The Henry J. Kaiser Family Foundation 2400 Sand Hill Road ......Local Consideration in Six...

Syringe Exchange

and AB 136:

The Dynamics of

Local Consideration in

Six California Communities

The Henry J. Kaiser Family Foundation

2400 Sand Hill Road

Menlo Park, CA 94025

1450 G Street NW, Suite 250

Washington, DC 20005

www.kff.org

Prepared for Kaiser Family Foundation by:

Chris Collins, Todd SummersProgressive Health Partners

Regina Aragón, Steven B. JohnsonConsultants

Table of Contents

Table of Contents

Executive Summary....................................... 3Study Findings .............................................................................. 4Policy Options Regarding AB 136 ........................................... 5Conclusion .................................................................................... 6

Introduction.................................................... 7Study Overview ........................................................................... 7Methodology ................................................................................ 9Background: State Policy Concerning

Syringe Access Across the Country .............................. 9California’s Approach: AB 136 ............................................... 12Status of Syringe Exchange Programs in Six California

Communities ..................................................................... 13

Study Findings .............................................. 13Dynamics of Local Consideration of AB 136

Declaration ........................................................................ 14Roles of Specific Stakeholders ............................................... 15Information and Technical Assistance Needs ...................... 17Identified Benefits of AB 136 .................................................. 17Identified Limitations of AB 136 ............................................ 18Program Implementation Issues ............................................ 20Findings from CCLHO Statewide Survey

of Local Health Officers ................................................. 20

Policy Options .............................................. 23Potential Modifications of AB 136

Related to Emergency Declaration ............................. 23Potential Modifications of AB 136

to Protect SEP Clients .................................................... 23Potential Opportunities for Technical Assistance .............. 24Other Policy Options .............................................................. 24

Conclusion .................................................... 25

Appendices ................................................... 27Appendix A: Text of AB 518 .................................................... 27Appendix B: Text of AB 136 .................................................... 31Appendix C: History of Syringe Exchange

Legislation in California .................................................. 33Appendix D: Key Informant Interview Questionnaire ..... 35Appendix E: References ........................................................... 37

Executive Summary

More than one-third of all reported AIDS casesin the United States have occured among

injection drug users, their partners, and their chil-dren. Public health experts have identified access tosterile syringes as one component of a comprehen-sive HIV prevention strategy designed to reduce HIVtransmission among injection drug users (IDUs). Yetdebates about syringe access for injection drug userscontinue. Laws governing syringe access are general-ly the purview of state law, making state and localgovernments important arenas for policy making onthis issue. The state and local policy role has beenmagnified by an ongoing ban on the use of federalfunding for syringe exchange programs.

In recent years, states and localities have ex-plored a variety of strategies designed to expandaccess to sterile syringes, including allowing theoperation of syringe exchange programs (SEPs).Research has established that SEPs, as part of acomprehensive prevention approach, can reduce thenumber of new HIV and other infectious diseaseswithout promoting drug use. Additional strategiesinclude removing legal penalties for possession ofsyringes, allowing for the sale of sterile syringes inpharmacies without a prescription, and clarifying thelegal status of physician prescription of syringes toIDUs.

In 1999, the State of California enacted legisla-tion allowing local governments to legalize syringeexchange programs within their jurisdictions. Assem-bly Bill (AB) 136, which became law in January 2000,protects local jurisdictions from criminal prosecutionfor distributing hypodermic needles or syringes inSEPs authorized pursuant to “a declaration of a localemergency due to the existence of a critical localpublic health crisis.”

Approximately two-dozen syringe exchangeprograms operated in California prior to passage ofAB 136, but their legal status was uncertain. Otherjurisdictions, some with sizable numbers of IDUs, did

Executive Summary

AB 136 protects local governments and theiremployees and authorized contractors thatprovide exchange services from criminalprosecution for distributing syringes and needlesif there has been a declaration of a localemergency. The law reads, in part:

“No public entity, its agents, or employees shall besubject to criminal prosecution for distribution ofhypodermic needles or syringes to participants inclean needle and syringe exchange projectsauthorized by the public entity pursuant to adeclaration of a local emergency due to the existenceof a critical local public health crisis.”

not initiate or approve SEPs, at least in part becauseof the potential for State legal action.

The State of California provides an importantwindow for assessing such an approach. With oneof the largest AIDS caseloads in the nation, Californiahas been particularly hard hit by the HIV/AIDSepidemic. Injection drug use is the second largestrisk factor for HIV in the state, not including thosecases indirectly related to injection drug use, such asthose among sex partners and children of IDUs.With its enactment of AB 136, California became oneof only a handful of states to have authorized theoperation of syringe exchange programs and one oftwo states allowing for such operation only after alocal authority has declared an emergency (the otheris Massachusetts).*

This study provides a qualitative assessment ofthe response to AB 136 in six California communitiessince it became law. The study is designed to providefederal, state, and local policymakers, health officials,and the public with a variety of perspectives on thedynamics of local consideration of AB 136, including

*For a current listing of state policies regarding syringe exchangeprograms and other syringe access policies, see the Kaiser FamilyFoundation State Health Facts web page: www.statehealthfacts.kff.org

Executive Summary

its perceived benefits and limitations as an approachto expand access to sterile syringes among IDUs.

The study is based on interviews with keystakeholders in six California county and city jurisdic-tions: Alameda, Los Angeles, Sacramento, SantaBarbara, and Santa Clara Counties and the City ofSan Diego. Interviewees included public healthofficials, law enforcement officials, SEP staff, andadvocates at the local level. Interviews were alsoconducted with national and statelevel stakeholders in an effort toobtain broader perspectives on AB136.

The study explored several areasincluding:

> The status of SEPs beforeand after the passage of AB136;

> The status of a local declara-tion of emergency – whetherconsidered, passed, and/orsustained;

> The effect of AB 136 onviews about syringe exchangeamong both those whosupported and opposed SEPs;

> Perceived roles of variouslocal stakeholders in debatesabout whether to declare a local emergency;

> Perspectives on the role of AB136 in facili-tating or hindering discussions about andimplementation of syringe exchange;

> Perceived benefits and limitations of AB 136as an approach to sterile syringe access; and

> Perspectives on technical assistance andother needs of local communities in inform-ing their response to AB 136.

In addition to interviews in the six sites, astatewide survey of local health officers was conduct-ed in partnership with the California Conference ofLocal Health Officers (CCLHO). Local healthofficers play central roles in responding to diseasethreats in their communities, and they commonlyprovide epidemiological background and advice onpublic health policy to elected officials. In several

California communities, public health officers havebeen visible leaders in efforts to control HIV infec-tion rates among the local IDU population.

The study is qualitative in nature and thereforedoes not necessarily represent the experiences of allCalifornia communities. In addition, the study wasnot designed to measure direct outcomes of AB 136such as its impact on the number of needles distrib-uted or HIV incidence. Due to concerns about the

legality of SEPs (some SEPs, forexample, were operating before AB136 and some SEPs continue tooperate in jurisdictions where a localemergency has not been declared), itis not possible to accurately estimatethe total number of syringe exchangeprograms in the six communities orthroughout the State of California.

Study FindingsAB 136 provided a new option

for communities interested inexpanding access to clean syringesamong IDUs. The law also shiftedmuch of the political burden forconsideration of SEPs from state tolocal elected officials and communi-ties. Specific limitations of AB 136,and continuing restrictions on

syringe access imposed by other State laws, indicatethat AB 136 has played a limited, albeit important,role in responding to the HIV epidemic among IDUs.

Five of the six jurisdictions included in the study(Alameda, Los Angeles, Santa Barbara and Santa ClaraCounties and the City of San Diego) had declaredlocal emergencies utilizing AB 136, including two thatdid so during the course of this study (LA Countyand the City of San Diego). San Diego’s City Councilinitially voted to approve an emergency declaration;several months later, the declaration failed a vote forrenewal. In November, 2001, the City Councilapproved a pilot, privately-funded program for oneyear.

Survey informants were nearly unanimous intheir assessment that AB 136 has facilitated localconsideration of syringe exchange programs, though

Specific limitationsof AB 136, and

continuingrestrictions onsyringe access

imposed by otherState laws, indicate

that AB 136 hasplayed a limited,albeit important,role in responding

to the HIV epidemicamong IDUs.

Executive Summary

the law did not settle ongoing debates in manycommunities. Passage of AB 136 did not appear tochange fundamental attitudes of support oropposition to SEPs generally, but it did change thedynamics of community discussions regarding SEPs.

Respondents reported that AB 136:> generated new or renewed political support

and advocacy to establish legal SEPs;> improved opportunities for SEP funding;> increased legitimacy of SEPs; and> expanded collaboration between public

health, SEP and other service providers.Some informants also perceived an increase inknowledge about and willingness to use SEPs amongIDUs.

Different factors guided the consideration of anemergency declaration in each community, butjurisdictions that declared emergencies following thepassage of AB 136 generally did so with strongsupport from a variety of key stakeholders, includinglaw enforcement, elected officials, public healthofficials and community members. Key factorsassociated with failure to pass or sustain anemergency declaration included opposition fromlocal and state law enforcement groups and localelected officials, lack of information or guidelines onhow to declare a local emergency, and challenges insiting syringe exchange programs.

Interviewees frequently identified two majorlimitations of AB 136. First, the need to declare andthe perceived need to renew a local emergencyevery 14 to 21 days was seen to limit the ability touse AB 136 even in communities where there issignificant political support for SEPs. Second, manyinformants felt that the legislation was flawed in thatit did not protect clients of AB 136-sanctioned SEPsfrom State laws prohibiting the possession of needlesand syringes. Other concerns with AB 136 includedthe lack of expanded resources to meet increasedservice needs, and increased politicization of programdesign due to government involvement. In addition,some local stakeholders remained opposed to SEPs,resulting in continuing debates about syringe accessdespite the existence of AB 136 or a localjurisdiction’s attempt to or success with passing anemergency declaration.

Even in communities that had passed anemergency declaration pursuant to AB 136,informants identified several challenges toimplementing SEPs, including lack of sufficient fundingfor SEPs, difficulties with finding suitable locations forprograms, and the difficulty of establishing referralsand ancillary services for SEP clients withoutadditional funding.

Finally, a variety of technical assistance needswere identified, including the need for:

> assistance with local consideration of anemergency declaration as authorized underAB 136;

> public health research and data about syringeexchange more generally;

> information about the status of SEPs in othercommunities in California, particularly afterthe passage of AB 136; and

> information about syringe exchange programoperations.

Informants cited the lack of information aboutsyringe access and SEPs that was generally acceptedas credible and objective and could therefore beused to inform those considerating AB 136.

Policy Options Regarding AB 136Informants identified several legal and administra-

tive modifications and technical assistance opportuni-ties that could facilitate communities’ considerationof AB 136. They include:

> Reconsidering the requirement to continuallyrenew a local declaration of emergency byreducing or eliminating the emergencydeclaration renewal requirements.

> Allowing for the authorization of renewals ofan emergency declaration by local publichealth officers rather than, or in conjunctionwith, the local elected body.

> Exempting clients of SEPs authorized throughAB 136 from State drug paraphernalia lawsthat prohibit possession of needles andsyringes.

> Improving public education efforts andtechnical assistance regarding research onSEPs and program implementation issues,and expanding opportunities for information

exchange among stakeholders, includingthose designed to bring together multipleplayers in HIV prevention for injection drugusers. These proposals were widely sup-ported by almost all informants, regardless oftheir views about SEPs or AB 136.

In addition, many informants pointed to otherchanges to California law that could address accessto sterile syringes, including allowing physicianprescription of syringes to IDUs, eliminating penaltiesfor possession of needles and syringes, exemptingclients of all SEPs (not just AB 136-authorized SEPs)from State drug paraphernalia laws, and permittingover-the-counter sale of sterile syringes in pharma-cies without requiring a prescription.

ConclusionCalifornia’s experience with AB 136 provides

valuable information to other states seeking toaddress the impact of the HIV/AIDS epidemic amongIDUs. In addition, the specific experiences of Califor-nia counties and cities in responding to the legislationoffer guidance to other California communities thatmay be considering syringe access programs.

Overall, this study indicates that AB 136 wasboth symbolically and practically significant. The

Executive Summary

legislation provided new opportunities for localcommunities to initiate and increase their dialogabout syringe access and to implement such pro-grams. Indeed, the number of SEPs in the stateincreased after the passage of AB 136. Yet the lawdid not settle the ongoing debate over syringeexchange programs in many communities, indicating aneed for continued dialog and information sharing.For example, this study’s finding that objectiveinformation about SEPs and AB 136 was not readilyavailable to communities to assist in their decision-making highlights an important gap and opportunityfor the State and others.

In addition, specific limitations of AB 136 andcontinuing restrictions on syringe access imposed byother State laws reduced AB 136’s role and demon-strate the complexity of the policy environmentsurrounding syringe access. States considering suchan approach may want to examine the full comple-ment of laws that govern syringe access and posses-sion in deciding how best to address syringe accessas a disease prevention intervention.

Taken together, the findings from this study offerimportant lessons to national, state, and local policy-makers, public health officials, and communitiesconsidering options for reducing new HIV infectionsin their communities.

More than one-third of all reported AIDS casesin the United States have occured among injec-

tion drug users, their partners, and their children.Public health experts have identified access to sterilesyringes as one component of a comprehensive HIVprevention strategy designed to reduce HIV transmis-sion among IDUs.1 Yet debates about syringe accessfor injection drug users continue. Laws governingsyringe access are generally thepurview of state law, making stateand local governments importantarenas for policy making on thisissue. The state and local policyrole has been magnified by anongoing ban on the use of federalfunding for syringe exchangeprograms.

This report provides a quali-tative assessment of one state’sapproach to syringe access, Cali-fornia’s AB 136, which enableslocal jurisdictions to authorizesyringe exchange programs(SEPs) pursuant to a declarationof a local emergency. The Stateof California serves as an impor-tant window for assessing suchan approach because, with one ofthe largest AIDS caseloads in thenation, it has been particularlyhard hit by the HIV/AIDS epidemic. Injection druguse is the second largest risk factor for HIV in Cali-fornia, accounting for 19% of all reported AIDS cas-es.2 The link between injection drug use and HIVtransmission is particularly strong for women andminorities.3

California is also one of only a handful of statesthat has authorized the operation of syringe ex-change programs and one of two allowing for syringeexchange only after a local authority has declared anemergency (the other is Massachusetts).

Introduction

Study OverviewThe Henry J. Kaiser Family Foundation commis-

sioned a qualitative assessment of the local responseto the enactment of AB 136 in six California commu-nities in the first year after it became law. The studyis designed to provide federal, state, and local policy-makers, health officials, and the public with a varietyof perspectives on the dynamics of local consider-

ation of AB 136, including itsperceived benefits and limitationsas an approach to expand accessto sterile syringes among IDUs.

Findings are based on inter-views with key stakeholders insix California county and cityjurisdictions: Alameda, Los Ange-les, Sacramento, Santa Barbara,and Santa Clara Counties and theCity of San Diego. Intervieweesincluded public health officials,law enforcement officials, SEPstaff, and advocates at the locallevel. Interviews were also con-ducted with national and statelevel stakeholders in an effort toobtain broader perspectives onAB 136.

The study explored severalareas including:> The status of SEPs before

and after the passage of AB 136;> The status of a local declaration of emergen-

cy – whether considered, passed, and/orsustained across the six communities;

> The effect of AB 136 on views about syringeexchange among both those who supportedand opposed SEPs;

> Perceived roles of various local stakeholdersin debates about whether to declare a localemergency;

> Perspectives on the role of AB136 in facili-

“...[T]here is conclusivescientific evidence that

syringe exchangeprograms, as part of acomprehensive HIV

prevention strategy, arean effective public

health intervention thatreduces transmission of

HIV and does notencourage the illegal

use of drugs.”US Department of Health

and Human Services11

Introduction

Figure 1: New AIDS cases diagnosed in 2000 where injection drug use was a risk factor

Introduction

Includes those who self-reported injection drug use as their only or one of their risk factors for becoming infected with HIV.

61 and higherSan Francisco 184Los Angeles 181San Diego 104Orange 61

51 to 60Alameda 56Sacramento 52

31 to 40Fresno 33Riverside 33San Bernardino 33

21 to 30Solano 30Kern 23

11 to 20San Mateo 20Santa Clara 20Contra Costa 19San Joaquin 17Marin 14Santa Cruz 14Sonoma 12

1 to 10Monterey 9Ventura 9San Luis Obispo 8Kings 5Stanislaus 5Butte 4Merced 4Yolo 4Madera 3

Data Table and Legend

Introduction

tating or hindering discussions about andimplementation of syringe exchange;

> Perceived benefits and limitations of AB 136as an approach to syringe access; and

> Perspectives on technical assistance andother needs of local communities in inform-ing their response to AB 136.

The study is qualitative in nature and thereforedoes not necessarily represent the experiences of allCalifornia communities. In addition, the study wasnot designed to measure direct outcomes of AB 136such as its impact on the number of needles distrib-uted or HIV incidence. In addition, due to concernsabout the legality of SEPs (some SEPs, for example,were operating before AB 136 and some SEPs con-tinue to operate in some places even when a localemergency has not been declared), it is not possibleto accurately estimate the total number of syringeexchange programs in the six communities orthroughout the State of California.

MethodologyIn Summer 2000, the study research team con-

ducted confidential phone interviews with ten keyinformants, including policymakers, state and localpublic health officials, and SEP advocates. Theseinterviews helped the team identify key issues relatedto local consideration of SEPs. This information alsoinformed design of a qualitative survey instrumentand selection of jurisdictions to be included foranalysis.

The interview protocol was designed to obtainqualitative information about the status and historyof SEPs in selected jurisdictions, implementationissues associated with running local SEP programs,and the political dynamics surrounding local consid-eration of an emergency declaration pursuant to AB136. It also sought to identify the roles played byvarious stakeholders in local consideration of AB 136,information or technical assistance needs related toAB 136, and benefits and limitations of AB 136. (SeeAppendix D for the protocol instrument.)

Six jurisdictions were selected for in-depth quali-tative analysis, including five counties (Alameda, LosAngeles, Sacramento, Santa Barbara, and Santa Clara)and one city (San Diego). The jurisdictions were

chosen to reflect variation in geographic region,urbanicity, population, size of HIV epidemic, role ofinjection drug use in the local epidemic, and stage inconsideration of a local declaration of emergency.(See Table 1.)

In Fall 2000, confidential, structured phone inter-views were conducted with approximately threestakeholders in each of the six selected jurisdictions.Interviewees included local public health and lawenforcement officials, SEP staff, SEP advocates, andfunders. In December 2000, the Kaiser Family Foun-dation convened a Roundtable meeting to discuss thepreliminary findings. Invited guests included policy-makers and public health officials from the state,representatives from several local jurisdictions notincluded in the interviews, as well as HIV policyadvocates. Findings were also presented at a collo-quium of the California Syringe Exchange Network(CaSEN) in order to solicit comment and additionalinput.

In addition, a statewide survey of local healthofficers was conducted in partnership with the Cali-fornia Conference of Local Health Officers(CCLHO). Local health officers play central roles inresponding to disease threats in their communities,and they commonly provide epidemiological back-ground and advice on public health policy to electedofficials. Responses were received from 47 of the 61local health jurisdictions in the state.

Background: State Policy ConcerningSyringe Access Across the Country

Regulations related to syringe access and posses-sion are generally the purview of state law. In addi-tion, the U.S. Congress has banned the use of federalfunds for syringe exchange programs since 1988; themost recent ban is contained in the federal fiscal year2001 Labor-Health and Human Services-Educationappropriations law.4 For these and other reasons,state and local governments have emerged as impor-tant centers of activity concerning policies to reducethe incidence of HIV infections associated with injec-tion drug use.

State laws that limit access to syringes includedrug paraphernalia laws, pharmacy regulations orpractice guidelines, and syringe prescription laws.5

Introduction

Population(2000)

CumulativeAIDS Cases

(Reportedthrough 2000)

Proportionof State’s

AIDS Cases(through

2000)

AIDS Cases(Reported in

2000)

PercentIDU-

RelatedAIDS Cases

(2000)1

1 Includes reported risk as IDU and IDU/MSM2 San Diego’s City Council passed a declaration, voted not to renew it, and then later reinstated it.

Location & GeographicCharacteristics1

AlamedaCounty

Passed AB 136 Declaration;Renewed Declaration

1.4 million 6,053 5% 258 22% Located on eastern side of SanFrancisco Bay; mix of urban and

rural; Oakland is largest city

Los AngelesCounty

3.8 million 49,923 42% 1,660 11% Located on Southern Californiacoast; largest county in State

(29% of state population);largely urban; Los Angeles

County's biggest city

SantaBarbaraCounty

400,000 667 1% 18 <1% Located on Southern CaliforniaCoast; mix of urban and rural;largest city is Santa Barbara

Santa ClaraCounty

1.7 million 3,208 3% 116 17% Located at Southern end of SanFrancisco Bay Area; mix or

urban and rural

City ofSan Diego2

1.3 million 7,932 7% 301 23% Located in southwest corner ofthe State; largest urban area in

San Diego County

Did Not Pass AB 136 Declaration

SacramentoCounty

1.2 million 3,050 3% 172 30% Located in Central Valley; mixof urban and rural; Sacramento

largest city and seat of StateCapitol

Table 1: Characteristics of Jurisdictions Included in Study

Introduction

Forty-nine states and the District of Columbia havedrug paraphernalia laws that prohibit the manufactur-ing, distribution, and possession of equipment intend-ed for the use of a controlled substance, althoughsome states exclude syringes from these laws orallow for the possession of a limited number ofsyringes (California’s law does not do either).5 Twen-ty-three states have pharmacy regulations or guide-lines that impose some restrictions on pharmacysales to IDUs, such as restricting pharmacists fromselling sterile syringes to IDUs or imposing additionalrequirements on individuals who purchase syringes.6,7

Six states, including California, have syringe prescrip-tion laws – laws requiring a prescription to purchasea syringe – that restrict access tosyringes for IDUs (seven otherstates have such laws but eitherapply them in only limited cir-cumstances or allow for sales ofa limited number of syringeswithout a prescription).5

States have taken a variety ofsteps to expand access to sterilesyringes by IDUs. Several states,including Connecticut, Maine,Minnesota and New York, haveamended their drug parapherna-lia laws to remove penalties forpossession of syringes or toallow for possession of a limitednumber of syringes. New Yorkand other states have recentlypassed laws allowing over-the-counter sale of sterilesyringes in pharmacies without requiring a prescrip-tion.4

States are also looking at clarifying the legalstatus of physician prescription of sterile syringes toIDUs. Researchers have determined that current lawin most states, including California, authorizesphysicians to prescribe hypodermic needles orsyringes to injection drug users as a medicalintervention to prevent the transmission of HIV orother blood borne diseases.8 Such research has alsodetermined that pharmacy sales of prescribedsyringes are legal in California and many otherstates.8 In Rhode Island, the Department of Health

notified all licensed physicians that syringeprescription is legal in the State. A subsequent studydetermined that, “physician syringe prescription is afeasible method for increasing injection drug users’access to sterile syringes for HIV prevention,” and“provides IDUs with links to medical care, substanceabuse treatment, and social services.”9

Finally, several states have authorized the opera-tion of syringe exchange programs, a pubic healthintervention that communities have used to increaseaccess to sterile syringes in order to stem the num-ber of new HIV infections related to injection druguse. Injection drug users come to SEPs and exchangetheir used syringes for clean injection equipment.

SEPs also serve as opportunitiesto provide access to drug treat-ment programs and HIV preven-tion services.10

Federally-funded studies haveconsistently found that SEPs canreduce the number of new HIVinfections and do not increasedrug use. In a March 2000 re-port, the U.S. Department ofHealth and Human Servicesdetermined that, “there is con-clusive scientific evidence thatsyringe exchange programs, aspart of a comprehensive HIVprevention strategy, are an effec-tive public health interventionthat reduces transmission of HIV

and does not encourage the illegal use of drugs.”11

Other studies have found that SEPs are cost effec-tive12 and do not lead to increased rates of crime.13

The Institute of Medicine has determined that, “Forthose who cannot or will not stop injecting drugs,the once-only use of sterile needles and syringesremains the safest, most effective approach for limit-ing HIV transmission.”14

As of 1998, there were an estimated 131 syringeexchange programs operating in 33 states in theU.S.15,16,17 Ten states have statutes that explicitlyauthorize their operation.5 With the enactment ofAB 136, California became one of these states, andthe second state to authorize SEPs only after a local

AB 136 protects localjurisdictions from

criminal prosecution fordistributing hypodermic

needles or syringes inSEPs authorized pursuant

to the declaration of alocal emergency due to

the existence of a“critical local public

health crisis.”

Introduction

declaration of emergency (the other is Massachu-setts).5,18

California’s Approach: AB 136On October 7, 1999, California Governor Gray

Davis signed AB 136 into law. This legislationprotects local jurisdictions from criminal prosecutionfor distributing hypodermic needles or syringes inSEPs authorized pursuant to the declaration of alocal emergency due to the existence of a “criticallocal public health crisis.”

The new law was based on compromise languageproposed by the Governor. A previous bill, AB 518,introduced by California Assemblywoman KerryMazzoni (D-Novato), would have legally sanctionedSEPs if a local elected body authorized the programand it was part of a comprehensivenetwork of local services. (See Ap-pendix A for AB 518 text.) AB 518also explicitly protected both provid-ers and users of exchange servicesfrom criminal prosecution for pos-session of syringes during the ex-change.

The compromise language of-fered by the Governor removedfrom AB 518 all program detail,providing instead a one-sentenceamendment to the State’s Health andSafety Code Section 11364.7(a).This section of the Health and SafetyCode makes it a misdemeanor tofurnish drug paraphernalia knowingly,or under circumstances where one should reason-ably know that it would be used to inject a con-trolled substance. The compromise legislation of AB136 added the following language to Section11364.7(a):

“No public entity, its agents, or employees shall besubject to criminal prosecution for distribution of hypoder-mic needles or syringes to participants in clean needleand syringe exchange projects authorized by the publicentity pursuant to a declaration of a local emergency dueto the existence of a critical local public health crisis.”

This language protects local governments andtheir employees and authorized contractors that

provide syringe exchange services from criminalprosecution for distributing syringes and needles ifthere is a declaration of a local emergency. It doesnot explicitly provide protection against civil liability,and differences of opinion exist as to the actual legalrisks involved in implementation of a SEP. The lawalso does not protect the users of SEPs from prose-cution for possession of drug paraphernalia.

In requiring jurisdictions to declare a local emer-gency, AB 136 did not specifically reference anyother California law. With one exception, however,local jurisdictions that have used AB 136 to authorizeSEPs have cited the California Emergency ServicesAct in their emergency declarations. The CaliforniaEmergency Services Act requires the renewal of a“local emergency” every 14 - 21 days, depending on

how frequently the governing bodymeets. Whether or not AB 136actually requires regular renewal ofemergency declarations remainsopen to interpretation.

In January 2000, Assembly Bill136 took effect. Prior to its passage,approximately two-dozen SEPs oper-ated in California19 but their legalstatus was uncertain. Many of thesewere operated under local declara-tions of emergency. Several jurisdic-tions, some with sizable numbers ofIDUs, did not initiate or approveSEPs, at least in part because of thepotential for State legal action.20

(See Appendix B for AB 136 text andAppendix C for a more complete history of legisla-tive efforts to legalize syringe exchange in California.)

As of 1998, therewere an estimated

131 syringeexchange programs

operating in 33states in the U.S.Ten states have

statutes thatexplicitly authorize

their operation.

For a current listing of state policies regard-ing syringe exchange programs and othersyringe access policies, see Kaiser Family

Foundation’s State Health Facts web page at:www.statehealthfacts.kff.org

Study Findings

Study Findings

Status of Syringe Exchange Programs in SixCalifornia Communities

As of February 2001, five of the six jurisdictionsincluded in the study (Alameda, Los Angeles, SantaBarbara and Santa Clara Counties and the City ofSan Diego) had declared local emergencies utilizingAB 136, including two that did so during the courseof this study (Los Angeles County and the City ofSan Diego).

The San Diego City Council voted not to renewits emergency declaration in Decem-ber 2000, although an advisory groupto the Council has proposed theimplementation of a privately-fundedone-year pilot SEP program.21 TheCity Council voted in November2001 to reinstate the local emergen-cy declaration and to authorize apilot SEP program. As of this writing,Sacramento County public healthofficials and advocates have notmoved forward with an emergencydeclaration due to insufficient politi-cal support from the County Boardof Supervisors. Unauthorized or“underground” exchanges currentlyoperate in at least two of the juris-dictions included in the study. Twojurisdictions provide direct funding to SEPs.

Since passage of AB 136, at least three jurisdic-tions across the state (Alameda, Santa Cruz andSanta Clara) have joined San Francisco, Marin, theCity of Los Angeles and Berkeley in contributing localfunds for operation of SEPs.25

Different dynamics were observed in each juris-diction studied:

> Alameda County: Public health officials, inpartnership with community advocates, initiated asuccessful effort to pass a local emergency declara-tion pursuant to AB 136. The declaration allowedoperators of an existing “underground” syringe ex-

change program to begin operating in partnershipwith public health officials, with the County nowproviding direct funding.

> Los Angeles County: There are multiplelocal public health jurisdictions in the County; theCity of Los Angeles’ health department took a leadrole in supporting an emergency declaration at theCounty level. The City of Los Angeles declared astate of emergency in 1994, however the declarationwas not renewed regularly after 1995. The County

declared an emergency pursuant toAB 136 in 2000.

> Sacramento County: TheCounty Board of Supervisors passedan emergency declaration in supportof SEPs in 1994, but the program wasnot implemented and the County hasnot passed a new declaration sinceAB 136 became law. While there issupport for SEPs among public healthprofessionals and community advo-cates, opposition remains strongamong local law enforcement officalsand a majority of members of theCounty Board of Supervisors report-edly oppose declaring a new state ofemergency under AB 136.

> Santa Barbara County:Public health leaders and community advocates werekey in passage of a unanimous local emergency decla-ration by the County Board of Supervisors on June 6,2000 without any vocal opposition.

> Santa Clara County: In 1994, the Countypassed a declaration of emergency to enable a localSEP and provided some funding. Two years later,County funding was discontinued amid legal con-cerns raised by then-Attorney General Dan Lungren.After passage of AB 136, law enforcement officials,public health leaders, and community membershelped pass another emergency declaration consis-tent with the new legislation. County funding to

Individualsinterviewed for thestudy were nearlyunanimous in theirassessment that the

legislation hasfacilitated

discussions aboutlocal considerationof syringe exchange

programs.

Study Findings

support the SEP is now provided.> City of San Diego: A community-based

foundation led a successful effort to pass an emer-gency declaration in the City in October 2000.However, renewal of the declaration subsequentlyfailed, in part due to changes in City Council mem-bership. At the request of the City Council, a com-munity advisory group issued a report in October2001 urging the adoption of a 1-year, privately-fundedpilot syringe exchange program. In November 2001,the City Council voted 5-4 to renew the emergencydeclaration and implement the pilot program.

Dynamics of Local Consideration ofAB 136 Declaration

Individuals interviewed for the study were nearlyunanimous in their assessment that the legislationhas facilitated discussions about local considerationof syringe exchange programs. This assessment wasindependent of geography, size of the jurisdiction,local political environment, and interviewees’ person-al opinions of SEPs. Passage of AB 136 did not ap-pear to change fundamental attitudes of support oropposition to SEPs generally, but it did change thedynamics of community discussions regarding SEPs.

Different factors guided the consideration of anemergency declaration in each community, but juris-dictions that passed local emergency declarations(Alameda, Los Angeles, Santa Barbara, and Santa

Clara) received strong support from key communitystakeholders. Political opposition, including, in somecases, from law enforcement leadership, was themost significant reason reported as to why someareas struggled with passage or renewal of an emer-gency declaration. This was the case in SacramentoCounty and in the City of San Diego.

Several themes emerged from informants regard-ing local consideration of an emergency declaration:

> Support or opposition from local and statelaw enforcement groups was a key elementin local consideration of an AB 136-sanc-tioned emergency declaration. For example,a health official in one community noted thatthe united opposition to SEPs by the policedepartment, sheriff, and the District Attor-ney was an important influence on the Boardof Supervisors. A participant in the study’sroundtable meeting noted the close connec-tion between law enforcement and electedofficials in his community and the need toconvince police department leadership as anessential first step before approaching theBoard of Supervisors regarding a declarationof emergency.

> The lack of explicit protection for govern-ments from civil liability for operation of aSEP was an issue identified by several infor-mants. A May 2000 letter from the Califor-

Table 2: Status of Emergency Declarations Pursuant to AB 136

Considered declarationof AB 136-authorized

emergency

Passed declaration ofemergency

Regular renewal ofemergency declaration

Alameda County Yes Yes Yes

Los Angeles County Yes Yes Yes

Sacramento County No No N/A

Santa Barbara County Yes Yes Yes

Santa Clara County Yes Yes Yes

City of San Diego Yes Yes Yes1

1 See text; San Diego’s City Council passed a declaration, voted not to renew it, and then later reinstated it.

Study Findings

nia Narcotics Officers’ Association to localelected officials suggested that the risk ofcivil liability was significant for jurisdictionsapproving SEPs using AB 136.22 TheCCLHO issued an opinion in July 2000stating that the actual risk of civil liability islimited.23 There has been no definitivelegal ruling on this matter to date.

Roles of Specific StakeholdersInformants in the six jurisdictions were asked

to discuss roles that different stakeholders hadplayed in local consideration of an emergencydeclaration.

Elected OfficialsElected officials charged with

authority under AB 136 to declarea local emergency are obviously atthe center of local deliberationsover sanctioning of SEPs, and yetthey were seldom identified asleaders in the effort to establishlegalized SEPs. As one community-based SEP advocate said, electedofficials “allowed themselves to beinformed.” Several elected officialsled efforts to oppose a declaration.Others readily supported effortswhen the issue was brought tothem. But even where declarationswere passed, several SEP propo-nents voiced concerns about thetentative nature of support fromlocal elected officials and cautioned that futureevents (or elections) could quickly end supportfrom the majority of the Board of Supervisors orCity Council.

Law EnforcementLaw enforcement officials played a crucial role

in many communities as declarations of emergencywere considered. Police were also important tothe success of syringe exchange programs them-selves, whether or not a declaration had beenmade. The majority of police officials interviewed

for the study expressed opposition to SEPs. Somelaw enforcement officials voiced concern that SEPswould increase crime by “facilitating drug traffick-ing” and “supporting drug use.” One public healthofficer remembered that, “the Sheriff said he didn’tcare what the research said.”

Still, some law enforcement officials were com-fortable allowing syringe exchanges to exist in thecommunity. One law enforcement official noted abenefit of these programs in addition to addressingHIV infection rates. “I clearly see it [SEPs] as apublic health issue,” he said. “We had numerouscomplaints about discarded syringes in parks andplaygrounds here and once we opened a [SEP], thecomplaints went away. It has had a positive impact

in reducing discarded syringes.”An Assistant District Attorney said,“We are looking at the drug prob-lem, getting the person into thedrug treatment court, but prose-cuting them for syringes isn’t goingto accomplish anything. Gettingthem through drug treatmentcourt is going to do something. Itis much worse for an individual tohave hepatitis C or HIV than to bean addict.”

Law enforcement officials andadvocates alike acknowledged thecompeting perspectives drivingmuch of the SEP debate. A policeofficer said that even though heappreciated the possibility thatSEPs would contribute to public

health, his job was to enforce the law and he had adifferent goal than most SEP advocates. One SEPadvocate from a community-based organizationacknowledged this difference of perspective: “[Thepolice…] have a very specific job to do, includingpreventing illegal drugs,” she said. “So I can seethat it’s a challenge for them.”

Some of the communities included in the studyhave established formal or informal agreementswith law enforcement that allow local exchanges toexist even when an emergency declaration is not inplace. Yet some communities reported ongoing

Political opposition,including, in some

cases, from lawenforcement

leadership, was themost significant

reason why someareas struggled withpassage or renewalof an emergency

declaration.

Study Findings

hostile relationships with the police force. One staffmember from a county health department said that,“The cops actually go up to the storefront of theharm reduction building to create a chill. They set upthree or four cars outside the exchange to bustexchangers, and it threatens workers at the ex-change.”

Local Public Health OfficialsAs noted above, local health officers typically

provide epidemiological information and advice onhealth policy to local lawmakers. Public health offi-cials played important, though varied, roles in thelocal debates concerning an AB 136 emergency dec-laration. Many informants noted their local healthdepartment’s support for an emergency declaration.In one community, efforts to pass a declaration weredriven by the public health officer. Inanother, health officials played norole; one community-based advocatereported that, “Our health depart-ment was effectively gagged severalyears ago,” by opponents to SEPs onthe Board of Supervisors.

State Health OfficialsMany informants raised concerns

about the lack of guidance or techni-cal assistance from state publichealth officials. There was a wide-spread sense among intervieweesthat the state could have been moreinvolved in providing technical assistance to localjurisdictions on several issues, including considerationof passage of a local declaration and implementationof their legally sanctioned SEPs. Still, one informantsaid that state officials had been helpful by “unofficial-ly” passing on information. State Office of AIDS staffhave noted that Governor Davis’ emphasis on sy-ringe exchange remaining a local (rather than state)function led the Office to conclude that it shouldplay a very limited role in AB 136 implementation(confidential personal communications).

Community-Based Organizations The role of community-based groups also varied

greatly across the six jurisdictions. In some, they ledefforts for a local declaration. In others, they playeda more limited role. The San Francisco AIDS Foun-dation often provided valuable information and tech-nical assistance to local agencies. According to oneinformant from Los Angeles, community organiza-tions in that area were less involved in efforts to passa local declaration because syringe exchanges werealready operating in that community.

FundersPrivate funders generally played a very limited

role in supporting syringe exchange programs or inlocal consideration of an emergency declaration inthe six jurisdictions included in this study. (It should

be noted that several foundationshave played important roles on SEPsprogramming nationally and in Cali-fornia). Several informants recalledconversations with foundation staffwho cautioned that they were unableto provide support for illegal activity,such as syringe exchanges. Oneexception was San Diego, where aprivate foundation was the leadagency advocating for SEPs and pas-sage of a declaration. As notedbelow, the legal legitimacy brought bypassage of AB 136 resolutions wasseen by many informants as a new

opportunity to encourage foundations to fund SEPs.

MediaThe news media also played a variety of roles in

communities considering emergency declarations,emerging as an important factor in some local de-bates. Informants suggested that where the mediatook sides, it was often perceived as supportive oflocal emergency declarations (though not in all juris-dictions). Other informants noted that media atten-tion was quite limited and there were complaintsabout the quality and objectivity of news stories onSEPs. One community-based advocate claimed thatthe media was “clueless” on the issue. A local health

“There is a need fora neutral party, suchas the State Health

Department, toprovide more

information on whatthe legislation

means.”Local Health Official

Study Findings

officer complained that, “Individual reporters engagein ‘drive-by’ reporting...If it is sensational, they coverit, but not in depth.”

Information and Technical Assistance NeedsMany of those interviewed identified the need

for technical assistance related to local considerationof AB 136 declarations and the safe and efficientoperation of syringe exchanges. Specifically, theycited the need for what was perceived to be objec-tive information about SEPs, and for informationabout the status of SEPs in other communities acrossthe State. A law enforcement official, for example,noted the need for objective information on theefficacy of SEPs and information regarding programimplementation. In this official’s jurisdiction, a localorganization had made a wealth of information avail-able to government staff and electedofficials, but there was concern aboutthe validity of this information sincethe organization was itself promotingSEPs.

An informant from a countyhealth department said, “There is aneed for a neutral party, such as theState Health Department, to providemore information on what the legis-lation means.” Recalling preparationsfor local consideration of a declara-tion of emergency, a staff member ata community-based organizationlamented that, “There is no singleclearinghouse for information. We’ve spent a lot oftime calling every city and county to get informationon what they put in their declarations.”

Several interviewees said a packet of informationon SEP-related research and implementation issuesdistributed after the passage of AB 136 by the SanFrancisco AIDS Foundation was extremely useful.But others cautioned that there would be resistancein some areas of the state to accepting informationfrom San Francisco, as that city is perceived to beunique. Informants also identified several otherorganizations that had provided useful informationabout SEPs, including the California Syringe ExchangeNetwork (CASEN), the North American Syringe

Exchange Network (NASEN) and the CCLHO. TheU.S. Centers for Disease Control and Prevention(CDC) was also identified as having high credibility;several interviewees notat that the CDC could play aconstructive role by distributing objective, evidence-based information on SEPs to local communities.

Many informants said that once a local declara-tion is made and the health department is ready tomove forward with setting up an exchange, officialsneed information on program operations, includingacquisition and disposal of SEP-related supplies, pro-gram evaluation and policies, and other implementa-tion issues. Said one health department staffer, “weneed a framework for the operation of programs.”Several informants said assistance with seeking fund-ing and training staff would also be very helpful.

Identified Benefits of AB 136There was a virtual consensus

among interviewees that passage ofAB 136 helped generate new orrenewed political support and advo-cacy to establish legally sanctionedSEPs, as well as increased legitimacy.For example, in one jurisdiction aprivate organization had for severalyears been sponsoring an educationcampaign in favor of SEPs that target-ed local elected officials and thepublic. Yet it was not until passage ofAB 136 that the community was ableto take the next step towards formal

consideration of a sanctioned program. An inter-viewee from another jurisdiction observed that AB136 “made the conversation [about creation of aSEP] possible.”

Another interviewee noted that local law en-forcement officials had not been willing to engage indiscussion about SEPs before passage of the law.After AB 136, law enforcement “came to the table”and began to work with other local governmentdepartments and community members on consider-ation and design of a program. One police officerremained opposed to SEPs after passage of AB 136,but he saw his role differently as the local electedofficials neared legal sanctioning of exchange pro-

“We are opposed toa SEP. However, wewill do whatever isdecided and we’llwork towards thegoal of having the

best SEP wecan have.”

Local Police Official

Study Findings

grams. Speaking for the police department, he said,“We are opposed to a SEP. However, we will dowhatever is decided and we’ll work towards the goalof having the best SEP we can have.”

AB 136 also appears to have improved opportu-nities for public and private funding for SEPs. Sincethese programs very often struggle to identify ade-quate funding to maintain basic services, expandedopportunities for funding can have an importantimpact on the quality and quantity of services provid-ed. The law helped leverage additional private fund-ing, and in two of the counties studied, Santa Claraand Alameda, public funding has been awarded tooperate SEPs. As noted above, private foundationsoften balk at funding perceived “illegal” activities.Though it was not clear whether any communities inthe study received foundation funding subsequent topassage of an emergency declaration, the potentialfor legal legitimacy was seen by many informants asan opportunity to open up new sources of financialsupport.

Legal legitimacy also brought improved opportu-nities for collaboration between public health, SEPstaff, and other service providers. According toinformants in several jurisdictions, local public healthofficials were able to be involved with SEPs in moreexplicit ways. These closer ties with public healthdepartments enhanced opportunities to link SEPusers with the array of services available through thecounty, including STD testing, drug treatment, healthcare, and prevention interventions.

As more SEPs became legally sanctioned andmore widely publicized there was also improvedunderstanding and availability of linkages betweenSEPs and wrap-around health and social services.Several jurisdictions reported improved and moreopen information sharing between SEP staff andother public and community service providers.

Finally, according to informants, AB 136 had apositive impact on many SEP clients who exhibitedimproved knowledge of and willingness to use SEPs.In general, informants noted that legitimization ofSEPs made clients more comfortable using services,largely because they had fewer concerns about beingarrested or harassed by law enforcement officials.Said one SEP worker, “Clients are less fearful ofshowing up now.” However, because SEP clients

were not interviewed, no information is available ontheir perspectives about the relative safety of usingSEPs, particularly in light of AB 136.

Identified Limitations of AB 136Despite an enhanced sense of legitimacy and

increased opportunities for discussion and consider-ation due to AB 136, several limitations were alsoidentified. The two most common concerns raisedwere the perceived need for ongoing renewal of anemergency declaration, and the lack of legal protec-tions for SEP clients.

Many respondents indicated that the require-ment for local jurisdictions to declare an emergency,and perceived need to renew these declarationsevery 14 - 21 days, may limit the ability to use AB136, even in communities where there is significantpolitical support for SEPs. The perceived renewalrequirement exacerbates political risks for localelected officials by forcing them to continually cast adifficult vote on SEPs. As one interviewee said, “theBoard of Supervisors [in our community] is notwilling to take those risks.” In general, informantsindicated that the ongoing need to renew an emer-gency declaration is administratively burdensome andcreates an unnecessary barrier for local jurisdictions.

One person suggested that the state make ablanket declaration of emergency, thereby givingevery community the option to approve SEPs. “Thisis a state public health emergency,” she said, “and theprogramming should not depend on local politics.”

According to some informants, the need for adeclaration may also engender more visible opposi-tion than was previously apparent in some communi-ties. Law enforcement officials who are willing to“look the other way” while an underground SEPprovided services may become mobilized againstproposed legal changes that would sanction SEPs,particularly if a local declaration of emergency isrepeatedly brought up for a vote. One intervieweenoted that, “The Sheriff and the District Attorneysaid they would show up every two weeks to opposethe declaration.”

Many interviewees voiced concern that AB 136does not go far enough in protecting SEP clients. Asnoted above, several communities have established

Study Findings

informal agreements with their police departmentsassuring that officers will not pursue or prosecuteindividuals engaged in exchange services at specifichours in specific areas of the county. Still, suchagreements were seen as inadequate to protect SEPclients or fully address their fears of coming for SEPservices. As one interviewee said, the law, “shouldprotect the exchanger…(and) create a radius ofprotection around exchanges.”

The majority of law enforcement officials inter-viewed for the study did not share this concernabout the lack of legal protection for SEP clients. Butone police officer noted that this lack of explicit legalprotection means that law enforcement officers whohave agreed not to enforce drug paraphernalia lawsduring certain hours of SEP operation must refrainfrom monitoring the activities of SEP clients whilethey are at the exchange. This con-cerned the officer, who said that ifthe clients’ SEP-related activitiesbecame legally protected, law en-forcement would have greater flexi-bility to monitor individuals for non-SEP related criminal behavior duringthe time SEPs were open.

Where AB 136 made SEPs legal,it also tended to increase programrequirements for SEPs and intensifythe demand for ancillary serviceswithout providing additional stateresources. The lack of new commit-ments of funding through AB 136was noted by many interviewed for the study. Theycited increased funding needs for alcohol and drugtreatment services, evaluation, planning, and legalcosts in the wake of the emergency declaration. Oneinterviewee said that local SEP clients are given prior-ity for already scarce drug treatment services. Thisleads to “shuffling the waiting list” rather than creat-ing new drug treatment slots.

Even though many interviewees identified theneed for more assistance from the state, there werealso numerous concerns raised that increased gov-ernment involvement had complicated the work ofunderground exchanges and led to politicization ofprogram design. Programs that had been operating

underground may have previously worried aboutlegal prosecution or the difficulty of raising funds.Now, with a legal sanction, came increased involve-ment from the county health department and re-duced autonomy for SEP personnel. One intervieweesaid that, “the County became bossy and told anunderground program not to open any more siteswithout approval.” In one community, a SEP workersaid the County did not acknowledge the legitimacyof the community organizations that had been oper-ating a SEP before the local declaration.

A county health department official explained thecomplexity involved in local government administra-tion of the SEP: “Non-public health based SEPs canmake decisions about policy at a much more grass-roots level while we have to go back to electedofficials to get permission to do something as simple

as buying cookers. We have to makeour case to the Sheriff, District At-torney, Police Chief, and the Board ofSupervisors.”

Some worried that with in-creased local government involve-ment, program and policy issues atSEPs were being decided based onwhat the Board of Supervisors wouldaccept rather than what was best forSEP clients. In one county, healthofficials had to assure two electedofficials that the SEP would not belocated in their districts before theywould support passage of a declara-

tion. Others said that legal sanction of SEPs led tochanges in program guidelines that made the pro-gram less “user friendly” for clients.

One informant worried that AB 136 may actuallygive local law enforcement increased license to pros-ecute local SEP staff and clients in jurisdictions thathave chosen not to enact an emergency declaration.The informant was concerned that, in these jurisdic-tions, law enforcement may believe it has implicitsupport for prosecuting clients and staff and makingit more difficult for new underground exchanges toopen. A recent legal ruling appears to bear out thisconcern. In June 2001 a Sacramento judge ruled the

Identifying sufficientfunding and an

appropriate locationfor SEP programs

emerged as primaryimplementationchallenges facinglocal programs.

Study Findings

“medical necessity” defense used by a SEP volunteerwas invalid. The judge referenced the County’s deci-sion not to legalize syringe exchange under AB 136 inthe ruling.24

Program Implementation IssuesEven in communities with AB 136 emergency

declarations and support for SEPs, informants identi-fied several program implementation challenges.Identifying sufficient funding and an appropriatelocation for SEP programs emerged as primary im-plementation challenges facing local programs.

Although financing improved for several SEP sitesafter passage of a local declaration, the lack of suffi-cient funds remained animportant problem formany programs and wasthe most frequently iden-tified challenge to SEPimplementation. Oneinformant said her siterelied on donated syringedisposal equipment be-cause they could notafford to purchase biohaz-ard containers for usedsyringes. At another site,adequate rental programspace and basic suppliessuch as health informationmaterials were beyondthe program’s financialmeans.

Currently, no statefunding is used to pur-chase sterile syringes foruse by SEPs, althoughCalifornia state law does not prohibit the use ofstate funds for syringe exchange, and local healthjurisdictions that receive state HIV prevention fund-ing could request authorization to use existing state-only funds for these programs (though it is not clearthat such a request would be approved).

Finding a suitable location for the SEP was alsoan important issue for many counties, even wherethere were long standing programs. In some commu-nities, siting became a significant political concern.

For example, in one jurisdiction, an elected officialwas on record opposing the SEP because it was in hisdistrict and he believed it interfered with businessdevelopment and economic revitalization efforts.Other jurisdictions reported the ongoing need toaddress concerns raised by local residents. Onecounty health department employee said, “We wantto maintain and grow the community support for theprogram so we are being very systematic and carefulabout choosing sites. And finding a storefront and anowner who would lease to this program is a toughsale.”

Staff at several sites noted a need for moreresources in order toinitiate appropriate pro-gram evaluation. Severalinformants also identifiedestablishing and maintain-ing referral mechanismswith other service provid-ers as an important chal-lenge. The chronic short-age of drug treatmentprogram slots alsoemerged as a theme in theinterviews. At one SEP,almost half of the SEPclients reportedly soughtdrug treatment services,but staff said that almostno such services wereavailable locally.

Informants were alsoasked whether there was aneed for identifying staffand volunteers with ex-

pertise in SEP operation. Most informants said that,whether or not their jurisdiction had passed a decla-ration, SEPs that had been operating for some timeprovided ample staffing expertise to the newer localprograms.

Findings from CCLHO Statewide Survey ofLocal Health Officers

The views of key informants in six communitieswere supplemented by a statewide survey of local

Table 3: Results of CCLHO Survey ofLocal Health Officers:

Their perception of support/opposition to syringeexchange programs from major community stakeholders.

Support Oppose Neutral

*DA officially neutral in one county but has stated he is poisedto close the program if there are problems.**For example, medical societies, drug recovery organizations,HIV/AIDS providers, and community-based organizations.NB: 3 respondents checked multiple boxes.

Supervisors/City Council 15 16 5

Police/Sheriff 7 24 9

District Attorney 7 16 10*

Courts 3 12 12

General Community 16 10 14

Other key local groups** 10 3 2

health officers conducted in conjunction with theCCLHO.

Across the state, data from the CCLHO surveyof local health officers indicate that there are SEPs inat least 16 jurisdictions in the state, 11 of which wereauthorized using AB 136. The 16 jurisdictions withSEP sites represent 34 percent of the 47 local healthjurisdictions responding to the survey.

In general, the CCLHO survey yielded similarfindings to the qualitative interviews. In the CCLHOsurvey, “lack of political support” was the most com-monly identified reason for not moving forward withefforts to legalize SEPs and was cited by more thanone-third of local health officers (36%, or 17 of 47health officers). Fifteen cited “opposition from lawenforcement,” and eight named, “other priorities oflocal public health,” as reasons for not acting tolegalize syringe exchange programs.

The views of local health officers concerning theroles of various community stakeholders were alsosimilar to those expressed by many of those inter-viewed at the six sites. In the CCLHO survey, localhealth officers were more likely to say that police/sheriffs and District Attorneys were opposed to SEPsthan supportive of them. Police/sheriffs were most

Study Findings

often cited as being in opposition to SEPs (24 op-posed vs. 7 supportive and 9 neutral). Sixteen (16)informants said DAs were opposed. Local healthofficers were almost as likely to say that Board ofSupervisors/City Councils were supportive (15) asopposed (16). CCLHO survey informants weremixed in their assessment of community support forSEPs. Sixteen (16) informants said their communitywas supportive, 10 said their community was op-posed, and 14 identified the community as neutral.(See Table 3.)

The CCLHO survey also asked which stakehold-ers had initiated or were initiating local efforts toconsider an AB 136 declaration. Twelve informantsidentified “public health officer/health department,”five identified “community organizations,” four identi-fied “elected officials,” and two identified “currentunderground SEP providers.”

Local health officials responding to the CCLHOsurvey also reported that local health departmentshave technical assistance needs on the issue of sy-ringe exchange. As one informant noted, “Publichealth staff would benefit from expert advice, sci-ence-based information, and best practices exam-ples….”

Policy Options

Policy Options

The findings of this study document a variety ofperspectives on the role of syringe exchange

programs and the impact of AB 136. Many informantsidentified legal and administrative modifications andtechnical assistance opportunities that could facilitatecommunities’ consideration of AB 136. Several ofthese policy options are presented below, groupedinto four main areas: potential modifications of AB136 related to the emergency declaration, potentialmodifications of AB 136 to protect SEP clients,opportunities for technical assistance, and otheropportunities for expanding access to sterile syringes.

Potential Modifications of AB 136 Related toEmergency Declaration

Clarification or changes in the requirement forregular renewal of a local emergency declarationwere most noted by informants:

> County counsel clarification of legalrequirements. As noted earlier, AB 136leaves to local interpretation the question ofwhether or not regular renewal of anemergency declaration is required. TheCalifornia Emergency Services Act requiresregular renewal of a local emergency. AB136 did not specifically reference the Califor-nia Emergency Services Act, but, with oneexception, local jurisdictions that have usedAB 136 to decriminalize SEP have cited theEmergency Services Act in their emergencydeclarations. Jurisdictions could seek clarifi-cation from their county counsels regardingthe actual legal requirements for renewal ofdeclarations of emergency under AB 136.

> Modify or eliminate renewal require-ment. California law could be amended tomodify the timeframe for renewal of anemergency declaration pursuant to AB 136(key informants recommended anywherefrom 6 months to 5 years), eliminate theneed to renew the declaration altogether, or

clarify that frequent renewals are not re-quired. Jurisdictions might be allowed to setthe renewal period themselves, withincertain parameters.

> Authorize renewals by local publichealth officers. In addition to authorizingthe declaration of a local emergency by agoverning body of a city or county, Govern-ment Code also authorizes “an officialdesignated by ordinance adopted by thatgoverning body” to declare a local emergen-cy for a period not to exceed seven days,unless ratified by the governing body. Cali-fornia Health and Safety Code could beamended to authorize a governing body tovest authority for the ongoing renewal of alocal emergency declaration with its seniorpublic health officer, subsequent to an initialvote by the governing body. Intervieweesindicated this policy option would reduce theadministrative burden of renewing theemergency declaration while helping to de-politicize the renewal process.

Potential Modifications ofAB 136 to Protect SEP Clients

The second most common policy recommenda-tion by informants was that AB 136 be modified toprovide greater protection for SEP users:

> Exempt individuals using SEPs autho-rized by AB 136, from syringe para-phernalia laws. AB 136 exempts localentities, their employees and agents fromcriminal prosecution for distributing hypo-dermic needles or syringes to participants inan SEP authorized pursuant to AB 136. Butindividuals in possession of syringes obtainedfrom an authorized syringe exchange pro-gram are not protected from criminalprosecution. The California Health andSafety Code could be amended to exempt

Policy Options

participants in a SEP authorized pursuant toAB 136, or clients of any SEP, from criminalprosecution for possession of sterile sy-ringes. (AB 1292, currently being consideredin the California Legislature, would providelimited protection for possession of hypo-dermic syringes and would authorize phar-macists to sell syringes without a prescrip-tion.)

Potential Opportunities forTechnical Assistance

Interviewees identified a number of ways thestate and others could assist local communities asthey debate emergency declarations and pursueimplementation of exchange programs:

> Improve public education efforts andtechnical assistance, and expand op-portunities for information exchangeamong various stakeholders. Sincepassage of AB 136, most interviewees haverelied on information and technical assis-tance provided by individuals, organizationsand local public health officials in communi-ties that had previously declared an emer-gency. However, several study informantsfelt the need for more ongoing technicalassistance (TA), either from the state oranother objective source. To date, theCalifornia State Office of AIDS has played aminimal role in education, technical assis-tance and information regarding AB 136 andsyringe exchange. The state could expand itsrole by directly or indirectly providing TA onissues related to consideration of an emer-gency declaration, interpretation of state law,and administration of exchange services andrelated support programs. One informant

suggested that the state identify key contactpeople within the Department of HealthServices who could serve as a resource tocounty staff on SEP-related questions.Another attendee of the study’s roundtablesession suggested the State provide a contin-ually updated list of the status of emergencydeclarations in California communities.

> Sponsor conferences or other opportu-nities designed to bring together themultiple players in HIV prevention forinjection drug users. Several intervieweesnoted that elected officials, law enforcement,public health workers, and advocates bringdifferent perspectives to local debatesaround syringe exchange. In addition, peopleworking in drug treatment and addictionprograms are not always brought into localdeliberations around syringe exchange, eventhough their services are an integral part ofsuccessful syringe exchange programs. Thestate or others could sponsor or fundconferences or trainings that bring togethercommunity stakeholders. These eventswould be an opportunity to share the latestscience on the efficacy of syringe exchange,discuss program implementation issues, andfacilitate discussions between key players.

Other Policy OptionsMany study informants also suggested broader

changes to California law, outside the scope of AB136, which could facilitate access to sterile syringesby IDUs, including removing penalties for possessionof syringes, allowing physician prescription of sy-ringes, exempting clients of all SEPs (not just AB 136-authorized SEPs) from State drug paraphernalia laws,and allowing over-the-counter sale of sterile syringesin pharmacies without requiring a prescription.

Conclusion

Conclusion

AB 136 has played an important role in localconsideration of syringe exchange programs in com-munities across the State of California. The new lawhas been a catalyst for local discussions and debatesover whether to declare an emergen-cy and sanction SEPs, and it has led topassage of declarations in severalareas. With legal sanction cameseveral benefits for these programs,including direct county governmentfunding in some jurisdictions andincreased collaboration betweenSEPs and other public service provid-ers.

Yet the law did not settle theongoing debate over syringe exchange in many com-munities. Many law enforcement officials, in particu-lar, continue to have serious reservations about SEPsand their potential effect on the police department’sability to enforce other drug-related laws. In addi-tion, those who support SEPs raised concerns aboutwhat they saw as limitations in AB 136, including theperceived requirement for frequent renewal of an

The law did notsettle the ongoing

debate over syringeexchange in many

communities.

emergency declaration and lack of legal protectionfor SEP clients. For some SEP staff and advocates,the increased government role made possible by AB136 was a mixed blessing, bringing additional resourc-

es but also creating increased gov-ernment oversight and politicalscrutiny.

Policymakers have a variety ofoptions as they consider futureactions to reduce HIV infectionsamong injection drug users and theirsexual partners and children. Severalstudy informants recommendedspecific changes to AB 136 and toother state law. Expanded technical

assistance to communities and increased dialoguebetween key stakeholders will both be important ascities, counties and the state continue to identify thebest means to reduce new HIV infections in Califor-nia. Policymakers in other states can apply lessonsfrom California’s early experiences with AB 136implementation as they consider similar legislation toreduce new HIV infections in their communities.

Appendices

Appendix A: Text of AB 518

BILL NUMBER: AB 518AMENDED BILL TEXT

AMENDED IN ASSEMBLYAPRIL 28, 1999

INTRODUCED BY AssemblyMember Mazzoni (Principalcoauthor: Assembly Member Shelley)(Coauthors: Assembly MembersAroner, Hertzberg, Keeley, Kuehl,Lempert, Longville, Migden, Romero,and Washington) Steinberg,Washington, Wesson, and Wiggins)(Coauthor: Senator Solis)

FEBRUARY 18, 1999

An act to repeal and add Section4145 of the Business and ProfessionsCode, and to add and repealChapter 15 (commencing withSection 121340) of to Part 4 ofDivision 105 of the Health andSafety Code, relating to AIDS.

LEGISLATIVE COUNSEL’S DIGEST

AB 518, as amended, Mazzoni. AIDS:clean needle and syringe exchangeprojects. Existing law authorizespharmacists and physicians to furnishhypodermic needles and syringeswithout a prescription or permit forhuman use in the administration ofinsulin or adrenaline. This bill wouldauthorize clean needle and syringeexchange projects, and wouldauthorize pharmacists, physicians,and certain persons authorizedunder those projects to furnishhypodermic needles and syringeswithout a prescription or permit.

This bill would state the findings anddeclarations of the Legislatureregarding infection with the humanimmunodeficiency virus (HIV), anddevelopment of acquired immunedeficiency syndrome (AIDS) amonginjection drug users. This bill wouldauthorize counties, cities, or citiesand counties to develop a cleanneedle and syringe exchange projectupon the action of that county, city,or city and county and certain otherlocal officers. This bill wouldenumerate the components of aclean needle and syringe exchangeproject, and would require that theproject be part of a network ofvoluntary and confidential serviceswhere available. This bill wouldrequire that a participating county,city, or city and county assess theproject using certain criteria, andsubmit a progress report that takesinto consideration data from theassessment to the State Director ofHealth Services, the Governor, andthe chairpersons of both healthcommittees of the Legislature. Vote:majority. Appropriation: no. Fiscalcommittee: yes. State-mandatedlocal program: no.

THE PEOPLE OF THE STATEOF CALIFORNIA DO ENACTAS FOLLOWS:SECTION 1. The Legislature herebyfinds and declares all of thefollowing:(a) The rapidly spreading acquired

immune deficiency syndrome(AIDS) epidemic, and the morerecent spread of blood-bornehepatitis, pose an unprecedented

public health crisis in California,and threaten, in one way oranother, the life and health ofevery Californian.

(b) Injection drug users are the sec-ond largest group at risk of be-coming infected with the humanimmunodeficiency virus (HIV)and developing AIDS, and theyare the primary source of het-erosexual, female, and perinataltransmission in California, theUnited States, and Europe.

(c) According to the State Office ofAIDS, injection drug use hasemerged as one of the mostprevalent risk factors for newAIDS cases in California.

(d) Studies indicate that the lack ofsterile needles available on thestreets, and the existence oflaws restricting needle availabili-ty promote needle sharing, andconsequently the spread of HIVamong injection drug users. Thesharing of contaminated needlesis the primary means of HIVtransmission within the injectiondrug user population.

(e) As of December 1996, 32 per-cent of the 573,800 reportedcases of AIDS in the UnitedStates were associated with in-jection drug use. Of the 49,764cases of AIDS presumed to betransmitted through heterosexu-al sex, 44 percent of the casesoccurred among the sexual part-ners of injection drug users. Ofthe 6,891 pediatric AIDS casesrelated to a mother with or atrisk for HIV infection, 59 per-cent were related to injection

drug use. The number of re-ported AIDS cases reflects onlya fraction of the total number ofpersons infected with HIV.

(f) An estimated 5.7 percent, 10.3percent, and 7.1 percent of in-jection drug users enteringmethadone treatment programsbetween 1993 and 1994 in Con-tra Costa, San Francisco, andAlameda Counties, respectively,were infected with HIV. Publichealth officials generally consid-er the seroprevalence rates ofthose entering treatment to besignificantly lower than the truerate of HIV infection among theinjection drug user population asa whole.

(g) Most injection drug users use avariety of drugs, mainly heroin,cocaine, and amphetamines. Be-cause amphetamine- and co-caine-injecting drug users injectmore frequently than heroin us-ers, their risk for HIV infection ishigher.

(h) Studies of injection drug users inNew York, New York; San Fran-cisco, California; Tacoma, Wash-ington; Boulder, Colorado; Port-land, Oregon; and other cities inthe United States indicate thatinjection drug users are con-cerned about AIDS and dochange their behavior when of-fered, in a nonjudgmental setting,reasonable strategies to protectthemselves. A UCLA study ofprisoners in the county jail whoinjected drugs indicated a signifi-cant decrease in needle sharingafter the inception of clean nee-dle and syringe exchange in LosAngeles.

(i) The United States Secretary ofHealth and Human Services an-nounced findings on April 20,1998, stating that “needle

Appendices

exchange programs can be aneffective part of a comprehen-sive strategy to reduce the inci-dence of HIV transmission anddo not encourage the use of ille-gal drugs.” Secretary Shalala fur-ther stated that “The sciencereveals that successful needleexchange programs refer partici-pants to drug counseling andtreatment as well as necessarymedical services, and make nee-dles available on a replacementbasis only.”

(j) California is one of 10 statesthat criminalizes the furnishing,possession, or use of hypoder-mic needles or syringes withouta prescription. Of these 10states, four have either passedlegislation or waived the prohibi-tion through administrative ac-tion over the last several yearsto permit the development ofneedle exchange programs. Cal-ifornia has the highest seroprev-alence rate of HIV infection ofany state that has not waivedthe prohibition or adopted astatute to permit needle ex-change programs.

SEC. 2. Section 4145 of the Businessand Professions Code is repealed.

SEC. 3. Section 4145 is added to theBusiness and Professions Code, toread: 4145.

(a) Notwithstanding any other pro-vision of law, the following per-sons may, without a prescriptionor permit, furnish a hypodermicneedle or syringe if all the re-quirements in subdivision (c) aremet:(1) A pharmacist or physicianmay, without a prescription or apermit, furnish hypodermic

needles and syringes for humanuse in the administration of insu-lin or adrenaline.(2) A pharmacist or veterinari-an may, without a prescriptionor permit, furnish hypodermicneedles and syringes for use onpoultry or animals.(3) A pharmacist, physician, orother person designated underthe operating procedures devel-oped pursuant to paragraph (1)of subdivision (a) (b) of Section121341 of the Health and SafetyCode may, without a prescrip-tion or permit, furnish hypoder-mic needles and syringes whenoperating a clean needle and sy-ringe exchange and any personmay, without a prescription or apermit, obtain hypodermic nee-dles and syringes from a pro-gram established pursuant toChapter 15 (commencing withSection 121340) of Part 4 of Di-vision 105 of the Health andSafety Code.

(b) Any person may, without a pre-scription or permit, obtain hypo-dermic needles and syringesfrom a pharmacist or physicianfor human use in the administra-tion of insulin or adrenaline, orfrom a pharmacist, veterinarian,or permitholder for use onpoultry or animals if all the re-quirements in subdivision (c) aremet.

(c) (1) No needle or syringe shallbe furnished to a person who isunknown to the furnisher andunable to properly establish hisor her identity.(2) The furnisher, at the timethe furnishing occurs, shall makea record of the furnishing in themanner required by Section4146.

SEC. 4. Chapter 15 (commencingwith Section 121340) is added toPart 4 of Division 105 of the Healthand Safety Code, to read:

CHAPTER 15. CLEANNEEDLE AND SYRINGEEXCHANGE 121340. (a) The Legislature findsand declares that scientific data fromneedle exchange programs in theUnited States and in Europe haveshown that the exchange of usedhypodermic needles and syringes forclean hypodermic needles andsyringes does not increase drug usein the population, can serve as animportant bridge to treatment andrecovery from drug abuse and cancurtail the spread of humanimmunodeficiency virus (HIV)infection among the intravenousdrug user population.(b) In order to attempt to reduce

the spread of HIV infection andblood-borne hepatitis among theintravenous drug user popula-tion within California, the Legis-lature hereby authorizes a cleanneedle and syringe exchangepursuant to this chapter in anycity and county, county, or cityupon the action of a countyboard of supervisors and thelocal health officer or healthcommission of that county, orupon the action of the citycouncil, the mayor, and the localhealth officer of a city with ahealth department, or upon theaction of the city council and themayor of a city without a healthdepartment.

(c) The authorization provided un-der this section shall only be fora clean needle and syringe ex-change project as described inSection 121341.

Appendices

121341. (a) A city and county, ora county, or a city with or without ahealth department that acts toauthorize a clean needle and syringeexchange project pursuant to thischapter shall, in consultation withthe State Department of HealthServices, authorize the exchange ofclean hypodermic needles andsyringes, as recommended by theUnited States Secretary of Healthand Human Services, as part of anetwork of comprehensive services,including treatment services, tocombat the spread of HIV andblood-borne hepatitis infectionamong injection drug users.Providers and users of an exchangeproject authorized by the county,city, or city and county shall not besubject to criminal prosecution forpossession of syringes or needlesobtained from an exchange projectduring participation in an exchangeproject.(b) Each project shall include, but

not be limited to, all of the fol-lowing:(1) The development of a set ofoperating procedures by the lo-cal health officer for the furnish-ing and exchange of hypodermicneedles and syringes for injec-tion drug users and the approvalof the operating procedures bythe county, city, or city andcounty.(2) The development of a database and collection of data relat-ing to the furnishing and replace-ment of clean hypodermic nee-dles and syringes to injectiondrug users by persons designat-ed in the operating proceduresdeveloped pursuant to para-graph (1). The data collectedpursuant to this paragraph shallbe reported to the department

annually commencing two yearsafter the inception of theproject.(3) The provision of communityoutreach and preventive educa-tion that is culturally sensitiveand linguistically appropriate toreduce project participants’ ex-posure to HIV infection andblood-borne hepatitis.(4) A demonstrated effort tosecure treatment for drug addic-tion for participants upon theirrequest.(5) The involvement of thecommunity in the developmentof the program.(6) The involvement of localpublic safety officials in the de-velopment of the program.(7) Accessibility of the projectto the target population whilebeing sensitive to communityconcerns.(8) Appropriate levels of staffexpertise in working with injec-tion drug users and adequatestaff training in providing com-munity referrals, needle hygiene,and safety precautions.(9) Enhanced treatment capaci-ty, insofar as possible, for injec-tion drug users.(10) Preferential acceptance, in-sofar as possible, of HIV-infecteddrug users into drug treatmentprograms.

(c) The projects authorized pursu-ant to this chapter shall be partof a network of voluntary andconfidential HIV services, whereavailable, including, but notlimited to, all of the following:(1) Anonymous HIV antibodytesting and counseling.(2) Hepatitis screening, counsel-ing, and vaccination.

Appendices

(3) Notwithstanding Section121015, voluntary, anonymous,or confidential partnernotification.(4) Early intervention and ongo-ing primary medical care followup for infected persons andtheir partners.(5) Social services to supportfamilies of HIV-infected drugusers.

(d) Components of the projects au-thorized pursuant to this chap-ter shall be assessed as to theireffectiveness by the participatingcity and county, county, or city.Assessment shall include, butnot be limited to, the followingmeasures, where they areavailable:(1) The incidence of HIV amongthe subject population.(2) Needle exchange rates.(3) Level of drug use.(4) Level of needle sharing.(5) Use of condoms.(6) Availability of needle ex-change programs in the jurisdic-tion.(7) Program participation rates.(8) The number of participantsreferred for treatment.(9) The status of treatment andrecovery of those enteringsubstance abuse treatmentprograms.(10) Referrals for HIV, sexuallytransmitted diseases, and

hepatitis screening andtreatment.(11) Referrals for, or provisionof, primary medical care.

(e) All components of the projectsauthorized pursuant to thischapter shall be voluntary.Where persons are providedservices as a part of a project,including, but not limited to, anti-body testing, counseling, or med-ical or social services, those pro-visions of law governing the con-fidentiality and anonymity of thatinformation shall apply. All infor-mation obtained in the course ofimplementing a project that per-sonally identifies any person towhom needle furnishing and ex-change services are providedshall remain confidential andshall not be released to any per-son or agency not participatingin the project without the per-son’s written consent.

(f) A city and county, county, or citywith or without a health depart-ment initiating a clean needleand syringe exchange project,shall submit a progress reporttwo years from the project’s in-ception. The report shall takeinto consideration available dataon factors listed in subdivision(d). The report shall be submit-ted to the director, the Gover-nor, and the chairpersons ofboth health committees of theLegislature.

BILL NUMBER: AB 136CHAPTERED

BILL TEXT

CHAPTER 762 FILED WITHSECRETARY OF STATEOCTOBER 10, 1999APPROVED BY GOVERNOROCTOBER 7, 1999PASSED THE SENATESEPTEMBER 9, 1999PASSED THE ASSEMBLYSEPTEMBER 9, 1999AMENDED IN SENATESEPTEMBER 3, 1999AMENDED IN ASSEMBLYAPRIL 15, 1999

INTRODUCED BY AssemblyMember Mazzoni (Principal coau-thors: Assembly Members Migdenand Shelley) (Coauthors: AssemblyMembers Aroner, Hertzberg, Kee-ley, Knox, Kuehl, Lempert, Longville,Romero, Steinberg, Washington,Wesson, and Wiggins) (Coauthor:Senator Solis)

JANUARY 11, 1999An act to amend Section 11364.7of the Health and Safety Code,relating to distribution of needlesand syringes.

LEGISLATIVE COUNSEL’S DIGEST

AB 136, Mazzoni. Drug parapher-nalia: clean needle and syringe ex-change projects. Existing lawmakes it a misdemeanor to furnishdrug paraphernalia, knowingly, orunder circumstances when one

Appendix B: Text of AB 136

Appendices

reasonably should know, that it willbe used to inject or introduce intothe human body a controlled sub-stance. This bill would exemptfrom criminal prosecution publicentities and their agents and em-ployees who distribute hypodermicneedles or syringes to participantsin clean needle and syringe ex-change projects authorized by thepublic entity pursuant to a declara-tion of a local emergency due tothe existence of a critical local pub-lic health crisis.

THE PEOPLE OF THE STATE OFCALIFORNIA DO ENACT ASFOLLOWS:

SECTION 1. Section 11364.7 ofthe Health and Safety Code isamended to read:

11364.7. (a) Except as authorizedby law, any person who delivers,furnishes, or transfers, possesseswith intent to deliver, furnish, ortransfer, or manufactures with theintent to deliver, furnish, or transfer,drug paraphernalia, knowing, or un-der circumstances where one rea-sonably should know, that it will beused to plant, propagate, cultivate,grow, harvest, compound, convert,produce, process, prepare, test, ana-lyze, pack, repack, store, contain,conceal, inject, ingest, inhale, orotherwise introduce into the hu-man body a controlled substance,except as provided in subdivision(b), in violation of this division, isguilty of a misdemeanor. No publicentity, its agents, or employees shall

be subject to criminal prosecutionfor distribution of hypodermic nee-dles or syringes to participants inclean needle and syringe exchangeprojects authorized by the publicentity pursuant to a declaration ofa local emergency due to the exist-ence of a critical local public healthcrisis.(b) Except as authorized by law,

any person who manufactureswith intent to deliver, furnish,or transfer drug paraphernaliaknowing, or under circum-stances where one reasonablyshould know, that it will beused to plant, propagate, culti-vate, grow, harvest, manufac-ture, compound, convert, pro-duce, process, prepare, test,analyze, pack, repack, store,contain, conceal, inject, ingest,inhale, or otherwise introduceinto the human body cocaine,cocaine base, heroin, phencycli-dine, or methamphetamine inviolation of this division shallbe punished by imprisonmentin a county jail for not morethan one year, or in the stateprison.

(c) Except as authorized by law,any person, 18 years of age orover, who violates subdivision(a) by delivering, furnishing, ortransferring drug paraphernaliato a person under 18 years ofage who is at least three yearshis or her junior, or who, uponthe grounds of a public or pri-vate elementary, vocational,junior high, or high school, pos-sesses a hypodermic needle, as

defined in paragraph (7) ofsubdivision (a) of Section11014.5, with the intent to de-liver, furnish, or transfer thehypodermic needle, knowing,or under circumstances whereone reasonably should know,that it will be used by a personunder 18 years of age to injectinto the human body a con-trolled substance, is guilty of amisdemeanor and shall be pun-ished by imprisonment in acounty jail for not more thanone year, by a fine of not morethan one thousand dollars($1,000), or by both that im-prisonment and fine.

(d) The violation, or the causingor the permitting of a viola-tion, of subdivision (a), (b), or(c) by a holder of a business or

liquor license issued by a city,county, or city and county, orby the State of California, andin the course of the licensee’sbusiness shall be grounds forthe revocation of that license.

(e) All drug paraphernalia definedin Section 11014.5 is subjectto forfeiture and may beseized by any peace officerpursuant to Section 11471.

(f) If any provision of this sectionor the application thereof toany person or circumstance isheld invalid, it is the intent ofthe Legislature that the invalid-ity shall not affect other provi-sions or applications of thissection which can be given ef-fect without the invalid provi-sion or application and to this

Appendices

Appendix C: History of SyringeExchange Legislation in California

Appendices

In 1990, State Senator Diane Watson (D-LosAngeles) introduced Senate Bill (SB) 1829, the firstlegislative effort to legalize syringe exchange inCalifornia. SB 1829 would have authorized theCity and County of San Francisco to participate ina pilot syringe exchange program and would havealso allowed other cities or counties to participatein the same pilot program upon request. The billfailed to reach the Governor’s desk for consider-ation.

Two years later, in, two identical bills wereintroduced: 2525 (later changed to AB 260) by thenSpeaker Willie L. Brown, Jr. (D-San Francisco) andSB 1418 by Senator Watson. This legislation at-tempted to address legal restrictions to the fur-nishing of hypodermic needles or syringes withouta prescription or permit. The Business and Profes-sions Code contains two exemptions to this pre-scription requirement–in the case of human use inthe administration of insulin or adrenaline and foruse on poultry and animals. AB 2525/SB 1418would have created a third exemption to legalizethe distribution of syringes as part of a “CleanNeedle and Syringe Exchange Pilot Project.”

The legislation would have established specificterms and conditions for participation in a CleanNeedle and Syringe Exchange Pilot Project. Com-munities would have been required to show thatsyringe exchange services were part of a localnetwork of comprehensive services, including drugtreatment services, and programs also would havebeen required to collect various data to assess theeffectiveness of services. AB 2525/SB 1418 alsocontained a sunshine clause, which would haverepealed the law automatically after three yearsunless the Legislature passed new legislation toextend the program. The sunshine clause wasincluded in the legislation to give state officials theopportunity to review initial assessment data, andto make the bill more politically palatable.

Former Governor Pete Wilson vetoed AB

2525/SB 1418. The major concern expressed by theGovernor was that legalization of syringe exchang-es would send a message to children that the statecondoned drug use.26

Local Emergencies Declaredin Response to Veto

Following Governor Wilson’s 1993 veto ofthese first bills, the City and County of San Fran-cisco declared a local emergency. The CaliforniaEmergency Services Act vests local governmentswith the authority to declare a “local emergency”in response to the “existence of conditions ofdisaster or of extreme peril to the safety of per-sons or property within the state caused by suchconditions as an epidemic.” A local jurisdiction ofemergency may be used to temporarily exempt ajurisdiction from compliance with state law, in thisinstance law governing syringe distribution.

Shortly after San Francisco declared an emer-gency, a small number of other jurisdictions inCalifornia followed suit, including Marin Countyand the cities of Los Angeles, Berkeley, and Oak-land. In the first two years following these actions,there was little, if any, organized opposition tothese SEP programs. However, there were ongoingbattles between supporters and opponents ofsyringe exchange in other communities overwhether to pursue a similar course. In 1995, thenstate Attorney General Dan Lungren, who had forsome time indicated his strong opposition to sy-ringe exchange, issued an informal legal opinionstating that the Emergency Services Act could notbe used to circumvent state law prohibiting thefurnishing and distribution of syringes without aprescription. Although this informal opinion didnot carry the force of law, the opinion had a chill-ing effect. According to press reports and inter-views, the Lungren opinion led at least one countyto end an existing SEP,27 and another to abandonits consideration of establishing a SEP.28

New Efforts to Pass Statewide LegislationBegun in 1999

Because of the uncertainty regarding the legalstatus of locally authorized exchange programs, manySEP supporters continued to pursue statewide legis-lation to legalize SEPs. The election of Gray Davis asGovernor in 1998 led some SEP advocates to see anew opportunity between the earlier bills and AB518. First, although AB 518 required that local elect-ed bodies authorize syringe exchange, it did notestablish a pilot program with a sunset date. Giventhe growing body of research showing the efficacy ofsyringe exchange, it was the sponsor’s belief that apilot program, which is generally used to study theefficacy of a new or unproven program, was no long-er appropriate. Second, unlike all previous bills, AB518 explicitly protected both providers and users ofan exchange project from criminal prosecution forpossession of syringes during the exchange.

After the bill had passed the Assembly and wasbeing considered in the Senate, Governor Davisannounced he would veto the legislation.30 In theweeks immediately following Governor Davis’ an-nouncement, the bill’s author and other HIV/AIDSand public health advocates launched a statewidecampaign in support of AB 518. The campaign pro-duced over 25,000 postcards that were sent toGovernor Davis, and more than a dozen favorableeditorials in all but one of the major newspapersacross the state. Twenty members of the CaliforniaCongressional delegation wrote a letter to GovernorDavis urging him to support AB 518. In addition, anindependent, statewide poll conducted in August1999 by the Field Research Institute reported that 69percent of Californians surveyed said they favorsyringe exchange in order to stop the spread of AIDSand HIV infection. The survey showed support for

syringe exchange, regardless of geographic region,ethnicity, political ideology or party affiliation.31

Shortly after the release of the Field survey,Governor Davis offered compromise language. Thecompromise offered by the Governor removed fromAB 518 all state reporting requirements and programdetail. Under the Governor’s proposal the new lawwould make a one-sentence amendment to Healthand Safety Code Section 11364.7(a), which clarifiesthat emergency declarations can be used to decrimi-nalize syringe exchange.

Health and Safety Code Section 11364.7 makes ita misdemeanor to furnish drug paraphernalia, know-ingly, or under circumstances where one shouldreasonably know that it will be used to inject a con-trolled substance. The compromise legislation addedthe following language to Section 11364.7(a):

“No public entity, its agents, or employees shall besubject to criminal prosecution for distribution of hypoder-mic needles or syringes to participants in clean needleand syringe exchange projects authorized by the publicentity pursuant to a declaration of a local emergency dueto the existence of a critical local public health crisis.”

This language protects local governments, theiremployees and authorized contractors that provideexchange services, from criminal prosecution fordistributing syringes and needles, but it does notprotect against civil liability, nor does it protect theproviders or users from prosecution for possessionof drug paraphernalia.

Ultimately, the California state legislature pulledback AB 518 from the Governor’s desk in order toavoid a veto, and a new bill reflecting the compro-mised language, AB 136 (Appendix B), was then sentin its place. On October 7, 1999, Governor Davissigned AB 136 into law.

Appendices

Appendix D: Key InformantInterview Questionnaire

This questionnaire was used to structure telephone interviews with key informants to this study.

A Survey of Local Consideration of AB 136

Explanation of Background: On January 1, 2000, a new statewide law (Assembly Bill 136) that allows localgovernments to legalize syringe exchange programs in their jurisdictions took effect. As passed, AB 136 protectslocal cities and counties, their employees, and organizations that operate as their agents from any criminalprosecution for distributing syringes as part of a syringe exchange program. In order to secure this legalprotection, AB 136, requires a local city or county to authorize or “legalize” a local SEP by passing a localdeclaration of emergency due to the existence of a critical public health crisis. The following questions areintended to gain important feedback on AB 136 and what impact its passage may or may not have had in yourcommunity from your perspective.

1. Explain briefly the current status of needle exchange in your County or City?

Prompts: Did it begin prior to the passage of AB 136 or subsequent to the passage of AB 136?Can you please describe how the program is run?

2. If your community does have a needle exchange program, what are the top programimplementation issues it has faced?

From your perspective, to what degree are the following an issue:! Securing sufficient funding to cover program expenses.! Establishing and maintaining referral mechanisms and relationships with other service providers.! Obtaining SEP expertise with staffing and volunteer management.! Incorporating program evaluation.! Locating sites for syringe exchange services.

3. Has your County/City attempted to pass an emergency declaration following the passage of AB136? If so, can you please describe the process and what it has entailed? If your city/county hasnot attempted to pass an emergency declaration, why not?

From your perspective, describe your experience with the following issues:

General Issues! The political environment surrounding efforts to pass a local emergency.! Jurisdictional issues including the role of the County vs. City in declaring a local declaration.! Determining who will oversee and operate SEP (public health or designated “agent”)?

Specific Issues! Requirement of a 14-day renewal of the emergency declaration.! Understanding who is granted legal protections by AB 136 (those who operate SEP vs. clients of SEPs).! The use of specific data to substantiate a “local emergency”.

Appendices

4. From your perspective, describe the attitudes of the following stakeholders and what role, if any, theyplayed in your community regarding efforts to pass a local emergency declaration as outlined in AB136? What role do you think they should play?! Elected officials! Public health officials! State public health! Local public health! Law enforcement/City-or District Attorney

! Community groups! Private funders, including foundations! Media?! Others?

5. From your perspective, what are the key information and technical assistance needs related to theconsideration and/or implementation of AB 136?

How about in these specific areas?! Applying for public or private funding! Technical assistance with the development and

operation of the SEP itself! Informal or formal information sharing

networks

! The declaration! Legal interpretations of the bill! Roles or issues around law enforcement, local

prosecutors, public health officials, SEP staff, andclients

6. This is a two-part question:A. From your perspective, what, if any, successes or benefits have you seen with the passage of thislegislation (AB 136)?B. From your perspective, what, if any, detriments or drawbacks have you seen with the passage of thislegislation (AB 136)?

7. From your perspective, what are the most important technical changes that could be made to AB136 to improve efforts to decriminalize needle exchange in CA?

From your perspective, are changes needed to:! Modify the need for local declaration?! Amend the 14-day renewal period?! Clarify the legal protections covering SEP users?

! Identify a role for State in providing technicalassistance or funding to local SEPs?

! Clarify or modify laws relating to protection ofSEPs from civil liability?

8. From your perspective, what are the most important legal or policy changes beyond the scope of AB136 that could improve access to clean syringes in California?

From your perspective, are changes needed to:! Decriminalize syringe possession by amending

current State law?! Address current restrictions on State and/or

Federal funding to SEPs?

! Allow physicians to prescribe syringes to IDUsin order to prevent disease?

! Encourage the federal government todisseminate information from scientific studiesof needle exchange?

9. Are there additional comments or concern that we haven’t discussed that you think are relevant tothis issue?

Appendices

Appendix E: References

1U.S. Department of Health and Human Services (HHS). Evidence-Based Findings on the Efficacy of SyringeExchange Programs: An Analysis for the Assistant Secretary for Health and Surgeon General of the ScientificResearch Completed Since April 1998. Washington, D.C. March 17, 2000.2 These figures include heterosexual IDUs and men who have sex with men who are also IDUs. Source: Office ofAIDS, California Department of Health Services. HIV-AIDS Reporting System Surveillance Report for California,December 31, 2000. Available at: www.dhs.ca.gov/ps/ooa/Statistics/AIDSCaseArchive.htm.3 Office of AIDS, California Department of Health Services. HIV/AIDS Among Racial/Ethnic Groups in California:1999 Edition. Available at: www.dhs.ca.gov/ps/ooa/Reports/race/pdf/race99a.pdf. Accessed October 2001.4 Centers for Disease Control and Prevention (CDC). Policy Efforts to Increase IDUs Access to Sterile Syringes,June 2000. Atlanta, GA 2000.5 American Bar Association, Deregulation of Hypodermic Needles and Syringes as a Public Health Measure: A Reporton Emerging Policy and Law in the United States, Burris, S, ed., 2001.6 CDC. Pharmacy Sales of Sterile Syringes, June 2000. Atlanta, GA 2000.7 In November 1999, the National Association of Boards of Pharmacy, the American Medical Association, theAmerican Pharmaceutical Association, the Association of State and Territorial Health Officials and the NationalAlliance of State and Territorial AIDS Directors urged changes in state drug paraphernalia laws to permit non-prescription sale of sterile syringes by pharmacies. Source: The Henry J. Kaiser Family Foundation. Kaiser DailyHIV/AIDS Report. December 10, 1999.8 Burris S, Lurie P, Abrahamson D, Rich JD. Physician prescribing of sterile injection equipment to prevent HIVinfection: time for action. Ann Intern Med. Aug 1 2000; 133(3): 218-226.9 Rich JD, Macalino GE, McKenzie M, Taylor LE, Burris S. Syringe prescription to prevent HIV infection in RhodeIsland: a case study. Am J Public Health. May 2001; 91(5): 699-700.10 In April 1998, the U.S. Department of Health and Human Services (H.H.S.) reported that, “syringe exchangeprograms play a unique role in facilitating the engagement of [IDUs] in meaningful prevention interventions andtreatment opportunities when implemented as part of a comprehensive HIV prevention and substance abusestrategy.” Source: HHS. Evidence-Based Findings on the Efficacy of Syringe Exchange Programs: An Analysis forthe Assistant Secretary for Health and Surgeon General of the Scientific Research Completed Since April 1998.Washington, DC March 17, 2000.11 HHS. Evidence-Based Findings on the Efficacy of Syringe Exchange Programs: An Analysis for the AssistantSecretary for Health and Surgeon General of the Scientific Research Completed Since April 1998. Washington,DC March 17 2000. Available at: www.harmreduction.org/issues/surgeongenrev/surgreview.html.12 Lurie P, Reingold A, et al. The Public Health Impact of Needle Exchange Programs in the United States andAbroad. Atlanta, GA: CDC; October 1993.13 Marx MA, Crape B, Brookmeyer RS, et al. Trends in crime and the introduction of a needle exchange program.Am J Public Health. Dec 2000; 90(12): 1933-1936.

Appendices

14 Ruiz MS, Institute of Medicine (U.S.). Committee on HIV Prevention Strategies in the United States. No time tolose: getting more from HIV prevention. Washington, D.C.: National Academy Press; 2001.15 Paone D, Clark J, Shi Q, Purchase D, Des Jarlais DC. Syringe exchange in the United States, 1996: a national profile.Am J Public Health. Jan 1999; 89(1): 43-46.16 Update: syringe exchange programs–United States, 1998. MMWR Morb Mortal Wkly Rep. May 18 2001; 50(19):384-387.17 Including the District of Columbia and Puerto Rico.18 Personal communication with Dr. Scott Burris, Temple University, July 2001.19 California Syringe Exchange Network (CaSEN) Coordinating Committee. Report from the First California SyringeExchange Network (CaSEN) Summit, June 12-13, 1999, Sacramento, California. 1999.20 See discussion in Appendix C. Prior to passage of AB 136, the legality of SEPs was unclear. For example, SanFrancisco asserted is legal right to implement SEPs using an emergency declaration under then-current law.However, then Attorney General Dan Lungren issued an informal legal opinion stating that the Emergency ServicesAct could not be used to circumvent state law prohibiting the furnishing and distribution of syringes without aprescription.21 Clean Syringe Exchange Program Task Force, City of San Diego. City of San Diego Clean Syringe Exchange ProgramTask Force Final Report. June 12, 2001.22 Personal communication (letter) from Walt Allen, III, President of the California Narcotics Officers’ Association, tomembers of Boards of Supervisors, May 8, 2000.23 Personal communication (letter) from Gary Feldman, M.D., President, California Conference of Local HealthOfficers, July 27, 2000.24 People v. Clancy. Vol. No. 00M12182: Superior Court of California, County of Sacramento; 2001.25 Personal communications between study team and local health officials.26 Veto message of Governor Pete Wilson to Members of the California Assembly, October 8, 1993.27 This was Santa Clara County. Source: Sullivan K. Lawyer: City's Needle Swap OK. San Francisco Examiner. May 24,1996.28 This was Long Beach. Source: Helin K. Legal Issue Ends City's Needle Exchange Idea. Business Journal (Long Beach).December 6, 1995.29 Survey of candidates. Source: San Francisco AIDS Foundation. Vote to End AIDS. San Francisco, CA releasedOctober 14, 1998.30 Personal communications between the Governor’s office, the bill’s author, and San Francisco AIDS Foundation’spolicy staff.31 Results available through the San Francisco AIDS Foundation on the web at: www.sfaf.org/prevention/needleexchange/field_survey_results.html.

Appendices

About the Kaiser Family FoundationThe Henry J. Kaiser Family Foundation, based in Menlo Park, California, is a non-profitindependent national health care philanthropy dedicated to providing information and analysis onhealth issues to policymakers, the media and the general public. The Foundation is not associatedwith Kaiser Permanente or Kaiser Industries.

About Progressive Health PartnersProgressive Health Partners provides a range of consulting services to private, educational, andgovernmental organizations working to address critical public health challenges. Additionalinformation is available on its web site at www.phpartners.com

For additional copiesAdditional free copies of this publication (#6018) are available on the Foundation's web siteat www.kff.org or by calling the Kaiser Family Foundation'sPublications Request Line at 1-800-656-4533.

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