As used in the New Mexico Drug, Device and Cosmetic Act:

A. "board" means the board of pharmacy or its duly authorized agent;

B. "person" includes an individual, partnership, corporation, association, institution or establishment;

C. "biological product" means any of the following that is applicable to the prevention, treatment or cure of a disease or condition of human beings:

(1) a virus;

(2) a therapeutic serum;

(3) a toxin;

(4) an antitoxin;

(5) a vaccine;

(6) blood;

(7) a blood component or derivative;

(8) an allergenic product;

(9) a protein, except any chemically synthesized polypeptide;

(10) a product that is analogous to any of the products listed in Paragraphs (1) through (9) of this subsection; or

(11) arsphenamine, a derivative of arsphenamine or any other trivalent organic arsenic compound;

D. "biosimilar" or "biosimilarity" means, in reference to a biological product that the federal food and drug administration has licensed, that:

(1) the biological product is highly similar to the reference product notwithstanding minor differences in clinically inactive components; and

(2) there are no clinically meaningful differences between the biological product and the reference product in terms of the safety, purity and potency of the product;

E. "controlled substance" means a drug, substance or immediate precursor enumerated in Schedules I through V of the Controlled Substances Act [Chapter 30, Article 31 NMSA 1978];

F. "drug" means articles:

(1) recognized in an official compendium;

(2) intended for use in the diagnosis, cure, mitigation, treatment or prevention of disease in humans or other animals and includes the domestic animal biological products regulated under the federal Animal Virus, Serum, Toxin, Antitoxin Act, 37 Stat 832-833, 21 U.S.C. 151-158, and the biological products applicable to humans regulated under Federal 58 Stat 690, as amended, 42 U.S.C. 216, Section 351, 58 Stat 702, as amended, and 42 U.S.C. 262;

(3) other than food, that affect the structure or any function of the human body or the bodies of other animals; and

(4) intended for use as a component of Paragraph (1), (2) or (3) of this subsection, but "drug" does not include devices or their component parts or accessories;

G. "dangerous drug" means a drug, other than a controlled substance enumerated in Schedule I of the Controlled Substances Act, that because of a potentiality for harmful effect or the method of its use or the collateral measures necessary to its use is not safe except under the supervision of a practitioner licensed by law to direct the use of such drug and hence for which adequate directions for use cannot be prepared. "Adequate directions for use" means directions under which the layperson can use a drug or device safely and for the purposes for which it is intended. A drug shall be dispensed only upon the prescription or drug order of a practitioner licensed by law to administer or prescribe the drug if it:

(1) is a habit-forming drug and contains any quantity of a narcotic or hypnotic substance or a chemical derivative of such substance that has been found under the federal act and the board to be habit forming;

(2) because of its toxicity or other potential for harmful effect or the method of its use or the collateral measures necessary to its use is not safe for use except under the supervision of a practitioner licensed by law to administer or prescribe the drug;

(3) is limited by an approved application by Section 505 of the federal act to the use under the professional supervision of a practitioner licensed by law to administer or prescribe the drug;

(4) bears the legend: "Caution: federal law prohibits dispensing without prescription.";

(5) bears the legend: "Caution: federal law restricts this drug to use by or on the order of a licensed veterinarian."; or

(6) bears the legend "Rx only";

H. "counterfeit drug" means a drug that is deliberately and fraudulently mislabeled with respect to its identity, ingredients or sources. Types of such pharmaceutical counterfeits may include:

(1) "identical copies", which are counterfeits made with the same ingredients, formulas and packaging as the originals but not made by the original manufacturer;

(2) "look-alikes", which are products that feature high-quality packaging and convincing appearances but contain little or no active ingredients and may contain harmful substances;

(3) "rejects", which are drugs that have been rejected by the manufacturer for not meeting quality standards; and

(4) "relabels", which are drugs that have passed their expiration dates or have been distributed by unauthorized foreign sources and may include placebos created for late-phase clinical trials;

I. "device", except when used in Subsection R of this section and in Subsection G of Section 26-1-3, Subsection L and Paragraph (4) of Subsection A of Section 26-1-11 and Subsection C of Section 26-1-24 NMSA 1978, means an instrument, apparatus, implement, machine, contrivance, implant, in vitro reagent or other similar or related article, including any component, part or accessory, that is:

(1) recognized in an official compendium;

(2) intended for use in the diagnosis of disease or other conditions or in the cure, mitigation, treatment or prevention of disease in humans or other animals; or

(3) intended to affect the structure or a function of the human body or the bodies of other animals and that does not achieve any of its principal intended purposes through chemical action within or on the human body or the bodies of other animals and that is not dependent on being metabolized for achievement of any of its principal intended purposes;

J. "prescription" means an order given individually for the person for whom prescribed, either directly from a licensed practitioner or the practitioner's agent to the pharmacist, including by means of electronic transmission, or indirectly by means of a written order signed by the prescriber, and bearing the name and address of the prescriber, the prescriber's license classification, the name and address of the patient, the name and quantity of the drug prescribed, directions for use and the date of issue;

K. "practitioner" means a certified advanced practice chiropractic physician, physician, doctor of oriental medicine, dentist, veterinarian, euthanasia technician, certified nurse practitioner, clinical nurse specialist, pharmacist, pharmacist clinician, certified nurse-midwife, physician assistant, prescribing psychologist, dental hygienist, optometrist, naturopathic doctor or other person licensed or certified to prescribe and administer drugs that are subject to the New Mexico Drug, Device and Cosmetic Act. "Practitioner" also means a registered lay midwife licensed by the department of health who is certified or licensed in accordance with department of health rules to procure, carry and administer drugs that are subject to the New Mexico Drug, Device and Cosmetic Act;

L. "cosmetic" means:

(1) articles intended to be rubbed, poured, sprinkled or sprayed on, introduced into or otherwise applied to the human body or any part thereof for cleansing, beautifying, promoting attractiveness or altering the appearance; and

(2) articles intended for use as a component of any articles enumerated in Paragraph (1) of this subsection, except that the term shall not include soap;

M. "interchangeable biological product" means a biological product that the federal food and drug administration has licensed and:

(1) has determined that the biological product is biosimilar to the reference product and can be expected to produce the same clinical result as the reference product in any given patient;

(2) for a biological product that is administered more than once to an individual and:

(a) has determined to have been administered more than once to the individual; or

(b) for which the risk in terms of safety or diminished efficacy of alternating or switching between use of the biological product and the reference product is not greater than the risk of using the reference product without alternation or switching; or

(3) has determined to be therapeutically equivalent as set forth in the latest edition or supplement to the federal food and drug administration's approved drug products with therapeutic equivalence evaluations;

N. "official compendium" means the official United States pharmacopeia and national formulary or the official homeopathic pharmacopoeia of the United States or any supplement to either of them;

O. "label" means a display of written, printed or graphic matter upon the immediate container of an article. A requirement made by or under the authority of the New Mexico Drug, Device and Cosmetic Act that any word, statement or other information appear on the label shall not be considered to be complied with unless the word, statement or other information also appears on the outside container or wrapper, if any, of the retail package of the article or is easily legible through the outside container or wrapper;

P. "immediate container" does not include package liners;

Q. "labeling" means all labels and other written, printed or graphic matter:

(1) on an article or its containers or wrappers; or

(2) accompanying an article;

R. "misbranded" means a label to an article that is misleading. In determining whether the label is misleading, there shall be taken into account, among other things, not only representations made or suggested by statement, word, design, device or any combination of the foregoing, but also the extent to which the label fails to reveal facts material in the light of such representations or material with respect to consequences that may result from the use of the article to which the label relates under the conditions of use prescribed in the label or under such conditions of use as are customary or usual;

S. "advertisement" means all representations disseminated in any manner or by any means, other than by labeling, for the purpose of inducing, or that are likely to induce, directly or indirectly, the purchase of drugs, devices or cosmetics;

T. "antiseptic", when used in the labeling or advertisement of an antiseptic, shall be considered to be a representation that it is a germicide, except in the case of a drug purporting to be or represented as an antiseptic for inhibitory use as a wet dressing, ointment, dusting powder or such other use as involves prolonged contact with the body;

U. "new drug" means a drug:

(1) the composition of which is such that the drug is not generally recognized, among experts qualified by scientific training and experience to evaluate the safety and efficacy of drugs, as safe and effective for use under the conditions prescribed, recommended or suggested in the labeling thereof; or

(2) the composition of which is such that the drug, as a result of investigation to determine its safety and efficacy for use under such conditions, has become so recognized, but that has not, otherwise than in such investigations, been used to a material extent or for a material time under such conditions;

V. "contaminated with filth" applies to a drug, device or cosmetic not securely protected from dirt, dust and, as far as may be necessary by all reasonable means, from all foreign or injurious contaminations, or a drug, device or cosmetic found to contain dirt, dust, foreign or injurious contamination or infestation;

W. "selling of drugs, devices or cosmetics" shall be considered to include the manufacture, production, processing, packing, exposure, offer, possession and holding of any such article for sale and the sale and the supplying or applying of any such article in the conduct of a drug or cosmetic establishment;

X. "color additive" means a material that:

(1) is a dye, pigment or other substance made by a process of synthesis or similar artifice or extracted, isolated or otherwise derived, with or without intermediate or final change of identity, from a vegetable, mineral, animal or other source; or

(2) when added or applied to a drug or cosmetic or to the human body or a part thereof, is capable, alone or through reaction with other substances, of imparting color thereto; except that such term does not include any material that has been or hereafter is exempted under the federal act;

Y. "federal act" means the Federal Food, Drug, and Cosmetic Act;

Z. "restricted device" means a device for which the sale, distribution or use is lawful only upon the written or oral authorization of a practitioner licensed by law to administer, prescribe or use the device and for which the federal food and drug administration requires special training or skills of the practitioner to use or prescribe. This definition does not include custom devices defined in the federal act and exempt from performance standards or premarket approval requirements under Section 520(b) of the federal act;

AA. "prescription device" means a device that, because of its potential for harm, the method of its use or the collateral measures necessary to its use, is not safe except under the supervision of a practitioner licensed in this state to direct the use of such device and for which "adequate directions for use" cannot be prepared, but that bears the label: "Caution: federal law restricts this device to sale by or on the order of a __________", the blank to be filled with the word "physician", "physician assistant", "certified advanced practice chiropractic physician", "doctor of oriental medicine", "dentist", "veterinarian", "euthanasia technician", "certified nurse practitioner", "clinical nurse specialist", "pharmacist", "pharmacist clinician", "certified nurse-midwife", "dental hygienist", registered lay midwife, "optometrist" or "naturopathic doctor" or with the descriptive designation of any other practitioner licensed in this state to use or order the use of the device;

BB. "valid practitioner-patient relationship" means a professional relationship, as defined by the practitioner's licensing board, between the practitioner and the patient;

CC. "pedigree" means the recorded history of a drug;

DD. "drug order" means an order either directly from a licensed practitioner or the practitioner's agent to the pharmacist, including by means of electronic transmission or indirectly by means of a written order signed by the licensed practitioner or the practitioner's agent, and bearing the name and address of the practitioner and the practitioner's license classification and the name and quantity of the drug or device ordered for use at an inpatient or outpatient facility; and

EE. "reference product" means the single biological product against which a biosimilar was evaluated in its marketing application to the federal food and drug administration.

History: 1953 Comp., § 54-6-27, enacted by Laws 1967, ch. 23, § 2; 1971, ch. 245, § 2; 1972, ch. 84, § 43; 1977, ch. 117, § 1; 1987, ch. 270, § 2; 1997, ch. 240, § 1; 1997, ch. 244, § 1; 1997, ch. 253, § 2; 1999, ch. 298, § 1; 2001, ch. 50, § 1; 2002, ch. 100, § 1; 2005, ch. 152, § 1; 2008, ch. 9, § 3; 2008, ch. 44, § 4; 2009, ch. 102, § 1; 2011, ch. 113, § 1; 2013, ch. 157, § 1; 2015, ch. 131, § 6; 2017, ch. 48, § 1; 2019, ch. 11, § 1; 2019, ch. 244, § 14.

Cross references. — For the Federal Food, Drug and Cosmetic Act, see 21 U.S.C.S. §§ 301 to 393.

For Section 505 of the federal act, see 21 U.S.C.S. § 355.

For Section 520(b) of the federal act, see 21 U.S.C.S. § 360j(b).

2019 Multiple Amendments. — Laws 2019, ch. 11, § 1 and Laws 2019, ch. 244, § 14, both effective June 14, 2019, enacted different amendments to this section that can be reconciled. Pursuant to 12-1-8 NMSA 1978, Laws 2019, ch. 244, § 14, as the last act signed by the governor, is set out above and incorporates both amendments. The amendments enacted by Laws 2019, ch. 11, § 1 and Laws 2019, ch. 244, § 14 are described below. To view the session laws in their entirety, see the 2019 session laws on NMOneSource.com.

The nature of the difference between the amendments is that Laws 2019, ch. 11, § 1, added registered lay midwives licensed by the department of health to the list of "practitioners" subject to all the privileges and responsibilities conferred by the New Mexico Drug, Device and Cosmetic Act, and made certain technical amendments, and Laws 2019, ch. 244, § 14, added "naturopathic doctor" within the definition of "practitioner", and included "naturopathic doctor" in the provision related to the use of a prescription device.

Laws 2019, ch. 11, § 1, effective June 14, 2019, added registered lay midwives licensed by the department of health to the list of "practitioners" subject to all the privileges and responsibilities conferred by the New Mexico Drug, Device and Cosmetic Act, and made certain technical amendments; in Subsection F, after "federal", deleted "Virus-Serum Toxin" and added "Animal Virus, Serum, Toxin, Antitoxin"; in Subsection K, added the last sentence of the subsection; in Subsection N, after "United States" deleted "pharmacopoeia" and added "pharmacopeia and"; and in Subsection AA, after "'dental hygienist'", added "'registered lay midwife'".

Laws 2019, ch. 244, § 14, effective June 14, 2019, added "naturopathic doctor" within the definition of "practitioner", and included "naturopathic doctor" in the provision related to the use of a prescription device; in Subsection F, Paragraph F(2), after "federal", deleted "Virus-Serum Toxin" and added "Animal Virus, Serum, Toxin, Antitoxin"; in Subsection K, after "optometrist", added "naturopathic doctor"; and in Subsection AA, after "'optometrist'", added "or 'naturopathic doctor'".

The 2017 amendment, effective June 16, 2017, defined "biosimilar", "biosimilarity", "interchangeable biological product", and "reference product", and rewrote the definition for "biological product"; deleted former Subsection C, which defined "biological product", added new Subsections C and D, and redesignated former Subsections D through K as Subsections E through L, respectively; added a new Subsection M and redesignated former Subsections L through BB as Subsections N through DD, respectively; in Subsection AA, after "'certified nurse-midwife'", deleted "or", and after "'dental hygienist'", added "or"; and added Subsection EE.

The 2015 amendment, effective June 19, 2015, included "optometrist" within the meanings of "practitioner" and "prescription device" as used in the New Mexico Drug, Device and Cosmetic Act; in Subsection J, after "dental hygienist", added "optometrist"; and in Subsection Y, after "'dental hygienist'", added "'optometrist'".

The 2013 amendment, effective June 14, 2013, added terms to allow pharmacists to fill a practitioner's drug order; in Subsection F, in the third sentence, after "upon the prescription", added "or drug order"; and added Subsection BB.

The 2011 amendment, effective June 17, 2011, in Subsection Y, permitted dental hygienists to order prescription devices.

The 2009 amendment, effective June 19, 2009, in Subsection J, added "euthanasia technician" and in Subsection Y, added "euthanasia technician".

The 2008 amendment, effective May 14, 2008, added "certified advanced practice chiropractic physician" in Subsection J and added "physician assistant" and "certified advanced practice chiropractic physician" in Subsection Y.

The 2005 amendment, effective June 17, 2005, redefined "counterfeit drug" in Subsection G to mean a drug that is deliberately and fraudulently mislabeled with respect to its identity, ingredients or sources and gives examples of counterfeits included in the definition; replaced "prescriber" with "a licensed practitioner or practitioner's agent" and provided that a prescription may include an order given by means of electronic transmission in the definition of "prescription" in Subsection I; added the definition of "valid practitioner-patient relationship" in Subsection Z to mean the relationship defined by the practitioner's licensing board; and added the definition of "pedigree" in Subsection AA to mean the recorded history of a drug.

The 2002 amendment, effective July 1, 2002, inserted "physician assistant, prescribing psychologist" in Subsection J.

The 2001 amendment, effective June 15, 2001, inserted "pharmacist" in the definition of "practitioner" in Subsection J and inserted "'pharmacist'" near the end of Subsection Y.

The 1999 amendment, effective June 18, 1999, deleted "but is not limited to" before "filterable viruses" in Subsection C(1), added Subsection F(6), added doctors of oriental medicine, certified nurse practitioners, clinical nurse specialists, and pharmacist clinicians to the definition of "practitioner" in Subsection J and to the list of practitioners allowed to use or order the use of prescription devices in Subsection Y.

The 1997 amendment, effective June 20, 1997, inserted "certified nurse-midwife" in Subsections J and Y and "or certified" following "licensed" in Subsection J, and made stylistic changes throughout the section.

The 1987 amendment, effective June 19, 1987, substituted "New Mexico Drug, Device and Cosmetic Act" for "New Mexico Drug and Cosmetic Act" in the introductory language and in Subsection J; in Subsection E deleted "Title 21 Part 600" from the end; in the third sentence in Subsections F(2) and F(3) inserted "or prescribe" following "administer"; in Subsection F(1) deleted "of pharmacy" following "board"; rewrote Subsection H; in Subsection K(2) inserted "enumerated in Paragraph (1) of this subsection"; in Subsection L inserted "national formulary or the" and deleted "official national formulary" preceding "or any supplement"; in Subsections S(1) and (2) inserted "and efficacy"; in Subsection S(1) inserted "and effective"; added Subsections X and Y; and made minor stylistic changes throughout the section.

Am. Jur. 2d, A.L.R. and C.J.S. references. — Products liability: liability of manufacturer or seller as affected by failure of subsequent party in distribution chain to remedy or warn against defect of which he knew, 45 A.L.R.4th 777.

Products liability: perfumes, colognes, or deodorants, 46 A.L.R.4th 1197.

Liability of manufacturer of oral live polio (Sabin) vaccine for injury or death from its administration, 66 A.L.R.4th 83.

What is "device" within the meaning of § 201(h) of Federal Food, Drug and Cosmetic Act (21 U.S.C.S. § 321(h)), 129 A.L.R. Fed. 343.

What is "new drug" within meaning of § 201(p) of Federal Food, Drug, and Cosmetic Act (21 U.S.C.S. § 321(p)), 133 A.L.R. Fed. 229.