III. Legal Issues

Organizations work with pharmacies by providing participants with vouchers redeemable for free syringes at participating pharmacies. Pharmacy voucher programs are especially useful in areas that have been unsuccessful in implementing SAPs but where over-the-counter sale of syringes without a prescription is permitted by law. Pharmacy voucher programs are also useful areas where drug use may be geographically distant and IDUs are unable to travel to the SAP.

In cases where pharmacy vouchers are used, SAPs may provide pharmacies with equipment and disposal services.

STrengTHS

• Mainstream location • May have longer, more convenient hours • May be located closer to where injectors live or hang out

liMiTATiOnS

• Pharmacists and pharmacy staff may hold pre-existing biases toward idus and selectively serve participants • IDUs may receive less individualized education, referrals and safer injection information • Pharmacies may be unwilling to dispose of used equipment • Pharmacies may have caps on the number of syringes per transaction • May be more difficult to provide injecting equipment other than syringes (cookers, cottons, water, ties, alcohol, etc)

using Multiple Program Models

Whenever resources allow, a multiple program model is often the most effective way to reach the greatest number of IDUs. Combining models, for example – one fixed site with a mobile van, or a mobile unit with peer-based walking delivery – literally works to “meet IDUs where they’re at” and increases the likelihood that syringes will reach even the “harder to reach” IDUs. In addition, multiple program models offer increased flexibility to direct resources to the most effective means on an as-needed basis, allowing programs to respond to shifts in behavior patterns among local IDUs.

When using a multiple program models, it is important to be sure that all aspects of the program will be sustainable. Multi-approach models can require significant resources and demand more from staff. Nonetheless, for participants, the same standards of consistency will apply. If one aspect of the program loses credibility, it is possible that all aspects of the SAP will suffer. However, when well-executed and fully resourced, multi-approach services can be a valuable, comprehensive approach.

legAl iSSueS

Although advocacy in many states has paved the way for successful syringe access, the legal landscape can be complicated and challenging to navigate. This section will outline some of the key considerations around legal issues when trying to implement syringe access. In particular, it is necessary to evaluate the legality of operating the SAP from a program perspective, as well as any legal implications for participants.

Fear of drug use and drug users along with the impulse to regulate socially undesirable activities has led to sweeping restrictions on the possession, sale and distribution of needles and syringes which may be used for the injection of drugs. Public health imperatives and again, the work of activists, drug users and their allies, have successfully pushed for changes and an easing up of some legal restrictions on syringe access and possession over the years. In addition, the lifting of the federal ban on funding for SAPs in late 2009 offers a huge push for public health ideology

and authority to overrule criminal statutes limiting SAP initiation and operation. It is important to understand, however, that there are differences between Federal and state law. Nevertheless, all states do have statutes that will allow public health authorities to dictate what is needed in order to respond to public health emergencies and prevent the transmission of infectious disease.

There is no federal law that precludes SAP implementation. There are, however, several types of laws and/or regulations that vary by state that are of particular importance to consider with regards to the operation of SAPs: 1) Drug paraphernalia laws • Laws that regulate the distribution AND possession of drug paraphernalia including syringes and crack pipes/stems. Paraphernalialaws may also extend to cookers and other injection supplies. • Without proper legal justification, participants can be arrested and charged for possession of clean or used injection equipment. • Without proper legal justification, SAP workers can be at risk for possession or distribution of syringes and other supplies. • Most often, paraphernalia law infractions qualify as misdemeanors, however, in some states they are felonies. • Some states categorically exclude syringes from paraphernalia laws, while others have special exclusions outlined for pharmacists or SAPs. 2) Syringe prescription laws • Laws requiring a physician’s prescription for sale or distribution of syringes. • Can provide some safety around the possession of syringes obtained without a prescription. • In some states, regulations may apply restrictions by age, quantity of syringes, etc. • SAPs may have legal authorization to operate despite restrictions being in place around syringe prescription. 3) Over-the-counter pharmacy sale regulation • Regulations that restrict over-the-counter pharmacy sale and distribution of syringes. • Regulations may impose limits by prescription, age, syringe quantities or other factors. • SAPs may have legal authorization to operate despite restrictions being in place around over-the-counter sale. 4) Explicit syringe exchange/access laws or regulations • Laws or regulations that pertain exclusively to the operation of SAPs. • May make SAP operation legal contingent on compliance with operation requirements, such as when, where, how and how manysyringes are exchanged/distributed.

Many states still have anti-drug paraphernalia laws in place, despite having additional statutes that open the door for syringe access via SAPs and pharmacies. While state law may not prohibit the distribution of syringes via SAPs, there can be local laws in place that do. It is important to know the law in any jurisdiction the SAP may operate and/or participants may live. Further, be cautious in cases where the criminal code may contradict the public health code. Investigate the likelihood that SAP participants will be charged with drug possession should they get caught with residue in a syringe that they are bringing back to the SAP for disposal. Understand local, city and state laws around syringe access as completely as possible, and remember to seek support from existing programs in or around your locality. In some cases, advocacy may be necessary to change existing laws.

Most states have successfully deregulated over-the-counter sale of syringes without a prescription at pharmacies. This has positive implications for overall syringe access as well as for protecting participants who are carrying syringes. However, even in states where deregulation has been passed, there may still be limitations imposed on who can purchase syringes, the number of syringes that can be obtained at a time and/or there may be ID requirements to purchase syringes. In addition, oftentimes it is up to individual pharmacies to decide if they will participate in over-the-counter sales, and some still may operate using bias and discrimination if they suspect syringes will be used for injection of illicit drugs. Many pharmacists still need education about the benefits of providing sterile injection equipment to drug users and/or cultural competency when working with drug users.