THIRD READING  

Bill No: AB 851

Author: Cooper (D)

Introduced: 2/20/19

Vote: 21

SENATE HEALTH COMMITTEE: 9-0, 6/5/19

AYES: Pan, Stone, Durazo, Grove, Hurtado, Leyva, Mitchell, Monning, Rubio

ASSEMBLY FLOOR: 72-0, 4/11/19 (Consent) - See last page for vote

SUBJECT: Drug masking products

SOURCE: Quest Diagnostics

DIGEST:

This bill prohibits a person from distributing, delivering, or selling or possessing with intent to distribute, deliver, or sell, a drug masking product, as defined.

ANALYSIS:

Existing federal law:

1. Requires drug testing of certain employees of the Department of Transportation (DOT), Department of Defense (DOD) and its contractors, and the Nuclear Regulatory Commission (NRC). Requires drug and alcohol testing of all safety-sensitive transportation employees in aviation, trucking, railroads, mass transit, pipelines, and other transportation industries. [49 U.S.C. § 5331, 42 CFR §223.5, 10 CFR §26]
2. Requires labs involved in controlled substances testing to meet certain standards, including having the capability and facility, at the laboratory, of performing screening and confirmation tests. Requires all tests indicating the use of alcohol or a controlled substance in violation of law or regulation to be confirmed by a scientifically recognized method of testing, as specified. Requires drug testing to be carried out by a Department of Health and Human Services certified lab. [49 U.S.C. § 5331, 42 CFR §223.5]
3. Prohibits any person from selling drug paraphernalia, which is defined in part as any equipment, product, or material, primarily intended or designed for use in concealing a controlled substance. [21 U.S.C. §863]

Existing state law requires, under the Drug-Free Workplace Act of 1990, persons or organizations awarded a contract or a grant for the procurement of a property or services from a state agency to certify that it will provide a drug-free workplace by:

1. Publishing a statement notifying employees that the unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance is prohibited in the workplace and specifying actions that will be taken for violations of the prohibition;
2. Establishing a drug-free awareness program to inform employees about the dangers of drug abuse in the workplace, the policy of maintaining a drug-free workplace, any available drug counseling, rehabilitation, and employee assistance programs, and the penalties that may be imposed upon employees for drug abuse violations; and,
3. Requiring that each employee engaged in the performance of the contract or grant be given a copy of the statement and that, as a condition of employment on the contract or grant, the employee agrees to abide by the terms of the statement. [GOV §8350 et seq.]

This bill prohibits a person from distributing, delivering, or selling, or possessing with intent to distribute, deliver, or sell, a drug masking product. Defines “drug masking product” as synthetic urine or any other substance designed to be added to human urine or human hair for the purpose of defrauding an alcohol or drug screening test. Defines “synthetic urine” as any substance that is designed to simulate the composition, chemical properties, physical appearance, or physical properties of human urine.

Comments

1. Author’s statement. According to the author, drug testing is an effective tool to improve workplace safety, roadway safety, and ensure compliance with probation and parole. Use of synthetic urine products are commonly used to cheat a drug test and jeopardize workplace safety and public safety.
2. History. According to an April 11, 2019 Vox article, workplace drug testing proliferated in 1986 when President Ronald Reagan required testing of all federal employees through an Executive Order. In 1987, the American Management Association found that only 21% of employers surveyed were drug testing. By 1996, that number was 81%, but by 2004 it was down to 62%; there is no more recent data available. Dialogue around the use of drug testing continues today, as marijuana moves toward full legalization but the country is devastated by an opioid crisis. The Vox article points out that some argue that drug testing, especially for marijuana, is a relic of the war on drugs, and should no longer be practiced.  An October 2014 review published in the journal Accident Analysis & Prevention examined 23 studies on whether drug testing diminished drug use along with accident or injury rates. The authors found that drug testing does not significantly improve workplace safety (aside from one study that found that random alcohol testing reduced fatal accidents in the transport industry).
3. Employee drug testing requirements. According to the federal Substance Abuse and Mental Health Services Administration (SAMHSA), federal agencies have established drug-testing requirements for industries that perform public safety and national security roles. Employers and employees in those industries are subject to drug-testing requirements from the DOT, DOD, and NRC. Additionally, pursuant to the 1986 Executive Order, all federal employees involved in "law enforcement, national security, the protection of life and property, public health or safety, or other functions requiring a high degree of public trust" are subject to mandatory drug testing. Most state and local law enforcement officers and emergency service providers are also required to undergo drug testing. However, the laws and regulations affecting these tests vary from state to state and agency to agency.
4. Drug testing methods. According to a March 2016 “Comprehensive Guide to Establishing a Workplace Drug Testing Program” produced by the sponsor of this bill, Quest Diagnostics, urine testing is the most common method, detects recent or new drug use (typically in the previous one to three days), is suitable for all testing reasons, and detects the broadest variety of drugs. It is currently the only specimen type approved for federally-regulated drug testing. Oral fluid testing is the next most common screening method used by employers, detects drug use in the previous 24-48 hours (24-36 hours for THC), and is suitable for a broad range of testing reasons. Oral fluid testing is primarily used to detect illicit drugs. Because collections are observed, oral fluid testing is considered a tamper-resistant collection method as it is very difficult for a donor to adulterate their specimen. Hair testing provides a much longer “detection window,” giving a drug-use history shows a pattern of repetitive use as far back as up to 90 days. Hair testing also offers the benefit of an observed collection process. It is not recommended for “reasonable suspicion” or post-accident testing, when an employer wants to detect drug use as closely as possible to the time of a workplace incident. Instant urine testing offers on-site drug test collections using a variety of products that provide employers rapid results. A presumptively-positive test result by an instant device requires confirmatory testing by a lab.
5. Drug masking products and synthetic urine. According to 2005 testimony presented to the U.S. House of Representatives Committee on Energy and Commerce Subcommittee on Oversight and Investigations by the U.S. Government Accountability Office (GAO), masking products fall into one of four categories: a) dilution substances that are added to a urine specimen at the time it is collected or are ingested before an individual submits a urine specimen; b) cleansing substances that detoxify or cleanse the urine and are ingested prior to the time that an individual submits a urine specimen; c) adulterants that are used to destroy or alter the chemical make-up of drugs and are added to a urine specimen at the time that it is provided for testing; and, d) synthetic or drug-free urine that is substituted in place of an individual's specimen and provided for testing. According to the 2019 Vox article, companies that sell synthetic urine (typically online) make it from a mix of water, urea, creatinine, pH balance, and/or uric acid.
6. Other states. According to the 2005 GAO testimony, some states have prohibited the manufacture, marketing, or distribution of drug masking products. For example, New Jersey, Florida, and Kentucky broadly outlaw the sale of any product designed to defraud or falsify a drug screening test. In some states, such as Louisiana and Texas, it is illegal for an individual to knowingly or intentionally deliver or manufacture substances designed to falsify or alter drug test results. At least nine other states (Arkansas, Illinois, Maryland, Nebraska, North Carolina, Oklahoma, Pennsylvania, South Carolina and Virginia) have outlawed the sale of urine or adulterants for the purpose of passing drug tests. According to an April 7, 2018 Washington Post article, Indiana and New Hampshire banned synthetic urine in 2017. Legislatures in Missouri and Mississippi have pending bills on the subject.

FISCAL EFFECT: Appropriation: No Fiscal Com.: No Local: No

SUPPORT: (Verified 6/12/19)

Quest Diagnostics (source)

A-Check Global

BPLAB Services

California Clinical Laboratory Association

California Narcotics Officers’ Association

California Police Chiefs Association, Inc.

California State Sheriffs’ Association

Employers Choice Screening

Morneau Shepell Ltd.

Quest Diagnostics

Vigilant Employment Screening, Inc.

YMCA of the Foothills

OPPOSITION: (Verified 6/12/19)

None received

ARGUMENTS IN SUPPORT: A number of supporters write that synthetic urine has become an increasingly popular means of eluding a positive drug test result. This substance is comprised of uric acid, creatinine, salts, and coloring, and when combined with innovative delivery systems, it can effectively undermine the integrity of the drug test specimen collection process. Today, synthetic urine can be easily bought in head shops, via online distributors, and some retail establishments. The California Narcotic Officers’ Association writes that drug testing is an effective tool to improve workplace safety, roadway safety, and ensure compliance with probation and parole. The use of synthetic urine products are commonly used to cheat a drug test and endanger workplace and public safety, and this bill is a good-sense measure that will protect both the workplace and the public safety.

ASSEMBLY FLOOR: 72-0, 4/11/19

AYES: Aguiar-Curry, Bauer-Kahan, Bigelow, Bloom, Boerner Horvath, Bonta, Brough, Burke, Calderon, Carrillo, Cervantes, Chau, Chen, Choi, Chu, Cooper, Cunningham, Dahle, Daly, Diep, Eggman, Flora, Fong, Friedman, Gabriel, Gallagher, Cristina Garcia, Gipson, Gloria, Gonzalez, Gray, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager-Dove, Kiley, Lackey, Limón, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Muratsuchi, Nazarian, Obernolte, O'Donnell, Patterson, Petrie-Norris, Quirk, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Salas, Santiago, Smith, Mark Stone, Ting, Voepel, Waldron, Weber, Wicks, Wood, Rendon

NO VOTE RECORDED: Arambula, Berman, Chiu, Cooley, Frazier, Eduardo Garcia, Levine, Low

Prepared by: Melanie Moreno / HEALTH / (916) 651-4111

6/12/19 14:47:22

**** END ****

SENATE COMMITTEE ON HEALTH

Senator Dr. Richard Pan, Chair

BILL NO: AB 851

SUBJECT: Drug masking products

SUMMARY:

Prohibits a person from distributing, delivering, or selling or possessing with intent to distribute, deliver, or sell, a drug masking product, as defined.

Existing state law: Requires, under the Drug-Free Workplace Act of 1990, persons or organizations awarded a contract or a grant for the procurement of a property or services from a state agency to certify that it will provide a drug-free workplace by:

• 1. Publishing a statement notifying employees that the unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance is prohibited in the workplace and specifying actions that will be taken for violations of the prohibition;
  2. Establishing a drug-free awareness program to inform employees about the dangers of drug abuse in the workplace, the policy of maintaining a drug-free workplace, any available drug counseling, rehabilitation, and employee assistance programs, and the penalties that may be imposed upon employees for drug abuse violations; and,
  3. Requiring that each employee engaged in the performance of the contract or grant be given a copy of the statement and that, as a condition of employment on the contract or grant, the employee agrees to abide by the terms of the statement. [GOV §8350 et seq.]

Existing federal law:

1. Requires drug testing of certain employees of the Department of Transportation (DOT), Department of Defense (DOD) and its contractors, and the Nuclear Regulatory Commission (NRC). Requires drug and alcohol testing of all safety-sensitive transportation employees in aviation, trucking, railroads, mass transit, pipelines, and other transportation industries. [49 U.S.C. § 5331, 42 CFR §223.5, 10 CFR §26]
2. Requires labs involved in controlled substances testing to meet certain standards, including having the capability and facility, at the laboratory, of performing screening and confirmation tests. Requires all tests indicating the use of alcohol or a controlled substance in violation of law or regulation to be confirmed by a scientifically recognized method of testing, as specified. Requires drug testing to be carried out by a Department of Health and Human Services certified lab. [49 U.S.C. § 5331, 42 CFR §223.5]
3. Prohibits any person from selling drug paraphernalia, which is defined in part as any equipment, product, or material, primarily intended or designed for use in concealing a controlled substance. [21 U.S.C. §863]

This bill: Prohibits a person from distributing, delivering, or selling, or possessing with intent to distribute, deliver, or sell, a drug masking product. Defines “drug masking product” as synthetic urine or any other substance designed to be added to human urine or human hair for the purpose of defrauding an alcohol or drug screening test. Defines “synthetic urine” as any substance that is designed to simulate the composition, chemical properties, physical appearance, or physical properties of human urine.

FISCAL EFFECT:

This bill is keyed non-fiscal.

PRIOR VOTES:

COMMENTS:

1. Author’s statement. According to the author, drug testing is an effective tool to improve workplace safety, roadway safety, and ensure compliance with probation and parole. Use of synthetic urine products are commonly used to cheat a drug test and jeopardize workplace safety and public safety.
2. Background. According to an April 11, 2019 Vox article, workplace drug testing proliferated in 1986 when President Ronald Reagan required testing of all federal employees through an Executive Order. In 1987, the American Management Association found that only 21% of employers surveyed were drug testing. By 1996, that number was 81%, but by 2004 it was down to 62%; there is no more recent data available. Dialogue around the use of drug testing continues today, as marijuana moves toward full legalization but the country is devastated by an opioid crisis. The Vox article points out that some argue that drug testing, especially for marijuana, is a relic of the war on drugs, and should no longer be practiced.  An October 2014 review published in the journal Accident Analysis & Prevention examined 23 studies on whether drug testing diminished drug use along with accident or injury rates. The authors found that drug testing does not significantly improve workplace safety (aside from one study that found that random alcohol testing reduced fatal accidents in the transport industry).
3. Employee drug testing requirements. According to the federal Substance Abuse and Mental Health Services Administration (SAMHSA), federal agencies have established drug-testing requirements for industries that perform public safety and national security roles. Employers and employees in those industries are subject to drug-testing requirements from the DOT, DOD, and NRC. Additionally, pursuant to the 1986 Executive Order, all federal employees involved in "law enforcement, national security, the protection of life and property, public health or safety, or other functions requiring a high degree of public trust" are subject to mandatory drug testing. Most state and local law enforcement officers and emergency service providers are also required to undergo drug testing. However, the laws and regulations affecting these tests vary from state to state and agency to agency.
4. Drug testing methods. According to a March 2016 “Comprehensive Guide to Establishing a Workplace Drug Testing Program” produced by the sponsor of this bill, Quest Diagnostics, urine testing is the most common method, detects recent or new drug use (typically in the previous one to three days), is suitable for all testing reasons, and detects the broadest variety of drugs. It is currently the only specimen type approved for federally-regulated drug testing. Oral fluid testing is the next most common screening method used by employers, detects drug use in the previous 24-48 hours (24-36 hours for THC), and is suitable for a broad range of testing reasons. Oral fluid testing is primarily used to detect illicit drugs. Because collections are observed, oral fluid testing is considered a tamper-resistant collection method as it is very difficult for a donor to adulterate their specimen. Hair testing provides a much longer “detection window,” giving a drug-use history shows a pattern of repetitive use as far back as up to 90 days. Hair testing also offers the benefit of an observed collection process. It is not recommended for “reasonable suspicion” or post-accident testing, when an employer wants to detect drug use as closely as possible to the time of a workplace incident. Instant urine testing offers on-site drug test collections using a variety of products that provide employers rapid results. A presumptively-positive test result by an instant device requires confirmatory testing by a lab.
5. Drug masking products and synthetic urine. According to 2005 testimony presented to the U.S. House of Representatives Committee on Energy and Commerce Subcommittee on Oversight and Investigations by the U.S. Government Accountability Office (GAO), masking products fall into one of four categories: a) dilution substances that are added to a urine specimen at the time it is collected or are ingested before an individual submits a urine specimen; b) cleansing substances that detoxify or cleanse the urine and are ingested prior to the time that an individual submits a urine specimen; c) adulterants that are used to destroy or alter the chemical make-up of drugs and are added to a urine specimen at the time that it is provided for testing; and, d) synthetic or drug-free urine that is substituted in place of an individual's specimen and provided for testing. According to the 2019 Vox article, companies that sell synthetic urine (typically online) make it from a mix of water, urea, creatinine, pH balance, and/or uric acid.
6. Other states. According to the 2005 GAO testimony, some states have prohibited the manufacture, marketing, or distribution of drug masking products. For example, New Jersey, Florida, and Kentucky broadly outlaw the sale of any product designed to defraud or falsify a drug screening test. In some states, such as Louisiana and Texas, it is illegal for an individual to knowingly or intentionally deliver or manufacture substances designed to falsify or alter drug test results. At least nine other states (Arkansas, Illinois, Maryland, Nebraska, North Carolina, Oklahoma, Pennsylvania, South Carolina and Virginia) have outlawed the sale of urine or adulterants for the purpose of passing drug tests. According to an April 7, 2018 Washington Post article, Indiana and New Hampshire banned synthetic urine in 2017. Legislatures in Missouri and Mississippi have pending bills on the subject.
7. Support. A number of supporters write that synthetic urine has become an increasingly popular means of eluding a positive drug test result. This substance is comprised of uric acid, creatinine, salts, and coloring, and when combined with innovative delivery systems, it can effectively undermine the integrity of the drug test specimen collection process. Today, synthetic urine can be easily bought in head shops, via online distributors, and some retail establishments. The California Narcotic Officers’ Association writes that drug testing is an effective tool to improve workplace safety, roadway safety, and ensure compliance with probation and parole. The use of synthetic urine products are commonly used to cheat a drug test and endanger workplace and public safety, and this bill is a good-sense measure that will protect both the workplace and the public safety.

SUPPORT AND OPPOSITION:

Support: Quest Diagnostics (sponsor)

A-Check Global

BPLAB Services

California Narcotics Officers’ Association

California Police Chiefs Association, Inc.

California State Sherriffs’ Association

Employers Choice Screening

Morneau Shepell Ltd.

Quest Diagnostics

Vigilant Employment Screening, Inc.

YMCA of the Foothills

Oppose: None received

-- END --

Date of Hearing: April 2, 2019

ASSEMBLY COMMITTEE ON HEALTH

Jim Wood, Chair

ABPCA Bill Id:AB 851

Author:(Cooper) – As Introduced Ver:February 20, 2019

SUBJECT: Drug masking products.

SUMMARY: Prohibits the distribution, delivery, sale, or possession of drug masking products. Defines the following: 1) “Drug masking products” as synthetic urine or human hair designed to be added to human urine or human hair for the purpose of defrauding an alcohol or drug screening test; and, 2) “Synthetic urine” as any substance that is designed to simulate the composition, chemical properties, physical appearance, or physical properties of human urine.

EXISTING LAW:

1. Authorizes the California Attorney General to enforce and apply California’s laws.
2. Permits drug testing as a part of the Drug-Free Workplace Act of 1990 that applies to employers with contracts or grants from any state agency.
3. Permits drug testing as a condition of probation for any person convicted of a nonviolent drug possession.
4. Permits drug testing in juvenile court cases involving temporary custody of a minor.
5. Requires drug testing for specified healing arts practitioners as required by various boards within the Department of Consumer Affairs.
6. Requires drug testing to be conducted at a certified testing laboratory.

FISCAL EFFECT: None

COMMENTS:

1. PURPOSE OF THIS BILL. According to the author, drug testing is an effective tool to improve workplace safety, roadway safety, and ensure compliance with probation and parole. The use of synthetic urine products are commonly used to cheat a drug test and jeopardize workplace and public safety.
2. BACKGROUND. Synthetic urine is a liquid, pre-mixed solution, or soluble dried powder created in a laboratory that can be used to mimic the appearance and chemical properties of human urine. These products can be used to defraud an alcohol or drug test. According to the National Conference of State Legislatures (NCSL), at least 18 other states have banned synthetic liquids used to cheat drug tests.
   1. Product Uses. Synthetic urine products are created using ingredients such as uric acid, creatinine (a waste product expelled by the kidneys), and salts to mimic natural urine. These products are often coupled with different accessories to aid in the drug test pass, including, but not limited to strap on pouches, temperature strips, and prosthetic body parts. In addition to the synthetic urine varieties and accessories, drug masking products can also include shampoos to mask hair samples and saliva neutralizing gum. These products, with brand names such as “Whizzinator,”, “Monkey Whizz,”, “Clean Stream,” and “UPass” are found largely in online markets and cost anywhere from about $15 to 40.

According to Quest Diagnostics, the sponsors of this bill, since 2017, there was an uptick in samples that had to be flagged because they were suspected to be falsified using synthetic urine products.

• 1. Drug Testing in State and Federal Law. In California, there are certain restrictions on drug testing. Employers may use drug testing as a condition of employment if and only if all applicants are subject to the testing to protect applicants from discrimination based on protective characteristics such as race or disability and must be on the basis of the safety of themselves and others on the job. Once employed, California employees have the right to privacy and thus are protected against unjustified drug testing, meaning that employers must have reasonable suspicion that an employee is using drugs in order to legally conduct a drug test.

The state however, does not have statutes in place for the prohibition of any products that could potentially defraud any drug tests.

Under federal law, ‘safety sensitive’ industries, including but not limited to, transportation and aviation, are required to drug test their employees. Thus, these industries operating in California must comply with federal drug testing laws.

1. SUPPORT. According to Quest Diagnostics and other supporters, laboratories perform validity testing to ensure that drug test specimens are consistent with normal human urine and that it has not been tampered with. However, manufacturers of synthetic urine have responded by adding ingredients to their products in an effort to defeat their validity testing. According to Quest Diagnostic, this adds costs and delays to the testing processes that are passed on to businesses, government, and taxpayers.

REGISTERED SUPPORT / OPPOSITION:

Support

A - Check Global
Bplab
California Clinical Laboratory Association
California Police Chiefs Association
California State Sheriffs’ Association
Employers Choice Screening
Morneau Shepell, Ltd.
Quest Diagnostics Incorporated
The YMCA
Vigilant Employment Screening

Opposition

None on file.

Analysis Prepared by: Marissa Kraynak / HEALTH / (916) 319-2097