SYNTHETIC DRUG BUSTS: FEDERAL ARRESTS FOR FAKE POT AND DESIGNER DRUGS THAT ARE LEGAL UNDER STATE LAW

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Did You Know That Synthetic Drugs are Illegal Under Federal Law – No Matter How Legal They’re Promised to Be?

Synthetic marijuana, synthetic drugs, designer drugs — maybe you recognize them with names like Spice, K2, “herbal incense,” “bath salts,” Molly, or Scooby Snax.  They have never been more popular than they are today here in Texas as clever chemists manage to keep ahead of legislators in Austin, tweaking their recipes to keep their product outside the state’s legal definitions of illegal substances.

They can be found ready for purchase online and in most gas stations, convenience stores, and head shops all across Texas.

 

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WHAT ARE SYNTHETIC DRUGS?

Synthetic drugs are products designed to give the user a buzz that is akin to marijuana, cocaine, or methamphetamine.  There are two types of synthetic drugs sold today:

1.  Cannabinoids are varieties of marijuana substitutes or fake pot. They provide a high via man-made THC, a chemical that is naturally found in marijuana plant, which is sprayed on an herb or grass.  Common street names include:  Bliss, Black Mamba, Bombay Blue, Fake Weed, Genie, Spice, and Zohai.

2.  Cathinodes are products designed to substitute for cocaine or methamphetamine.  They provide a high via synthetic derivatives of a stimulant that is naturally found the khat plant, most often Mephedrone and MDPV.  Common street names include: Blue Silk, Cloud Nine, Drone,  Energy-1, Ivory Wave, Lunar Wave, Meow Meow, Ocean Burst, Pure Ivory, Purple Wave, Red Dove, Snow Leopard, Stardust, Vanilla Sky, White Dove, White Knight, and White Lightening.

Buyers have little if any guarantee of the contents of these synthetic products, other than they promise to be intoxicating and they are usually cheaper than alcohol or the real thing.  They’re fast, inexpensive, and convenient.

There are negatives with using these synthetic drugs.  For one thing, there is the risk of physical harm in using them; some synthetic drugs have proven to be very dangerous and life-threatening to those who have ingested them.  Reported side effects include chest pains, panic attacks, hallucinations, paranoia, delusions, and psychosis.

In Spring 2014, hundreds of people were rushed to local emergency rooms in Dallas and Austin after falling victim to a bad batch of fake pot which had some users exhibiting psychotic behavior and having to be restrained by medical providers before they could be helped.

Another negative in using synthetic drugs is that the synthetic drug someone buys may not provide a legal alternative to illegal drugs as the user may think.  Choosing these drugs does not protect you from arrest.

SYNTHETIC DRUGS CAN YOU ARRESTED EVEN IF GUARANTEED TO BE LEGAL

 That’s key for both the buyer and the seller of these fake drugs: these are products popularized as a way to get high without the risk of being charged with a crime.  Except this isn’t true. 

The problem for everyone involved with designer drugs, synthetic drugs, or fake pot, is that they are illegal.  You can get arrested for possession of any synthetic drug or synthetic marijuana no matter how the packaging is labeled or how vigorously the sellers may insist their stuff is completely legal.

Why?  Because the federal government is taking advantage of a law passed in 1986, coupled with newer statutes, to make these synthetics illegal under federal law and therefore make anyone in possession of them vulnerable to arrest by federal agents.

In other words, no matter how sly the sellers and manufacturers may be in keeping ahead of statutory changes to keep their stuff outside the chemical definitions of illegal drugs, the federal government has found a way to blanket these synthetic highs into a federal crime for which you can be arrested.

 FEDERAL LAWS OUTLAWING SYNTHETIC MARIJUANA, SYNTHETIC DRUGS, AND DESIGNER DRUGS

Congress has not passed any new laws specifically targeting these “legal highs.”   Instead, the federal authorities are working with a series of federal laws and rules to focus on arresting people caught with synthetics or making, distributing, or selling them.

 

1.  The Controlled Substances Act (CSA): Title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (P.L. 91-513).

This is a federal act that regulates the importation, manufacture, distribution, use, and possession of certain drugs, substances, and chemicals. Under the CSA, there are five classification schedules (Schedules I – V) for their regulation, with Schedule I being the most restrictive and Schedule V the least.

Under the language of the 1970 CSA:

(1) Schedule I.

(A) The drug or other substance has a high potential for abuse.

(B) The drug or other substance has no currently accepted medical use in treatment in the United States.

(C) There is a lack of accepted safety for use of the drug or other substance under medical supervision.

(2) Schedule II.—

(A) The drug or other substance has a high potential for abuse.

(B) The drug or other substance has a currently accepted medical use in treatment in the United States or a currently accepted medical use with severe restrictions.

(C) Abuse of the drug or other substances may lead to severe psychological or physical dependence.

(3) Schedule III.

(A) The drug or other substance has a potential for abuse less than the drugs or other substances in schedules I and II.

(B) The drug or other substance has a currently accepted medical use in treatment in the United States.

(C) Abuse of the drug or other substance may lead to moderate or low physical dependence or high psychological dependence.

(4) Schedule IV.

(A) The drug or other substance has a low potential for abuse relative to the drugs or other substances in schedule III.

(B) The drug or other substance has a currently accepted medical use in treatment in the United States.

(C) Abuse of the drug or other substance may lead to limited physical dependence or psychological dependence relative to the drugs or other substances in schedule III.

(5) Schedule V.

(A) The drug or other substance has a low potential for abuse relative to the drugs or other substances in schedule IV.

(B) The drug or other substance has a currently accepted medical use in treatment in the United States.

(C) Abuse of the drug or other substance may lead to limited physical dependence or psychological dependence relative to the drugs or other substances in schedule IV.

As new drugs, chemicals, or substances evolve in the marketplace, the CSA allows for their addition into these regulatory schedules.  For example, the Attorney General (overseeing the actions of the Drug Enforcement Administration) as well as the Food and Drug Administration (and, of course, Congress) can add a new item to the Schedule 1 schedule if:

(A) it has a high potential for abuse;

(B) it has no currently accepted medical use in treatment in the United States; and

(C) it has no acceptable safe use under medical supervision.

 

2.  The Controlled Substances Analogue Enforcement Act of 1986 (Analogue Enforcement Act)

This statute is found as Subtitle E of the Anti-Drug Abuse Act of 1986 (P.L. 99-570). This law amended the Controlled Substances Act (CSA) to treat any substance or chemical that is “substantially similar” to a controlled substance listed in Schedule I or II as if it were actually listed on these regulatory schedules with one important criteria: the substance has to be intended for human consumption.

 3.  The Synthetic Drug Abuse Prevention Act of 2012 (SDAPA).

This statute once again amends the 1970 Controlled Substances Act by specifically adding 26 substances into Schedule I. Thus, in 2012, many synthetic drugs — synthetic cannabinoids — became illegal Schedule 1 drugs, along with MDPV and Mephedrone.  This law was passed in response to the growing popularity of synthetic cannabinoids like Spice as well as synthetic stimulants known as “bath salts,” Mephedrone and MDPV, by banning them as well as 9 phenethylamine compounds and several psychedelic substances.

It also adds a definition for “cannabimimetic agents,” to establish criteria under the law so future, similar chemical compounds can likewise be placed under federal authority and regulation.  These “cannabimimetic agents” are substances with THC-like chemical structures, which provide them with a similar intoxication potential as the more traditional THC source, marijuana.

Finally,  the SDAPA extends a power granted to the Attorney General under the CSA to temporarily place a substance on Schedule I of the CSA for two years, and the Attorney General can keep the substance on Schedule I for one more year, if need be, before it must be removed or permanently scheduled.

 4.  Regulations Identifying Federally Controlled Substances

After these statutes are in place, then the federal agencies work to implement the laws by passing regulations which flesh out the Congressional Acts.  This allows for faster implementation of federal statutes and efficient enforcement of federal laws.

Today, regulations exist that are periodically updated with new substances and chemicals being added to them in accordance with these federal drug laws.  The list of scheduled controlled substances defined in the statutes can be reviewed in 21 U.S.C. § 812(c).  The federal regulations more current list of scheduled substances is published at 21 C.F.R. § 1308.

ATTEMPTS TO GET AROUND FEDERAL LAW AND HAVE A SYNTHETIC PRODUCT THAT IS LEGAL

In Texas, it’s very common for chemists to alter the chemical composition of their product so, for example, the substance sprayed on a dried herb to provide the user with an intoxicating high as they smoke their fake pot is a substance that is outside the illegal substances defined by Texas law.

Clever chemists in Texas have been successful in changing their recipes for synthetic marijuana, taking advantage of how much faster they can change their manufacturing methods before the Texas Legislature can amend state laws to expand what is defined as illegal.

The federal government is trying to keep one step ahead of these savvy manufacturers by an umbrella approach in federal law where anything that is chemically “analogous” to illegal drugs will likewise be considered illegal.  However, there are other hurdles here for authorities, as well.

For instance, the entire reason that “bath salts” are labeled as “bath salts” is not because anyone is using them to soften and sweeten water in a bath tub.  The label exists to try and escape federal drug laws where the Analogue Enforcement Act has the limitation that it applies only to substances intended for human consumption.

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Bath salts, it’s argued, by definition are not intended for human consumption and therefore should not be considered as “analogous” to illegal drugs placed in the CSA Schedules.  Other similar brand label strategies akin to “bath salts” have included “plant food,” “incense,” and all their packaging will also be clearly stamped “not intended for human consumption.”

This strategy may or may not succeed in preventing an arrest for someone manufacturing, selling, distributing, or using bath salts – or other synthetic drugs.  Federal agents will arrest and work hard to find evidence that the synthetic drugs are within the CSA Schedules as “analogous” substances and they will be zealous in trying to present facts that gut the defense that the product escapes under the “not intended for human consumption” defense.

Moreover, states are also trying to find clever ways to speed up their own statutory efforts to get bath salts and fake pot out of their jurisdictions.  One method being launched in New York which may be tried in other states is to ban the products not under criminal statutes but under consumer protection laws that require detailed packaging and complete identification of the chemical makeup of the products sold within that state.  See, “NY attorney general using product labeling to block bath salts sales by head shops,” an article published in July 2012 at syracuse.com.

 

TEXAS ANALOGUE CONTROLLED SUBSTANCES STATUTE

Just like the Federal Analogue statute discussed above, Texas also has it’s own analogue controlled substances statute.  The key section is the definition Texas gives to what it calls a Controlled Substance Analogue.  It is defined as either:

(1) a substance with a chemical structure substantially similar to the chemical structure of a controlled substance in Schedule I or II or Penalty Group 1, 1-A, or 2 OR

(2) a substance specifically designed to produce an effect substantially similar to, or greater than, the effect of a controlled substance in Schedule I or II or Penalty Group 1, 1-A, or 2.

There are three defenses available even if the substance falls under the definition of an analog controlled substance pursuant to Health and Safety Code section 481.123:

(1) was not in any part intended for human consumption;

(2) was a substance for which there is an approved new drug application under Section 505 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Section 355); or

(3) was a substance for which an exemption for investigational use has been granted under Section 505 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Section 355), if the actor’s conduct with respect to the substance is in accord with the exemption.

 

I am sure by now you’ve noticed that the Texas law and the Federal law prohibiting analogue controlled substances look very similar.  That’s because they are.  In fact, they are identical.  The difference can be found in how these laws are enforced.  In my experience the Federal Drug Enforcement Agency (DEA) and the United Attorney’s Office have much greater resources to prosecute the Federal Analog Controlled Substance cases.  For example, you could expect in any of these prosecutions that the Government would be required to have an expert chemist conduct and analysis of the substance in question to determine whether it’s substantially similar to another prohibited substances listed in one of the schedules.  In addition, there would need to be testimony concerning the effect that the substance in question has on the the mind and whether the effect to intended to be the same or similar to one of the prohibited controlled substances in one of the schedules.  This sort of proof takes a lot of work and money.  State District Attorneys general don’t have the time or the resources to prosecute these types of cases.  That’s why you will see many of these analog cases going to Federal Court, if they are large enough.

 

CONCLUSION

Synthetic drugs are all ways to get high, and their creators are very clever in circumventing state statutes so that their ingredients are not technically within the laws defining illegal substances.  They are sold here in Texas and elsewhere with the idea that they are “legal highs” and if someone is caught with them, then they cannot be arrested for possession of an illegal substance.

That may or may not be true under state law, but what much of the general public does not know is that federal authorities have found a way to arrest anyone found with fake pot or synthetic drugs.  If the federal agents can demonstrate that the synthetic drug is “analogous” to those substances that have been defined as illegal drugs under the Controlled Substances Act, then they can arrest for manufacture, distribution, sale, possession, or use of that “analogous” synthetic drug.

The defense that the drug was packaged and sold with the warning label “not intended for human consumption” may not be sufficient to overcome a federal charge under these “analogous” federal laws.

Today, while synthetic marijuana, synthetic drugs, and designer drugs can be found for sale in Texas and elsewhere, law enforcement is working hard to ban and block their availability as being dangerous and against the public welfare.  While state and local laws may not apply to the latest versions of these products, federal laws are much broader in their impact and can umbrella many synthetics that are otherwise legal to use in Texas.


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