Section 1: Definitions
Section 1. As used in this chapter, the following words shall, unless the context clearly requires otherwise, have the following meanings:
"Administer'', the direct application of a controlled substance whether by injection, inhalation, ingestion, or any other means to the body of a patient or research subject by--
(a) a practitioner, or
(b) a nurse at the direction of a practitioner in the course of his professional practice, or
(c) an ultimate user or research subject at the direction of a practitioner in the course of his professional practice.
"Agent'', an authorized person who acts on behalf of or at the direction of a manufacturer, distributor, or dispenser; except that such term does not include a common or contract carrier, public warehouseman, or employee of the carrier or warehouseman, when acting in the usual and lawful course of the carrier's or warehouseman's business.
"Bureau'', the Bureau of Narcotics and Dangerous Drugs, United States Department of Justice, or its successor agency.
"Class'', the lists of controlled substances for the purpose of determining the severity of criminal offenses under this chapter.
"Commissioner'', the commissioner of public health.
"Controlled substance'', a drug, substance, controlled substance analogue or immediate precursor in any schedule or class referred to in this chapter.
"Controlled substance analogue'', (i) a drug or substance with a chemical structure substantially similar to the chemical structure of a controlled substance in Class A, B, C, D or E, listed in section 31 and which has a stimulant, depressant or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant or hallucinogenic effect on the central nervous system of a controlled substance in Class A, B, C, D or E, listed in said section 31; or (ii) a drug or substance with a chemical structure substantially similar to the chemical structure of a controlled substance in Class A, B, C, D or E, listed in said section 31 and with respect to a particular person, which such person represents or intends to have a stimulant, depressant or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant or hallucinogenic effect on the central nervous system of a controlled substance in Class A, B, C, D or E, listed in said section 31; provided, however, that "controlled substance analogue'' shall not include: (1) a controlled substance; (2) any substance for which there is an approved new drug application; (3) with respect to a particular person, any substance for which there is an exception in effect for investigational use for that person, under section 8, to the extent conduct with respect to the substance is pursuant to such exemption; or (4) any substance not intended for human consumption before such an exemption takes effect with respect to that substance; provided, however, that for the purposes of this chapter, a "controlled substance analogue'' shall be treated as the Class A, B, C, D or E substance of which it is a controlled substance analogue.
"Counterfeit substance'', a substance which is represented to be a particular controlled drug or substance, but which is in fact not that drug or substance.
"Deliver'', to transfer, whether by actual or constructive transfer, a controlled substance from one person to another, whether or not there is an agency relationship.
"Department'', the department of public health.
"Depressant or stimulant substance'',
(a) a drug which contains any quantity of barbituric acid or any of the salts of barbituric acid; or any derivative of barbituric acid which the United States Secretary of Health, Education, and Welfare has by regulation designated as habit forming; or
(b) a drug which contains any quantity of amphetamine or any of its optical isomers; any salt of amphetamine or any salt of an optical isomer of amphetamine; or any substance which the United States Attorney General has by regulation designated as habit forming because of its stimulant effect on the central nervous system; or
(c) lysergic acid diethylamide; or
(d) any drug except marihuana which contains any quantity of a substance which the United States Attorney General has by regulation designated as having a potential for abuse because of its depressant or stimulant effect on the central nervous system or its hallucinogenic effect.
"Dispense'', to deliver a controlled substance to an ultimate user or research subject or to the agent of an ultimate user or research subject by a practitioner or pursuant to the order of a practitioner, including the prescribing and administering of a controlled substance and the packaging, labeling, or compounding necessary for such delivery.
"Distribute'', to deliver other than by administering or dispensing a controlled substance.
(a) substances recognized as drugs in the official United States Pharmacopoeia, official Homeopathic Pharmacopoeia of the United States, or official National Formulary, or any supplement to any of them;
(b) substances intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or animals;
(c) substances, other than food, intended to affect the structure, or any function of the body of man and animals; or
(d) substances intended for use as a component of any article specified in clauses (a), (b) or (c), exclusive of devices or their components, parts or accessories.
"Drug paraphernalia'', all equipment, products, devices and materials of any kind which are primarily intended or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, ingesting, inhaling or otherwise introducing into the human body a controlled substance in violation of this chapter. It includes, but is not limited to:
(1) kits used, primarily intended for use or designed for use in planting, propagating, cultivating, growing or harvesting of any species of plant which is a controlled substance or from which a controlled substance can be derived;
(2) kits used, primarily intended for use or designed for use in manufacturing, compounding, converting, producing, processing or preparing controlled substances;
(3) isomerization devices used, primarily intended for use or designed for use in increasing the potency of any species of plant which is a controlled substance;
(4) testing equipment used, primarily intended for use or designed for use in identifying or in analyzing the strength, effectiveness or purity of controlled substances;
(5) scales and balances used, primarily intended for use or designed for use in weighing or measuring controlled substances;
(6) diluents and adulterants, such as quinine hydrochloride, mannitol, mannite, dextrose and lactose, used, primarily intended for use or designed for use in cutting controlled substances;
(7) separation gins and sifters used, primarily intended for use or designed for use in removing twigs and seeds from or in otherwise cleaning or refining marihuana;
(8) blenders, bowls, containers, spoons and mixing devices used, primarily intended for use or designed for use in compounding controlled substances;
(9) capsules, balloons, envelopes and other containers used, primarily intended for use or designed for use in packaging small quantities of controlled substances;
(10) containers and other objects used, primarily intended for use or designed for use in storing or concealing controlled substances;
(12) objects used, primarily intended for use or designed for use in ingesting, inhaling, or otherwise introducing marihuana, cocaine, hashish or hashish oil into the human body, such as:
(a) metal, wooden, acrylic, glass, stone, plastic or ceramic pipes, which pipes may or may not have screens, permanent screens, hashish heads or punctured metal bowls;
(b) water pipes;
(c) carburetion tubes and devices;
(d) smoking and carburetion masks;
(e) roach clips; meaning objects used to hold burning material, such as a marihuana cigarette that has become too small or too short to be held in the hand;
(f) miniature cocaine spoons and cocaine vials;
(g) chamber pipes;
(h) carburetor pipes;
(i) electric pipes;
(j) air-driven pipes;
(m) ice pipes or chillers;
(n) wired cigarette papers;
(o) cocaine freebase kits.
In determining whether an object is drug paraphernalia, a court or other authority should consider, in addition to all other logically relevant factors, the following:
(a) the proximity of the object, in time and space, to a direct violation of this chapter;
(b) the proximity of the object to controlled substances;
(c) the existence of any residue of controlled substances on the object;
(d) instructions, oral or written, provided with the object concerning its use;
(e) descriptive materials accompanying the object which explain or depict its use;
(f) national and local advertising concerning its use;
(g) the manner in which the object is displayed for sale;
(h) whether the owner, or anyone in control of the object, is a supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products;
(i) direct or circumstantial evidence of the ratio of sales of the object to the total sales of the business enterprise;
(j) the existence and scope of legitimate uses for the object in the community;
(k) expert testimony concerning its use.
For purposes of this definition, the phrase "primarily intended for use'' shall mean the likely use which may be ascribed to an item by a reasonable person. For purposes of this definition, the phrase "designed for use'' shall mean the use a reasonable person would ascribe to an item based on the design and features of said item.
[ Definition of "Extended-release long-acting opioid in a non-abuse deterrent form'' inserted following the definition of "Drug paraphernalia'' by 2016, 52, Sec. 19 effective March 14, 2016.]
"Extended-release long-acting opioid in a non-abuse deterrent form'', a drug that is: (i) subject to the United States Food and Drug Administration's extended release and long-acting opioid analgesics risk evaluation and mitigation strategy; (ii) an opioid approved for medical use that does not meet the requirements for listing as a drug with abuse deterrent properties pursuant to section 13 of chapter 17; and (iii) identified by the drug formulary commission pursuant to said section 13 of said chapter 17 as posing a heightened level of public health risk.
"Immediate precursor'', a substance which the commissioner has found to be and by rule designates as being a principal compound commonly used or produced primarily for use, and which is an immediate chemical intermediary used or likely to be used in the manufacture of a controlled substance, the control of which is necessary to prevent, curtail, or limit manufacture.
"Isomer'', the optical isomer, except that wherever appropriate it shall mean the optical, position or geometric isomer.
"Manufacture'', the production, preparation, propagation, compounding, conversion or processing of a controlled substance, either directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis, including any packaging or repackaging of the substance or labeling or relabeling of its container except that this term does not include the preparation or compounding of a controlled substance by an individual for his own use or the preparation, compounding, packaging, or labeling of a controlled substance:
(a) by a practitioner as an incident to his administering a controlled substance in the course of his professional practice, or
(b) by a practitioner, or by his authorized agent under his supervision, for the purpose of, or as an incident to, research, teaching or chemical analysis and not for sale, or
(c) by a pharmacist in the course of his professional practice.
"Marihuana'', all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; and resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin. It does not include the mature stalks of the plant, fiber produced from the stalks, oil, or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, except the resin extracted therefrom, fiber, oil, or cake or the sterilized seed of the plant which is incapable of germination.
"Narcotic drug'', any of the following, whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis:
(a) Opium and opiate, and any salt, compound, derivative, or preparation of opium or opiate;
(b) Any salt, compound, isomer, derivative, or preparation thereof which is chemically equivalent or identical with any of the substances referred to in clause (a), but not including the isoquinoline alkaloids of opium;
(c) Opium poppy and poppy straw;
(d) Coca leaves and any salt, compound, derivative, or preparation of coca leaves, and any salt, compound, isomer, derivative, or preparation thereof which is chemically equivalent or identical with any of these substances, but not including decocainized coca leaves or extractions of coca leaves which do not contain cocaine or ecgonine.
"Nuclear pharmacy'', a facility under the direction or supervision of a registered pharmacist which is authorized by the board of registration in pharmacy to dispense radiopharmaceutical drugs.
"Nurse'', a nurse registered or licensed pursuant to the provisions of section seventy-four or seventy-four A of chapter one hundred and twelve, a graduate nurse as specified in section eighty-one of said chapter one hundred and twelve or a student nurse enrolled in a school approved by the board of registration in nursing.
"Nurse anesthetist'', a nurse with advanced training authorized to practice by the board of registration in nursing as a nurse anesthetist in an advanced practice nursing role as provided in section 80B of chapter 112.
"Nurse practitioner'', a nurse with advanced training who is authorized to practice by the board of registration in nursing as a nurse practitioner, as provided for in section eighty B of chapter one hundred and twelve.
"Opiate'', any substance having an addiction-forming or addiction-sustaining liability similar to morphine or being capable of conversion into a drug having addiction-forming or addiction-sustaining liability. It does not include, unless specifically designated as controlled under section two, the dextrorotatory isomer of 3-methoxy-n-methyl-morphinan and its salts, dextromethorphan. It does include its racemic and levorotatory forms.
"Opium poppy'', the plant of the species Papaver somniferum L., except its seeds.
"Oral prescription'', an oral order for medication which is dispensed to or for an ultimate user, but not including an order for medication which is dispensed for immediate administration to the ultimate user by a practitioner, registered nurse, or practical nurse.
"Outsourcing facility,'' an entity at 1 geographic location or address that: (i) is engaged in the compounding of sterile drug preparations; (ii) has registered with the federal Food and Drug Administration as an outsourcing facility pursuant to 21 U.S.C. section 353b; and (iii) has registered with the board of registration in pharmacy pursuant to section 36E of chapter 112.
"Person'', individual, corporation, government, or governmental subdivision or agency, business trust, estate, trust, partnership or association, or any other legal entity.
"Pharmacist'', any pharmacist registered in the commonwealth to dispense controlled substances, and including any other person authorized to dispense controlled substances under the supervision of a pharmacist registered in the commonwealth.
"Pharmacy'', a facility under the direction or supervision of a registered pharmacist which is authorized to dispense controlled substances, including but not limited to "retail drug business'' as defined below.
"Physician assistant'', a person who is a graduate of an approved program for the training of physician assistants who is supervised by a registered physician in accordance with sections nine C to nine H, inclusive, of chapter one hundred and twelve.
"Poppy straw'', all parts, except the seeds of the opium poppy, after mowing.
(a) A physician, dentist, veterinarian, podiatrist, scientific investigator, or other person registered to distribute, dispense, conduct research with respect to, or use in teaching or chemical analysis, a controlled substance in the course of professional practice or research in the commonwealth;
(b) A pharmacy, hospital, or other institution registered to distribute, dispense, conduct research with respect to or to administer a controlled substance in the course of professional practice or research in the commonwealth.
(c) An optometrist authorized by sections 66 and 66B of chapter 112 and registered pursuant to paragraph (h) of section 7 to utilize and prescribe therapeutic pharmaceutical agents in the course of professional practice in the commonwealth.
"Prescription drug'', any and all drugs upon which the manufacturer or distributor has, in compliance with federal law and regulations, placed the following: "Caution, Federal law prohibits dispensing without prescription''.
"Production'', includes the manufacture, planting, cultivation, growing, or harvesting of a controlled substance.
"Radiopharmaceutical drug'', any drug which is radioactive as defined in the Federal Food, Drug and Cosmetic Act.
"Registrant'', a person who is registered pursuant to any provision of this chapter.
"Registration'', unless the context specifically indicates otherwise, such registration as is required and permitted only pursuant to the provisions of this chapter.
"Registration number'', such registration number or numbers, either federal or state, that are required with respect to practitioners by appropriate administrative agencies.
"Retail drug business'', a store for the transaction of "drug business'' as defined in section thirty-seven of chapter one hundred and twelve.
"Schedule'', the list of controlled substances established by the commissioner pursuant to the provisions of section two for purposes of administration and regulation.
"State'', when applied to a part of the United States other than Massachusetts includes any state, district, commonwealth, territory, insular possession thereof, and any area subject to the legal authority of the United States of America.
"Tetrahydrocannabinol'', tetrahydrocannabinol or preparations containing tetrahydrocannabinol excluding marihuana except when it has been established that the concentration of delta-9 tetrahydrocannabinol in said marihuana exceeds two and one-half per cent.
"Ultimate user'', a person who lawfully possesses a controlled substance for his own use or for the use of a member of his household or for the use of a patient in a facility licensed by the department or for administering to an animal owned by him or by a member of his household.
"Written prescription'', a lawful order from a practitioner for a drug or device for a specific patient that is communicated directly to a pharmacist in a licensed pharmacy; provided, however, that "written prescription'' shall not include an order for medication which is dispensed for immediate administration to the ultimate user by a practitioner, registered nurse or licensed practical nurse.