous ammonia storage facilities constructed after June 30, 1985. [Repealed]

Source:

S.L. 1985, ch. 269, § 5; 1995, ch. 223, § 6; repealed by 2017, ch. 67, § 13, effective July 1, 2017.

19-20.2-06. Transfer hose requirements. [Repealed]

Source:

S.L. 1985, ch. 269, § 6; 1989, ch. 273, § 1; 1995, ch. 223, § 7; repealed by 2017, ch. 67, § 13, effective July 1, 2017.

19-20.2-06.1. Pressure relief devices. [Repealed]

Source:

S.L. 1995, ch. 223, § 8; repealed by 2017, ch. 67, § 13, effective July 1, 2017.

19-20.2-07. Inspection. [Repealed]

Source:

S.L. 1985, ch. 269, § 7; 1995, ch. 223, § 9; 2011, ch. 168, § 3; repealed by 2017, ch. 67, § 13, effective July 1, 2017.

19-20.2-07.1. Reinstalled and secondhand anhydrous ammonia storage containers — Requirement. [Repealed]

Source:

S.L. 1997, ch. 209, § 2; 2011, ch. 168, § 4; repealed by 2017, ch. 67, § 13, effective July 1, 2017.

19-20.2-08. Promotion of safety — Use of excess fees. [Repealed]

Source:

S.L. 1985, ch. 269, § 8; 1995, ch. 223, § 10; repealed by 2017, ch. 67, § 13, effective July 1, 2017.

19-20.2-08.1. Anhydrous ammonia storage facility inspection fund. [Repealed]

Repealed by S.L. 2011, ch. 168, § 9.

19-20.2-08.2. Prohibitions. [Repealed]

Source:

S.L. 1995, ch. 223, § 12; 1997, ch. 209, § 3; repealed by 2017, ch. 67, § 13, effective July 1, 2017.

19-20.2-08.3. Anhydrous ammonia — Bulk delivery. [Repealed]

Source:

S.L. 1997, ch. 209, § 4; repealed by 2017, ch. 67, § 13, effective July 1, 2017.

19-20.2-08.4. Hydrostatic test procedures. [Repealed]

Source:

S.L. 1997, ch. 209, § 5; 2011, ch. 168, § 5; repealed by 2017, ch. 67, § 13, effective July 1, 2017.

19-20.2-08.5. Wet fluorescent magnetic particle test procedures. [Repealed]

Source:

S.L. 1997, ch. 209, § 6; repealed by 2017, ch. 67, § 13, effective July 1, 2017.

19-20.2-09. Enforcement. [Repealed]

Source:

S.L. 1985, ch. 269, § 9; 1995, ch. 223, § 13; 2011, ch. 168, § 6; repealed by 2017, ch. 67, § 13, effective July 1, 2017.

19-20.2-10. Penalty. [Repealed]

Source:

S.L. 1985, ch. 269, § 10; 1995, ch. 223, § 14; repealed by 2017, ch. 67, § 13, effective July 1, 2017.

19-20.2-11. Rules relating to security measures for nurse tanks. [Repealed]

Repealed by S.LS.L. 2013, ch. 187, § 18.

CHAPTER 19-20.3 Anhydrous Ammonia Risk Management [Repealed]

19-20.3-01. Risk management program — Anhydrous ammonia. [Repealed]

Source:

S.L. 2011, ch. 168, § 8; repealed by 2017, ch. 67, § 13, effective July 1, 2017.

19-20.3-02. Risk management program — Enforcement authority. [Repealed]

Source:

S.L. 2011, ch. 168, § 8; repealed by 2017, ch. 67, § 13, effective July 1, 2017.

CHAPTER 19-21 Labeling of Hazardous Substances

19-21-01. Definitions. [Effective through August 31, 2022]

In this chapter, unless the context or subject matter otherwise requires:

  1. “Banned hazardous substance” means:
    1. Any toy, or other article, intended for use by children, which is a hazardous substance, or which bears or contains a hazardous substance in a manner so as to be susceptible of access by a child to whom the toy, or other article, is entrusted; or
    2. Any hazardous substance intended, or packaged in a form suitable, for use in the household, which the department, by regulation, classifies as a “banned hazardous substance”, on the basis of a finding that, notwithstanding cautionary labeling as required under this chapter, the degree or nature of the hazard involved in the presence or use of the substance in households is such that the protection of the public health and safety can only be adequately served by keeping the substance out of the channels of commerce.
  2. “Corrosive” means any substance which in contact with living tissue will cause destruction of tissue by chemical action, but does not refer to action on inanimate surfaces.
  3. “Department” means the state department of health.
  4. “Extremely flammable” applies to any substance which has a flashpoint at or below twenty degrees Fahrenheit [-6.67 degrees Celsius] as determined by the Tagliabue open cup tester, and the term “flammable” applies to any substance which has a flashpoint of above twenty degrees to and including eighty degrees Fahrenheit [-6.67 degrees to and including 26.67 degrees Celsius], as determined by the Tagliabue open cup tester; except that the flammability of solids and of the contents of self-pressurized containers shall be determined by methods generally applicable to such materials or containers, respectively, and established by regulations issued by the department, which regulations must also define the terms “flammable” and “extremely flammable” in accordance with such methods.
  5. “Hazardous substance” means any substance, except drugs and medicines, or mixture of substances, except drugs and medicines, which is toxic, corrosive, an irritant, a strong sensitizer, flammable, or which generates pressure through decomposition, heat, or other means, if such hazardous substance or mixture of hazardous substances may cause substantial personal injury or illness during or as a proximate result of any customary or reasonably anticipated handling or use; provided, that the term “hazardous substance” does not include:
    1. Substances stored in containers and intended for use as fuel in a heating, cooking, or refrigeration system.
    2. Economic poisons subject to the federal or the North Dakota Insecticide, Fungicide, and Rodenticide Act of 1947.
    3. Any source material, special nuclear material, or byproduct material as defined in the Atomic Energy Act of 1954, as amended, and regulations issued pursuant thereto by the atomic energy commission.
  6. “Highly toxic” means any substance which falls within any of the following categories: produces death within fourteen days in one-half or more than one-half of a group of ten or more laboratory white rats each weighing between two hundred and three hundred grams, at a single dose of fifty milligrams or less per kilogram of body weight, when orally administered; or produces death within fourteen days in one-half or more than one-half of a group of ten or more laboratory white rats each weighing between two hundred and three hundred grams, when inhaled continuously for a period of one hour or less at an atmospheric concentration of two hundred parts per million by volume or less of gas, vapor, mist, or dust, provided such concentration is likely to be encountered by man when the substance is used in any reasonably foreseeable manner; or produces death within fourteen days in one-half or more than one-half of a group of ten or more rabbits tested in a dosage of two hundred milligrams or less per kilogram of body weight, when administered by continuous contact with the bare skin for twenty-four hours or less. If the department finds that available data on human experience with any substance indicate results different from those obtained on animals in the above-named dosages or concentrations, the human data shall take precedence.
  7. “Immediate container” does not include package liners.
  8. “Irritant” means any substance, not corrosive, which on immediate, prolonged, or repeated contact with normal living tissue will induce a local inflammatory reaction.
  9. “Label” means a display of written, printed, or graphic matter upon or attached to the immediate package or container of any hazardous substance or, in the case of an article which is unpackaged or is not packaged in an immediate container intended or suitable for delivery to the ultimate consumer, a display of this matter directly on the article involved, or on a tag or other suitable material affixed thereto; and a requirement made by or under authority of this chapter that any word, statement, or other information appearing on the label may not be considered to be in compliance with this chapter unless such word, statement, or other information also appears on the outside container or wrapper, if any there be, unless it is easily legible through the outside container or wrapper, and unless it appears on all accompanying literature where there are directions for use, written or otherwise.
  10. “Misbranded hazardous substance” means a hazardous substance, including a toy or other article intended for use by children which is a hazardous substance, or which bears or contains a hazardous substance in a manner so as to be susceptible of access by a child to whom the toy or other article is entrusted, which is intended, or packaged in a form suitable for household use, or use by children, which, unless exempted by regulation, fails to bear a label:
    1. Which states conspicuously the name and place of business of the manufacturer, packer, or distributor; the common usual name, or the chemical name, or the recognized generic name, not trade name only, of the hazardous substance or of each component which contributes substantially to its hazard; the signal word “DANGER” on substances which are extremely flammable, corrosive, or highly toxic; the signal word “WARNING” or “CAUTION” on all other hazardous substances; an affirmative statement of the principal hazard or hazards, such as “FLAMMABLE”, “VAPOR HARMFUL”, “CAUSES BURNS”, “ABSORBED THROUGH SKIN”, or similar wording descriptive of the hazard; precautionary measures describing the action to be followed or avoided; instructions, when necessary, for the first-aid treatment in case of contact or exposure, if the substance is hazardous through contact or exposure; the word “POISON” for any hazardous substance which is defined as “HIGHLY TOXIC” by this section; instructions for handling and storage of packages which require special care in handling or storage; and the statement “KEEP OUT OF REACH OF CHILDREN”, or its practical equivalent or, if the article is intended for use by children and is not a banned hazardous substance, adequate directions for the protection of children from the hazard.
    2. On which any statements required under this subsection are located prominently and are in the English language in legible type in contrast by typography, layout, or color with other printed matter on the label; provided, that the department shall, by regulations, provide for minimum information which must appear on the labels for small packages, which labels need not include all of the information required by this subsection; provided, further, that the department may permit less than the foregoing statement of the hazard or precautionary measures for labels of hazardous substances presenting only minor hazards; and the term “misbranded hazardous substance” does not apply to packages of economic poisons so labeled that if introduced in interstate commerce, it would be in compliance with the Federal Insecticide, Fungicide, and Rodenticide Act, nor to packages of foods, drugs, and cosmetics so labeled that if introduced in interstate commerce, it would be in compliance with the Federal Food, Drug, and Cosmetic Act, nor to any package of a hazardous substance so labeled that if introduced into interstate commerce, it would be in compliance with the Federal Hazardous Substances Act and rules and regulations promulgated pursuant to that Act.
  11. “Person” includes an individual, partnership, corporation, limited liability company, and association.
  12. “Radioactive substance” means a substance which emits ionizing radiation.
  13. “Strong sensitizer” means any substance which will cause, on normal living tissue through an allergic or photodynamic process, a hypersensitivity which becomes evident on reapplication of the same hazardous substance and which is designated as such by the department. Before designating any substance as a strong sensitizer, the department shall, after public hearing, following due notice, find that the frequency of occurrence and severity of the reaction indicate a significant potential for causing hypersensitivity.
  14. “Toxic” applies to any substance, other than a radioactive substance, which has the inherent capacity to produce bodily injury to man through ingestion, inhalation, or absorption through any body surface.

Provided, the department, by regulation, shall exempt from subdivision a those articles, such as chemical sets, which by reason of functional purpose require the inclusion of the hazardous substance involved, and which bear labeling giving adequate directions and warnings for safe use, and are intended for use by children who have attained sufficient maturity and may reasonably be expected to read and heed these directions and warnings.

The term “hazardous substance” applies to any article which is not an economic poison within the meaning of the federal or North Dakota Insecticide, Fungicide, and Rodenticide Act of 1947, and which is a hazardous substance within the meaning of this subsection by reason of bearing or containing an economic poison.

Source:

S.L. 1963, ch. 190, § 2; 1971, ch. 240, § 1; 1987, ch. 263, § 23; 1993, ch. 54, § 106; 1995, ch. 243, § 2.

Note.

The North Dakota Insecticide, Fungicide, and Rodenticide Act of 1947, referred to in this section, is codified as N.D.C.C. ch. 19-18.

19-21-01. Definitions. [Effective September 1, 2022]

In this chapter, unless the context or subject matter otherwise requires:

  1. “Banned hazardous substance” means:
    1. Any toy, or other article, intended for use by children, which is a hazardous substance, or which bears or contains a hazardous substance in a manner so as to be susceptible of access by a child to whom the toy, or other article, is entrusted; or
    2. Any hazardous substance intended, or packaged in a form suitable, for use in the household, which the department, by regulation, classifies as a “banned hazardous substance”, on the basis of a finding that, notwithstanding cautionary labeling as required under this chapter, the degree or nature of the hazard involved in the presence or use of the substance in households is such that the protection of the public health and safety can only be adequately served by keeping the substance out of the channels of commerce.
  2. “Corrosive” means any substance which in contact with living tissue will cause destruction of tissue by chemical action, but does not refer to action on inanimate surfaces.
  3. “Department” means the department of health and human services.
  4. “Extremely flammable” applies to any substance which has a flashpoint at or below twenty degrees Fahrenheit [-6.67 degrees Celsius] as determined by the Tagliabue open cup tester, and the term “flammable” applies to any substance which has a flashpoint of above twenty degrees to and including eighty degrees Fahrenheit [-6.67 degrees to and including 26.67 degrees Celsius], as determined by the Tagliabue open cup tester; except that the flammability of solids and of the contents of self-pressurized containers shall be determined by methods generally applicable to such materials or containers, respectively, and established by regulations issued by the department, which regulations must also define the terms “flammable” and “extremely flammable” in accordance with such methods.
  5. “Hazardous substance” means any substance, except drugs and medicines, or mixture of substances, except drugs and medicines, which is toxic, corrosive, an irritant, a strong sensitizer, flammable, or which generates pressure through decomposition, heat, or other means, if such hazardous substance or mixture of hazardous substances may cause substantial personal injury or illness during or as a proximate result of any customary or reasonably anticipated handling or use; provided, that the term “hazardous substance” does not include:
    1. Substances stored in containers and intended for use as fuel in a heating, cooking, or refrigeration system.
    2. Economic poisons subject to the Federal or the North Dakota Insecticide, Fungicide, and Rodenticide Act of 1947.
    3. Any source material, special nuclear material, or by product material as defined in the Atomic Energy Act of 1954, as amended, and regulations issued pursuant thereto by the atomic energy commission.
  6. “Highly toxic” means any substance which falls within any of the following categories: produces death within fourteen days in one-half or more than one-half of a group of ten or more laboratory white rats each weighing between two hundred and three hundred grams, at a single dose of fifty milligrams or less per kilogram of body weight, when orally administered; or produces death within fourteen days in one-half or more than one-half of a group of ten or more laboratory white rats each weighing between two hundred and three hundred grams, when inhaled continuously for a period of one hour or less at an atmospheric concentration of two hundred parts per million by volume or less of gas, vapor, mist, or dust, provided such concentration is likely to be encountered by man when the substance is used in any reasonably foreseeable manner; or produces death within fourteen days in one-half or more than one-half of a group of ten or more rabbits tested in a dosage of two hundred milligrams or less per kilogram of body weight, when administered by continuous contact with the bare skin for twenty-four hours or less. If the department finds that available data on human experience with any substance indicate results different from those obtained on animals in the above-named dosages or concentrations, the human data shall take precedence.
  7. “Immediate container” does not include package liners.
  8. “Irritant” means any substance, not corrosive, which on immediate, prolonged, or repeated contact with normal living tissue will induce a local inflammatory reaction.
  9. “Label” means a display of written, printed, or graphic matter upon or attached to the immediate package or container of any hazardous substance or, in the case of an article which is unpackaged or is not packaged in an immediate container intended or suitable for delivery to the ultimate consumer, a display of this matter directly on the article involved, or on a tag or other suitable material affixed thereto; and a requirement made by or under authority of this chapter that any word, statement, or other information appearing on the label may not be considered to be in compliance with this chapter unless such word, statement, or other information also appears on the outside container or wrapper, if any there be, unless it is easily legible through the outside container or wrapper, and unless it appears on all accompanying literature where there are directions for use, written or otherwise.
  10. “Misbranded hazardous substance” means a hazardous substance, including a toy or other article intended for use by children which is a hazardous substance, or which bears or contains a hazardous substance in a manner so as to be susceptible of access by a child to whom the toy or other article is entrusted, which is intended, or packaged in a form suitable for household use, or use by children, which, unless exempted by regulation, fails to bear a label:
    1. Which states conspicuously the name and place of business of the manufacturer, packer, or distributor; the common usual name, or the chemical name, or the recognized generic name, not trade name only, of the hazardous substance or of each component which contributes substantially to its hazard; the signal word “DANGER” on substances which are extremely flammable, corrosive, or highly toxic; the signal word “WARNING” or “CAUTION” on all other hazardous substances; an affirmative statement of the principal hazard or hazards, such as “FLAMMABLE”, “VAPOR HARMFUL”, “CAUSES BURNS”, “ABSORBED THROUGH SKIN”, or similar wording descriptive of the hazard; precautionary measures describing the action to be followed or avoided; instructions, when necessary, for the first-aid treatment in case of contact or exposure, if the substance is hazardous through contact or exposure; the word “POISON” for any hazardous substance which is defined as “HIGHLY TOXIC” by this section; instructions for handling and storage of packages which require special care in handling or storage; and the statement “KEEP OUT OF REACH OF CHILDREN”, or its practical equivalent or, if the article is intended for use by children and is not a banned hazardous substance, adequate directions for the protection of children from the hazard.
    2. On which any statements required under this subsection are located prominently and are in the English language in legible type in contrast by typography, layout, or color with other printed matter on the label; provided, that the department shall, by regulations, provide for minimum information which must appear on the labels for small packages, which labels need not include all of the information required by this subsection; provided, further, that the department may permit less than the foregoing statement of the hazard or precautionary measures for labels of hazardous substances presenting only minor hazards; and the term “misbranded hazardous substance” does not apply to packages of economic poisons so labeled that if introduced in interstate commerce, it would be in compliance with the Federal Insecticide, Fungicide, and Rodenticide Act, nor to packages of foods, drugs, and cosmetics so labeled that if introduced in interstate commerce, it would be in compliance with the Federal Food, Drug, and Cosmetic Act, nor to any package of a hazardous substance so labeled that if introduced into interstate commerce, it would be in compliance with the Federal Hazardous Substances Act and rules and regulations promulgated pursuant to that Act.
  11. “Person” includes an individual, partnership, corporation, limited liability company, and association.
  12. “Radioactive substance” means a substance which emits ionizing radiation.
  13. “Strong sensitizer” means any substance which will cause, on normal living tissue through an allergic or photodynamic process, a hypersensitivity which becomes evident on reapplication of the same hazardous substance and which is designated as such by the department. Before designating any substance as a strong sensitizer, the department shall, after public hearing, following due notice, find that the frequency of occurrence and severity of the reaction indicate a significant potential for causing hypersensitivity.
  14. “Toxic” applies to any substance, other than a radioactive substance, which has the inherent capacity to produce bodily injury to man through ingestion, inhalation, or absorption through any body surface.

Provided, the department, by regulation, shall exempt from subdivision a those articles, such as chemical sets, which by reason of functional purpose require the inclusion of the hazardous substance involved, and which bear labeling giving adequate directions and warnings for safe use, and are intended for use by children who have attained sufficient maturity and may reasonably be expected to read and heed these directions and warnings.

The term “hazardous substance” applies to any article which is not an economic poison within the meaning of the Federal or North Dakota Insecticide, Fungicide, and Rodenticide Act of 1947, and which is a hazardous substance within the meaning of this subsection by reason of bearing or containing an economic poison.

Source:

S.L. 1963, ch. 190, § 2; 1971, ch. 240, § 1; 1987, ch. 263, § 23; 1993, ch. 54, § 106; 1995, ch. 243, § 2; 2021, ch. 352, § 92, effective September 1, 2022.

19-21-02. Prohibited acts.

The following acts and the causing thereof are hereby prohibited:

  1. The sale or delivery for sale of any misbranded hazardous substance or banned hazardous substance.
  2. The alteration, mutilation, destruction, obliteration, or removal of the whole or any part of the label of, or the doing of any other act with respect to a hazardous substance, if such act is done while the substance is held for sale and which results in the hazardous substance being a misbranded or banned hazardous substance.
  3. The refusal to permit entry, inspection, or copying of records as authorized by this chapter.
  4. A reuse of food, drug, or cosmetic or any beverage containers still bearing original labels or identifiable as such by characteristic shape, impression, or closures as containers for hazardous substances.
  5. The use by any person to that person’s own advantage, or revealing, other than to the department, or to the courts when relevant in any judicial proceeding under this chapter, of any information acquired under authority of section 19-21-06 concerning any method of process which, as a trade secret, is entitled to protection.

Source:

S.L. 1963, ch. 190, § 3; 1971, ch. 240, § 2; 1985, ch. 258, § 64.

Collateral References.

Validity of local regulation of hazardous waste, 67 A.L.R.4th 822.

19-21-03. Stop-sale orders — Seizures.

The department shall issue and enforce a written or printed “stop-sale use or removal” order to the owner or custodian of any hazardous substance when the department finds that the product is being offered or exposed for sale in violation of any of the provisions of this chapter, and the order must direct that the product must be held at a designated place until the provisions of this chapter have been complied with and the product is released in writing by the department. However, the owner or custodian of such product has the right to appeal from such order to a court of competent jurisdiction in the county where the product is found, praying for a judgment as to the justification of the order, and for the discharge of the product from the order prohibiting the sale in accordance with the findings of the court. The provisions of this section may not be construed as limiting the right of the enforcement officer to proceed as authorized by other provisions of this chapter. The department shall release the hazardous substance held under any “stop-sale use or removal” order when the requirements of this chapter have been complied with and upon payment of all reasonable costs and expenses incurred in connection with such order. When the department issues and enforces a “stop-sale use or removal” order against any hazardous substance declared in violation of this chapter, in possession of any dealer or distributor, such dealer or distributor may return to the person from whom such hazardous substance was purchased all unbroken retail containers affected by such order and such person shall reimburse the dealer or distributor for the full purchase price, including all delivery costs. Any hazardous substance found not to be in compliance with this chapter is subject to seizure on complaint of the department to a court of competent jurisdiction in the county in which the product is located. In the event the court finds that the hazardous substance is in violation of the provisions of this chapter and orders the condemnation of the product, it must be disposed of in any manner consistent with the character of the hazardous substance and the laws of the state. In no instance may the disposition of the hazardous substance be ordered by the court without first giving the claimant an opportunity to apply to the court for the release of the product or for permission to process or relabel the product to bring it into compliance with this chapter.

Source:

S.L. 1963, ch. 190, § 5.

19-21-04. Hearing before report of criminal violation.

Before any violation of this chapter is reported by the department to any state’s attorney for institution of a criminal proceeding, the person against whom such proceeding is contemplated must be given appropriate notice and an opportunity to present the person’s views, either orally or in writing, with regard to such contemplated proceeding.

Source:

S.L. 1963, ch. 190, § 6; 1985, ch. 258, § 65.

19-21-04.1. Injunction proceedings.

In addition to any other remedy provided in this chapter, the department is hereby authorized to apply to the district court of Burleigh County, and such court shall have jurisdiction upon hearing and for cause shown, to grant a temporary or permanent injunction restraining any person from violating any provision of section 19-21-02, irrespective of whether or not there exists an adequate remedy at law.

Source:

S.L. 1971, ch. 240, § 3.

19-21-05. Regulations.

The department may adopt regulations pursuant to chapter 28-32 for the efficient enforcement of this chapter. If the department finds that, because of the size of the package involved or because of the minor hazard presented by the substance contained therein, or for other good and sufficient reasons, full compliance with the labeling requirements otherwise applicable under this chapter is impracticable or is not necessary for the adequate protection of the public health and safety, it shall adopt regulations exempting the substance from these requirements, to an extent consistent with adequate protection of the public health and safety.

If the department finds that an article subject to this chapter cannot be labeled adequately to protect the public health and safety, or the article presents an imminent danger to the public health and safety, it may declare the article to be a banned hazardous substance and require its removal from commerce.

The department shall cause the regulations adopted under this chapter to conform with the regulations established pursuant to the Federal Hazardous Substances Act.

Source:

S.L. 1963, ch. 190, § 7; 1971, ch. 240, § 4; 1981, ch. 336, § 19.

19-21-06. Examinations and investigations.

The department is authorized to conduct examinations, inspections, and investigations for the purposes of this chapter through officers and employees of the department or through any health officer or employee of the state of North Dakota. For purposes of enforcement of this chapter, officers or employees duly designated by the department upon presenting appropriate credentials to the owner, operator, or agent in charge are authorized to enter, at reasonable times, any factory, warehouse, or establishment in which hazardous substances are held or to enter any vehicle being used to transport or hold such hazardous substances and to inspect and sample at reasonable times, within reasonable limits, and in a reasonable manner finished hazardous substances in retail packages and labeling thereon in such factory, warehouse, establishment, or vehicle. Each such inspection must be commenced and completed with reasonable promptness.

Source:

S.L. 1963, ch. 190, § 8.

19-21-07. Records of shipment.

For the purpose of enforcing the provisions of this chapter, carriers and persons receiving hazardous substances or holding such hazardous substances so received, upon the request of an officer or employee duly designated by the department, shall permit such officer or employee, at reasonable times, to have access to and to copy all records showing the movement of any such hazardous substance or the holding thereof during or after such movement and the quantity, shipper, and consignee thereof. It is unlawful for any such carrier or person to fail to permit such access to and copying of any record so requested when such request is accompanied by a statement in writing specifying the nature or kind of such hazardous substance to which such request relates. Evidence obtained under this section may not be used in a criminal prosecution of the person from whom obtained.

Source:

S.L. 1963, ch. 190, § 9.

19-21-08. Publicity.

The department may cause to be published from time to time reports summarizing any judgments, decrees, or court orders which have been rendered under this chapter, including the nature of the charge and the disposition thereof. The department may also cause information to be disseminated regarding hazardous substances in situations involving, in the opinion of the department, imminent danger to health. Nothing in this section may be construed to prohibit the department from collecting, reporting, and illustrating the results of the investigations of the department.

Source:

S.L. 1963, ch. 190, § 10.

19-21-09. Penalties.

Any person who violates any of the provisions of this chapter is guilty of a class A misdemeanor. No person is subject to the penalties of this section for having violated subsection 1 of section 19-21-02 in respect of any hazardous substance shipped or delivered for shipment for export to any foreign country in a package marked for export and branded in accordance with the specifications of the foreign purchaser and in accordance with the laws of the foreign country.

Source:

S.L. 1963, ch. 190, § 4; 1975, ch. 106, § 192.

19-21-10. Short title.

This chapter may be cited as the Hazardous Substances Labeling Act.

Source:

S.L. 1963, ch. 190, § 1.

CHAPTER 19-22 Labeling of Potatoes as to Grade

19-22-01. Sale of potatoes in closed packages not labeled as to grade prohibited.

No person may sell at retail any potatoes in closed packages which are not identified as to grade.

Source:

S.L. 1969, ch. 234, § 1.

19-22-02. Definitions.

Whenever used in this chapter:

  1. “Closed package” means any box, barrel, basket, crate, sack, bag, tube, or any other type container in which all contents cannot be seen or inspected to determine the grade, quality, or condition without the removal of all or part of the contents from such package.
  2. “Person” means a natural person, partnership, corporation, limited liability company, or other form of business association.
  3. “Retail sale” means a transfer for value to a consumer.

Source:

S.L. 1969, ch. 234, § 2; 1993, ch. 54, § 106.

19-22-03. Grade labeling.

Every closed package containing potatoes to be sold or offered for sale at retail by any person must bear conspicuously on the top or side, or both, thereof in plain words the grade. An attached tag may substitute for the grade print on closed packages. Inspections under this chapter must be performed by the department.

Source:

S.L. 1969, ch. 234, § 3.

19-22-04. Approved grades and standards.

Grades must be those established by the United States department of agriculture, the North Dakota state seed department, or any grade approved by the North Dakota agriculture commissioner. Culls or pickouts must be labeled as “culls”.

Source:

S.L. 1969, ch. 234, § 4.

19-22-05. Penalty.

Any person who violates any of the provisions of this chapter is guilty of a class B misdemeanor.

Source:

S.L. 1969, ch. 234, § 5; 1975, ch. 106, § 193.

CHAPTER 19-22.1 Sale of Artificially Colored Potatoes

19-22.1-01. Sale of artificially colored potatoes prohibited.

No person may sell at retail any potatoes which are artificially colored. For purposes of this chapter, the terms defined in this section have the meanings therein ascribed to them.

  1. “Person” means a natural person, partnership, corporation, limited liability company, or other form of business association.
  2. “Retail sale” means a transfer for value to a consumer.

Source:

S.L. 1969, ch. 235, § 1; 1993, ch. 54, § 106.

19-22.1-02. Artificial coloring.

The department shall prescribe by regulation the meaning of “artificial coloring”.

Source:

S.L. 1969, ch. 235, § 2.

19-22.1-03. Penalty.

Any person who violates any of the provisions of this chapter is guilty of a class B misdemeanor.

Source:

S.L. 1969, ch. 235, § 3; 1975, ch. 106, § 194.

CHAPTER 19-23 Food Provider Limited Liability for Obesity

19-23-01. Limited liability.

  1. Except as provided in subsection 2, a producer, processor, manufacturer, packer, distributor, carrier, holder, seller, marketer, trade association, or advertiser of a food, as defined in section 201(f) of the Federal Food, Drug, and Cosmetic Act [21 U.S.C. 321(f)], or an association of one or more of those entities, may not be subject to civil liability arising under any state statute, rule, public policy, court or administrative decision, municipal ordinance, or other action having the effect of law, for any claim arising out of weight gain, obesity, a health condition associated with weight gain or obesity, or other generally known condition allegedly caused by or allegedly likely to result from long-term consumption of food.
  2. Subsection 1 does not apply to the claim of obesity or weight gain that is based on:
    1. A material violation of an adulteration or misbranding requirement prescribed by state or federal statute, rule, or ordinance and the claimed injury was proximately caused by the violation; or
    2. Any other material violation of federal or state law applicable to the manufacturing, marketing, distribution, advertising, labeling, or sale of food, provided that the violation is knowing and willful, and the claimed injury was proximately caused by the violation.

Source:

S.L. 2005, ch. 203, § 1.

19-23-02. Pleading requirements.

  1. In any action commenced under this chapter, the complaint or petition must state with particularity the following:
    1. The statute, rule, regulation, ordinance, or other law that was allegedly violated;
    2. The facts that are alleged to constitute a material violation of the statute, rule, regulation, ordinance, or other law; and
    3. The facts alleged to demonstrate that the violation proximately caused actual injury to the plaintiff.
  2. The complaint or petition must also state with particularity facts sufficient to support a reasonable inference that the violation was with intent to deceive or injure consumers or with the actual knowledge that the violation was injurious to consumers.

Source:

S.L. 2005, ch. 203, § 2.

19-23-03. Stay pending motion to dismiss.

  1. In any action commenced under this chapter, all discovery and other proceedings must be stayed during the pendency of any motion to dismiss unless the court finds upon the motion of any party that particularized discovery is necessary to preserve evidence or to prevent undue prejudice to a party.
  2. During the pendency of any stay of discovery pursuant to this section, unless otherwise ordered by the court, any party to the action with actual notice of the allegations contained in the complaint shall treat all documents, data compilations, and tangible objects that are in the custody or control of the party and are relevant to the allegations, as if they were the subject of a continuing request for production from an opposing party under rule 34 of the North Dakota Rules of Civil Procedure.

Source:

S.L. 2005, ch. 203, § 3.

CHAPTER 19-24 North Dakota Compassionate Care Act [Repealed]

19-24-01. Title. [Repealed]

Source:

Adopted by initiated measure #5 on general election ballot approved November 8, 2016, effective December 8, 2016; repealed by 2017, ch. 171, § 6, effective April 18, 2017.

19-24-02. Definitions. [Repealed]

Source:

Adopted by initiated measure #5 on general election ballot approved November 8, 2016, effective December 8, 2016; repealed by 2017, ch. 171, § 6, effective April 18, 2017.

19-24-03. Qualifying patient identification card application requirements. [Repealed]

Source:

Adopted by initiated measure #5 on general election ballot approved November 8, 2016, effective December 8, 2016; repealed by 2017, ch. 171, § 6, effective April 18, 2017.

19-24-04. Designated caregiver registry identification card application requirements. [Repealed]

Source:

Adopted by initiated measure #5 on general election ballot approved November 8, 2016, effective December 8, 2016; repealed by 2017, ch. 171, § 6, effective April 18, 2017.

19-24-05. Registry identification cards. [Repealed]

Source:

Adopted by initiated measure #5 on general election ballot approved November 8, 2016, effective December 8, 2016; repealed by 2017, ch. 171, § 6, effective April 18, 2017.

19-24-06. Addition of debilitating medical conditions. [Repealed]

Source:

Adopted by initiated measure #5 on general election ballot approved November 8, 2016, effective December 8, 2016; repealed by 2017, ch. 171, § 6, effective April 18, 2017.

19-24-07. Registration and operation of compassion centers. [Repealed]

Source:

Adopted by initiated measure #5 on general election ballot approved November 8, 2016, effective December 8, 2016; repealed by 2017, ch. 171, § 6, effective April 18, 2017.

19-24-08. Cultivation and growing of marijuana. [Repealed]

Source:

Adopted by initiated measure #5 on general election ballot approved November 8, 2016, effective December 8, 2016; repealed by 2017, ch. 171, § 6, effective April 18, 2017.

19-24-09. Onsite visits and interviews. [Repealed]

Source:

Adopted by initiated measure #5 on general election ballot approved November 8, 2016, effective December 8, 2016; repealed by 2017, ch. 171, § 6, effective April 18, 2017.

19-24-10. Severability. [Repealed]

Source:

Adopted by initiated measure #5 on general election ballot approved November 8, 2016, effective December 8, 2016; repealed by 2017, ch. 171, § 6, effective April 18, 2017.

19-24-11. Privacy of the compassionate care Act records and paperwork. [Repealed]

Source:

Adopted by initiated measure #5 on general election ballot approved November 8, 2016, effective December 8, 2016; repealed by 2017, ch. 171, § 6, effective April 18, 2017.

19-24-12. Facility restrictions. [Repealed]

Source:

Adopted by initiated measure #5 on general election ballot approved November 8, 2016, effective December 8, 2016; repealed by 2017, ch. 171, § 6, effective April 18, 2017.

19-24-13. Compassionate care fund — Private donations. [Repealed]

Source:

Adopted by initiated measure #5 on general election ballot approved November 8, 2016, effective December 8, 2016; repealed by 2017, ch. 171, § 6, effective April 18, 2017.

CHAPTER 19-24.1 Medical Marijuana

19-24.1-36 Rules. [Effective September 1, 2022]

19-24.1-01. Definitions. [Effective through August 31, 2022]

As used in this chapter, unless the context indicates otherwise:

  1. “Advanced practice registered nurse” means an advanced practice registered nurse defined under section 43-12.1-02.
  2. “Allowable amount of usable marijuana” means the amount of usable marijuana a registered qualifying patient or registered designated caregiver may purchase in a thirty-day period under this chapter.
    1. Except as provided under subdivision b:
      1. During a thirty-day period, a registered qualifying patient may not purchase or have purchased by a registered designated caregiver more than two and one-half ounces [70.87 grams] of dried leaves or flowers of the plant of genus cannabis in a combustible delivery form.
      2. At any time a registered qualifying patient, or a registered designated caregiver on behalf of a registered qualifying patient, may not possess more than three ounces [85.05 grams] of dried leaves or flowers of the plant of the genus cannabis in a combustible delivery form.
    2. Notwithstanding subdivision a, if a registered qualifying patient has a registry identification card authorizing an enhanced allowable amount:
      1. During a thirty-day period a registered qualifying patient may not purchase or have purchased by a registered designated caregiver more than six ounces [170.01 grams] of dried leaves or flowers of the plant of genus cannabis in a combustible delivery form.
      2. At any time a registered qualifying patient, or a registered designated caregiver on behalf of a registered qualifying patient, may not possess more than seven and one-half ounces [212.62 grams] of dried leaves or flowers of the plant of the genus cannabis in a combustible delivery form.
    3. A registered qualifying patient may not purchase or have purchased by a registered designated caregiver more than the maximum concentration or amount of tetrahydrocannabinol permitted in a thirty-day period. The maximum concentration or amount of tetrahydrocannabinol permitted in a thirty-day period for a cannabinoid concentrate or medical cannabinoid product, or the cumulative total of both, is four thousand milligrams.
  3. “Bona fide provider-patient relationship” means a treatment or counseling relationship between a health care provider and patient in which all the following are present:
    1. The health care provider has reviewed the patient’s relevant medical records and completed a full assessment of the patient’s medical history and current medical condition, including a relevant, in-person, medical evaluation of the patient.
    2. The health care provider has created and maintained records of the patient’s condition in accordance with medically accepted standards.
    3. The patient is under the health care provider’s continued care for the debilitating medical condition that qualifies the patient for the medical use of marijuana.
    4. The health care provider has a reasonable expectation that provider will continue to provide followup care to the patient to monitor the medical use of marijuana as a treatment of the patient’s debilitating medical condition.
    5. The relationship is not for the sole purpose of providing written certification for the medical use of marijuana.
  4. “Cannabinoid” means a chemical compound that is one of the active constituents of marijuana.
  5. “Cannabinoid capsule” means a small, soluble container, usually made of gelatin, which encloses a dose of a cannabinoid product or a cannabinoid concentrate intended for consumption. The maximum concentration of amount of tetrahhydrocannabinol permitted in a serving of a cannabinoid capsule is fifty milligrams.
  6. “Cannabinoid concentrate” means a concentrate or extract obtained by separating cannabinoids from marijuana by a mechanical, chemical, or other process.
  7. “Cannabinoid edible product” means a food or potable liquid into which a cannabinoid concentrate or the dried leaves or flowers of the plant of the genus cannabis is incorporated.
  8. “Cannabinoid solution” means a solution consisting of a mixture created from cannabinoid concentrate and other ingredients. A container holding a cannabinoid solution for dispensing may not exceed thirty milliliters.
  9. “Cannabinoid topical” means a cannabinoid product intended to be applied to the skin or hair. The maximum concentration or amount of tetrahydrocannabinol permitted in a cannabinoid topical is six percent.
  10. “Cannabinoid transdermal patch” means an adhesive substance applied to the skin which contains a cannabinoid product or cannabinoid concentrate for absorption into the bloodstream. The maximum concentration or amount of tetrahydrocannabinol permitted in a serving of a cannabinoid transdermal patch is fifty milligrams.
  11. “Cardholder” means a qualifying patient, designated caregiver, or compassion center agent who has been issued and possesses a valid registry identification card.
  12. “Compassion center” means a manufacturing facility or dispensary.
  13. “Compassion center agent” means a principal officer, board member, member, manager, governor, employee, volunteer, or agent of a compassion center. The term does not include a lawyer representing a compassion center in civil or criminal litigation or in an adversarial administrative proceeding.
  14. “Contaminated” means made impure or inferior by extraneous substances.
  15. “Debilitating medical condition” means one of the following:
    1. Cancer;
    2. Positive status for human immunodeficiency virus;
    3. Acquired immune deficiency syndrome;
    4. Decompensated cirrhosis caused by hepatitis C;
    5. Amyotrophic lateral sclerosis;
    6. Posttraumatic stress disorder;
    7. Agitation of Alzheimer’s disease or related dementia;
    8. Crohn’s disease;
    9. Fibromyalgia;
    10. Spinal stenosis or chronic back pain, including neuropathy or damage to the nervous tissue of the spinal cord with objective neurological indication of intractable spasticity;
    11. Glaucoma;
    12. Epilepsy;
    13. Anorexia nervosa;
    14. Bulimia nervosa;
    15. Anxiety disorder;
    16. Tourette syndrome;
    17. Ehlers-Danlos syndrome;
    18. Endometriosis;
    19. Interstitial cystitis;
    20. Neuropathy;
    21. Migraine;
    22. Rheumatoid arthritis;
    23. Autism spectrum disorder;
    24. A brain injury;
    25. A terminal illness; or
    26. A chronic or debilitating disease or medical condition or treatment for such disease or medical condition that produces one or more of the following:
      1. Cachexia or wasting syndrome;
      2. Severe debilitating pain that has not responded to previously prescribed medication or surgical measures for more than three months or for which other treatment options produced serious side effects;
      3. Intractable nausea;
      4. Seizures; or
      5. Severe and persistent muscle spasms, including those characteristic of multiple sclerosis.
  16. “Department” means the state department of health.
  17. “Designated caregiver” means an individual who agrees to manage the well-being of a registered qualifying patient with respect to the qualifying patient’s medical use of marijuana.
  18. “Dispensary” means an entity registered by the department as a compassion center authorized to dispense usable marijuana to a registered qualifying patient and a registered designated caregiver.
  19. “Enclosed, locked facility” means a closet, room, greenhouse, building, or other enclosed area equipped with locks or other security devices that permit access limited to individuals authorized under this chapter or rules adopted under this chapter.
  20. “Health care provider” means a physician, a physician assistant, or an advanced practice registered nurse.
  21. “Manufacturing facility” means an entity registered by the department as a compassion center authorized to produce and process and to sell usable marijuana to a dispensary.
  22. “Marijuana” means all parts of the plant of the genus cannabis; the seeds of the plant; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, the seeds of the plant, or the resin extracted from any part of the plant. The term marijuana does not include:
    1. Hemp as regulated under section 4.1-18.1-01; or
    2. A prescription drug approved by the United States food and drug administration under section 505 of the Federal Food, Drug, and Cosmetic Act [21 U.S.C. 355].
  23. “Maximum concentration or amount of tetrahydrocannabinol” means the total amount of tetrahydrocannabinol and tetrahydrocannabinolic acid in a medical cannabinoid product or a cannabinoid concentrate.
  24. “Medical cannabinoid product” means a product intended for human consumption or use which contains cannabinoids.
    1. Medical cannabinoid products are limited to the following forms:
      1. Cannabinoid solution;
      2. Cannabinoid capsule;
      3. Cannabinoid transdermal patch; and
      4. Cannabinoid topical.
    2. “Medical cannabinoid product” does not include:
      1. A cannabinoid edible product;
      2. A cannabinoid concentrate by itself; or
      3. The dried leaves or flowers of the plant of the genus cannabis by itself.
  25. “Medical marijuana product” means a cannabinoid concentrate or a medical cannabinoid product.
  26. “Medical marijuana waste” means unused, surplus, returned, or out-of-date usable marijuana; recalled usable marijuana; unused marijuana; or plant debris of the plant of the genus cannabis, including dead plants and all unused plant parts and roots.
  27. “Medical use of marijuana” means the acquisition, use, and possession of usable marijuana to treat or alleviate a qualifying patient’s debilitating medical condition.
  28. “Minor” means an individual under the age of nineteen.
  29. “North Dakota identification” means a North Dakota driver’s license or comparable state of North Dakota or federal issued photo identification card verifying North Dakota residence.
  30. “Owner” means an individual or an organization with an ownership interest in a compassion center.
  31. “Ownership interest” means an aggregate ownership interest of five percent or more in a compassion center, unless the interest is solely a security, lien, or encumbrance, or an individual who will be participating in the direction, control, or management of the compassion center.
  32. “Pediatric medical marijuana” means a medical marijuana product containing cannabidiol which may not contain a maximum concentration or amount of tetrahydrocannabinol of more than six percent.
  33. “Physician” means a physician licensed under chapter 43-17 to practice medicine in the state of North Dakota.
  34. “Physician assistant” means an individual licensed under chapter 43-17 to practice as a physician assistant in the state.
  35. “Posttraumatic stress disorder” means a patient meets the diagnostic criteria for posttraumatic stress disorder under the “Diagnostic and Statistical Manual of Mental Disorders”, American psychiatric association, fifth edition, text revision (2013).
  36. “Processing” or “process” means the compounding or conversion of marijuana into a medical marijuana product.
  37. “Producing”, “produce”, or “production” mean the planting, cultivating, growing, trimming, or harvesting of the plant of the genus cannabis or the drying of the leaves or flowers of the plant of the genus cannabis.
  38. “Qualifying patient” means an individual who has been diagnosed by a health care provider as having a debilitating medical condition.
  39. “Registry identification card” means a document issued by the department which identifies an individual as a registered qualifying patient, registered designated caregiver, or registered compassion center agent.
  40. “Substantial corporate change” means:
    1. For a corporation, a change of ten percent or more of the officers or directors, or a transfer of ten percent or more of the stock of the corporation, or an existing stockholder obtaining ten percent or more of the stock of the corporation;
    2. For a limited liability company, a change of ten percent or more of the managing members of the company, or a transfer of ten percent or more of the ownership interest in the company, or an existing member obtaining a cumulative of ten percent or more of the ownership interest in the company; or
    3. For a partnership, a change of ten percent or more of the managing partners of the company, or a transfer of ten percent or more of the ownership interest in the company, or an existing member obtaining a cumulative of ten percent or more of the ownership interest in the company.
  41. “Terminal illness” means a disease, illness, or condition of a patient:
    1. For which there is not a reasonable medical expectation of recovery;
    2. Which as a medical probability, will result in the death of the patient, regardless of the use or discontinuance of medical treatment implemented for the purpose of sustaining life or the life processes; and
    3. As a result of which, the patient’s health care provider would not be surprised if death were to occur within six months.
  42. “Tetrahydrocannabinol” means tetrahydrocannabinols naturally contained in a plant of the genus Cannabis, and synthetic equivalents of the substances contained in the cannabis plant, or in the resinous extractives of the plant, including synthetic substances, derivatives, and their isomers with similar chemical structure and pharmacological activity to those substances contained in the plant, including:
      1. Delta-1 cis or trans tetrahydrocannabinol, and their optical isomers. Other names: Delta-9-tetrahydrocannabinol.
      2. Delta-6 or trans tetrahydrocannabinol, and their optical isomers. Other names: Delta-8 tetrahydrocannabinol.
      3. Delta-3, 4 cis or trans tetrahydrocannabinol, and its optical isomers.
    1. Tetrahydrocannabinol does not include:
      1. The allowable amount of total tetrahydrocannabinol found in hemp as defined in chapter 4.1-18.1; or
      2. A prescription drug approved by the United States food and drug administration under section 505 of the Federal Food, Drug, and Cosmetic Act [21 U.S.C. 355].
  43. “Total tetrahydrocannabinol” means the sum of the percentage by weight of tetrahydrocannabinolic acid multiplied by eight hundred seventy-seven thousandths plus the percentage of weight of tetrahydrocannabinol.
  44. “Usable marijuana” means a medical marijuana product or the dried leaves or flowers of the plant of the genus cannabis in a combustible delivery form. However, the term does not include a cannabinoid edible product. In the case of a registered qualifying patient who is a minor, “usable marijuana” is limited to pediatric medical marijuana.
  45. “Verification system” means the system maintained by the department under section 19-24.1-31 for verification of registry identification cards.
  46. “Written certification” means a form established by the department which is executed, dated, and signed by a health care provider within ninety calendar days of the date of application, stating the patient has a debilitating medical condition. A health care provider may authorize an enhanced amount of dried leaves or flowers of the plant of the genus cannabis in a combustible delivery form to treat or alleviate the patient’s debilitating medical condition of cancer. A written certification may not be made except in the course of a bona fide provider-patient relationship.

(Since nomenclature of these substances is not intentionally standardized, compounds of these structures, regardless of numerical designation or atomic positions covered.)

Source:

S.L. 2017, ch. 171, § 1, effective April 18, 2017; 2019, ch. 61, § 3, effective March 29, 2019; 2019, ch. 190, §§ 1, 2, 3, effective April 24, 2019; 2019, ch. 191, §§ 1, 2, effective April 24, 2019; 2019, ch. 192, § 1, effective April 24, 2019; 2019, ch. 193, § 1, effective April 24, 2019; 2021, ch. 172, § 9, effective May 3, 2021.

Note.

Section 19-24.1-01 was amended 2 times by the 2021 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 93 of Chapter 352, Session Laws 2021, House Bill 1247; and Section 9 of Chapter 172, Session Laws 2021, House Bill 1213.

Section 19-24.1-01 was amended 8 times by the 2019 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 2 of Chapter 190, Session Laws 2019, House Bill 1417; Section 1 of Chapter 190, Session Laws 2019, House Bill 1417; Section 1 of Chapter 192, Session Laws 2019, House Bill 1519; Section 3 of Chapter 190, Session Laws 2019, House Bill 1417; Section 1 of Chapter 191, Session Laws 2019, House Bill 1119; Section 2 of Chapter 191, Session Laws 2019, House Bill 1119; Section 1 of Chapter 193, Session Laws 2019, House Bill 1283; and Section 3 of Chapter 61, Session Laws 2019, House Bill 1349.

19-24.1-01. Definitions. [Effective September 1, 2022]

As used in this chapter, unless the context indicates otherwise:

  1. “Advanced practice registered nurse” means an advanced practice registered nurse defined under section 43-12.1-02.
  2. “Allowable amount of usable marijuana” means the amount of usable marijuana a registered qualifying patient or registered designated caregiver may purchase in a thirty-day period under this chapter.
    1. Except as provided under subdivision b:
      1. During a thirty-day period, a registered qualifying patient may not purchase or have purchased by a registered designated caregiver more than two and one-half ounces [70.87 grams] of dried leaves or flowers of the plant of genus cannabis in a combustible delivery form.
      2. At any time a registered qualifying patient, or a registered designated caregiver on behalf of a registered qualifying patient, may not possess more than three ounces [85.05 grams] of dried leaves or flowers of the plant of the genus cannabis in a combustible delivery form.
    2. Notwithstanding subdivision a, if a registered qualifying patient has a registry identification card authorizing an enhanced allowable amount:
      1. During a thirty-day period a registered qualifying patient may not purchase or have purchased by a registered designated caregiver more than six ounces [170.01 grams] of dried leaves or flowers of the plant of genus cannabis in a combustible delivery form.
      2. At any time a registered qualifying patient, or a registered designated caregiver on behalf of a registered qualifying patient, may not possess more than seven and one-half ounces [212.62 grams] of dried leaves or flowers of the plant of the genus cannabis in a combustible delivery form.
    3. A registered qualifying patient may not purchase or have purchased by a registered designated caregiver more than the maximum concentration or amount of tetrahydrocannabinol permitted in a thirty-day period. The maximum concentration or amount of tetrahydrocannabinol permitted in a thirty-day period for a cannabinoid concentrate or medical cannabinoid product, or the cumulative total of both, is four thousand milligrams.
  3. “Bona fide provider-patient relationship” means a treatment or counseling relationship between a health care provider and patient in which all the following are present:
    1. The health care provider has reviewed the patient’s relevant medical records and completed a full assessment of the patient’s medical history and current medical condition, including a relevant, in-person, medical evaluation of the patient.
    2. The health care provider has created and maintained records of the patient’s condition in accordance with medically accepted standards.
    3. The patient is under the health care provider’s continued care for the debilitating medical condition that qualifies the patient for the medical use of marijuana.
    4. The health care provider has a reasonable expectation that provider will continue to provide followup care to the patient to monitor the medical use of marijuana as a treatment of the patient’s debilitating medical condition.
    5. The relationship is not for the sole purpose of providing written certification for the medical use of marijuana.
  4. “Cannabinoid” means a chemical compound that is one of the active constituents of marijuana.
  5. “Cannabinoid capsule” means a small, soluble container, usually made of gelatin, which encloses a dose of a cannabinoid product or a cannabinoid concentrate intended for consumption. The maximum concentration of amount of tetrahhydrocannabinol permitted in a serving of a cannabinoid capsule is fifty milligrams.
  6. “Cannabinoid concentrate” means a concentrate or extract obtained by separating cannabinoids from marijuana by a mechanical, chemical, or other process.
  7. “Cannabinoid edible product” means a food or potable liquid into which a cannabinoid concentrate or the dried leaves or flowers of the plant of the genus cannabis is incorporated.
  8. “Cannabinoid solution” means a solution consisting of a mixture created from cannabinoid concentrate, and other ingredients. A container holding a cannabinoid solution for dispensing may not exceed thirty milliliters.
  9. “Cannabinoid topical” means a cannabinoid product intended to be applied to the skin or hair. The maximum concentration or amount of tetrahydrocannabinol permitted in a cannabinoid topical is six percent.
  10. “Cannabinoid transdermal patch” means an adhesive substance applied to the skin which contains a cannabinoid product or cannabinoid concentrate for absorption into the bloodstream. The maximum concentration or amount of tetrahydrocannabinol permitted in a serving of a cannabinoid transdermal patch is fifty milligrams.
  11. “Cardholder” means a qualifying patient, designated caregiver, or compassion center agent who has been issued and possesses a valid registry identification card.
  12. “Compassion center” means a manufacturing facility or dispensary.
  13. “Compassion center agent” means a principal officer, board member, member, manager, governor, employee, volunteer, or agent of a compassion center. The term does not include a lawyer representing a compassion center in civil or criminal litigation or in an adversarial administrative proceeding.
  14. “Contaminated” means made impure or inferior by extraneous substances.
  15. “Debilitating medical condition” means one of the following:
    1. Cancer;
    2. Positive status for human immunodeficiency virus;
    3. Acquired immune deficiency syndrome;
    4. Decompensated cirrhosis caused by hepatitis C;
    5. Amyotrophic lateral sclerosis;
    6. Posttraumatic stress disorder;
    7. Agitation of Alzheimer’s disease or related dementia;
    8. Crohn’s disease;
    9. Fibromyalgia;
    10. Spinal stenosis or chronic back pain, including neuropathy or damage to the nervous tissue of the spinal cord with objective neurological indication of intractable spasticity;
    11. Glaucoma;
    12. Epilepsy;
    13. Anorexia nervosa;
    14. Bulimia nervosa;
    15. Anxiety disorder;
    16. Tourette syndrome;
    17. Ehlers-Danlos syndrome;
    18. Endometriosis;
    19. Interstitial cystitis;
    20. Neuropathy;
    21. Migraine;
    22. Rheumatoid arthritis;
    23. Autism spectrum disorder;
    24. A brain injury;
    25. A terminal illness; or
    26. A chronic or debilitating disease or medical condition or treatment for such disease or medical condition that produces one or more of the following:
      1. Cachexia or wasting syndrome;
      2. Severe debilitating pain that has not responded to previously prescribed medication or surgical measures for more than three months or for which other treatment options produced serious side effects;
      3. Intractable nausea;
      4. Seizures; or
      5. Severe and persistent muscle spasms, including those characteristic of multiple sclerosis.
  16. “Department” means the department of health and human services.
  17. “Designated caregiver” means an individual who agrees to manage the well-being of a registered qualifying patient with respect to the qualifying patient’s medical use of marijuana.
  18. “Dispensary” means an entity registered by the department as a compassion center authorized to dispense usable marijuana to a registered qualifying patient and a registered designated caregiver.
  19. “Enclosed, locked facility” means a closet, room, greenhouse, building, or other enclosed area equipped with locks or other security devices that permit access limited to individuals authorized under this chapter or rules adopted under this chapter.
  20. “Health care provider” means a physician, a physician assistant, or an advanced practice registered nurse.
  21. “Manufacturing facility” means an entity registered by the department as a compassion center authorized to produce and process and to sell usable marijuana to a dispensary.
  22. “Marijuana” means all parts of the plant of the genus cannabis; the seeds of the plant; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, the seeds of the plant, or the resin extracted from any part of the plant. The term marijuana does not include:
    1. Hemp as inregulated under section 4.1-18.1-01; or
    2. A prescription drug approved by the United States food and drug administration under section 505 of the Federal Food, Drug, and Cosmetic Act [21 U.S.C. 355 ].
  23. “Maximum concentration or amount of tetrahydrocannabinol” means the total amount of tetrahydrocannabinol and tetrahydrocannabinolic acid in a medical cannabinoid product or a cannabinoid concentrate.
  24. “Medical cannabinoid product” means a product intended for human consumption or use which contains cannabinoids.
    1. Medical cannabinoid products are limited to the following forms:
      1. Cannabinoid solution;
      2. Cannabinoid capsule;
      3. Cannabinoid transdermal patch; and
      4. Cannabinoid topical.
    2. “Medical cannabinoid product” does not include:
      1. A cannabinoid edible product;
      2. A cannabinoid concentrate by itself; or
      3. The dried leaves or flowers of the plant of the genus cannabis by itself.
  25. “Medical marijuana product” means a cannabinoid concentrate or a medical cannabinoid product.
  26. “Medical marijuana waste” means unused, surplus, returned, or out-of-date usable marijuana; recalled usable marijuana; unused marijuana; or plant debris of the plant of the genus cannabis, including dead plants and all unused plant parts and roots.
  27. “Medical use of marijuana” means the acquisition, use, and possession of usable marijuana to treat or alleviate a qualifying patient’s debilitating medical condition.
  28. “Minor” means an individual under the age of nineteen.
  29. “North Dakota identification” means a North Dakota driver’s license or comparable state of North Dakota or federal issued photo identification card verifying North Dakota residence.
  30. “Owner” means an individual or an organization with an ownership interest in a compassion center.
  31. “Ownership interest” means an aggregate ownership interest of five percent or more in a compassion center, unless the interest is solely a security, lien, or encumbrance, or an individual who will be participating in the direction, control, or management of the compassion center.
  32. “Pediatric medical marijuana” means a medical marijuana product containing cannabidiol which may not contain a maximum concentration or amount of tetrahydrocannabinol of more than six percent.
  33. “Physician” means a physician licensed under chapter 43-17 to practice medicine in the state of North Dakota.
  34. “Physician assistant” means an individual licensed under chapter 43-17 to practice as a physician assistant in the state.
  35. “Posttraumatic stress disorder” means a patient meets the diagnostic criteria for posttraumatic stress disorder under the “Diagnostic and Statistical Manual of Mental Disorders”, American psychiatric association, fifth edition, text revision (2013).
  36. “Processing” or “process” means the compounding or conversion of marijuana into a medical marijuana product.
  37. “Producing”, “produce”, or “production” mean the planting, cultivating, growing, trimming, or harvesting of the plant of the genus cannabis or the drying of the leaves or flowers of the plant of the genus cannabis.
  38. “Qualifying patient” means an individual who has been diagnosed by a health care provider as having a debilitating medical condition.
  39. “Registry identification card” means a document issued by the department which identifies an individual as a registered qualifying patient, registered designated caregiver, or registered compassion center agent.
  40. “Substantial corporate change” means:
    1. For a corporation, a change of ten percent or more of the officers or directors, or a transfer of ten percent or more of the stock of the corporation, or an existing stockholder obtaining ten percent or more of the stock of the corporation;
    2. For a limited liability company, a change of ten percent or more of the managing members of the company, or a transfer of ten percent or more of the ownership interest in the company, or an existing member obtaining a cumulative of ten percent or more of the ownership interest in the company; or
    3. For a partnership, a change of ten percent or more of the managing partners of the company, or a transfer of ten percent or more of the ownership interest in the company, or an existing member obtaining a cumulative of ten percent or more of the ownership interest in the company.
  41. “Terminal illness” means a disease, illness, or condition of a patient:
    1. For which there is not a reasonable medical expectation of recovery;
    2. Which as a medical probability, will result in the death of the patient, regardless of the use or discontinuance of medical treatment implemented for the purpose of sustaining life or the life processes; and
    3. As a result of which, the patient’s health care provider would not be surprised if death were to occur within six months.
  42. “Tetrahydrocannabinol” means tetrahydrocannabinols naturally contained in a plant of the genus Cannabis, and synthetic equivalents of the substances contained in the cannabis plant, or in the resinous extractives of the plant, including synthetic substances, derivatives, and their isomers with similar chemical structure and pharmacological activity to those substances contained in the plant, including:
      1. Delta-1 cis or trans tetrahydrocannabinol, and their optical isomers. Other names: Delta-9-tetrahydrocannabinol.
      2. Delta-6 or trans tetrahydrocannabinol, and their optical isomers. Other names: Delta-8 tetrahydrocannabinol.
      3. Delta-3, 4 cis or trans tetrahydrocannabinol, and its optical isomers.
    1. Tetrahydrocannabinol does not include:
      1. The allowable amount of total tetrahydrocannabinol found in hemp as defined in chapter 4.1-18.1; or
      2. A prescription drug approved by the United States food and drug administration under section 505 of the Federal Food, Drug, and Cosmetic Act [21 U.S.C. 355].
  43. “Total tetrahydrocannabinol” means the sum of the percentage by weight of tetrahydrocannabinolic acid multiplied by eight hundred seventy-seven thousandths plus the percentage of weight of tetrahydrocannabinol.
  44. “Usable marijuana” means a medical marijuana product or the dried leaves or flowers of the plant of the genus cannabis in a combustible delivery form. However, the term does not include a cannabinoid edible product. In the case of a registered qualifying patient who is a minor, “usable marijuana” is limited to pediatric medical marijuana.
  45. “Verification system” means the system maintained by the department under section 19-24.1-31 for verification of registry identification cards.
  46. “Written certification” means a form established by the department which is executed, dated, and signed by a health care provider within ninety calendar days of the date of application, stating the patient has a debilitating medical condition. A health care provider may authorize an enhanced amount of dried leaves or flowers of the plant of the genus cannabis in a combustible delivery form to treat or alleviate the patient’s debilitating medical condition of cancer. A written certification may not be made except in the course of a bona fide provider-patient relationship.

(Since nomenclature of these substances is not intentionally standardized, compounds of these structures, regardless of numerical designation or atomic positions covered.)

Source:

S.L. 2017, ch. 171, § 1, effective April 18, 2017; 2019, ch. 61, § 3, effective March 29, 2019; 2019, ch. 190, §§ 1, 2, 3, effective April 24, 2019; 2019, ch. 191, §§ 1, 2, effective April 24, 2019; 2019, ch. 192, § 1, effective April 24, 2019; 2019, ch. 193, § 1, effective April 24, 2019; 2021, ch. 352, § 93, effective September 1, 2022.

19-24.1-02. Medical marijuana program.

The department shall establish and implement a medical marijuana program under this chapter to allow for production and processing, the sale and dispensing of usable marijuana, and medical use of marijuana. A person may not produce or process or sell, possess, transport, dispense, or use marijuana or usable marijuana under the medical marijuana program unless the person is authorized to do so as a compassion center, a cardholder, or otherwise authorized by rule adopted under this chapter.

Source:

S.L. 2017, ch. 171, § 1, effective April 18, 2017.

19-24.1-03. Qualifying patients — Registration.

  1. A qualifying patient is not eligible to purchase, use, or possess usable marijuana under the medical marijuana program unless the qualifying patient has a valid registry identification card.
  2. A qualifying patient application for a registry identification card is complete and eligible for review if an applicant submits to the department:
    1. A nonrefundable application fee in an amount not to exceed fifty dollars.
    2. An original written certification, which must include:
      1. The name, address, and telephone number of the practice location of the applicant’s health care provider;
      2. The health care provider’s North Dakota license number;
      3. The health care provider’s medical or nursing specialty;
      4. The applicant’s name and date of birth;
      5. The applicant’s debilitating medical condition and the medical justification for the health care provider’s certification of the patient’s debilitating medical condition;
      6. Attestation the written certification is made in the course of a bona fide provider-patient relationship ;
      7. Whether the health care provider authorizes the patient to use an enhanced amount of the dried leaves or flowers of the plant of the genus cannabis in a combustible delivery form to treat or alleviate the patient's debilitating medical condition of cancer; and
      8. The health care provider’s signature and the date.
    3. An original qualifying patient application for a registry identification card form established by the department which must include all of the following:
      1. The applicant’s name, address, and date of birth.
      2. The name, address, and date of birth of the applicant’s proposed designated caregiver, if any.
      3. A photographic copy of the applicant’s North Dakota identification. The North Dakota identification must be available for inspection and verification upon request of the department. If the applicant is a minor, a certified copy of a birth record or a photographic copy of the minor’s North Dakota identification is required.
      4. The applicant’s or guardian’s signature and the date, or in the case of a minor, the signature of the minor’s parent or legal guardian with responsibility for health care decisions and the date.
      5. A disclosure that possession of a firearm by a person who possesses marijuana may be a violation of federal law.
    4. A signed consent for release of medical information related to the applicant’s debilitating medical condition, on a form provided by the department.
    5. A recent two-by-two inch [5.08-by-5.08 centimeter] photograph of the applicant.
    6. Any other information or material required by rule adopted under this chapter.
  3. If the applicant is unable to submit the required application information due to age or medical condition, the individual responsible for making medical decisions for the applicant may submit the application on behalf of the applicant. The individual responsible for making medical decisions:
    1. Must be identified on the qualifying patient application for a registry identification card; and
    2. Shall provide a photographic copy of the individual’s department-approved identification. The identification must be available for inspection and verification upon the request of the department.
  4. If the applicant is a minor, the department may waive the application or renewal fee if:
    1. The parent or legal guardian of the applicant is the applicant’s registered designated caregiver; and
    2. The applicant resides with the applicant’s registered designated caregiver.

Source:

S.L. 2017, ch. 171, § 1, effective April 18, 2017; 2019, ch. 190, § 4, effective April 24, 2019; 2019, ch. 191, § 3, effective April 24, 2019; 2019, ch. 193, § 2, effective April 24, 2019; 2021, ch. 172, § 10, effective May 3, 2021.

Note.

Section 19-24.1-03 was amended 3 times by the 2019 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 3 of Chapter 191, Session Laws 2019, House Bill 1119; Section 4 of Chapter 190, Session Laws 2019, House Bill 1417; and Section 2 of Chapter 193, Session Laws 2019, House Bill 1283.

19-24.1-03.1. Qualifying patients — Veterans.

In lieu of the written certification required under section 19-24.1-03, a veteran receiving treatment from a federal veterans’ affairs entity may submit to the department a copy of the veterans’ affairs medical records identifying a diagnosis of a debilitating medical condition and a copy of military discharge documents. The department may use the medical records and discharge documents in place of a written certification to approve or deny the application under section 19-24.1-05. The department shall issue a registry identification card within thirty calendar days of approving an application under this section.

Source:

S.L. 2019, ch. 193, § 3, effective April 24, 2019.

19-24.1-04. Designated caregivers — Registration.

  1. A designated caregiver is not eligible to purchase, assist in the use of, or possess usable marijuana under the medical marijuana program unless the designated caregiver has a valid registry identification card.
  2. A designated caregiver application is complete and eligible for review if an applicant submits to the department all of the following:
      1. A photographic copy of the applicant’s North Dakota identification. The North Dakota identification must be available for inspection and verification upon request of the department.
      2. The name, address, telephone number, and date of birth of the qualifying patient.
      3. The name, address, and telephone number of the applicant.
      4. The applicant’s signature and the date.
      5. A disclosure that possession of a firearm by a person who possesses marijuana may be a violation of federal law.
    1. An original designated caregiver authorization form established by the department which must be executed by a registered qualifying patient providing the designated caregiver applicant with the responsibility of managing the well-being of the registered qualifying patient with respect to the registered qualifying patient’s medical use of marijuana. The form must include:
      1. The name and date of birth of the designated caregiver applicant; and
      2. The registered qualifying patient’s signature and the date.
    2. A recent two-by-two inch [5.08-by-5.08 centimeter] photograph of the applicant.
    3. Any other information or material required by the department by rule.
  3. Except as provided in section 19-24.1-04.1, a criminal history record check conducted under section 12-60-24 must be performed upon initial application and biennially thereafter and at any other time upon the request of the department. All fees associated with the criminal history record check must be paid by the applicant.
  4. An individual convicted of a drug-related misdemeanor offense within the five years preceding the date of application or of a felony offense is prohibited from serving as a designated caregiver.
  5. An applicant shall submit a separate and complete application for each of the applicant’s registered qualifying patients. A registered designated caregiver may assist no more than five registered qualifying patients. A registered designated caregiver who is a registered qualifying patient may assist no more than four additional registered qualifying patients.
  6. A registered designated caregiver may not purchase or possess more than the allowable amount of usable marijuana for each of the registered designated caregiver’s registered qualifying patients and for the registered designated caregiver if the caregiver is a registered qualifying patient.

An original designated caregiver application for a registry identification card form established by the department which must include all of the following:

Source:

S.L. 2017, ch. 171, § 1, effective April 18, 2017; 2019, ch. 191, § 4, effective April 24, 2019; 2019, ch. 193, § 4, effective April 24, 2019; 2021, ch. 188, § 1, effective July 1, 2021.

Note.

Section 19-24.1-01 was amended 2 times by the 2021 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 93 of Chapter 352, Session Laws 2021, House Bill 1247; and Section 9 of Chapter 172, Session Laws 2021, House Bill 1213.

Section 19-24.1-04 was amended 2 times by the 2019 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 4 of Chapter 193, Session Laws 2019, House Bill 1283; and Section 4 of Chapter 191, Session Laws 2019 , House Bill 1119.

19-24.1-04.1. Designated caregivers — Criminal history record check exemption.

The department may waive the requirement for a registered designated caregiver to obtain a criminal history record check under section 12-60-24 if the registered designated caregiver is solely assisting a registered qualifying patient whose debilitating medical condition is a terminal illness. A registered designated caregiver seeking a waiver under this section shall provide the department with a written statement attesting the caregiver has not been convicted of a drug-related misdemeanor offense within the five years preceding the date of application or a felony offense. If a waiver is issued under this section, the registered designated caregiver’s registry identification card is valid for a period not to exceed six months.

Source:

S.L. 2021, ch. 172, § 12, effective May 3, 2021.

19-24.1-05. Qualifying patients and designated caregivers — Identification cards — Issuance and denial.

  1. Upon receipt of a complete application for or renewal of a qualifying patient or designated caregiver registry identification card, the department shall verify the submitted information.
  2. The verification methods used by the department on an application or renewal and accompanying documentation may include:
    1. Contacting an applicant by telephone or mail, or if proof of identity is uncertain, the department shall require a face-to-face meeting and the production of additional identification materials;
    2. Contacting the North Dakota board of medicine or North Dakota board of nursing to verify the certifying health care provider is licensed in the state and is in good standing; and
    3. Contacting the health care provider to obtain additional documentation verifying the qualifying patient applicant’s medical diagnosis and medical condition qualify the applicant for participation in the medical marijuana program.
  3. Upon verification of the information contained in an application or renewal, the department shall approve or deny the application or renewal.
  4. Except as provided in subsection 5, the department shall issue a registry identification card within thirty calendar days of approving an application or renewal. A designated caregiver must have a registry identification card for each of the designated caregiver’s registered qualifying patients.
  5. The department may not issue a registry identification card to a qualifying patient who is a minor unless:
    1. The department receives documentation the minor’s health care provider has explained to the parent or legal guardian with responsibility for health care decisions for the minor the potential risks of the use of pediatric medical marijuana; and
    2. The department receives documentation the parent or legal guardian with responsibility for health care decisions for the minor consents in writing to:
      1. Allow the minor’s use of pediatric medical marijuana to treat or alleviate the debilitating medical condition;
      2. Serve as the minor’s designated caregiver or identifies a registered designated caregiver to act as the minor’s designated caregiver;
      3. Control the acquisition of usable marijuana and control the dosage and frequency of the use of usable marijuana by the minor; and
      4. If serving as the minor’s designated caregiver, prevent the minor from accessing the usable marijuana by storing the usable marijuana in an enclosed, locked facility.
  6. If the department denies an application or renewal, the applicant may not reapply for one year from the date of the denial, unless otherwise authorized by the department, and the applicant is prohibited from all lawful privileges provided under this chapter.
  7. The department shall deny an application for or renewal of a qualifying patient’s registry identification card if the applicant:
    1. Does not meet the requirements of this section or section 19-24.1-03;
    2. Did not provide the required information and materials;
    3. Previously had a registry identification card revoked; or
    4. Provided false or falsified information or made a material misstatement.
  8. The department shall deny an application for or renewal of a designated caregiver registry identification card if the designated caregiver applicant:
    1. Does not meet the requirements of this section or section 19-24.1-04;
    2. Did not provide the required information and materials;
    3. Previously had a registry identification card revoked; or
    4. Provided false or falsified information or made a material misstatement.
  9. A registered qualifying patient may have no more than five registered designated caregivers.
  10. The department shall notify, in writing, the qualifying patient or designated caregiver applicant of the reason for denying an application or renewal.
  11. The department shall notify the following in writing:
    1. A registered qualifying patient if that patient’s designated caregiver’s application or renewal is denied; and
    2. A registered designated caregiver if that caregiver’s qualifying patient’s application or renewal is denied.
  12. The cardholder may appeal a denial or revocation of a registry identification card to the district court of Burleigh County for hearing. The court may authorize the cardholder to appear by reliable electronic means.

Source:

S.L. 2017, ch. 171, § 1, effective April 18, 2017; 2019, ch. 190, § 5, effective April 24, 2019; 2019, ch. 193, § 5, effective April 24, 2019; 2021, ch. 180, § 2, effective July 1, 2021.

Note.

Section 19-24.1-05 was amended 2 times by the 2019 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 5 of Chapter 193, Session Laws 2019, House Bill 1283; and Section 5 of Chapter 190, Session Laws 2019, House Bill 1417.

19-24.1-06. Registry identification cards — Renewal.

To prevent interruption of possession of a valid registry identification card, a registered qualifying patient or registered designated caregiver shall apply for a registry identification card renewal by submitting a complete reapplication as provided under section 19-24.1-03 or 19-24.1-04 no less than forty-five calendar days before the expiration date of the existing registry identification card.

Source:

S.L. 2017, ch. 171, § 1, effective April 18, 2017.

19-24.1-07. Registry identification cards — Nontransferable.

A registry identification card is not transferable, by assignment or otherwise, to another person. If a person attempts to transfer a card in violation of this section, the registry identification card is void and the person is prohibited from all privileges provided under this chapter.

Source:

S.L. 2017, ch. 171, § 1, effective April 18, 2017.

19-24.1-08. Qualifying patients and designated caregivers — Voluntary withdrawal.

A registered qualifying patient or registered designated caregiver may voluntarily withdraw from participation in the medical marijuana program. A registered qualifying patient or registered designated caregiver seeking to withdraw from the medical marijuana program shall notify the department in writing no less than thirty calendar days before withdrawal.

Source:

S.L. 2017, ch. 171, § 1, effective April 18, 2017.

19-24.1-09. Cardholders — Eligibility and compliance.

  1. A cardholder shall provide the department or the department’s designee immediate access to any material and information necessary for determining eligibility and compliance with this chapter.
  2. Failure of a cardholder to provide the department access to the material, or information as provided under this chapter may result in the department taking action, which may include the revocation of the cardholder registry identification card and referral to state or local law enforcement.
  3. Failure of a cardholder to comply with the requirements under this section which is documented by the department, may result in sanctions, including suspension, revocation, nonrenewal, or denial of registration, and referral to state or local law enforcement.
  4. The department shall refer credible criminal complaints against a cardholder to appropriate state or local law enforcement authorities.
    1. If a violation of the requirements under this section is cited as a result of compliance monitoring, the department shall provide the cardholder with written notice of the findings following the compliance monitoring visit.
    2. Unless otherwise specified by the department, the cardholder shall correct the violation within five calendar days of receipt of the notice citing the violation.
    3. The department shall verify whether the cardholder corrected the violation.
    4. The violation is not deemed corrected until the department provides written verification the corrective action is satisfactory.
    5. If the violation is not corrected within the required time, the department may revoke the registry identification card of the cardholder.

Source:

S.L. 2017, ch. 171, § 1, effective April 18, 2017.

19-24.1-10. Cardholders — Notification of change.

  1. Within ten calendar days of the change, in a manner prescribed by the department, a registered qualifying patient or registered designated caregiver shall notify the department of any of the following:
    1. A change in the cardholder’s name or address;
    2. Knowledge of a change that would render the registered qualifying patient no longer eligible to participate in the medical marijuana program;
    3. Knowledge of a change that results in the registered qualifying patient’s health care provider no longer meeting the definition of the term “health care provider” as defined under section 19-24.1-01; or
    4. Knowledge of a change that renders the registered qualifying patient’s registered designated caregiver no longer eligible to participate in the medical marijuana program.
  2. If a registered qualifying patient seeks to change the patient’s designated caregiver, the registered qualifying patient shall notify the department in writing of this change.
  3. If a cardholder loses the cardholder’s registry identification card, the cardholder shall notify the department in writing within twenty-four hours of becoming aware of the loss.
  4. If a registered qualifying patient is unable to make a notification required under this section due to age or medical condition, that patient’s registered designated caregiver or the individual responsible for making medical decisions for that patient shall provide the notification.
  5. If the department receives notification of an item listed in this section and the nature of the item reported does not affect a cardholder’s eligibility, the department may issue the cardholder a new registry identification card within twenty calendar days of approving the updated information and the cardholder may pay a fee, not to exceed twenty-five dollars. If a cardholder notifying the department is a registered qualifying patient who has a registered designated caregiver, the department shall issue the patient’s registered designated caregiver a new registry identification card within twenty calendar days of approving the updated information.
  6. If the department receives notification of an item listed in this section and the nature of the item reported makes the cardholder ineligible, the cardholder’s registry identification card becomes void immediately upon notification of the department and the registered cardholder shall dispose of any usable marijuana in the cardholder’s possession within fifteen calendar days, in accordance with rules adopted under this chapter.
  7. A registered qualifying patient’s certifying health care provider may notify the department in writing if the health care provider’s registered qualifying patient no longer has a debilitating medical condition. The health care provider may notify the department if a bona fide provider-patient relationship ceases to exist. Except if the bona fide provider-patient relationship is terminating due to the health care provider moving to a location where it is not suitable to continue the bona fide provider-patient relationship, the qualifying patient’s registry identification card becomes void immediately upon the health care provider’s notification of the department. If the bona fide provider-patient relationship is terminating due to the health care provider moving to a location where it is not suitable to continue the bona fide provider-patient relationship, the qualifying patient’s registry identification card is void if the registered qualifying patient fails to establish a new bona fide provider-patient relationship within sixty days of the department receiving notice from the original health care provider. If the registry identification card is voided under this subsection, the registered qualifying patient shall dispose of any usable marijuana in the cardholder’s possession within fifteen calendar days, in accordance with rules adopted under this chapter.

Source:

S.L. 2017, ch. 171, § 1, effective April 18, 2017; 2019, ch. 190, § 6, effective April 24, 2019; 2019, ch. 193, § 6, effective April 24, 2019; 2021, ch. 172, § 13, effective May 3, 2021.

Note.

Section 19-24.1-10 was amended 2 times by the 2019 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 6 of Chapter 193, Session Laws 2019, House Bill 1283; and Section 6 of Chapter 190, Session Laws 2019, House Bill 1417.

19-24.1-11. Registry identification cards.

  1. The contents of a registry identification card must include:
    1. The name of the cardholder;
    2. A designation as to whether the cardholder is a qualifying patient, designated caregiver, or compassion center agent;
    3. A designation as to whether a qualifying patient is a minor;
    4. A designation as to whether a qualifying patient or a designated caregiver’s qualifying patient is authorized to use an enhanced amount of dried leaves or flowers of the plant of the genus cannabis to treat or alleviate the patient’s debilitating medical condition of cancer;
    5. The date of issuance and expiration date;
    6. A random ten-digit alphanumeric identification number containing at least four numbers and at least four letters which is unique to the cardholder;
    7. If the cardholder is a designated caregiver, the random identification number of the qualifying patient the designated caregiver is authorized to assist;
    8. A photograph of the cardholder; and
    9. The phone number or website address at which the card can be verified.
  2. Except as otherwise provided in this section or rule adopted under this chapter, a registry identification card expiration date must be one year after the date of issuance.
  3. If a health care provider limits the written certification until a specified date, less than one year, the registry identification card expires on that date.

Source:

S.L. 2017, ch. 171, § 1, effective April 18, 2017; 2019, ch. 190, § 7, effective April 24, 2019; 2019, ch. 193, § 7, effective April 24, 2019.

Note.

Section 19-24.1-11 was amended 2 times by the 2019 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 7 of Chapter 193, Session Laws 2019, House Bill 1283; and Section 7 of Chapter 190, Session Laws 2019, House Bill 1417.

19-24.1-12. Compassion centers.

  1. A person may not process or produce or dispense usable marijuana or otherwise act as a compassion center in this state unless the person is registered as a compassion center.
  2. Except as otherwise provided under this section, the department shall register no more than:
    1. Two compassion centers with the sole purpose of operating as a manufacturing facility; and
    2. Eight compassion centers with the sole purpose of operating as a dispensary.
  3. The department shall establish an open application period for the submission of compassion center applications. At the completion of the open application period, the department shall review each complete application using a competitive process established in accordance with rules adopted under this chapter and shall determine which applicants to register as compassion centers.
  4. The department may register additional compassion centers if the department determines additional compassion centers are necessary to increase access to usable marijuana by registered qualifying patients and registered designated caregivers.
  5. If the department revokes or does not renew a compassion center registration certificate, the department may establish an open application period for the submission of compassion center applications.
  6. The department of commerce may not certify a compassion center as a primary sector business.

Source:

S.L. 2017, ch. 171, § 1, effective April 18, 2017.

19-24.1-13. Compassion centers — Authority.

  1. The activities of a manufacturing facility are limited to producing and processing and to related activities, including acquiring, possessing, storing, transferring, and transporting marijuana and usable marijuana, for the sole purpose of selling usable marijuana to a dispensary.
  2. The activities of a dispensary are limited to purchasing usable marijuana from a manufacturing facility, and related activities, including storing, delivering, transferring, and transporting usable marijuana, for the sole purpose of dispensing usable marijuana to a registered qualifying patient, directly or through the registered qualifying patient’s registered designated caregiver. The activities of a dispensary include providing educational material and selling usable marijuana related supplies to a registered qualifying patient or a registered designated caregiver.
  3. An individual or organization may not hold an ownership interest in:
    1. More than one manufacturing facility.
    2. More than four dispensaries.
    3. More than one dispensary within a twenty-mile [32.19 kilometer] radius of another dispensary.
  4. An agreement may not be entered between a manufacturing facility and dispensary whereby a dispensary agrees to limit purchases or sales of usable marijuana to one manufacturing facility.

Source:

S.L. 2017, ch. 171, § 1, effective April 18, 2017; 2021, ch. 172, § 14, effective May 3, 2021.

19-24.1-14. Compassion centers — Application. [Effective through August 31, 2022]

  1. The department shall establish forms for an application to be registered as a compassion center. For a compassion center registration application to be complete and eligible for review, the applicant shall submit to the department all of the following:
    1. A nonrefundable application fee, not to exceed five thousand dollars, made payable to the “North Dakota State Department of Health, Medical Marijuana Program”.
    2. The legal name, articles of incorporation or articles of organization, and bylaws or operating agreement of the proposed compassion center applicant.
    3. Evidence of the proposed compassion center applicant’s registration with the secretary of state and certificate of good standing.
    4. The physical address of the proposed location of the proposed compassion center and:
      1. Evidence of approval from local officials as to the proposed compassion center applicant’s compliance with local zoning laws for the physical address to be used by the proposed compassion center; and
      2. Evidence the physical address of the proposed compassion center is not located within one thousand feet [304.80 meters] of a property line of a pre-existing public or private school.
    5. For a manufacturing facility applicant, a description of the enclosed, locked facility that would be used in the production and processing of marijuana, including steps that will be taken to ensure the production and processing is not visible from the street or other public areas.
    6. The name, address, and date of birth of each principal officer and board member, or of each member-manager, manager, or governor, of the proposed compassion center applicant and verification each officer and board member, or each member-manager, manager, or governor, has consented to a criminal history record check conducted under section 12-60-24.
    7. For each of the proposed compassion center applicant’s principal officers and board members, or for each of the proposed compassion center applicant’s member-managers, managers, or governors, a description of that individual’s relevant experience, including training or professional licensing related to medicine, pharmaceuticals, natural treatments, botany, food science, food safety, production, processing, and the individual’s experience running a business entity.
    8. A description of proposed security and safety measures, which demonstrate compliance with the security and safety requirements under section 19-24.1-25.
    9. An example of the design and security features of usable marijuana containers which demonstrates compliance with section 19-24.1-21.
    10. A complete operations manual, which demonstrates compliance with section 19-24.1-27.
    11. A description of the plans for making usable marijuana available on an affordable basis to registered qualifying patients with limited financial resources.
    12. A list of all individuals and business entities having direct or indirect authority over the management or policies of the proposed compassion center applicant.
    13. A list of all individuals and business entities having an ownership interest in the proposed compassion center applicant, whether direct or indirect, and whether the interest is in profits, land, or building, including owners of any business entity that owns all or part of the land or building.
    14. The identity of any creditor holding a security interest in the proposed compassion center premises.
  2. The department is not required to review an application submitted under this section unless the department determines the application is complete. The criteria considered by the department in reviewing an application must include:
    1. The suitability of the proposed compassion center location, including compliance with any local zoning laws, and the geographic convenience to access compassion centers for registered qualifying patients and registered designated caregivers from throughout the state;
    2. The character and relevant experience of the principal officers and board members, or of the member-managers, managers, or governors, including training or professional licensing and business experience;
    3. The applicant’s plan for operations and services, including staffing and training plans, whether the applicant has sufficient capital to operate, and the applicant’s ability to provide an adequate supply of usable marijuana to registered qualifying patients and registered designated caregivers;
    4. The sufficiency of the applicant’s plans for recordkeeping;
    5. The sufficiency of the applicant’s plans for safety, security, and the prevention of diversion, including the proposed location and security devices employed;
    6. The applicant’s plan for making usable marijuana available on an affordable basis to registered qualifying patients with limited financial resources;
    7. The applicant’s plan for safe and accurate packaging and labeling of usable marijuana; and
    8. The applicant’s plans for testing usable marijuana and marijuana.
  3. Following completion of the review under subsection 2, the department shall select the applicants eligible for registration under section 19-24.1-15.

Source:

S.L. 2017, ch. 171, § 1, effective April 18, 2017; 2021, ch. 172, § 15, effective May 3, 2021; 2021, ch. 352, § 94, effective September 1, 2022; 2021, ch. 172, § 15, effective May 3, 2021.

Note.

Section 19-24.1-14 was amended 2 times by the 2021 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 15 of Chapter 172, Session Laws 2021, House Bill 1213; and Section 94 of Chapter 172, Session Laws 2021, House Bill 1213.

19-24.1-14. Compassion centers — Application. [Effective September 1, 2022]

  1. The department shall establish forms for an application to be registered as a compassion center. For a compassion center registration application to be complete and eligible for review, the applicant shall submit to the department all of the following:
    1. A nonrefundable application fee, not to exceed five thousand dollars, made payable to the “North Dakota Department of Health and Human Services, Medical Marijuana Program”.
    2. The legal name, articles of incorporation or articles of organization, and bylaws or operating agreement of the proposed compassion center applicant.
    3. Evidence of the proposed compassion center applicant’s registration with the secretary of state and certificate of good standing.
    4. The physical address of the proposed location of the proposed compassion center and:
      1. Evidence of approval from local officials as to the proposed compassion center applicant’s compliance with local zoning laws for the physical address to be used by the proposed compassion center; and
      2. Evidence the physical address of the proposed compassion center is not located within one thousand feet [304.80 meters] of a property line of a pre-existing public or private school.
    5. For a manufacturing facility applicant, a description of the enclosed, locked facility that would be used in the production and processing of marijuana, including steps that will be taken to ensure the production and processing is not visible from the street or other public areas.
    6. The name, address, and date of birth of each principal officer and board member, or of each member-manager, manager, or governor, of the proposed compassion center applicant and verification each officer and board member, or each member-manager, manager, or governor, has consented to a criminal history record check conducted under section 12-60-24.
    7. For each of the proposed compassion center applicant’s principal officers and board members, or for each of the proposed compassion center applicant’s member-managers, managers, or governors, a description of that individual’s relevant experience, including training or professional licensing related to medicine, pharmaceuticals, natural treatments, botany, food science, food safety, production, processing, and the individual’s experience running a business entity.
    8. A description of proposed security and safety measures, which demonstrate compliance with the security and safety requirements under section 19-24.1-25.
    9. An example of the design and security features of usable marijuana containers which demonstrates compliance with section 19-24.1-21.
    10. A complete operations manual, which demonstrates compliance with section 19-24.1-27.
    11. A description of the plans for making usable marijuana available on an affordable basis to registered qualifying patients with limited financial resources.
    12. A list of all individuals and business entities having direct or indirect authority over the management or policies of the proposed compassion center applicant.
    13. A list of all individuals and business entities having an ownership interest in the proposed compassion center applicant, whether direct or indirect, and whether the interest is in profits, land, or building, including owners of any business entity that owns all or part of the land or building.
    14. The identity of any creditor holding a security interest in the proposed compassion center premises.
  2. The department is not required to review an application submitted under this section unless the department determines the application is complete. The criteria considered by the department in reviewing an application must include:
    1. The suitability of the proposed compassion center location, including compliance with any local zoning laws, and the geographic convenience to access compassion centers for registered qualifying patients and registered designated caregivers from throughout the state;
    2. The character and relevant experience of the principal officers and board members, or of the member-managers, managers, or governors, including training or professional licensing and business experience;
    3. The applicant’s plan for operations and services, including staffing and training plans, whether the applicant has sufficient capital to operate, and the applicant’s ability to provide an adequate supply of usable marijuana to registered qualifying patients and registered designated caregivers;
    4. The sufficiency of the applicant’s plans for recordkeeping;
    5. The sufficiency of the applicant’s plans for safety, security, and the prevention of diversion, including the proposed location and security devices employed;
    6. The applicant’s plan for making usable marijuana available on an affordable basis to registered qualifying patients with limited financial resources;
    7. The applicant’s plan for safe and accurate packaging and labeling of usable marijuana; and
    8. The applicant’s plans for testing usable marijuana and marijuana.
  3. Following completion of the review under subsection 2, the department shall select the applicants eligible for registration under section 19-24.1-15.

Source:

S.L. 2017, ch. 171, § 1, effective April 18, 2017; 2021, ch. 172, § 15, effective May 3, 2021; 2021, ch. 352, § 94, effective September 1, 2022; 2021, ch. 352, § 94, effective September 1, 2022; 2021, ch. 172, § 15, effective May 3, 2021.

19-24.1-15. Compassion centers — Registration. [Effective through August 31, 2022]

  1. Upon receipt of notification by the department a compassion center application is eligible for registration, the applicant shall submit all of the following additional items to the department to qualify for registration:
    1. A certification fee, made payable to the “North Dakota Department of Health and Human Services, Medical Marijuana Program”, in the amount of ninety thousand dollars for a dispensary and one hundred ten thousand dollars for a manufacturing facility.
    2. A financial assurance or security bond to ensure the protection of the public health and safety and the environment in the event of abandonment, default, or other inability or unwillingness to meet the requirements of this chapter.
    3. An update to previously submitted information, including information about compassion center agents and compliance with section 19-24.1-18.
  2. If an applicant complies with subsection 1, the department shall issue the applicant a registration certificate.

The physical address of the proposed compassion center; confirmation the information in the application regarding the physical location of the proposed compassion center has not changed, and if the information has changed the department shall determine whether the new information meets the requirements of this chapter; and a current certificate of occupancy, or equivalent document, to demonstrate compliance with the provisions of state and local fire code for the physical address of the proposed compassion center. It is not necessary for an applicant to resubmit any information provided in the initial application unless there has been a change in that information.

Source:

S.L. 2017, ch. 171, § 1, effective April 18, 2017; 2019, ch. 191, § 5, effective April 24, 2019; 2021, ch. 172, § 16, effective May 3, 2021.

Note.

Section 19-24.1-15 was amended 2 times by the 2021 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 16 of Chapter 172, Session Laws 2021, House Bill 1213; and Section 95 of Chapter 352, Session Laws 2021, House Bill 1247.

19-24.1-15. Compassion centers — Registration. [Effective September 1, 2022]

  1. Upon receipt of notification by the department a compassion center application is eligible for registration, the applicant shall submit all of the following additional items to the department to qualify for registration:
    1. A certification fee, made payable to the “North Dakota Department of Health and Human Services, Medical Marijuana Program”, in an amount not to exceed ninety thousand dollars for a dispensary and one hundred ten thousand dollars for a manufacturing facility.
    2. A financial assurance or security bond to ensure the protection of the public health and safety and the environment in the event of abandonment, default, or other inability or unwillingness to meet the requirements of this chapter.
    3. An update to previously submitted information, including information about compassion center agents and compliance with section 19-24.1-18.
  2. If an applicant complies with subsection 1, the department shall issue the applicant a registration certificate.

The physical address of the proposed compassion center; confirmation the information in the application regarding the physical location of the proposed compassion center has not changed, and if the information has changed the department shall determine whether the new information meets the requirements of this chapter; and a current certificate of occupancy, or equivalent document, to demonstrate compliance with the provisions of state and local fire code for the physical address of the proposed compassion center. It is not necessary for an applicant to resubmit any information provided in the initial application unless there has been a change in that information.

Source:

S.L. 2017, ch. 171, § 1, effective April 18, 2017; 2019, ch. 191, § 5, effective April 24, 2019; 2021, ch. 172, § 16, effective May 3, 2021; 2021, ch. 352, § 95, effective September 1, 2022.

19-24.1-16. Compassion centers — Renewal.

  1. A compassion center registration certificate expires two years after issuance. A compassion center may submit a renewal application at any time beginning ninety calendar days before the expiration of the registration certificate. A compassion center shall submit a renewal application a minimum of sixty calendar days before the expiration of the registration certificate to avoid suspension of the certificate.
  2. The department shall approve a compassion center’s renewal application within sixty calendar days of submission, if the following conditions are satisfied:
    1. The compassion center submits a renewal fee, in an amount not to exceed ninety thousand dollars for a dispensary and one hundred ten thousand dollars for a manufacturing facility, which the department shall refund if the department rejects the renewal application;
    2. The compassion center submits a complete renewal application;
    3. The department has at no time suspended the compassion center’s registration for violation of this chapter;
    4. Inspections conducted under this chapter do not raise any serious concerns about the continued operation of the compassion center; and
    5. The compassion center continues to meet all the requirements for the operation of a compassion center as set forth in this chapter and rules adopted under this chapter.
  3. If a compassion center does not meet the requirements for renewal, the department may not issue a registration certificate and the department shall provide the compassion center with written notice of the determination. If a compassion center’s certificate is not renewed, the compassion center shall dispose all marijuana and usable marijuana in accordance with rules adopted under this chapter.

Source:

S.L. 2017, ch. 171, § 1, effective April 18, 2017; 2021, ch. 172, § 17, effective May 3, 2021.

19-24.1-17. Compassion centers — Registration certificates nontransferable — Notification of changes.

  1. Upon application of a compassion center to the department, a registration certificate of a compassion center may be amended to authorize a change in the authorized physical location of the compassion center, or to amend the ownership or organizational structure of the compassion center with the registration certificate. A compassion center shall provide the department written notice of any change described under this section at least sixty calendar days before the proposed effective date of the change.
  2. A registration certificate authorizing the operation of a compassion center is void by a change in ownership, substantial corporate change, change in location, or discontinued operation, without prior approval of the department. The department may adopt rules allowing for certain types of changes in ownership without the need for prior written approval from the department.
  3. The department shall authorize the use of additional structures located within five hundred feet [152.40 meters] of the location described in the original application, unless the department makes an affirmative finding the use of additional structures would jeopardize public health or safety or would result in the cannabis business being within one thousand feet [304.80 meters] of a property line of a pre-existing public or private school. The department may waive all or part of the required advance notice to address emergent or emergency situations.

Source:

S.L. 2017, ch. 171, § 1, effective April 18, 2017; 2019, ch. 194, § 1, effective March 29, 2019; 2021, ch. 172, § 18, effective May 3, 2021.

19-24.1-18. Compassion centers — Agents — Registry identification cards.

  1. Upon issuance of a compassion center registry certificate, the department shall issue a registry identification card to each qualified compassion center agent associated with the compassion center.
  2. To qualify to be issued a registry identification card, each compassion center agent must be at least twenty-one years of age and shall submit all of the following registry identification card application material to the department:
    1. A photographic copy of the agent’s department-approved identification. The agent shall make the identification available for inspection and verification by the department.
    2. A recent two-by-two inch [5.08-by-5.08 centimeter] photograph of the agent.
    3. A written and signed statement from an officer or executive staff member of the compassion center stating the applicant is associated with the compassion center and the capacity of the association.
    4. The name, address, and telephone number of the agent.
    5. The name, address, and telephone number of the compassion center with which the agent is associated.
    6. The agent’s signature and the date.
    7. A nonrefundable application or renewal fee in the amount of two hundred dollars.
  3. Each compassion center agent shall consent to a criminal history record check conducted under section 12-60-24 to demonstrate compliance with the eligibility requirements.
    1. All applicable fees associated with the required criminal history record checks must be paid by the compassion center or the agent.
    2. A criminal history record check must be performed upon initial application and biennially upon renewal. A compassion center agent shall consent to a criminal history record check at any time the department determines necessary.
    3. An individual convicted of a drug-related misdemeanor offense within the five-year period before the date of application or a felony offense is prohibited from being a compassion center agent.
  4. The department shall notify the compassion center in writing of the purpose for denying a compassion center agent application for a registry identification card. The department shall deny an application if the applicant fails to meet the registration requirements or to provide the information required, if the applicant previously had a registry identification card revoked, or if the department determines the information provided is false. The cardholder may appeal a denial or revocation of a registry identification card to the district court of Burleigh County for hearing. The court may authorize the cardholder to appear by reliable electronic means.
  5. The department shall issue a compassion center agent a registry identification card within thirty calendar days of approval of an application.
  6. A compassion center agent with a registry identification card shall notify the department of any of the following within ten calendar days of the change, in a manner prescribed by the department:
    1. A change in the cardholder’s name or address; and
    2. Knowledge of a change that would render the compassion center agent no longer eligible to be a cardholder.
  7. If a compassion center agent loses the agent’s registry identification card, that agent shall notify the department in writing within twenty-four hours of becoming aware the card has been lost.
  8. If a cardholder notifies the department of items listed in this section but the nature of the item reported results in the cardholder remaining eligible, the department shall issue the cardholder a new registry identification card with a new random ten-digit alphanumeric identification number within twenty calendar days of approving the updated information and the cardholder shall pay a fee, not to exceed twenty-five dollars. If a cardholder notifies the department of an item that results in the cardholder being ineligible, the registry identification card immediately becomes void.
  9. A compassion center shall notify the department in writing within two calendar days of the date a compassion center agent ceases to work for or be associated with the compassion center. Upon receipt of the notification, that individual’s registry identification card becomes void immediately.
  10. The registry identification card of a compassion center agent expires one year after issuance or upon the termination of the compassion center’s registration certificate, whichever occurs first. To prevent interruption of possession of a valid registry identification card, a compassion center agent shall renew a registry identification card by submitting a complete renewal application no less than forty-five calendar days before the expiration date of the existing registry identification card.

Source:

S.L. 2017, ch. 171, § 1, effective April 18, 2017; 2019, ch. 191, § 6, effective April 24, 2019; 2021, ch. 172, § 19, effective May 3, 2021.

19-24.1-19. Cardholders — Compassion centers — Revocation.

  1. The department may suspend or revoke a cardholder’s registry identification card or a compassion center’s registration certificate for a material misstatement by an applicant in an application or renewal.
  2. The department may suspend or revoke a registry identification card or registration certificate for a violation of this chapter or rules adopted under this chapter.
  3. If a compassion center agent or a compassion center sells or otherwise transfers marijuana or usable marijuana to a person not authorized to possess marijuana or usable marijuana under this chapter, the department shall revoke the cardholder’s registry identification card or the compassion center’s registration certificate, or both. If the department revokes a cardholder’s registry identification card under this subsection, the cardholder is disqualified from further participation under this chapter.
  4. The department shall provide written notice of suspension or revocation of a registry identification card or registration certificate.
    1. A suspension may not be for a period longer than six months.
    2. A manufacturing facility may continue to produce and process and to possess marijuana and usable marijuana during a suspension, but may not transfer or sell usable marijuana.
    3. A dispensary may continue to possess usable marijuana during a suspension, but may not purchase, dispense, or transfer usable marijuana.
    4. The cardholder or the compassion center may appeal a denial or revocation of a registry identification card or registry certificate to the district court of Burleigh County for hearing. The court may authorize the cardholder or compassion center to appear by reliable electronic means.

Source:

S.L. 2017, ch. 171, § 1, effective April 18, 2017.

19-24.1-20. Cardholders — Compassion centers — Violations — Penalties.

  1. A cardholder or compassion center that fails to provide a notice as required under this chapter shall pay to the department a fee in an amount established by the department, not to exceed one hundred fifty dollars.
  2. In addition to any other penalty applicable in law, a manufacturing facility or a manufacturing facility agent is guilty of a class B felony for intentionally selling or otherwise transferring marijuana or usable marijuana in any form, to a person other than a dispensary, or for intentionally selling or otherwise transferring marijuana in any form other than usable marijuana, to a dispensary. A person convicted under this subsection may not continue to be affiliated with a compassion center and is disqualified from further participation under this chapter.
  3. In addition to any other penalty applicable in law, a dispensary or a dispensary agent is guilty of a class B felony for intentionally selling or otherwise transferring usable marijuana, to a person other than a registered qualifying patient or a registered designated caregiver, to a registered qualifying patient who is a minor, or in a form not allowed under this chapter. A person convicted under this subsection may not continue to be affiliated with a compassion center and is disqualified from further participation under this chapter.
  4. In addition to any other penalty applicable in law, a dispensary or a dispensary agent is guilty of a class B felony for intentionally selling or otherwise transferring usable marijuana, in a form other than pediatric medical marijuana, to a registered designated caregiver, for use by a registered qualifying patient who is a minor. A person convicted under this subsection may not continue to be affiliated with a compassion center and is disqualified from further participation under this chapter.
  5. A compassion center or compassion center agent that knowingly submits false records or documentation required by the department to certify a compassion center under this chapter is guilty of a class C felony. A person convicted under this subsection may not continue to be affiliated with a compassion center and is disqualified from further participation under this chapter.
  6. In addition to any other penalty applicable in law, if a compassion center violates this chapter the department may fine the compassion center up to one thousand dollars for each violation.
  7. In addition to any other penalty applicable in law, a registered qualifying patient who intentionally sells or otherwise transfers usable marijuana, to another person, is guilty of a class B felony. An individual convicted under this subsection is disqualified from further participation under this chapter.
  8. In addition to any other penalty applicable in law, a registered designated caregiver who intentionally sells or otherwise transfers usable marijuana, to a person other than a registered qualifying patient to which the caregiver is associated with registration, is guilty of a class B felony. An individual convicted under this subsection is disqualified from further participation under this chapter.
  9. An individual who knowingly submits false records or documentation required by the department to receive a registry identification card under this chapter is guilty of a class A misdemeanor. An individual convicted under this subsection may not continue to be affiliated with a compassion center and is disqualified from further participation under this chapter.
  10. A health care provider who holds a financial interest in a compassion center may not knowingly refer a patient to a compassion center or to a registered designated caregiver, advertise in a compassion center, or issue a written certification. A health care provider who violates this subsection must be fined up to one thousand dollars.

Source:

S.L. 2017, ch. 171, § 1, effective April 18, 2017; 2021, ch. 172, § 20, effective May 3, 2021.

19-24.1-21. Compassion centers — Dispensing.

  1. A compassion center shall comply with the dispensing requirements of this section.
  2. Design and security features of usable marijuana containers must be in accordance with rules adopted under this chapter.
  3. A manufacturing facility or agent of the manufacturing facility may not dispense marijuana or usable marijuana, except the manufacturing facility or agent may sell usable marijuana to a dispensary.
  4. A dispensary or agent of the dispensary may not dispense usable marijuana unless the dispensary first uses the verification system to confirm the registered qualifying patient or registered designated caregiver identification card is valid. A dispensary or agent of the dispensary: