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MTAS: Manchester ordinance limiting pseudoephedrine would have ‘doubtful validity’

Posted on Tuesday, July 16, 2013 at 3:00 am

An email from the Tennessee Municipal Attorneys Association (TMAA) citing an opinion by the Municipal Technical Advisory Service (MTAS) and the Tennessee Municipal League (TML) appears to cast further doubt on whether or not a municipality has the authority to regulate pseudoephedrine sales inside its city limits.

josh petersonThe opinion, which was sent to Manchester City Attorney Gerald Ewell , stops short of telling municipalities not to enact an over-the-counter ban on medicines containing pseudoephedrine (such as Sudafed) but it does call for extreme caution and an attorney general opinion.

“TML and MTAS are of the opinion that federal and state law occupy the field in regulating these drugs and that ordinances adopted by cities would be of doubtful validity,” the email reads. “See particularly T.C.A. 39-17-431. MTAS is urging cities to be cautious and obtain an Attorney General opinion approving cities’ authority in this regard before adopting such an ordinance.”

The dispute comes after multiple municipalities in Franklin County – including Winchester – have enacted ordinances that ban over-the-counter sales of medicines containing methamphetamine precursors. Manchester has been considering a similar ordinance, but it was tabled at a Manchester Board of Mayor and Aldermen meeting July 2 due to concerns raised by Ewell . It was tabled again last night (Tuesday, July 16) as the board now awaits an opinion fro the state attorney general.

“I think [this ordinance] is a good thing … and it might not be,” said Manchester Mayor Lonnie Norman. “I’m going to let Gerald research it and let him give me some advice on it because I just don’t know that much about it. I’ve heard some say you can do it and some say you can’t. I know Winchester passed the same thing. I’m going to take his advice on it and see what he comes up with.”

Norman doesn’t have a vote on whether or not Manchester enacts such an ordinance unless the six aldermen vote in a 3-3 tie. In that case Norman would be forced to break the tie.

Alderman Cheryl Swan, who voted to table the ordinance on July 2, feels the city doesn’t have the proper regulatory authority to pass such an ordinance.

“I feel after what I’ve been told by Gerald … we don’t have the authority to do it,” Swan said. “We could pass it but it will not stand up in court. MTAS calls for an attorney general opinion and if they say we can do it then I would change my mind. I’m afraid we will be in litigation with some large pharmaceutical company and that will cost the taxpayers money and I’m not for that.”

Michael Hess, an attorney with Baker, Donelson, Bearman , Caldwell & Berkowitz, PC out of Memphis, issued an opinion for the Consumer Healthcare Product Association regarding these ordinances. His opinion states: “We believe that it is likely that a court considering the legality of a local jurisdiction’s attempt to require a prescription for an immediate methamphetamine precursor would find that the local measure is superseded by and/or contrary to the State statute and, therefore, void.”

The Manchester Times asked Ewell after the ordinance was originally tabled how Franklin County municipalities could consider the ordinance inside the law, to which he responded, “That’s Franklin County’s problem. Not mine.”

“Our board voted to table it because of the concern of subsection N,” Ewell added.

Subsection N is part of the Tennessee “I Hate Meth Act” that states “This section shall supersede any local laws or ordinances currently regulating sales of products containing any immediate methamphetamine precursor.”

Manchester Vice Mayor Ryan French, who sponsors the proposed Manchester ordinance and said it could still be passed after it was tabled on July 2, would not return a phone call from the Times Monday seeking comment on the opinion issued by MTAS. When asked in a text message about the MTAS opinion, French responded: “Haven’t saw one.”

While conceding he is not a lawyer, Tommy Farmer with the TBI Meth and Pharmaceutical Taskforce indicated the city can, indeed, pass an ordinance banning over-the-counter sales of pseudoephedrine products ….

Read the complete story in this week’s (July 17) print edition of the Manchester Times. Click here to subscribe to the print and / or full online edition of the paper.