Senate Bill sb2698

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    Florida Senate - 2003                                  SB 2698

    By Senator Peaden





    2-1448-03

  1                      A bill to be entitled

  2         An act relating to the Florida Drug and

  3         Cosmetic Act; amending s. 499.003, F.S.;

  4         providing definitions; amending s. 499.005,

  5         F.S.; prohibiting the removal of a dispensing

  6         label from a legend drug; prohibiting the

  7         distribution of a previously dispensed legend

  8         drug without authorization; prohibiting certain

  9         transactions for cash; amending s. 499.006,

10         F.S.; providing that a legend drug is

11         adulterated if certain documentation cannot be

12         verified; amending s. 499.007, F.S.; revising

13         certain labeling requirements; amending s.

14         499.01, F.S.; providing permit requirements for

15         prescription drug repackagers, nonresident

16         prescription drug manufacturers, and freight

17         forwarders; authorizing the Department of

18         Health to issue certain permits to an applicant

19         at the same address as a licensed nuclear

20         pharmacy and a community pharmacy; revising

21         requirements for permit applications and

22         renewals; requiring annual renewal of certain

23         permits; amending s. 499.012, F.S.; authorizing

24         a hospital or other health care entity to

25         transfer a prescription drug to a licensed

26         repackager under certain circumstances;

27         providing certain restrictions on the sale of

28         drug acquisitions to unaffiliated wholesalers;

29         increasing the amount of the bond that must be

30         obtained by prescription drug wholesalers;

31         authorizing the Department of Health to adopt

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    Florida Senate - 2003                                  SB 2698
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 1         rules by which it may assess an applicant's

 2         experience and financial viability; requiring

 3         that applicants undergo criminal history record

 4         checks; providing requirements for out-of-state

 5         prescription drug wholesalers; requiring a

 6         performance bond and a criminal history record

 7         check; providing licensing and permitting

 8         requirements for nonresident prescription drug

 9         manufacturers; providing requirements for a

10         freight forwarder's permit; amending s.

11         499.0121, F.S.; providing additional

12         recordkeeping requirements; requiring certain

13         written statements; providing requirements for

14         shipping and transporting a prescription drug

15         in wholesale distribution; amending s.

16         499.0122, F.S.; providing permit requirement

17         for an establishment that refills medical

18         oxygen for an individual patient; creating s.

19         499.0123, F.S.; requiring a prescription drug

20         wholesaler to designate a representative;

21         requiring such representative to be certified

22         by the department; providing requirements for

23         certification; requiring a criminal history

24         record check amending s. 499.013, F.S.;

25         providing permit requirements for a

26         prescription drug repackager; amending s.

27         499.041, F.S.; revising the schedule of fees

28         for an application or permit; providing fees

29         for nonresident prescription drug manufacturers

30         and out-of-state prescription drug wholesalers;

31         amending s. 499.051, F.S.; requiring the

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    Florida Senate - 2003                                  SB 2698
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 1         department to maintain the confidentiality of

 2         certain financial documents; authorizing such

 3         documents to be used for regulatory or

 4         enforcement proceedings; amending s. 499.066,

 5         F.S.; providing for the jurisdiction of the

 6         department to impose penalties and take

 7         enforcement actions; amending s. 499.067, F.S.;

 8         providing for the denial, suspension, or

 9         revocation of a certification; specifying

10         additional grounds for such denial, suspension,

11         or revocation; specifying circumstances under

12         which the department is not required to publish

13         notice of intended agency action; amending s.

14         499.069, F.S.; providing enhanced penalties for

15         certain violations; requiring the department to

16         establish a Drug Wholesale Advisory Board;

17         providing for membership; providing duties;

18         providing for board members to be reimbursed

19         for per diem and travel expenses; providing for

20         severability; providing an effective date.

21  

22  Be It Enacted by the Legislature of the State of Florida:

23  

24         Section 1.  Section 499.003, Florida Statutes, is

25  amended to read:

26         499.003  Definitions of terms used in ss.

27  499.001-499.081.--As used in ss. 499.001-499.081, the term:

28         (1)  "Advertisement" means any representation

29  disseminated in any manner or by any means, other than by

30  labeling, for the purpose of inducing, or which is likely to

31  

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 1  induce, directly or indirectly, the purchase of drugs,

 2  devices, or cosmetics.

 3         (2)  "Affiliated group" has the same meaning as in s.

 4  1504 of the Internal Revenue Code.

 5         (3)  "Affiliated person" means any person who directly

 6  or indirectly manages, controls, or oversees the operation of

 7  a corporation or other business entity that is a permittee or

 8  applicant, regardless of whether such person is a partner,

 9  shareholder, owner, officer, director, agent, independent

10  contractor, or employee of the entity.

11         (4)  "Applicant" means a person applying for a permit

12  or certification under ss. 499.001-499.081 in the form of a

13  sole proprietorship, corporation, partnership, or other

14  business entity, and any owner, officer, director, agent,

15  managing employee, general manager, or affiliated person, or

16  any partner or shareholder having an ownership interest equal

17  to 5 percent or more in the corporation, partnership, or other

18  business entity.

19         (5)(2)  "Certificate of free sale" means a document

20  prepared by the department which certifies a drug, device, or

21  cosmetic, that is registered with the department, as one that

22  can be legally sold in the state.

23         (6)(3)  "Closed pharmacy" means a pharmacy that is

24  licensed under chapter 465 and purchases prescription drugs

25  for use by a limited patient population and not for wholesale

26  distribution or sale to the public.  The term does not include

27  retail pharmacies.

28         (7)(4)  "Color" includes black, white, and intermediate

29  grays.

30         (8)(5)  "Color additive" means a material that:

31  

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    Florida Senate - 2003                                  SB 2698
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 1         (a)  Is a dye pigment, or other substance, made by a

 2  process of synthesis or similar artifice, or extracted,

 3  isolated, or otherwise derived, with or without intermediate

 4  or final change of identity from a vegetable, animal, mineral,

 5  or other source; or

 6         (b)  When added or applied to a drug or cosmetic or to

 7  the human body, or any part thereof, is capable alone, or

 8  through reaction with other substances, of imparting color

 9  thereto;

10  

11  except that the term does not include any material which has

12  been or hereafter is exempt under the federal act.

13         (9)(6)  "Compressed medical gas" means any liquefied or

14  vaporized gas that is classified as a prescription drug or

15  medical device, whether it is alone or in combination with

16  other gases.

17         (10)(7)  "Cosmetic" means an article that is:

18         (a)  Intended to be rubbed, poured, sprinkled, or

19  sprayed on; introduced into; or otherwise applied to the human

20  body or any part thereof for cleansing, beautifying, promoting

21  attractiveness, or altering the appearance; or

22         (b)  Intended for use as a component of any such

23  article;

24  

25  except that the term does not include soap.

26         (11)(8)  "Counterfeit drug, counterfeit device, or

27  counterfeit cosmetic" means a drug, device, or cosmetic which,

28  or the container, seal, or labeling of which, without

29  authorization, bears the trademark, trade name, or other

30  identifying mark, imprint, or device, or any likeness thereof,

31  of a drug, device, or cosmetic manufacturer, processor,

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    Florida Senate - 2003                                  SB 2698
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 1  packer, or distributor other than the person that in fact

 2  manufactured, processed, packed, or distributed that drug,

 3  device, or cosmetic and which thereby falsely purports or is

 4  represented to be the product of, or to have been packed or

 5  distributed by, that other drug, device, or cosmetic

 6  manufacturer, processor, packer, or distributor.

 7         (12)(9)  "Department" means the Department of Health.

 8         (13)(10)  "Device" means any instrument, apparatus,

 9  implement, machine, contrivance, implant, in vitro reagent, or

10  other similar or related article, including its components,

11  parts, or accessories, which is:

12         (a)  Recognized in the current edition of the United

13  States Pharmacopoeia and National Formulary, or any supplement

14  thereof,

15         (b)  Intended for use in the diagnosis, cure,

16  mitigation, treatment, therapy, or prevention of disease in

17  humans or other animals, or

18         (c)  Intended to affect the structure or any function

19  of the body of humans or other animals,

20  

21  and which does not achieve any of its principal intended

22  purposes through chemical action within or on the body of

23  humans or other animals and which is not dependent upon being

24  metabolized for the achievement of any of its principal

25  intended purposes.

26         (14)(11)  "Distribute or distribution" means to sell;

27  offer to sell; give away; transfer, whether by passage of

28  title, physical movement, or both; deliver; or offer to

29  deliver. The term does not mean to administer or dispense.

30         (15)(12)  "Drug" means an article that is:

31  

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    Florida Senate - 2003                                  SB 2698
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 1         (a)  Recognized in the current edition of the United

 2  States Pharmacopoeia and National Formulary, official

 3  Homeopathic Pharmacopoeia of the United States, or any

 4  supplement to any of those publications;

 5         (b)  Intended for use in the diagnosis, cure,

 6  mitigation, treatment, therapy, or prevention of disease in

 7  humans or other animals;

 8         (c)  Intended to affect the structure or any function

 9  of the body of humans or other animals; or

10         (d)  Intended for use as a component of any article

11  specified in paragraph (a), paragraph (b), or paragraph (c),

12  but does not include devices or their components, parts, or

13  accessories.

14         (16)(13)  "Establishment" means a place of business at

15  one general physical location.

16         (17)(14)  "Federal act" means the Federal Food, Drug,

17  and Cosmetic Act, 21 U.S.C. ss. 301 et seq.; 52 Stat. 1040 et

18  seq.

19         (18)  "Freight forwarder" means a person who receives

20  legend drugs that are owned by another person and designated

21  by that person for export, and who exports those legend drugs.

22         (19)(15)  "Health care entity" means a closed pharmacy

23  or any person, organization, or business entity that provides

24  diagnostic, medical, surgical, or dental treatment or care, or

25  chronic or rehabilitative care, but does not include any

26  wholesale distributor or retail pharmacy licensed under state

27  law to deal in prescription drugs.

28         (20)(16)  "Immediate container" does not include

29  package liners.

30         (21)(17)  "Label" means a display of written, printed,

31  or graphic matter upon the immediate container of any drug,

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 1  device, or cosmetic.  A requirement made by or under authority

 2  of ss. 499.001-499.081 or rules adopted under those sections

 3  that any word, statement, or other information appear on the

 4  label is not complied with unless such word, statement, or

 5  other information also appears on the outside container or

 6  wrapper, if any, of the retail package of such drug, device,

 7  or cosmetic or is easily legible through the outside container

 8  or wrapper.

 9         (22)(18)  "Labeling" means all labels and other

10  written, printed, or graphic matters:

11         (a)  Upon a drug, device, or cosmetic, or any of its

12  containers or wrappers; or

13         (b)  Accompanying or related to such drug, device, or

14  cosmetic.

15         (23)(19)  "Legend drug," "prescription drug," or

16  "medicinal drug" means any drug, including, but not limited

17  to, finished dosage forms, or active ingredients subject to,

18  defined by, or described by s. 503(b) of the Federal Food,

19  Drug, and Cosmetic Act or s. 465.003(8), s. 499.007(12), or s.

20  499.0122(1)(b) or (c).

21         (24)(20)  "Manufacture" means the preparation,

22  deriving, compounding, propagation, processing, producing, or

23  fabrication of any drug, device, or cosmetic.  The term

24  includes repackaging or otherwise changing the container,

25  wrapper, or labeling to further the distribution of the drug,

26  device, or cosmetic.

27         (25)(21)  "Manufacturer" means a person who prepares,

28  derives, manufactures, or produces a drug, device, or

29  cosmetic. The term excludes pharmacies that are operating in

30  compliance with pharmacy practice standards as defined in

31  chapter 465 and rules adopted under that chapter.

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 1         (26)(22)  "New drug" means:

 2         (a)  Any drug the composition of which is such that the

 3  drug is not generally recognized, among experts qualified by

 4  scientific training and experience to evaluate the safety and

 5  effectiveness of drugs, as safe and effective for use under

 6  the conditions prescribed, recommended, or suggested in the

 7  labeling of that drug; or

 8         (b)  Any drug the composition of which is such that the

 9  drug, as a result of investigations to determine its safety

10  and effectiveness for use under certain conditions, has been

11  recognized for use under such conditions, but which drug has

12  not, other than in those investigations, been used to a

13  material extent or for a material time under such conditions.

14         (27)(23)  "Official compendium" means the current

15  edition of the official United States Pharmacopoeia and

16  National Formulary, or any supplement thereto.

17         (28)(24)  "Person" means any individual, child, joint

18  venture, syndicate, fiduciary, partnership, corporation,

19  division of a corporation, firm, trust, business trust,

20  company, estate, public or private institution, association,

21  organization, group, city, county, city and county, political

22  subdivision of this state, other governmental agency within

23  this state, and any representative, agent, or agency of any of

24  the foregoing, or any other group or combination of the

25  foregoing.

26         (29)(25)  "Prepackaged drug product" means a drug that

27  originally was in finished packaged form sealed by a

28  manufacturer and that is placed in a properly labeled

29  container by a pharmacy or practitioner authorized to dispense

30  pursuant to chapter 465 for the purpose of dispensing in the

31  establishment in which the prepackaging occurred.

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 1         (30)(26)  "Prescription medical oxygen" means oxygen

 2  USP which is a drug that can only be sold on the order or

 3  prescription of a practitioner authorized by law to prescribe.

 4  The label of prescription medical oxygen must comply with

 5  current labeling requirements for oxygen under the Federal

 6  Food, Drug, and Cosmetic Act.

 7         (31)(27)  "Proprietary drug," or "OTC drug," means a

 8  patent or over-the-counter drug in its unbroken, original

 9  package, which drug is sold to the public by, or under the

10  authority of, the manufacturer or primary distributor thereof,

11  is not misbranded under the provisions of ss. 499.001-499.081,

12  and can be purchased without a prescription.

13         (32)(28)  "Veterinary prescription drug" means a legend

14  drug intended solely for veterinary use.  The label of the

15  drug must bear the statement, "Caution:  Federal law restricts

16  this drug to sale by or on the order of a licensed

17  veterinarian."

18         Section 2.  Section 499.005, Florida Statutes, is

19  amended to read:

20         499.005  Prohibited acts.--It is unlawful for any

21  person to perform or cause the performance of any of the

22  following acts in this state:

23         (1)  The manufacture, repackaging, sale, delivery, or

24  holding or offering for sale of any drug, device, or cosmetic

25  that is adulterated or misbranded or has otherwise been

26  rendered unfit for human or animal use.

27         (2)  The adulteration or misbranding of any drug,

28  device, or cosmetic.

29         (3)  The receipt of any drug, device, or cosmetic that

30  is adulterated or misbranded, and the delivery or proffered

31  

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 1  delivery of such drug, device, or cosmetic, for pay or

 2  otherwise.

 3         (4)  The sale, distribution, purchase, trade, holding,

 4  or offering of any drug, device, or cosmetic in violation of

 5  ss. 499.001-499.081.

 6         (5)  The dissemination of any false or misleading

 7  advertisement of a drug, device, or cosmetic.

 8         (6)  The refusal or constructive refusal:

 9         (a)  To allow the department to enter or inspect an

10  establishment in which drugs, devices, or cosmetics are

11  manufactured, processed, repackaged, sold, brokered, or held;

12         (b)  To allow inspection of any record of that

13  establishment;

14         (c)  To allow the department to enter and inspect any

15  vehicle that is being used to transport drugs, devices, or

16  cosmetics; or

17         (d)  To allow the department to take samples of any

18  drug, device, or cosmetic.

19         (7)  The giving of a false guaranty or false

20  undertaking with respect to a drug, device, or cosmetic,

21  except by a person who relied on a guaranty or undertaking to

22  the same effect signed by, and containing the name and address

23  of, the person residing in this state from whom she or he

24  received in good faith the drug, device, or cosmetic.

25         (8)  Committing any act that causes a drug, device, or

26  cosmetic to be a counterfeit drug, device, or cosmetic; or

27  selling, dispensing, or holding for sale a counterfeit drug,

28  device, or cosmetic.

29         (9)  The alteration, mutilation, destruction,

30  obliteration, or removal of the whole or any part of the

31  labeling of a drug, device, or cosmetic, or the doing of any

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 1  other act with respect to a drug, device, or cosmetic, if the

 2  act is done while the drug, device, or cosmetic is held for

 3  sale and the act results in the drug, device, or cosmetic

 4  being misbranded.

 5         (10)  Forging; counterfeiting; simulating; falsely

 6  representing any drug, device, or cosmetic; or, without the

 7  authority of the manufacturer, using any mark, stamp, tag,

 8  label, or other identification device authorized or required

 9  by rules adopted under ss. 499.001-499.081.

10         (11)  The use, on the labeling of any drug or in any

11  advertisement relating to such drug, of any representation or

12  suggestion that an application of the drug is effective when

13  it is not or that the drug complies with ss. 499.001-499.081

14  when it does not.

15         (12)  The possession of any drug in violation of ss.

16  499.001-499.081.

17         (13)  The sale, delivery, holding, or offering for sale

18  of any self-testing kits designed to tell persons their status

19  concerning human immunodeficiency virus or acquired immune

20  deficiency syndrome or related disorders or conditions.  This

21  prohibition shall not apply to home access HIV test kits

22  approved for distribution and sale by the United States Food

23  and Drug Administration.

24         (14)  The purchase or receipt of a legend drug from a

25  person that is not authorized under this chapter to distribute

26  legend drugs to that purchaser or recipient.

27         (15)  The sale or transfer of a legend drug to a person

28  that is not authorized under the law of the jurisdiction in

29  which the person receives the drug to purchase or possess

30  legend drugs from the person selling or transferring the

31  legend drug.

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 1         (16)  The purchase or receipt of a compressed medical

 2  gas from a person that is not authorized under this chapter to

 3  distribute compressed medical gases.

 4         (17)  The sale, purchase, or trade, or the offer to

 5  sell, purchase, or trade, a drug sample as defined in s.

 6  499.028; the distribution of a drug sample in violation of s.

 7  499.028; or the failure to otherwise comply with s. 499.028.

 8         (18)  Failure to maintain records as required by ss.

 9  499.001-499.081 and rules adopted under those sections.

10         (19)  Providing the department with false or fraudulent

11  records, or making false or fraudulent statements, regarding

12  any matter within the provisions of this chapter.

13         (20)  The importation of a legend drug except as

14  provided by s. 801(d) of the Federal Food, Drug, and Cosmetic

15  Act.

16         (21)  The wholesale distribution of any prescription

17  drug that was:

18         (a)  Purchased by a public or private hospital or other

19  health care entity; or

20         (b)  Donated or supplied at a reduced price to a

21  charitable organization.

22         (22)  Failure to obtain a permit or registration, or

23  operating without a valid permit when a permit or registration

24  is required by ss. 499.001-499.081 for that activity.

25         (23)  Obtaining or attempting to obtain a prescription

26  drug or device by fraud, deceit, misrepresentation or

27  subterfuge, or engaging in misrepresentation or fraud in the

28  distribution of a drug or device.

29         (24)  The distribution of a legend device to the

30  patient or ultimate consumer without a prescription or order

31  

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 1  from a practitioner licensed by law to use or prescribe the

 2  device.

 3         (25)  Charging a dispensing fee for dispensing,

 4  administering, or distributing a prescription drug sample.

 5         (26)  Removing a pharmacy's dispensing label from a

 6  dispensed legend drug with the intent to further distribute

 7  the legend drug.

 8         (27)  The knowing distribution of a previously

 9  dispensed legend drug unless authorized under chapter 465 and

10  rules adopted under chapter 465.

11         (28)  The failure to obtain or pass on a statement as

12  required under s. 499.0121(6)(d).

13         (29)  The purchase or sale of legend drugs in a

14  wholesale transaction for cash; except through the use of a

15  funds transfer as defined in chapter 670 which is documented

16  and may be verified through a financial institution.

17         Section 3.  Section 499.006, Florida Statutes, is

18  amended to read:

19         499.006  Adulterated drug or device.--A drug or device

20  is adulterated:

21         (1)  If it consists in whole or in part of any filthy,

22  putrid, or decomposed substance;

23         (2)  If it has been produced, prepared, packed, or held

24  under conditions whereby it could have been contaminated with

25  filth or rendered injurious to health;

26         (3)  If it is a drug and the methods used in, or the

27  facilities or controls used for, its manufacture, processing,

28  packing, or holding do not conform to, or are not operated or

29  administered in conformity with, current good manufacturing

30  practices to assure that the drug meets the requirements of

31  ss. 499.001-499.081 and that the drug has the identity and

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 1  strength, and meets the standard of quality and purity, which

 2  it purports or is represented to possess;

 3         (4)  If it is a drug and its container is composed, in

 4  whole or in part, of any poisonous or deleterious substance

 5  which could render the contents injurious to health;

 6         (5)  If it is a drug and it bears or contains, for the

 7  purpose of coloring only, a color additive that is unsafe

 8  within the meaning of the federal act; or, if it is a color

 9  additive, the intended use of which in or on drugs is for the

10  purpose of coloring only, and it is unsafe within the meaning

11  of the federal act;

12         (6)  If it purports to be, or is represented as, a drug

13  the name of which is recognized in the official compendium,

14  and its strength differs from, or its quality or purity falls

15  below, the standard set forth in such compendium.  The

16  determination as to strength, quality, or purity must be made

17  in accordance with the tests or methods of assay set forth in

18  such compendium, or, when such tests or methods of assay are

19  absent or inadequate, in accordance with those tests or

20  methods of assay prescribed under authority of the federal

21  act.  A drug defined in the official compendium is not

22  adulterated under this subsection merely because it differs

23  from the standard of strength, quality, or purity set forth

24  for that drug in such compendium if its difference in

25  strength, quality, or purity from such standard is plainly

26  stated on its label;

27         (7)  If it is not subject to subsection (6) and its

28  strength differs from, or its purity or quality falls below

29  the standard of, that which it purports or is represented to

30  possess; or

31         (8)  If it is a drug:

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 1         (a)  With which any substance has been mixed or packed

 2  so as to reduce the quality or strength of the drug; or

 3         (b)  For which any substance has been substituted

 4  wholly or in part;.

 5         (9)  If it is a drug or device for which the expiration

 6  date has passed; or.

 7         (10)  If it is a legend drug and verifiable

 8  documentation does not support that it has been purchased,

 9  held, sold, or distributed at all times by a person authorized

10  under federal or state law to do so.

11         Section 4.  Subsection (2) of section 499.007, Florida

12  Statutes, is amended to read:

13         499.007  Misbranded drug or device.--A drug or device

14  is misbranded:

15         (2)  Unless, if in package form, it bears a label

16  containing:

17         (a)  The name and place of business of the manufacturer

18  or distributor; in addition, for a medicinal drug, as defined

19  in s. 499.003, the label must contain the name and place of

20  business of the manufacturer of the finished dosage form of

21  the drug.  For the purpose of this paragraph, the finished

22  dosage form of a medicinal drug is that form of the drug which

23  is, or is intended to be, dispensed or administered to the

24  patient and requires no further manufacturing or processing

25  other than packaging, reconstitution, and labeling; and

26         (b)  An accurate statement of the quantity of the

27  contents in terms of weight, measure, or numerical count;

28  however, under this section, reasonable variations are

29  permitted, and the department shall establish by rule

30  exemptions for small packages.

31  

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 1  A drug dispensed by filling or refilling a written or oral

 2  prescription of a practitioner licensed by law to prescribe

 3  such drug is exempt from the requirements of this section,

 4  except subsections (1), (8), (10), and (11) and the packaging

 5  requirements of subsections (6) and (7), if the drug bears a

 6  label that contains the name and address of the dispenser or

 7  seller, the prescription number and the date the prescription

 8  was written or filled, the name of the prescriber and the name

 9  of the patient, and the directions for use and cautionary

10  statements.  This exemption does not apply to any drug

11  dispensed in the course of the conduct of a business of

12  dispensing drugs pursuant to diagnosis by mail or to any drug

13  dispensed in violation of subsection (12).  The department

14  may, by rule, exempt drugs subject to ss. 499.062-499.064 from

15  subsection (12) if compliance with that subsection is not

16  necessary to protect the public health, safety, and welfare.

17         Section 5.  Section 499.01, Florida Statutes, is

18  amended to read:

19         499.01  Permits; applications; renewal; general

20  requirements.--

21         (1)  Any person that is required under ss.

22  499.001-499.081 to have a permit must apply to the department

23  on forms furnished by the department.

24         (a)  A permit issued pursuant to ss. 499.001-499.081

25  may be issued only to a fictitious person registered with the

26  Division of Corporations. Each person affiliated with the

27  applicant for a permit or the permittee must be an individual

28  who is at least 18 years of age or to a corporation that is

29  registered pursuant to chapter 607 or chapter 617 and each

30  officer of which is at least 18 years of age.

31  

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 1         (b)  An establishment that is a place of residence may

 2  not receive a permit and may not operate under ss.

 3  499.001-499.081.

 4         (c)  A person that applies for or renews a permit to

 5  manufacture or distribute legend drugs may not use a name

 6  identical to the name used by any other establishment or

 7  licensed person authorized to purchase prescription drugs in

 8  this state, except that a restricted drug distributor permit

 9  issued to a health care entity will be issued in the name in

10  which the institutional pharmacy permit is issued and a retail

11  pharmacy drug wholesaler will be issued a permit in the name

12  of its retail pharmacy permit.

13         (d)  A permit is required for each person and

14  establishment that intends to operate and prior to operating

15  operates as a:

16         1.  Prescription drug manufacturer;

17         2.  Prescription drug repackager;

18         3.2.  Over-the-counter drug manufacturer;

19         4.3.  Compressed medical gas manufacturer;

20         5.4.  Device manufacturer;

21         6.5.  Cosmetic manufacturer;

22         7.6.  Prescription drug wholesaler;

23         8.7.  Compressed medical gas wholesaler;

24         9.8.  Out-of-state prescription drug wholesaler;

25         10.  Nonresident prescription drug manufacturer;

26         11.9.  Retail pharmacy drug wholesaler;

27         12.10.  Veterinary legend drug retail establishment;

28         13.11.  Medical oxygen retail establishment;

29         14.12.  Complimentary drug distributor; or

30         15.13.  Restricted prescription drug distributor; or.

31         16.  Freight fowarder.

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 1         (e)  The department may not issue a permit for a

 2  prescription drug manufacturer, prescription drug repackager,

 3  prescription drug wholesaler, or retail pharmacy wholesaler

 4  may not be issued to the address of a health care entity or to

 5  a pharmacy licensed under chapter 465, except as follows. The

 6  department may issue a prescription drug manufacturer permit

 7  to an applicant at the same address as a licensed nuclear

 8  pharmacy, which is a health care entity, for the purpose of

 9  manufacturing prescription drugs used in positron emission

10  tomography or other radiopharmaceuticals as listed in a rule

11  adopted by the department pursuant to this paragraph. The

12  purpose of this exemption is to assure availability of

13  state-of-the-art pharmaceuticals that would pose a significant

14  danger to the public health if manufactured at a separate

15  establishment address from the nuclear pharmacy from which the

16  prescription drugs are dispensed. The department may also

17  issue a retail pharmacy wholesaler permit to the address of a

18  community pharmacy licensed under chapter 465 which does not

19  meet the definition of a closed pharmacy in s. 499.003.

20         (f)  Notwithstanding subsection (4), a permitted person

21  in good standing may change the type of permit issued to that

22  person by completing a new application for the requested

23  permit, paying the amount of the difference in the permit fees

24  if the fee for the new permit is more than the fee for the

25  original permit, and meeting the applicable permitting

26  conditions for the new permit type. The new permit expires on

27  the expiration date of the original permit being changed. A

28  refund may not be issued if the biennial fee for the new

29  permit is less than the original permit for which a fee was

30  paid.

31  

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 1         (2)  The department shall establish, by rule, the form

 2  and content of the application to obtain or renew a permit.

 3  The applicant must submit to the department with the

 4  application a statement that swears or affirms that the

 5  information is true and correct.

 6         (a)  Information that an applicant must provide

 7  includes, but need not be limited to:

 8         1.  The name, full business address, and telephone

 9  number of the applicant;

10         2.  All trade or business names used by the applicant;

11         3.  The address, telephone numbers, and the names of

12  contact persons for each facility used by the applicant for

13  the storage, handling, and distribution of prescription drugs;

14         4.  The type of ownership or operation, such as a

15  partnership, corporation, or sole proprietorship; and

16         5.  The names of the owner and the operator of the

17  establishment, including:

18         a.  If an individual, the name of the individual;

19         b.  If a partnership, the name of each partner and the

20  name of the partnership;

21         c.  If a corporation, the name and title of each

22  corporate officer and director, the corporate names, and the

23  name of the state of incorporation;

24         d.  If a sole proprietorship, the full name of the sole

25  proprietor and the name of the business entity; and

26         e.  If a limited liability company, the name of each

27  member and manager;

28         f.  If a parent corporation or other entity owns the

29  applicant, the names of all officers and directors of this

30  entity; and

31  

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 1         g.e.  Any other relevant information that the

 2  department requires.

 3         (b)  Upon approval of the application by the department

 4  and payment of the required fee, the department shall issue a

 5  permit to the applicant, if the applicant meets the

 6  requirements of ss. 499.001-499.081 and rules adopted under

 7  those sections.

 8         (b)(c)  Any change in information required under

 9  paragraph (a) must be submitted to the department before the

10  change occurs.

11         (d)  The department shall consider, at a minimum, the

12  following factors in reviewing the qualifications of persons

13  to be permitted under ss. 499.001-499.081:

14         1.  The applicant's having been found guilty,

15  regardless of adjudication, in a court of this state or other

16  jurisdiction, of a violation of a law that directly relates to

17  a drug, device, or cosmetic.  A plea of nolo contendere

18  constitutes a finding of guilt for purposes of this

19  subparagraph.

20         2.  The applicant's having been disciplined by a

21  regulatory agency in any state for any offense that would

22  constitute a violation of ss. 499.001-499.081.

23         3.  Any felony conviction of the applicant under a

24  federal, state, or local law;

25         4.  The applicant's past experience in manufacturing or

26  distributing drugs, devices, or cosmetics;

27         5.  The furnishing by the applicant of false or

28  fraudulent material in any application made in connection with

29  manufacturing or distributing drugs, devices, or cosmetics;

30         6.  Suspension or revocation by a federal, state, or

31  local government of any permit currently or previously held by

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 1  the applicant for the manufacture or distribution of any

 2  drugs, devices, or cosmetics;

 3         7.  Compliance with permitting requirements under any

 4  previously granted permits;

 5         8.  Compliance with requirements to maintain or make

 6  available to the state permitting authority or to federal,

 7  state, or local law enforcement officials those records

 8  required under this section; and

 9         9.  Any other factors or qualifications the department

10  considers relevant to and consistent with the public health

11  and safety.

12         (3)  The department shall adopt rules for the annual

13  renewal of permits established under s. 499.012, except for

14  the compressed medical gases wholesaler permit, and for the

15  biennial renewal of the compressed medical gases permit and

16  other permits established under ss. 499.001-499.081.

17         (a)  The department shall renew a permit upon receipt

18  of the renewal application and renewal fee if the applicant

19  meets the requirements established under ss. 499.001-499.081

20  and the rules adopted under those sections.

21         (a)(b)  A permit, unless sooner suspended or revoked,

22  automatically expires 1 year after the last day of the

23  anniversary month in which a wholesaler permit was originally

24  issued or, in the case of other permits, 2 years after the

25  last day of the anniversary month in which the permit was

26  originally issued.  A permit issued under ss. 499.001-499.081

27  must be renewed by making application for renewal on forms

28  furnished by the department and paying the appropriate fees.

29  If a renewal application and fee are not submitted and

30  postmarked 90 days prior to by the expiration date of the

31  permit, the applicant must submit permit may be reinstated

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 1  only upon payment of a delinquent fee of $100, plus the

 2  required renewal fee, within 60 days after the expiration

 3  date.

 4         (b)(c)  A wholesaler that does not have an active

 5  permit must cease operating as a wholesaler until a valid and

 6  active permit is issued to the person at that establishment.

 7  Failure to renew a permit, other than a wholesaler permit in

 8  accordance with this section precludes any future renewal of

 9  that permit.  Continuing to engage in activities that require

10  a permit under ss. 499.001-499.081 after the expiration date

11  of the permit requires a new permit application and payment of

12  an application fee, initial permit fee, and applicable

13  penalties.

14         (4)  A permit issued by the department is

15  nontransferable.  Each permit is valid only for the person or

16  governmental unit to which it is issued and is not subject to

17  sale, assignment, or other transfer, voluntarily or

18  involuntarily; nor is a permit valid for any establishment

19  other than the establishment for which it was originally

20  issued.

21         (a)  A person permitted under ss. 499.001-499.081 must

22  notify the department before making a change of address.  The

23  department shall set a change of location fee not to exceed

24  $100.

25         (b)1.  An application for a new permit is required when

26  a majority of the ownership or controlling interest of a

27  permitted establishment is transferred or assigned or when a

28  lessee agrees to undertake or provide services to the extent

29  that legal liability for operation of the establishment will

30  rest with the lessee.  The application for the new permit must

31  

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 1  be made before the date of the sale, transfer, assignment, or

 2  lease.

 3         2.  A permittee that is authorized to distribute legend

 4  drugs may transfer such drugs to the new owner or lessee under

 5  subparagraph 1. only after the new owner or lessee has been

 6  approved for a permit to distribute legend drugs.

 7         (c)  The department shall deny, suspend, or revoke the

 8  permit of any person or establishment if the assignment, sale,

 9  transfer, or lease of an establishment permitted under ss.

10  499.001-499.081 will avoid an administrative penalty, civil

11  action, or criminal prosecution.

12         (c)(d)  If an establishment permitted under ss.

13  499.001-499.081 closes, the owner must notify the department

14  in writing before the effective date of closure and must:

15         1.  Return the permit to the department;

16         2.  If the permittee is authorized to distribute legend

17  drugs, indicate the disposition of such drugs, including the

18  name, address, and inventory, and provide the name and address

19  of a person to contact regarding access to records that are

20  required to be maintained under ss. 499.001-499.081.  Transfer

21  of ownership of legend drugs may be made only to persons

22  authorized to possess legend drugs under ss. 499.001-499.081.

23         (5)  A permit must be posted in a conspicuous place on

24  the licensed premise.

25         Section 6.  Subsections (1) and (2) of section 499.012,

26  Florida Statutes, are amended to read:

27         499.012  Wholesale distribution; definitions; permits;

28  general requirements.--

29         (1)  As used in this section, the term:

30  

31  

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 1         (a)  "Wholesale distribution" means distribution of

 2  prescription drugs to persons other than a consumer or

 3  patient, but does not include:

 4         1.  Any of the following activities, which is not a

 5  violation of s. 499.005(21) if such activity is conducted in

 6  accordance with s. 499.014:

 7         a.  The purchase or other acquisition by a hospital or

 8  other health care entity that is a member of a group

 9  purchasing organization of a prescription drug for its own use

10  from the group purchasing organization or from other hospitals

11  or health care entities that are members of that organization.

12         b.  The sale, purchase, or trade of a prescription drug

13  or an offer to sell, purchase, or trade a prescription drug by

14  a charitable organization described in s. 501(c)(3) of the

15  Internal Revenue Code of 1986, as amended and revised, to a

16  nonprofit affiliate of the organization to the extent

17  otherwise permitted by law.

18         c.  The sale, purchase, or trade of a prescription drug

19  or an offer to sell, purchase, or trade a prescription drug

20  among hospitals or other health care entities that are under

21  common control. For purposes of this section, "common control"

22  means the power to direct or cause the direction of the

23  management and policies of a person or an organization,

24  whether by ownership of stock, by voting rights, by contract,

25  or otherwise.

26         d.  The sale, purchase, trade, or other transfer of a

27  prescription drug from or for any federal, state, or local

28  government agency or any entity eligible to purchase

29  prescription drugs at public health services prices pursuant

30  to Pub. L. No. 102-585, s. 602 to a contract provider or its

31  

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 1  subcontractor for eligible patients of the agency or entity

 2  under the following conditions:

 3         (I)  The agency or entity must obtain written

 4  authorization for the sale, purchase, trade, or other transfer

 5  of a prescription drug under this sub-subparagraph from the

 6  Secretary of Health or his or her designee.

 7         (II)  The contract provider or subcontractor must be

 8  authorized by law to administer or dispense prescription

 9  drugs.

10         (III)  In the case of a subcontractor, the agency or

11  entity must be a party to and execute the subcontract.

12         (IV)  A contract provider or subcontractor must

13  maintain separate and apart from other prescription drug

14  inventory any prescription drugs of the agency or entity in

15  its possession.

16         (V)  The contract provider and subcontractor must

17  maintain and produce immediately for inspection all records of

18  movement or transfer of all the prescription drugs belonging

19  to the agency or entity, including, but not limited to, the

20  records of receipt and disposition of prescription drugs. Each

21  contractor and subcontractor dispensing or administering these

22  drugs must maintain and produce records documenting the

23  dispensing or administration. Records that are required to be

24  maintained include, but are not limited to, a perpetual

25  inventory itemizing drugs received and drugs dispensed by

26  prescription number or administered by patient identifier,

27  which must be submitted to the agency or entity quarterly.

28         (VI)  The contract provider or subcontractor may

29  administer or dispense the prescription drugs only to the

30  eligible patients of the agency or entity or must return the

31  prescription drugs for or to the agency or entity. The

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 1  contract provider or subcontractor must require proof from

 2  each person seeking to fill a prescription or obtain treatment

 3  that the person is an eligible patient of the agency or entity

 4  and must, at a minimum, maintain a copy of this proof as part

 5  of the records of the contractor or subcontractor required

 6  under sub-sub-subparagraph (V).

 7         (VII)  In addition to the departmental inspection

 8  authority set forth in s. 499.051, the establishment of the

 9  contract provider and subcontractor and all records pertaining

10  to prescription drugs subject to this sub-subparagraph shall

11  be subject to inspection by the agency or entity. All records

12  relating to prescription drugs of a manufacturer under this

13  sub-subparagraph shall be subject to audit by the manufacturer

14  of those drugs, without identifying individual patient

15  information.

16         2.  Any of the following activities, which is not a

17  violation of s. 499.005(21) if such activity is conducted in

18  accordance with rules established by the department:

19         a.  The sale, purchase, or trade of a prescription drug

20  among federal, state, or local government health care entities

21  that are under common control and are authorized to purchase

22  such prescription drug.

23         b.  The sale, purchase, or trade of a prescription drug

24  or an offer to sell, purchase, or trade a prescription drug

25  for emergency medical reasons. For purposes of this

26  sub-subparagraph, the term "emergency medical reasons"

27  includes transfers of prescription drugs by a retail pharmacy

28  to another retail pharmacy to alleviate a temporary shortage.

29         c.  The transfer of a prescription drug acquired by a

30  medical director on behalf of a licensed emergency medical

31  services provider to that emergency medical services provider

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 1  and its transport vehicles for use in accordance with the

 2  provider's license under chapter 401.

 3         d.  The revocation of a sale or the return of a

 4  prescription drug to the person's prescription drug wholesale

 5  supplier.

 6         e.  The donation of a prescription drug by a health

 7  care entity to a charitable organization that has been granted

 8  an exemption under s. 501(c)(3) of the Internal Revenue Code

 9  of 1986, as amended, and that is authorized to possess

10  prescription drugs.

11         f.  The transfer of a prescription drug by a person

12  authorized to purchase or receive prescription drugs to a

13  person licensed or permitted to handle reverse distributions

14  or destruction under the laws of the jurisdiction in which the

15  person handling the reverse distribution or destruction

16  receives the drug.

17         g.  The transfer of a prescription drug by a hospital

18  or other health care entity to a person licensed under this

19  chapter to repackage prescription drugs for the purpose of

20  repackaging the prescription drug for use by that hospital, or

21  other health care entity and other health care entities under

22  common control, if ownership of the prescription drug remains

23  with the hospital or other health care entity at all times. In

24  addition to the recordkeeping requirements of s. 499.0121(6),

25  the hospital or health care entity that transfers prescription

26  drugs pursuant to this sub-subparagraph must reconcile all

27  drugs transferred and returned, and resolve any discrepancies

28  in a timely manner.

29         3.  The distribution of prescription drug samples by

30  manufacturers' representatives or distributors'

31  representatives conducted in accordance with s. 499.028.

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 1         4.  The sale, purchase, or trade of blood and blood

 2  components intended for transfusion. As used in this

 3  subparagraph, the term "blood" means whole blood collected

 4  from a single donor and processed either for transfusion or

 5  further manufacturing, and the term "blood components" means

 6  that part of the blood separated by physical or mechanical

 7  means.

 8         5.  The lawful dispensing of a prescription drug in

 9  accordance with chapter 465.

10         (b)  "Wholesale distributor" means any person engaged

11  in wholesale distribution of prescription drugs in or into

12  this state, including, but not limited to, manufacturers;

13  repackers; own-label distributors; jobbers; private-label

14  distributors; brokers; warehouses, including manufacturers'

15  and distributors' warehouses, chain drug warehouses, and

16  wholesale drug warehouses; independent wholesale drug traders;

17  exporters; retail pharmacies; and the agents thereof that

18  conduct wholesale distributions.

19         (c)  "Retail pharmacy" means a community pharmacy

20  licensed under chapter 465 that purchases prescription drugs

21  at fair market prices and provides prescription services to

22  the public.

23         (2)  The following types of wholesaler permits are

24  established:

25         (a)  A prescription drug wholesaler's permit. A

26  prescription drug wholesaler is a wholesale distributor that

27  may engage in the wholesale distribution of prescription

28  drugs. A prescription drug wholesaler may not wholesale more

29  than 10 percent of its annual prescription drug acquisitions

30  in dollars, net of returns, to other prescription drug

31  wholesalers located in or outside this state which are not

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 1  members of the same affiliated group. A prescription drug

 2  wholesaler that submits an initial application or renewal

 3  application applies to the department after October 1, 2003

 4  January 1, 1993, must submit a performance bond or evidence of

 5  a performance bond of $100,000 for each application $200,

 6  payable to the Florida Drug, Device, and Cosmetic Trust Fund.

 7  The purpose of the bond is to secure payment of any

 8  administrative penalties imposed by the department, as well as

 9  and any fees or costs incurred by the department, regarding

10  that permit as authorized under state law. This bond will be

11  refunded to the permittee when the permit is returned to the

12  department and the permittee ceases to engage in prescription

13  drug wholesaling activities unless the function as a business.

14  A permittee that fails to notify the department before

15  changing the address of the business, fails to notify the

16  department before closing the business pursuant to s.

17  499.01(4)(d), or fails to notify the department before a

18  change of ownership or controlling interest, or fails to

19  provide records related to the wholesale distribution of

20  prescription drugs required by s. 499.0121(6) forfeits its

21  bond. The department may adopt rules for issuing a

22  prescription drug wholesaler-broker permit to a person who

23  engages in the wholesale distribution of prescription drugs

24  and does not take physical possession of any prescription

25  drugs. The department may also adopt rules for requiring

26  additional information from initial applicants and renewal

27  applicants, and minimum standards to assess their ownership,

28  experience, and financial viability for distributing

29  prescription drugs. These rules must include, but need not be

30  limited to:

31  

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 1         1.  Identifying information of an applicant and his or

 2  her spouse, children over 18 years of age, siblings, parents,

 3  siblings-in-law, and parents-in-law; and the business

 4  background concerning prescription drugs for each of these

 5  persons;

 6         2.  Designation of a representative who has

 7  demonstrated, through testing and certification standards

 8  established by rule, a minimum proficiency in the laws and

 9  rules related to the wholesale distribution of prescription

10  drugs as set forth in s. 499.0123;

11         3.  Information and supporting documentation regarding

12  the financing of the physical establishment, equipment, and

13  prescription drug inventory;

14         4.  Information regarding the dollar volume of

15  prescription drug wholesaling activities of the applicant and

16  those activities as a percentage of total operations for the

17  applicant's establishment;

18         5.  Information regarding the dollar volume of

19  purchases of prescription drugs directly from manufacturers;

20  and

21         6.  Names and addresses of all members comprising the

22  affiliated group, if applicable.

23  

24  An applicant must submit a complete set of fingerprints to the

25  department for the purpose of conducting a criminal history

26  record check of the applicant, but in the case of a

27  corporation, fingerprint cards must be submitted for the five

28  highest corporate officers and any person who participates in

29  administering or operating the prescription drug activities of

30  the applicant's establishment. The department shall submit the

31  fingerprints to the Department of Law Enforcement for a state

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 1  criminal background investigation and for forwarding to the

 2  Federal Bureau of Investigation for a national criminal

 3  history record check. The cost of the state and national

 4  criminal record check shall be borne by the applicant in

 5  addition to the permit application fee. The department shall

 6  adopt rules regarding the frequency of the submission of

 7  fingerprints and associated fees, which may not exceed the

 8  actual cost of processing by the Department of Law Enforcement

 9  and Federal Bureau of Investigation.

10         (b)  A compressed medical gas wholesaler's permit. A

11  compressed medical gas wholesaler is a wholesale distributor

12  that is limited to the wholesale distribution of compressed

13  medical gases to other than the consumer or patient. The

14  compressed medical gas must be in the original sealed

15  container that was purchased by that wholesaler. A compressed

16  medical gas wholesaler may not possess or engage in the

17  wholesale distribution of any prescription drug other than

18  compressed medical gases. The department shall adopt rules

19  that govern the wholesale distribution of prescription medical

20  oxygen for emergency use. With respect to the emergency use of

21  prescription medical oxygen, those rules may not be

22  inconsistent with rules and regulations of federal agencies

23  unless the Legislature specifically directs otherwise.

24         (c)  An out-of-state prescription drug wholesaler's

25  permit. An out-of-state prescription drug wholesaler is a

26  wholesale distributor located outside this state which engages

27  in the wholesale distribution of prescription drugs into this

28  state and which must be permitted by the department and comply

29  with all the provisions required of a wholesale distributor

30  under ss. 499.001-499.081, except those set forth in s.

31  499.0123. An out-of-state prescription drug wholesaler may not

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 1  wholesale more than 10 percent of its annual prescription drug

 2  acquisitions in dollars, net of returns, to prescription drug

 3  wholesalers located in or outside this state which are not

 4  members of the same affiliated group. An out-of-state

 5  prescription drug wholesaler that submits an initial

 6  application or renewal application to the department after

 7  October 1, 2003, must submit a performance bond or evidence of

 8  a performance bond of $100,000 for each application, payable

 9  to the Florida Drug, Device, and Cosmetic Trust Fund. The

10  purpose of the bond is to secure payment of any administrative

11  penalties imposed by the department, as well as any fees or

12  costs incurred by the department, regarding that permit as

13  authorized under state law. This bond shall be refunded to the

14  permittee when the permit is returned to the department and

15  the permittee ceases to engage in prescription drug

16  wholesaling activities, unless the permittee fails to notify

17  the department before closing the business pursuant to s.

18  499.01(4)(d), fails to notify the department before a change

19  of ownership or controlling interest, or fails to provide

20  records related to the wholesale distribution of prescription

21  drugs required by s. 499.0121(6). The department may also

22  adopt rules for requiring additional information from initial

23  applicants and renewal applicants to assess their ownership,

24  experience, and financial viability for distributing

25  prescription drugs as set forth in paragraph (a).

26         1.  An applicant must submit a complete set of

27  fingerprints to the department for the purpose of conducting a

28  criminal history record check of the applicant, but in the

29  case of a corporation, fingerprint cards must be submitted for

30  the five highest corporate officers and any person who

31  participates in administering or operating the prescription

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 1  drug activities of the applicant's establishment. The

 2  department shall submit the fingerprints to the Department of

 3  Law Enforcement for a state criminal background investigation

 4  and for forwarding to the Federal Bureau of Investigation for

 5  a national criminal history record check. The cost of the

 6  state and national criminal record check shall be borne by the

 7  applicant in addition to the permit application fee. The

 8  department shall adopt rules regarding the frequency of the

 9  submission of fingerprints and associated fees, which may not

10  exceed the actual cost of processing by the Department of Law

11  Enforcement and Federal Bureau of Investigation.

12         2.1.  The out-of-state drug wholesaler must maintain at

13  all times a license or permit to engage in the wholesale

14  distribution of prescription drugs in compliance with laws of

15  the state in which it is a resident.

16         2.  An out-of-state prescription drug wholesaler's

17  permit is not required for an intracompany sale or transfer of

18  a prescription drug from an out-of-state establishment that is

19  duly licensed as a prescription drug wholesaler, in its state

20  of residence, to a licensed prescription drug wholesaler in

21  this state, if both wholesalers are under common control. The

22  recordkeeping requirements of s. 499.0121(6) must be followed

23  for this transaction.

24         3.  The department may adopt rules that allow

25  out-of-state drug wholesalers to obtain a drug wholesale

26  permit on the basis of reciprocity to the extent that an

27  out-of-state drug wholesaler:

28         a.  Possesses a valid permit granted by another state

29  that has requirements comparable to those that a drug

30  wholesaler in this state must meet as prerequisites to

31  obtaining a permit under the laws of this state.

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 1         b.  Can show that the other state from which the

 2  wholesaler holds a permit would extend reciprocal treatment

 3  under its own laws to a drug wholesaler of this state.

 4         (d)  Nonresident prescription drug manufacturer. A

 5  nonresident prescription drug manufacturer is a manufacturer

 6  of prescription drugs or the distribution point for a

 7  manufacturer of prescription drugs located outside this state,

 8  an entity to whom an approved new drug application has been

 9  issued by the Federal Drug Administration, or a contracted

10  manufacturer of the approved new drug application holder

11  located out of the United States which engages in the

12  wholesale distribution of the prescription drugs it

13  manufactures or is responsible for manufacturing into this

14  state and which must be permitted by the department and comply

15  with all the provisions required of a wholesale distributor

16  under ss. 499.001-499.081, except s. 499.0121(6)(d). A person

17  who also distributes prescription drugs that it did not

18  manufacture must also obtain an out-of-state prescription drug

19  wholesaler permit pursuant to paragraph (b) to engage in the

20  wholesale distribution of the prescription drugs manufactured

21  by another person and must comply with the requirements of an

22  out-of-state prescription drug wholesaler.

23         1.  The nonresident manufacturer must comply with the

24  licensing or permitting requirements of the jurisdiction in

25  which the establishment is located and the federal act, and

26  any product wholesaled into this state must comply with ss.

27  499.001-499.081.

28         2.  If a nonresident manufacturer intends to import

29  from a foreign country into this state, the nonresident

30  prescription drug manufacturer must provide to the department

31  a list identifying each prescription drug it intends to import

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 1  and document approval by Federal Drug Administration for such

 2  importation.

 3         (e)(d)  A retail pharmacy wholesaler's permit. A retail

 4  pharmacy wholesaler is a retail pharmacy engaged in wholesale

 5  distribution of prescription drugs within this state under the

 6  following conditions:

 7         1.  The pharmacy must obtain a retail pharmacy

 8  wholesaler's permit pursuant to ss. 499.001-499.081 and the

 9  rules adopted under those sections.

10         2.  The wholesale distribution activity does not exceed

11  30 percent of the total annual purchases of prescription

12  drugs. If the wholesale distribution activity exceeds the

13  30-percent maximum, the pharmacy must obtain a prescription

14  drug wholesaler's permit.

15         3.  The transfer of prescription drugs that appear in

16  any schedule contained in chapter 893 is subject to chapter

17  893 and the federal Comprehensive Drug Abuse Prevention and

18  Control Act of 1970.

19         4.  The transfer is between a retail pharmacy and

20  another retail pharmacy, or a Modified Class II institutional

21  pharmacy, or a health care practitioner licensed in this state

22  and authorized by law to dispense or prescribe prescription

23  drugs.

24         5.  All records of sales of prescription drugs subject

25  to this section must be maintained separate and distinct from

26  other records and comply with the recordkeeping requirements

27  of ss. 499.001-499.081.

28         (f)  A freight forwarder's permit. A freight

29  forwarder's permit is required for any person that engages in

30  the distribution of a legend drug as a freight forwarder or

31  transporter unless the transporter is a common carrier.

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 1         1.  Storage, handling, and recordkeeping of these

 2  distributions must comply with the requirements for wholesale

 3  distributors under s. 499.0121, except those set forth in s.

 4  499.0121(6)(d). A freight forwarder must provide the source of

 5  the legend drugs with a validated airway bill, bill of lading,

 6  or other appropriate documentation to evidence the exportation

 7  of the product.

 8         2.  A person who applies for a permit as a freight

 9  forwarder, or for the renewal of such a permit, must provide

10  to the department the information required under s. 499.01.

11         Section 7.  Subsections (4) and (6) of section

12  499.0121, Florida Statutes, are amended, and subsection (11)

13  is added to that section, to read:

14         499.0121  Storage and handling of prescription drugs;

15  recordkeeping.--The department shall adopt rules to implement

16  this section as necessary to protect the public health,

17  safety, and welfare.  Such rules shall include, but not be

18  limited to, requirements for the storage and handling of

19  prescription drugs and for the establishment and maintenance

20  of prescription drug distribution records.

21         (4)  EXAMINATION OF MATERIALS AND RECORDS.--

22         (a)  Upon receipt, each outside shipping container must

23  be visually examined for identity and to prevent the

24  acceptance of contaminated prescription drugs that are

25  otherwise unfit for distribution. This examination must be

26  adequate to reveal container damage that would suggest

27  possible contamination or other damage to the contents.

28         (b)  Each outgoing shipment must be carefully inspected

29  for identity of the prescription drug products and to ensure

30  that there is no delivery of prescription drugs that have

31  

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 1  expired or been damaged in storage or held under improper

 2  conditions.

 3         (c)  The recordkeeping requirements in subsection (6)

 4  must be followed for all incoming and outgoing prescription

 5  drugs.

 6         (d)  Upon receipt, a wholesaler must review records

 7  required under this section for the acquisition of

 8  prescription drugs for accuracy and completeness.

 9         (e)  If a wholesaler documents that it has performed

10  the required examination for a particular purchase and the

11  results of the review did not disclose a reasonable suspicion

12  of adulterated or misbranded prescription drugs, but an

13  adulterated or misbranded prescription drug was acquired and

14  subsequently distributed, these facts shall be considered by

15  the department in mitigation of any administrative penalties;

16  however, the prescription drug may be subject to recall or

17  seizure or both. Repeat occurrences of adulterated or

18  misbranded drugs are grounds for the department to impose

19  penalties authorized under this chapter.

20         (6)  RECORDKEEPING.--The department shall adopt rules

21  that require keeping such records of prescription drugs as are

22  necessary for the protection of the public health.

23         (a)  Wholesale drug distributors must establish and

24  maintain inventories and records of all transactions regarding

25  the receipt and distribution or other disposition of

26  prescription drugs.  These records must provide a complete

27  audit trail from receipt to sale or other disposition, be

28  readily retrievable for inspection, and include, at a minimum,

29  the following information:

30  

31  

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 1         1.  The source of the drugs, including the name and

 2  principal address of the seller or transferor, and the address

 3  of the location from which the drugs were shipped;

 4         2.  The name, principal address, and state license

 5  permit or registration number of the person authorized to

 6  purchase prescription drugs;

 7         3.  The name, strength, dosage form, and quantity of

 8  the drugs received and distributed or disposed of; and

 9         4.  The dates of receipt and distribution or other

10  disposition of the drugs.

11         5.  Financial documentation supporting the transaction,

12  if applicable.

13         (b)  Inventories and records must be made available for

14  inspection and photocopying by authorized federal, state, or

15  local officials for a period of 2 years following disposition

16  of the drugs or 3 years after the date the drugs were created,

17  whichever period is longer.

18         (c)  Records described in this section that are kept at

19  the inspection site or that can be immediately retrieved by

20  computer or other electronic means must be readily available

21  for authorized inspection during the retention period.

22  Records that are kept at a central location outside of this

23  state and that are not electronically retrievable must be made

24  available for inspection within 2 working days after a request

25  by an authorized official of a federal, state, or local law

26  enforcement agency.  Records that are maintained at a central

27  location within this state must be maintained at an

28  establishment that is permitted pursuant to ss.

29  499.001-499.081 and must be readily available.

30         (d)1.  Any person who distributes a prescription drug

31  that he or she did not manufacture must provide at the time of

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 1  the distribution to each purchaser or recipient that is a

 2  wholesale distributor a written statement:

 3         a.  On the invoice or transfer document which states:

 4         (I)  If the establishment is not a member of an

 5  affiliated group, "This establishment purchased the specific

 6  unit(s) of the prescription drug(s) represented on this

 7  document directly from the manufacturer."

 8         (II)  If the establishment is a member of an affiliated

 9  group, "This establishment or a member of our affiliated group

10  that is licensed or permitted as a drug wholesaler purchased

11  the specific unit(s) of the prescription drug(s) represented

12  on this document directly from the manufacturer."

13         b.  That identifies each previous wholesale distributor

14  of that unit of the drug, beginning with the manufacturer of

15  the drug.

16         2.  For purposes of subsection (3), a repackager that

17  purchased a specific unit of prescription drug that it

18  repackages directly from the manufacturer must comply with

19  paragraph (3)(a). For purposes of subsection (3), a repackager

20  that does not obtain a specific unit of a prescription drug

21  that it repackages directly from the manufacturer must comply

22  with paragraph (3)(b).

23         3.(d)1.  Each person who is engaged in the wholesale

24  distribution of a prescription drug, and who is not an

25  authorized distributor of record of such drug, must provide to

26  each wholesale distributor of such drug, before the sale is

27  made to such wholesale distributor, a written statement

28  identifying each previous sale of the drug.  The written

29  statement identifying all sales of such drug must accompany

30  the drug for each subsequent wholesale distribution of the

31  

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 1  drug to a wholesale distributor. The department shall adopt

 2  rules relating to the requirements of this written statement.

 3         4.2.  Each wholesale distributor of prescription drugs

 4  must maintain separate and distinct from other required

 5  records all statements that are required under subparagraph 1.

 6         5.3.  In order to verify compliance with subparagraph

 7  1., each manufacturer of a prescription drug sold in this

 8  state must maintain at its corporate offices a current list of

 9  authorized distributors and must make such list available to

10  the department upon request distribution documentation

11  concerning its sales of prescription drugs, regardless of

12  whether the prescription drug was sold directly by the

13  manufacturer to a person in this state.

14  

15  For the purposes of this subsection, the term "authorized

16  distributors of record" means those distributors with whom a

17  manufacturer has established an ongoing relationship to

18  distribute the manufacturer's products.

19         (11)  SHIPPING AND TRANSPORTATION.--The person

20  responsible for shipment and transportation of a prescription

21  drug in a wholesale distribution may use a common carrier; its

22  own vehicle or employee acting within the scope of employment

23  if authorized under s. 499.03 for the possession of

24  prescription drugs in this state; or, in the case of a

25  prescription drug intended for domestic distribution, an

26  independent contractor who shall be the agent of the

27  authorized seller or recipient responsible for shipping and

28  transportation as set forth in a written contract between the

29  parties. A person selling a prescription drug for export must

30  obtain documentation, such as a validated airway bill, bill of

31  lading, or other appropriate documentation that the

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 1  prescription drug was exported. A person responsible for

 2  shipping or transporting prescription drugs is not required to

 3  maintain documentation from a common carrier that the

 4  designated recipient received the prescription drugs; however,

 5  the person must obtain such documentation from the common

 6  carrier and make it available to the department upon request

 7  of the department.

 8         Section 8.  Paragraph (a) of subsection (1) of section

 9  499.0122, Florida Statutes, is amended to read:

10         499.0122  Medical oxygen and veterinary legend drug

11  retail establishments; definitions, permits, general

12  requirements.--

13         (1)  As used in this section, the term:

14         (a)  "Medical oxygen retail establishment" means a

15  person licensed to sell medical oxygen to patients only.  The

16  sale must be based on an order from a practitioner authorized

17  by law to prescribe.  The term does not include a pharmacy

18  licensed under chapter 465.

19         1.  A medical oxygen retail establishment may not

20  possess, purchase, sell, or trade any legend drug other than

21  medical oxygen.

22         2.  A medical oxygen retail establishment may refill

23  medical oxygen for an individual patient based on an order

24  from a practitioner authorized by law to prescribe if the

25  establishment is also permitted as a compressed medical gases

26  manufacturer. A medical oxygen retail establishment that

27  refills medical oxygen must comply with all appropriate state

28  and federal good manufacturing practices.

29         Section 9.  Section 499.0123, Florida Statutes, is

30  created to read:

31  

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 1         499.0123  Designated representative; certification and

 2  general requirements.--

 3         (1)  An applicant for a prescription drug wholesaler

 4  permit shall designate at least one natural person to serve as

 5  the representative of the wholesaler. The designated

 6  representative must have an active certification from the

 7  department as a designated representative under this section.

 8         (2)  Upon receipt of an application on a form furnished

 9  by the department and submission of the appropriate fees, the

10  department may certify a person as a designated representative

11  for the purposes of this chapter under the following

12  conditions:

13         (a)  The person must provide verifiable evidence of at

14  least 1 year's experience in the management of a licensed

15  prescription drug wholesaler or licensed pharmacy where the

16  responsibilities included, but were not limited to,

17  recordkeeping for prescription drugs;

18         (b)  The person must have received a score of at least

19  75 percent on an examination given by the department or its

20  agent regarding federal and state drug laws and wholesaler

21  practices;

22         (c)  The person is at least 21 years of age; and

23         (d)  The person is of good moral character such that

24  his or her presence in a wholesale establishment does not

25  jeopardize the public health and the person does not have any

26  deficiencies under s. 499.067(1)(b)1.-11.

27         (3)  The designated representative must submit a

28  complete set of fingerprints to the department for the purpose

29  of conducting a criminal history record check for

30  certification and recertification. The department shall submit

31  the fingerprints to the Department of Law Enforcement for a

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 1  state criminal background investigation and for forwarding to

 2  the Federal Bureau of Investigation for a national criminal

 3  history record check. The cost of the state and national

 4  criminal record check shall be borne by the applicant in

 5  addition to the certification application fee. The department

 6  shall develop rules regarding the frequency of the submission

 7  of fingerprints and associated fees which may not exceed the

 8  actual cost of processing by the Department of Law Enforcement

 9  and Federal Bureau of Investigation.

10         (4)  The department may deny an application for

11  certification, or suspend or revoke a certification, under

12  this section based on the provisions in s. 499.067(1)(b)1.-11.

13         (5)  The natural person's certification is valid for 2

14  years unless the certification is suspended or revoked.

15         (6)  A representative of a wholesaler designated

16  pursuant to this section:

17         (a)  Must be actively involved in and aware of the

18  actual daily operation of the wholesaler;

19         (b)  Must be employed full time in a managerial

20  position with the wholesaler;

21         (c)  Must be physically present at the facility of the

22  wholesaler during regular business hours, except when the

23  absence of the representative is authorized, including sick

24  leave, vacation leave, and other authorized absences; and

25         (d)  May serve in this representative capacity for only

26  one applicant and permitted establishment at a time.

27         (7)  A wholesaler that is required to designate a

28  representative pursuant to this section may not open or

29  operate a facility unless that representative is actually

30  employed full time in the operation of the wholesaler and is

31  physically present at the permitted establishment of the

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 1  wholesaler during regular working hours, not including sick

 2  leave, vacation leave and other authorized absences from work.

 3  If the natural person designated as the representative of a

 4  wholesaler leaves the employ of the wholesaler, thus leaving

 5  the wholesaler without a representative in violation of this

 6  section, the wholesaler shall:

 7         (a)  Immediately cease conducting business in

 8  prescription drugs until another certified representative is

 9  employed and the wholesaler notifies the department in writing

10  of the identity of the new representative; and

11         (b)  Not later than 48 hours after that person leaves

12  its employ, notify the department that the person designated

13  as the representative of the wholesaler has left the employ of

14  the wholesaler.

15         (8)  Among other penalties authorized by law, a

16  wholesaler that operates without a representative in violation

17  of this section is subject to the immediate suspension of its

18  license until it employs a person certified under this section

19  to be its representative.

20         (9)  The department shall adopt rules for the

21  application content and process and for the testing required

22  under this section.

23         Section 10.  Paragraph (a) of subsection (2) of section

24  499.013, Florida Statutes, is amended to read:

25         499.013  Manufacturers of drugs, devices, and

26  cosmetics; definitions, permits, and general requirements.--

27         (2)  Any person that engages in the manufacture of

28  drugs, devices, or cosmetics in this state must first obtain

29  one of the following permits and may engage only in the

30  activity allowed under that permit:

31  

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 1         (a)  A prescription drug manufacturer's permit is

 2  required for any person that manufactures a prescription drug

 3  in this state; however, a person performing the manufacturing

 4  operations of repackaging prescription drugs must obtain a

 5  prescription drug repackager permit.

 6         1.  A person that operates an establishment permitted

 7  as a prescription drug manufacturer or prescription drug

 8  repackager may engage in wholesale distribution of

 9  prescription drugs manufactured at that establishment and must

10  comply with all the provisions of ss. 499.001-499.081 and the

11  rules adopted under those sections that apply to a wholesale

12  distributor.

13         2.  A prescription drug manufacturer permittee or

14  prescription drug repackager must comply with all appropriate

15  state and federal good manufacturing practices.

16         Section 11.  Section 499.041, Florida Statutes, is

17  amended to read:

18         499.041  Schedule of fees for drug, device, and

19  cosmetic applications and permits, product registrations, and

20  free-sale certificates.--

21         (1)  The department shall assess applicants requiring a

22  manufacturing permit an annual fee within the ranges

23  established in this section for the specific type of

24  manufacturer.

25         (a)  The fee for a prescription drug manufacturer's

26  permit may not be less than $500 or more than $600 annually.

27         (b)  The fee for a device manufacturer's permit may not

28  be less than $500 or more than $600 annually.

29         (c)  The fee for a cosmetic manufacturer's permit may

30  not be less than $250 or more than $400 annually.

31  

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 1         (d)  The fee for an over-the-counter drug

 2  manufacturer's permit may not be less than $300 or more than

 3  $400 annually.

 4         (e)  The fee for a compressed medical gas

 5  manufacturer's permit may not be less than $400 or more than

 6  $500 annually.

 7         (f)  The fee for a prescription drug repackager's

 8  permit may not be less than $600 or more than $750 annually.

 9         (g)(f)  A manufacturer may not be required to pay more

10  than one fee per establishment to obtain an additional

11  manufacturing permit, but each manufacturer must pay the

12  highest fee applicable to his or her operation in each

13  establishment.

14         (2)  The department shall assess an applicant that is

15  required to have a wholesaling permit an annual fee within the

16  ranges established in this section for the specific type of

17  wholesaling.

18         (a)  The fee for a prescription drug wholesaler's

19  permit may not be less than $750 $300 or more than $950 $400

20  annually;

21         (b)  The fee for a compressed medical gas wholesaler's

22  permit may not be less than $200 or more than $300 annually;

23         (c)  The fee for an out-of-state prescription drug

24  wholesaler's permit may not be less than $400 $200 or more

25  than $600 $300 annually;

26         (d)  The fee for a nonresident prescription drug

27  manufacturer's permit may not be less than $300 or more than

28  $500 annually; however, a nonresident prescription drug

29  manufacturer that distributes its prescription drugs from

30  multiple distribution establishments throughout the country

31  may obtain additional permits for each establishment

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 1  distributing the manufacturer's prescription drugs into this

 2  state under the manufacturer's name at a cost of $50 per

 3  additional establishment.

 4         (e)(d)  The fee for a retail pharmacy wholesaler's

 5  permit may not be less than $35 or more than $50 annually.

 6         (f)  The fee for a freight forwarder's permit may not

 7  be less than $200 or more than $300 annually.

 8         (3)  The department shall assess an applicant that is

 9  required to have a retail establishment permit an annual fee

10  within the ranges established in this section for the specific

11  type of retail establishment.

12         (a)  The fee for a veterinary legend drug retail

13  establishment permit may not be less than $200 or more than

14  $300 annually;

15         (b)  The fee for a medical oxygen retail establishment

16  permit may not be less than $200 or more than $300 annually.

17  However, a medical oxygen retail establishment permit shall be

18  issued to a compressed medical gases manufacturer or to a

19  compressed medical gases wholesaler at an annual cost of $25.

20         (4)  The department shall assess an applicant that is

21  required to have a restricted prescription drug distributor's

22  permit an annual fee of not less than $200 or more than $300.

23         (5)  In addition to the fee charged for a permit

24  required by ss. 499.001-499.081, beginning January 1, 1993,

25  the department shall assess applicants an initial application

26  fee of $150 for each new permit issued by the department which

27  requires an onsite inspection.

28         (6)  A person that is required to register drugs,

29  devices, or cosmetic products under s. 499.015 shall pay an

30  annual product registration fee of not less than $5 or more

31  than $15 for each separate and distinct product in package

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 1  form.  The registration fee is in addition to the fee charged

 2  for a free-sale certificate.

 3         (7)  The department shall assess an applicant that

 4  requests a free-sale certificate a fee of $25.  A fee of $2

 5  will be charged for each signature copy of a free-sale

 6  certificate that is obtained at the same time the free-sale

 7  certificate is issued.

 8         (8)  The department shall assess an out-of-state

 9  prescription drug wholesaler applicant or permittee an on-site

10  inspection fee of not less than $1,000 or more than $3,000

11  annually, to be based on the actual cost of the inspection, if

12  an on-site inspection is performed by agents of the

13  department.

14         (9)  The department shall assess a person applying for

15  certification as a wholesaler representative a fee of $150,

16  plus the cost of processing the criminal history record check.

17         (10)(8)  The department shall assess other fees as

18  provided in ss. 499.001-499.081.

19         Section 12.  Subsection (2) of section 499.051, Florida

20  Statutes, is amended, and subsection (6) is added to that

21  section, to read:

22         499.051  Inspections and investigations.--

23         (2)  In addition to the authority set forth in

24  subsection (1), the department and any duly designated officer

25  or employee of the department may enter and inspect any other

26  establishment for the purpose of determining compliance with

27  ss. 499.001-499.081 and rules adopted under those sections

28  regarding any drug, device, or cosmetic product. The authority

29  to enter and inspect does not extend to the practice of the

30  profession of pharmacy, as defined in chapter 465 and the

31  rules adopted under that chapter, in a pharmacy permitted

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 1  under chapter 465. The Department of Business and Professional

 2  Regulation shall conduct routine inspections of retail

 3  pharmacy wholesalers at the time of the regular pharmacy

 4  permit inspection and shall send the inspection report

 5  regarding drug wholesale activity to the Department of Health.

 6         (6)  The authority to inspect under this section

 7  includes the authority to access, review, and copy financial

 8  documents related to activity regulated under this chapter.

 9  The department shall maintain the confidentiality of financial

10  documents, other than invoices, accessed or copied and in the

11  possession of the department. This subsection does not

12  prohibit the department from using such information for

13  regulatory or enforcement proceedings under this chapter or

14  from providing such information to any law enforcement agency

15  or any other regulatory agency. However, the receiving agency

16  shall keep such records confidential as provided in this

17  subsection.

18         Section 13.  Subsection (7) is added to section

19  499.066, Florida Statutes, to read:

20         499.066  Penalties; remedies.--In addition to other

21  penalties and other enforcement provisions:

22         (7)  Resignation or termination of an affiliated party

23  does not affect the department's jurisdiction to proceed with

24  action to suspend or revoke a permit, impose other penalties,

25  or take other enforcement actions authorized by law.

26         Section 14.  Section 499.067, Florida Statutes, is

27  amended to read:

28         499.067  Denial, suspension, or revocation of permit,

29  certification, or registration.--

30         (1)(a)  The department may deny, suspend, or revoke a

31  permit if it finds that there has been a substantial failure

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 1  to comply with ss. 499.001-499.081 or chapter 465, chapter

 2  501, or chapter 893, the rules adopted under any of those

 3  sections or chapters, any final order of the department, or

 4  applicable federal laws or regulations or other state laws or

 5  rules governing drugs, devices, or cosmetics.

 6         (b)  The department may deny an application for a

 7  permit or certification if it is shown that:

 8         1.  The applicant is not of good moral character or

 9  that it would be a danger or not in the best interest of the

10  public health, safety, and welfare if the applicant were

11  issued a permit;.

12         2.  The applicant has not met the requirements for the

13  permit or certification;

14         3.  The applicant has been found guilty, regardless of

15  adjudication, in a court of this state or other jurisdiction,

16  of a violation of a law that directly relates to a drug,

17  device, or cosmetic. A plea of nolo contendere constitutes a

18  finding of guilt for purposes of this subparagraph;

19         4.  The applicant has been disciplined by a regulatory

20  agency in any state for any offense that would constitute a

21  violation of ss. 499.001-499.081;

22         5.  The applicant has a felony conviction under a

23  federal, state, or local law;

24         6.  The applicant's past experience in manufacturing or

25  distributing drugs, devices, or cosmetics poses a public

26  health risk;

27         7.  The applicant furnished false or fraudulent

28  material in any application made in connection with

29  manufacturing or distributing drugs, devices, or cosmetics;

30         8.  Any permit currently or previously held by the

31  applicant for the manufacture or distribution of any drugs,

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 1  devices, or cosmetics was suspended or revoked by a federal,

 2  state, or local government;

 3         9.  The applicant failed to comply with permitting

 4  requirements under any previously granted permits;

 5         10.  The applicant failed to comply with requirements

 6  to maintain or make available to the state permitting

 7  authority or to federal, state, or local law enforcement

 8  officials those records required under this chapter;

 9         11.  The applicant or any affiliated person of the

10  applicant has been arrested for a crime that is a felony and

11  the disposition of the charge is pending during the

12  application review period;

13         12.  The applicant is lacking in prescription drug

14  wholesaling experience;

15         13.  The applicant does not possess the financial or

16  physical resources to operate in compliance with this chapter

17  and the rules adopted under this chapter;

18         14.  The applicant receives directly or indirectly

19  financial support and assistance from a person who was an

20  affiliated person of a permit that authorized the wholesale

21  distribution of prescription drugs which was suspended or

22  revoked, other than through the ownership of stock in a

23  publicly traded company or a mutual fund;

24         15.  The applicant receives directly or indirectly

25  financial support and assistance from a person who has been

26  found guilty of any violation of ss. 499.001-499.081 or

27  chapter 465, chapter 501, or chapter 893, any rules adopted

28  under any of those sections or chapters, any federal or state

29  drug law, or any felony where the underlying facts related to

30  drugs, regardless of whether the person has been pardoned, had

31  her or his civil rights restored, or had adjudication

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 1  withheld, other than through the ownership of stock in a

 2  publicly traded company or a mutual fund;

 3         16.  The applicant for renewal of a permit under s.

 4  499.012(2)(a) or (c) has not actively engaged in the wholesale

 5  distribution of prescription drug as demonstrated by the

 6  regular and systematic distribution of prescription drugs

 7  throughout the year as evidenced by at least 12 transactions

 8  annually; or

 9         17.  Information obtained in response to s.

10  499.012(2)(a) or (c), demonstrates it would not be in the best

11  interest of the public health, safety, and welfare to issue

12  the applicant a permit.

13         (2)  The department may deny, suspend, or revoke any

14  registration required by the provisions of ss. 499.001-499.081

15  for the violation of any provision of ss. 499.001-499.081 or

16  of any rules adopted under those sections.

17         (3)  The department may revoke or suspend a permit:

18         (a)  If the permit was obtained by misrepresentation or

19  fraud or through a mistake of the department;

20         (b)  If the permit was procured, or attempted to be

21  procured, for any other person by making or causing to be made

22  any false representation; or

23         (c)  If the permittee has violated any provision of ss.

24  499.001-499.081 or rules adopted under those sections; or.

25         (d)  If a prescription drug wholesaler or out-of-state

26  prescription drug wholesaler permittee wholesales more than 10

27  percent of annual prescription drug purchases, net of returns,

28  to other wholesalers that are not members of the same

29  affiliated group.

30         (4)  If any permit issued under ss. 499.001-499.081 is

31  revoked or suspended, the owner, manager, operator, or

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 1  proprietor of the establishment shall cease to operate as the

 2  permit authorized, from the effective date of the suspension

 3  or revocation until the person is again registered with the

 4  department and possesses the required permit.  If a permit is

 5  revoked or suspended, the owner, manager, or proprietor shall

 6  remove all signs and symbols that identify the operation as

 7  premises permitted as a drug wholesaling establishment; drug,

 8  device, or cosmetic manufacturing establishment; or retail

 9  establishment.  The department shall determine the length of

10  time for which the permit is to be suspended.  If a permit is

11  revoked, the person that owns or operates the establishment

12  may not apply for any permit under ss. 499.001-499.081 for a

13  period of 1 year after the date of the revocation.  A

14  revocation of a permit may be permanent if the department

15  considers that to be in the best interest of the public

16  health.

17         (5)  The department may deny, suspend, or revoke a

18  permit issued under ss. 499.001-499.081 which authorizes the

19  permittee to purchase prescription drugs, if any owner,

20  officer, employee, or other person who participates in

21  administering or operating the establishment has been found

22  guilty of any violation of ss. 499.001-499.081 or chapter 465,

23  chapter 501, or chapter 893, any rules adopted under any of

24  those sections or chapters, or any federal or state drug law,

25  regardless of whether the person has been pardoned, had her or

26  his civil rights restored, or had adjudication withheld.

27         (6)  The department shall deny, suspend, or revoke the

28  permit of any person or establishment if the assignment, sale,

29  transfer, or lease of an establishment permitted under ss.

30  499.001-499.081 will avoid an administrative penalty, civil

31  action, or criminal prosecution.

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 1         (7)  Section 120.60(5) to the contrary notwithstanding

 2  and pursuant to s. 499.01(4), the department is not required

 3  to publish notice of the intended agency action to revoke a

 4  permit and of the opportunity for hearing in a newspaper if

 5  the person moved or ceased operations but did not notify the

 6  department and the department mailed a certified letter to the

 7  most recent mailing address on record with the department and

 8  to the registered agent listed by the Division of Corporations

 9  for the permittee, but service was not accomplished.

10         Section 15.  Section 499.069, Florida Statutes, is

11  amended to read:

12         499.069  Punishment for violations of s. 499.005;

13  dissemination of false advertisement.--

14         (1)  Any person who violates any of the provisions of

15  s. 499.005 with respect to a device or cosmetic commits is

16  guilty of a misdemeanor of the second degree, punishable as

17  provided in s. 775.082 or s. 775.083; but, if the violation is

18  committed after a conviction of such person under this section

19  has become final, such person commits is guilty of a

20  misdemeanor of the first degree, punishable as provided in s.

21  775.082 or s. 775.083 or as otherwise provided in ss.

22  499.001-499.081, except that any person who violates

23  subsection (8) or, subsection (10), subsection (14),

24  subsection (15), or subsection (17) of s. 499.005 with respect

25  to a device or cosmetic commits is guilty of a felony of the

26  third degree, punishable as provided in s. 775.082, s.

27  775.083, or s. 775.084, or as otherwise provided in ss.

28  499.001-499.081.

29         (2)  Any person who violates any of the provisions of

30  s. 499.005 with respect to a drug commits a felony of the

31  third degree, punishable as provided in s. 775.082, s.

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 1  775.083, or s. 775.084, or as otherwise provided in ss.

 2  499.001-499.081. A person is not subject to the penalties of

 3  subsection (1) for having violated any of the provisions of s.

 4  499.005 if he or she establishes a guaranty or undertaking,

 5  which guaranty or undertaking is signed by and contains the

 6  name and address of the person residing in the state, or the

 7  manufacturer, from whom he or she received the article in good

 8  faith, to the effect that such article is not adulterated or

 9  misbranded within the meaning of ss. 499.001-499.081, citing

10  such sections.

11         (3)  A publisher, radio broadcast licensee, or agency

12  or medium for the dissemination of an advertisement, except

13  the manufacturer, wholesaler, or seller of the article to

14  which a false advertisement relates, is not liable under this

15  section by reason of the dissemination by him or her of such

16  false advertisement, unless he or she has refused, on the

17  request of the department, to furnish to the department the

18  name and post office address of the manufacturer, wholesaler,

19  seller, or advertising agency that asked him or her to

20  disseminate such advertisement.

21         Section 16.  The Department of Health shall form a Drug

22  Wholesaler Advisory Board to meet at least annually, for the

23  purpose of reviewing and providing input into the drug

24  wholesaler licensing requirements and process, and to advise

25  the department on issues affecting the wholesale distribution

26  of drugs within or into this state.

27         (1)  The Secretary of Health shall appoint members to

28  the board as follows:

29         (a)  Two persons representing prescription drug

30  wholesalers;

31  

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 1         (b)  One person representing prescription drug

 2  manufacturers;

 3         (c)  One person representing pharmacies in this state;

 4         (d)  One person from the Agency for Health Care

 5  Administration; and

 6         (e)  Two persons from the Department of Health.

 7         (2)  Members shall be appointed to 4-year terms and may

 8  be reappointed.

 9         (3)  The members shall elect a chair among the members

10  of the board who shall serve for 1 year or until a successor

11  is elected.

12         (4)  The members of the advisory committee shall serve

13  without compensation, but are entitled to reimbursement for

14  travel and per diem expenses as provided in section 112.061,

15  Florida Statutes, while in the performance of their official

16  duties.

17         Section 17.  If any provision of this act or its

18  application to any person or circumstance is held invalid, the

19  invalidity does not affect other provisions or applications of

20  the act which can be given effect without the invalid

21  provision or application, and to this end the provisions of

22  this act are severable.

23         Section 18.  This act shall take effect July 1, 2003.

24  

25            *****************************************

26                          SENATE SUMMARY

27    Revises various provisions of the Florida Drug and
      Cosmetic Act. Provides for the regulation of prescription
28    drug repackagers, nonresident prescription drug
      manufacturers, and freight forwarders. Revises permit
29    requirements for prescription drug wholesalers. Increases
      permit and certification fees. Provides enhanced
30    penalties for certain violations. Establishes the Drug
      Wholesale Advisory Board. (See bill for details.)
31  

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