21 U.S.C. § 841(c)(2) (the “pseudoephedrine statute”) imposes a prison term of up to twenty years for any person who “distributes a listed chemical knowing, or having reasonable cause to believe, that the listed chemical will be used to manufacture a controlled substance.” Federal courts of appeals have spent the last decade deciphering how to interpret the statutory phrase “reasonable cause to believe,” specifically in cases involving the sale of pseudoephedrine by pharmacy or convenience store workers that ends up in the hands of methamphetamine producers. Some circuit decisions have analyzed the phrase in question using a subjective test, looking “through the lens of [a] particular defendant” to determine whether he had reasonable cause to believe that a sale of pseudoephedrine would lead to methamphetamine production; others decry such an analysis as “redundant” and instead use “an objective mens rea requirement.”
This Note examines the pseudoephedrine statute and discusses whether a circuit split regarding its wording, as well as changing methods of methamphetamine production, warrants a rewriting of the statute. Due to improved efficiency in methamphetamine production methods and a growing domestic production market, pharmacy and convenience store workers are increasingly at risk of serving customers who purchase pseudoephedrine for methamphetamine production. Depending on which federal circuit court(s) can claim jurisdiction over such sales of pseudoephedrine, cases with similar facts may end up with very dissimilar outcomes as a result of circuits interpreting the scienter standard of the pseudoephedrine statute differently.
Part I of this Note provides a background of methamphetamine issues within the United States today. Part II explores the circuit split surrounding the scienter requirements of the pseudoephedrine statute. Part III examines the language of the statute and compares it to other similarly worded statutes in order to find the congressional intent behind such wording. Part IV analyzes how to revise the pseudoephedrine statute to achieve the goals of Congress and create a more reasonable system for enforcing the statute against pharmacy and convenience store workers. Ultimately, this Note looks for an alternative solution that will resolve the circuit inconsistency and address the changing nature of methamphetamine production. This Note argues for removing “reasonable cause to believe” from the statute, while simultaneously establishing a strict liability offense when pseudoephedrine products are sold in quantities over current legal limits as set by Congress in the Combat Methamphetamine Epidemic Act of 2005 (the “Combat Meth Act”), and strengthening the standard of scienter required to convict store clerks who sell pseudoephedrine products in quantities within such limits.