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LEGISLATURE OF NEBRASKA
ONE HUNDRED SIXTH LEGISLATURE
FIRST SESSION
LEGISLATIVE BILL 659
Introduced by Wayne, 13.
Read first time January 23, 2019
Committee: Judiciary
1 A BILL FOR AN ACT relating to the Uniform Controlled Substances Act; to
2 amend section 28-467, Reissue Revised Statutes of Nebraska, and
3 sections 28-401 and 28-405, Revised Statutes Cumulative Supplement,
4 2018; to define a term; to remove cannabidiol from the definition of
5 marijuana; to remove cannabidiol from the list of controlled
6 substances; to eliminate an affirmative defense to unlawful
7 possession of marijuana; to harmonize provisions; and to repeal the
8 original sections.
9 Be it enacted by the people of the State of Nebraska,
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1 Section 1. Section 28-401, Revised Statutes Cumulative Supplement,
2 2018, is amended to read:
3 28-401 As used in the Uniform Controlled Substances Act, unless the
4 context otherwise requires:
5 (1) Administer means to directly apply a controlled substance by
6 injection, inhalation, ingestion, or any other means to the body of a
7 patient or research subject;
8 (2) Agent means an authorized person who acts on behalf of or at the
9 direction of another person but does not include a common or contract
10 carrier, public warehouse keeper, or employee of a carrier or warehouse
11 keeper;
12 (3) Administration means the Drug Enforcement Administration of the
13 United States Department of Justice;
14 (4) Cannabidiol means processed cannabis plant extract, oil, or
15 resin that contains more than ten percent cannabidiol by weight, but not
16 more than three-tenths of one percent tetrahydrocannabinols by weight,
17 and delivered in the form of a liquid or solid dosage form, regardless of
18 whether or not the cannabidiol is contained in a drug product approved by
19 the federal Food and Drug Administration or obtained pursuant to sections
20 28-463 to 28-468;
21 (5) (4) Controlled substance means a drug, biological, substance, or
22 immediate precursor in Schedules I through V of section 28-405.
23 Controlled substance does not include distilled spirits, wine, malt
24 beverages, tobacco, or any nonnarcotic substance if such substance may,
25 under the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. 301 et seq., as
26 such act existed on January 1, 2014, and the law of this state, be
27 lawfully sold over the counter without a prescription, or cannabidiol;
28 (6) (5) Counterfeit substance means a controlled substance which, or
29 the container or labeling of which, without authorization, bears the
30 trademark, trade name, or other identifying mark, imprint, number, or
31 device, or any likeness thereof, of a manufacturer, distributor, or
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1 dispenser other than the person or persons who in fact manufactured,
2 distributed, or dispensed such substance and which thereby falsely
3 purports or is represented to be the product of, or to have been
4 distributed by, such other manufacturer, distributor, or dispenser;
5 (7) (6) Department means the Department of Health and Human
6 Services;
7 (8) (7) Division of Drug Control means the personnel of the Nebraska
8 State Patrol who are assigned to enforce the Uniform Controlled
9 Substances Act;
10 (9) (8) Dispense means to deliver a controlled substance to an
11 ultimate user or a research subject pursuant to a medical order issued by
12 a practitioner authorized to prescribe, including the packaging,
13 labeling, or compounding necessary to prepare the controlled substance
14 for such delivery;
15 (10) (9) Distribute means to deliver other than by administering or
16 dispensing a controlled substance;
17 (11) (10) Prescribe means to issue a medical order;
18 (12) (11) Drug means (a) articles recognized in the official United
19 States Pharmacopoeia, official Homeopathic Pharmacopoeia of the United
20 States, official National Formulary, or any supplement to any of them,
21 (b) substances intended for use in the diagnosis, cure, mitigation,
22 treatment, or prevention of disease in human beings or animals, and (c)
23 substances intended for use as a component of any article specified in
24 subdivision (a) or (b) of this subdivision, but does not include devices
25 or their components, parts, or accessories;
26 (13) (12) Deliver or delivery means the actual, constructive, or
27 attempted transfer from one person to another of a controlled substance,
28 whether or not there is an agency relationship;
29 (14)(a) (13) Marijuana means all parts of the plant of the genus
30 cannabis, whether growing or not, the seeds thereof, and every compound,
31 manufacture, salt, derivative, mixture, or preparation of such plant or
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1 its seeds. , but
2 (b) Marijuana does not include the mature stalks of such plant,
3 hashish, tetrahydrocannabinols extracted or isolated from the plant,
4 fiber produced from such stalks, oil or cake made from the seeds of such
5 plant, any other compound, manufacture, salt, derivative, mixture, or
6 preparation of such mature stalks, the sterilized seed of such plant
7 which is incapable of germination, or cannabidiol contained in a drug
8 product approved by the federal Food and Drug Administration or obtained
9 pursuant to sections 28-463 to 28-468.
10 (c) When the weight of marijuana is referred to in the Uniform
11 Controlled Substances Act, it means its weight at or about the time it is
12 seized or otherwise comes into the possession of law enforcement
13 authorities, whether cured or uncured at that time.
14 (d) When industrial hemp as defined in section 2-5701 is in the
15 possession of a person as authorized under section 2-5701, it is not
16 considered marijuana for purposes of the Uniform Controlled Substances
17 Act;
18 (15) (14) Manufacture means the production, preparation,
19 propagation, conversion, or processing of a controlled substance, either
20 directly or indirectly, by extraction from substances of natural origin,
21 independently by means of chemical synthesis, or by a combination of
22 extraction and chemical synthesis, and includes any packaging or
23 repackaging of the substance or labeling or relabeling of its container.
24 Manufacture does not include the preparation or compounding of a
25 controlled substance by an individual for his or her own use, except for
26 the preparation or compounding of components or ingredients used for or
27 intended to be used for the manufacture of methamphetamine, or the
28 preparation, compounding, conversion, packaging, or labeling of a
29 controlled substance: (a) By a practitioner as an incident to his or her
30 prescribing, administering, or dispensing of a controlled substance in
31 the course of his or her professional practice; or (b) by a practitioner,
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1 or by his or her authorized agent under his or her supervision, for the
2 purpose of, or as an incident to, research, teaching, or chemical
3 analysis and not for sale;
4 (16) (15) Narcotic drug means any of the following, whether produced
5 directly or indirectly by extraction from substances of vegetable origin,
6 independently by means of chemical synthesis, or by a combination of
7 extraction and chemical synthesis: (a) Opium, opium poppy and poppy
8 straw, coca leaves, and opiates; (b) a compound, manufacture, salt,
9 derivative, or preparation of opium, coca leaves, or opiates; or (c) a
10 substance and any compound, manufacture, salt, derivative, or preparation
11 thereof which is chemically equivalent to or identical with any of the
12 substances referred to in subdivisions (a) and (b) of this subdivision,
13 except that the words narcotic drug as used in the Uniform Controlled
14 Substances Act does not include decocainized coca leaves or extracts of
15 coca leaves, which extracts do not contain cocaine or ecgonine, or
16 isoquinoline alkaloids of opium;
17 (17) (16) Opiate means any substance having an addiction-forming or
18 addiction-sustaining liability similar to morphine or being capable of
19 conversion into a drug having such addiction-forming or addiction-
20 sustaining liability. Opiate does not include the dextrorotatory isomer
21 of 3-methoxy-n methylmorphinan and its salts. Opiate includes its racemic
22 and levorotatory forms;
23 (18) (17) Opium poppy means the plant of the species Papaver
24 somniferum L., except the seeds thereof;
25 (19) (18) Poppy straw means all parts, except the seeds, of the
26 opium poppy after mowing;
27 (20) (19) Person means any corporation, association, partnership,
28 limited liability company, or one or more persons;
29 (21) (20) Practitioner means a physician, a physician assistant, a
30 dentist, a veterinarian, a pharmacist, a podiatrist, an optometrist, a
31 certified nurse midwife, a certified registered nurse anesthetist, a
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1 nurse practitioner, a scientific investigator, a pharmacy, a hospital, or
2 any other person licensed, registered, or otherwise permitted to
3 distribute, dispense, prescribe, conduct research with respect to, or
4 administer a controlled substance in the course of practice or research
5 in this state, including an emergency medical service as defined in
6 section 38-1207;
7 (22) (21) Production includes the manufacture, planting,
8 cultivation, or harvesting of a controlled substance;
9 (23) (22) Immediate precursor means a substance which is the
10 principal compound commonly used or produced primarily for use and which
11 is an immediate chemical intermediary used or likely to be used in the
12 manufacture of a controlled substance, the control of which is necessary
13 to prevent, curtail, or limit such manufacture;
14 (24) (23) State means the State of Nebraska;
15 (25) (24) Ultimate user means a person who lawfully possesses a
16 controlled substance for his or her own use, for the use of a member of
17 his or her household, or for administration to an animal owned by him or
18 her or by a member of his or her household;
19 (26) (25) Hospital has the same meaning as in section 71-419;
20 (27) (26) Cooperating individual means any person, other than a
21 commissioned law enforcement officer, who acts on behalf of, at the
22 request of, or as agent for a law enforcement agency for the purpose of
23 gathering or obtaining evidence of offenses punishable under the Uniform
24 Controlled Substances Act;
25 (28) (27) Hashish or concentrated cannabis means (a) the separated
26 resin, whether crude or purified, obtained from a plant of the genus
27 cannabis or (b) any material, preparation, mixture, compound, or other
28 substance which contains ten percent or more by weight of
29 tetrahydrocannabinols. When resins extracted from industrial hemp as
30 defined in section 2-5701 are in the possession of a person as authorized
31 under section 2-5701, they are not considered hashish or concentrated
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1 cannabis for purposes of the Uniform Controlled Substances Act;
2 (29) (28) Exceptionally hazardous drug means (a) a narcotic drug,
3 (b) thiophene analog of phencyclidine, (c) phencyclidine, (d)
4 amobarbital, (e) secobarbital, (f) pentobarbital, (g) amphetamine, or (h)
5 methamphetamine;
6 (30) (29) Imitation controlled substance means a substance which is
7 not a controlled substance or controlled substance analogue but which, by
8 way of express or implied representations and consideration of other
9 relevant factors including those specified in section 28-445, would lead
10 a reasonable person to believe the substance is a controlled substance or
11 controlled substance analogue. A placebo or registered investigational
12 drug manufactured, distributed, possessed, or delivered in the ordinary
13 course of practice or research by a health care professional shall not be
14 deemed to be an imitation controlled substance;
15 (31)(a) (30)(a) Controlled substance analogue means a substance (i)
16 the chemical structure of which is substantially similar to the chemical
17 structure of a Schedule I or Schedule II controlled substance as provided
18 in section 28-405 or (ii) which has a stimulant, depressant, analgesic,
19 or hallucinogenic effect on the central nervous system that is
20 substantially similar to or greater than the stimulant, depressant,
21 analgesic, or hallucinogenic effect on the central nervous system of a
22 Schedule I or Schedule II controlled substance as provided in section
23 28-405. A controlled substance analogue shall, to the extent intended for
24 human consumption, be treated as a controlled substance under Schedule I
25 of section 28-405 for purposes of the Uniform Controlled Substances Act;
26 and
27 (b) Controlled substance analogue does not include (i) a controlled
28 substance, (ii) any substance generally recognized as safe and effective
29 within the meaning of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C.
30 301 et seq., as such act existed on January 1, 2014, (iii) any substance
31 for which there is an approved new drug application, or (iv) with respect
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1 to a particular person, any substance if an exemption is in effect for
2 investigational use for that person, under section 505 of the Federal
3 Food, Drug, and Cosmetic Act, 21 U.S.C. 355, as such section existed on
4 January 1, 2014, to the extent conduct with respect to such substance is
5 pursuant to such exemption;
6 (32) (31) Anabolic steroid means any drug or hormonal substance,
7 chemically and pharmacologically related to testosterone (other than
8 estrogens, progestins, and corticosteroids), that promotes muscle growth
9 and includes any controlled substance in Schedule III(d) of section
10 28-405. Anabolic steroid does not include any anabolic steroid which is
11 expressly intended for administration through implants to cattle or other
12 nonhuman species and has been approved by the Secretary of Health and
13 Human Services for such administration, but if any person prescribes,
14 dispenses, or distributes such a steroid for human use, such person shall
15 be considered to have prescribed, dispensed, or distributed an anabolic
16 steroid within the meaning of this subdivision;
17 (33) (32) Chart order means an order for a controlled substance
18 issued by a practitioner for a patient who is in the hospital where the
19 chart is stored or for a patient receiving detoxification treatment or
20 maintenance treatment pursuant to section 28-412. Chart order does not
21 include a prescription;
22 (34) (33) Medical order means a prescription, a chart order, or