1. Authority to control pursuant to NRS 453.146, 453.218, 453.2182 and 453.2184 does not extend to distilled spirits, wine, malt beverages or tobacco.

2. The Board shall not include any nonnarcotic substance on any schedule if that substance is in a form suitable for final dosage and has been approved by the Food and Drug Administration for sale over the counter without a prescription, unless the Board affirmatively finds that:

(a) The substance itself or one or more of its active ingredients is an immediate precursor of a controlled substance; and

(b) The substance is materially misbranded or mislabeled, or the public interest requires the scheduling of the substance as a controlled substance in schedule I, II, III or IV.

3. In determining whether the public interest requires the scheduling of the substance, the Board shall consider:

(a) Whether the customary methods of marketing and distributing the substance are likely to lead to its unlawful distribution or use, including any relevant information with regard to a manufacturer or distributor of the substance concerning:

(1) His or her record of compliance with applicable federal, state and local statutes, ordinances and regulations;

(2) His or her past experience in the manufacture and distribution of controlled substances, and the existence in his or her establishment of effective controls against the unlawful distribution or use of the substance;

(3) Whether he or she has ever been convicted under any federal or state law relating to a controlled substance; and

(4) Whether he or she has ever furnished materially falsified or fraudulent material in any application filed pursuant to NRS 453.011 to 453.552, inclusive;

(b) Whether the substance is controlled under the federal Controlled Substances Act;

(c) The status of any pending proceeding to determine whether the substance should be controlled or exempted from control;

(d) Any history of abuse or misuse of the substance in this State; and

(e) Any other factors which are relevant to the public health and safety.

4. In determining whether a substance is misbranded or mislabeled, the Board shall consider the requirements of the federal Food, Drug, and Cosmetic Act and the Code of Federal Regulations concerning indications for its use and any advertising for a use not so indicated.

(Added to NRS by 1991, 1645)