CHAPTER 155 SENATE Substitute for HOUSE BILL No. 2075 An  Act concerning controlled substances; relating to methamphetamine and other sub-
stances; prohibited acts and penalties therefor; amending K.S.A. 2001 Supp. 21-3718,
65-4101, 65-4152 and 65-7006 and repealing the existing sections.
Be it enacted by the Legislature of the State of Kansas:

      Section  1. K.S.A. 2001 Supp. 21-3718 is hereby amended to read as
follows: 21-3718. (a) Arson is: (1) Knowingly, by means of fire or explosive:

      (1) (A) Damaging any building or property which is a dwelling in
which another person has any interest without the consent of such other
person;

      (2) (B) damaging any building or property which is a dwelling with
intent to injure or defraud an insurer or lienholder;

      (3) (C) damaging any building or property which is not a dwelling in
which another person has any interest without the consent of such other
person; or

      (4) (D) damaging any building or property which is not a dwelling
with intent to injure or defraud an insurer or lienholder.;

      (2) accidentally, by means of fire or explosive as a result of manufac-
turing or attempting to manufacture a controlled substance in violation
of K.S.A. 65-4159, and amendments thereto, damaging any building or
property which is a dwelling; or

      (3) accidentally, by means of fire or explosive as a result of manufac-
turing or attempting to manufacture a controlled substance in violation
of K.S.A. 65-4159, and amendments thereto, damaging any building or
property which is not a dwelling.

      (b)  (1) Arson, as described in subsections subsection (a)(1)(A) or (2)
or (a)(1)(B), is a severity level 6, person felony.

      (2) Arson, as described in subsections (a)(3) or (4) subsection
(a)(1)(C), (a)(1)(D) or (a)(3), is a severity level 7, nonperson felony.

      (3) Arson, as described in subsection (a)(2), is a severity level 7, per-
son felony.

      Sec.  2. K.S.A. 2001 Supp. 65-4101 is hereby amended to read as
follows: 65-4101. As used in this act: (a) ``Administer'' means the direct
application of a controlled substance, whether by injection, inhalation,
ingestion or any other means, to the body of a patient or research subject
by: (1) A practitioner or pursuant to the lawful direction of a practitioner;
or

      (2) the patient or research subject at the direction and in the presence
of the practitioner.

      (b) ``Agent'' means an authorized person who acts on behalf of or at
the direction of a manufacturer, distributor or dispenser. It does not in-
clude a common or contract carrier, public warehouseman or employee
of the carrier or warehouseman.

      (c) ``Board'' means the state board of pharmacy.

      (d) ``Bureau'' means the bureau of narcotics and dangerous drugs,
United States department of justice, or its successor agency.

      (e) ``Controlled substance'' means any drug, substance or immediate
precursor included in any of the schedules designated in K.S.A. 65-4105,
65-4107, 65-4109, 65-4111 and 65-4113, and amendments to these sec-
tions.

      (f) ``Counterfeit substance'' means a controlled substance which, or
the container or labeling of which, without authorization bears the trade-
mark, 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.

      (g) ``Deliver'' or ``delivery'' means the actual, constructive or at-
tempted transfer from one person to another of a controlled substance,
whether or not there is an agency relationship.

      (h) ``Dispense'' means to deliver a controlled substance to an ultimate
user or research subject by or pursuant to the lawful order of a practi-
tioner, including the packaging, labeling or compounding necessary to
prepare the substance for that delivery, or pursuant to the prescription
of a mid-level practitioner.

      (i) ``Dispenser'' means a practitioner or pharmacist who dispenses.

      (j) ``Distribute'' means to deliver other than by administering or dis-
pensing a controlled substance.

      (k) ``Distributor'' means a person who distributes.

      (l) ``Drug'' means: (1) Substances recognized as drugs 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) substances intended for use in the diagnosis, cure, mitigation,
treatment or prevention of disease in man or animals; (3) substances
(other than food) intended to affect the structure or any function of the
body of man or animals; and (4) substances intended for use as a com-
ponent of any article specified in clause (1), (2) or (3) of this subsection.
It does not include devices or their components, parts or accessories.

      (m) ``Immediate precursor'' means a substance which the board has
found to be and by rule and regulation designates as being the principal
compound commonly used or produced primarily for use and which is
an immediate chemical intermediary used or likely to be used in the
manufacture of a controlled substance, the control of which is necessary
to prevent, curtail or limit manufacture.

      (n) ``Manufacture'' means the production, preparation, propagation,
compounding, conversion or processing of a controlled substance either
directly or indirectly or 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 repack-
aging of the substance or labeling or relabeling of its container, except
that this term does not include the preparation or compounding of a
controlled substance by an individual for the individual's own lawful use
or the preparation, compounding, packaging or labeling of a controlled
substance: (1) By a practitioner or the practitioner's agent pursuant to a
lawful order of a practitioner as an incident to the practitioner's admin-
istering or dispensing of a controlled substance in the course of the prac-
titioner's professional practice; or

      (2) by a practitioner or by the practitioner's authorized agent under
such practitioner's supervision for the purpose of or as an incident to
research, teaching or chemical analysis or by a pharmacist or medical care
facility as an incident to dispensing of a controlled substance.

      (o) ``Marijuana'' means all parts of all varieties of the plant Cannabis
whether growing or not, the seeds thereof, the resin extracted from any
part of the plant and every compound, manufacture, salt, derivative, mix-
ture or preparation of the plant, its seeds or resin. It does not include 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 the mature stalks, except the
resin extracted therefrom, fiber, oil, or cake or the sterilized seed of the
plant which is incapable of germination.

      (p) ``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 clause (1) 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, and any salt, compound, isomer, derivative or preparation
thereof which is chemically equivalent or identical with any of these sub-
stances, but not including decocainized coca leaves or extractions of coca
leaves which do not contain cocaine or ecgonine.

      (q) ``Opiate'' means any substance having an addiction-forming or
addiction-sustaining liability similar to morphine or being capable of con-
version into a drug having addiction-forming or addiction-sustaining lia-
bility. It does not include, unless specifically designated as controlled
under K.S.A. 65-4102 and amendments thereto, the dextrorotatory iso-
mer of 3-methoxy-n-methylmorphinan and its salts (dextromethorphan).
It does include its racemic and levorotatory forms.

      (r) ``Opium poppy'' means the plant of the species Papaver somni-
ferum l. except its seeds.

      (s) ``Person'' means individual, corporation, government, or govern-
mental subdivision or agency, business trust, estate, trust, partnership or
association or any other legal entity.

      (t) ``Poppy straw'' means all parts, except the seeds, of the opium
poppy, after mowing.

      (u) ``Pharmacist'' means an individual currently licensed by the board
to practice the profession of pharmacy in this state.

      (v) ``Practitioner'' means a person licensed to practice medicine and
surgery, dentist, podiatrist, veterinarian, optometrist licensed under the
optometry law as a therapeutic licensee or diagnostic and therapeutic
licensee, or scientific investigator or other person authorized by law to
use a controlled substance in teaching or chemical analysis or to conduct
research with respect to a controlled substance.

      (w) ``Production'' includes the manufacture, planting, cultivation,
growing or harvesting of a controlled substance.

      (x) ``Ultimate user'' means a person who lawfully possesses a con-
trolled substance for such person's own use or for the use of a member
of such person's household or for administering to an animal owned by
such person or by a member of such person's household.

      (y) ``Isomer'' means all enantiomers and diastereomers.

      (z) ``Medical care facility'' shall have the meaning ascribed to that
term in K.S.A. 65-425 and amendments thereto.

      (aa) ``Cultivate'' means the planting or promotion of growth of five
or more plants which contain or can produce controlled substances.

      (bb)  (1) ``Controlled substance analog'' means a substance that is in-
tended for human consumption, and:

      (A) The chemical structure of which is substantially similar to the
chemical structure of a controlled substance listed in or added to the
schedules designated in K.S.A. 65-4105 or 65-4107 and amendments
thereto;

      (B) which has a stimulant, depressant or hallucinogenic effect on the
central nervous system substantially similar to the stimulant, depressant
or hallucinogenic effect on the central nervous system of a controlled
substance included in the schedules designated in K.S.A. 65-4105 or 65-
4107 and amendments thereto; or

      (C) with respect to a particular individual, which the individual rep-
resents or intends to have a stimulant, depressant or hallucinogenic effect
on the central nervous system substantially similar to the stimulant, de-
pressant or hallucinogenic effect on the central nervous system of a con-
trolled substance included in the schedules designated in K.S.A. 65-4105
or 65-4107 and amendments thereto.

      (2) ``Controlled substance analog'' does not include:

      (A) A controlled substance;

      (B) a substance for which there is an approved new drug application;
or

      (C) a substance with respect to which an exemption is in effect for
investigational use by a particular person 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 permitted by the exemption.

      (cc) ``Mid-level practitioner'' means an advanced registered nurse
practitioner issued a certificate of qualification pursuant to K.S.A. 65-1131
and amendments thereto, who has authority to prescribe drugs pursuant
to a written protocol with a responsible physician under K.S.A. 65-1130,
and amendments thereto or a physician assistant licensed under the phy-
sician assistant licensure act who has authority to prescribe drugs pursuant
to a written protocol with a responsible physician under K.S.A. 2001
Supp. 65-28a08 and amendments thereto.

      Sec.  3. K.S.A. 2001 Supp. 65-4152 is hereby amended to read as
follows: 65-4152. (a) No person shall use or possess with intent to use:

      (1) Any simulated controlled substance;

      (2) any drug paraphernalia to use, store, contain, conceal, inject, in-
gest, inhale or otherwise introduce into the human body a controlled
substance in violation of the uniform controlled substances act;

      (3) any drug paraphernalia to plant, propagate, cultivate, grow, har-
vest, manufacture, compound, convert, produce, process, prepare, test,
analyze, pack, repack, sell or distribute a controlled substance in violation
of the uniform controlled substances act; or

      (4) anhydrous ammonia for the illegal production of a controlled sub-
stance or pressurized ammonia in a container not approved for that chem-
ical by the Kansas department of agriculture.

      (b) Violation of subsections subsection (a)(1) or (a)(2) is a class A
nonperson misdemeanor.

      (c) Violation of subsection (a)(3), other than as described in para-
graph (d), or subsection (a)(4) is a drug severity level 4 felony.

      (d) Violation of subsection (a)(3) which involves the possession of
drug paraphernalia for the planting, propagation, growing or harvesting
of less than five marijuana plants is a class A nonperson misdemeanor.

      Sec.  4. K.S.A. 2001 Supp. 65-7006 is hereby amended to read as
follows: 65-7006. (a) It shall be unlawful for any person to possess ephed-
rine, pseudoephedrine, red phosphorus, lithium metal, sodium metal, io-
dine, anhydrous ammonia, pressurized ammonia or phenylpropanolam-
ine, or their salts, isomers or salts of isomers with intent to use the product
as a precursor to any illegal to manufacture a controlled substance.

      (b) It shall be unlawful for any person to market, sell, distribute, ad-
vertise, or label any drug product containing ephedrine, pseudoephed-
rine, red phosphorus, lithium metal, sodium metal, iodine, anhydrous am-
monia, pressurized ammonia or phenylpropanolamine, or their salts,
isomers or salts or isomers if the person knows or reasonably should know
that the purchaser will use the product as a precursor to any illegal to
manufacture a controlled substance.

      (c) It shall be unlawful for any person to market, sell, distribute, ad-
vertise or label any drug product containing ephedrine, pseudoephedrine,
or phenylpropanolamine, or their salts, isomers or salts of isomers for
indication of stimulation, mental alertness, weight loss, appetite control,
energy or other indications not approved pursuant to the pertinent federal
over-the-counter drug final monograph or tentative final monograph or
approved new drug application.

      (d) A violation of this section shall be a drug severity level 1 felony. 
Sec.  5. K.S.A. 2001 Supp. 21-3718, 65-4101, 65-4152 and 65-7006
are hereby repealed.
 Sec.  6. This act shall take effect and be in force from and after its
publication in the statute book.

Approved May 17, 2002.
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