Since 2011 all 50 states have banned two types of the synthetic drugs—cannabinoids (a.k.a. “synthetic marijuana”, “Spice” or “K2”) and cathinones (a.k.a. “bath salts”) —with the majority doing so via legislation.
Initially, state legislative action targeted specific versions of these drugs with individual bans. However, minor changes to the chemical composition of these substances can create new, but very similar, drugs not previously covered by law. In response, legislation in subsequent years has been more general in nature, targeting entire classes of substances or using broad language to describe the prohibited drugs. The intent of general bans is to prevent new forms of synthetic drugs from remaining unregulated, while still allowing use for approved medical and research purposes.
More recently, a few states also have passed laws restricting marketing, display, labeling, and advertising of these substances by utilizing consumer protection laws or classifying these activities as deceptive trade practices. Where substances are not specifically banned, law enforcement and prosecutors have also creatively used existing provisions such as agricultural regulations, consumer protection laws, and public nuisance laws to prosecute those selling these drugs.
Synthetic drugs are chemically produced in a laboratory and are designed to mimic or “enhance” the effects of natural drugs. Synthetic drugs are not new—methamphetamine, ecstasy and PCP are some examples. However, over the past five years, synthetic cannabinoids and synthetic cathinones have emerged as new synthetic drug threats.
Synthetic Cannabinoids are chemically engineered substances similar to tetrahydrocannabinol (“THC”), the active ingredient in marijuana. When smoked or ingested, the high can mimic that of marijuana but also can result in more severe reactions. The substances are sprayed on dried herbs and marketed and sold in local convenience stores or on the Internet under names like “Spice,” “K2” or “Genie.”
Synthetic Cathinones, commonly known by their street name, “bath salts,” are a bi-product of cathinone, a psychoactive substance found in the khat plant. These drugs are commonly sold in crystallized, powder or pill form in convenience stores and on the Internet with names like “purple wave,” “white dove” or “ocean burst.” They can be inhaled or ingested and the high is similar to amphetamines like ecstasy or cocaine.
Actions have included:
Individual Bans: The vast majority of states have banned synthetic cannabinoids and synthetic cathinones by adding individual substances to their controlled substances schedules. Examples of individual synthetic cannabinoids include JWH-018, HU-210 and CP 47,497. The four most commonly recognized synthetic cathinones are mephedrone, MDPV, methylone and methedrone.
General Bans: General bans are used to prohibit synthetic drugs without listing individual substances and cover those that have not yet been identified or added to statute. Some laws describe the general chemical makeup. For example, Colorado defines “synthetic cannabinoid” as, “any chemical compound that is chemically synthesized and either: (I) Has been demonstrated to have binding activity at one or more cannabinoid receptors; or (II) is a chemical analog or isomer of a compound that has been demonstrated to have binding activity at one or more cannabinoid receptors” [§18-18-102(34.5)].
Other laws use chemical “classes” to describe groupings of similar drugs. The following are classes that have been identified in statute: naphthoylindoles, napthylmethylindoles, naphthoylpyrroles, naphthylmethylindenes, phenylacetylindoles, cyclohexylphenols, benzoylindoles, adamantoylindoles, cyclopropanoylindoles, adamantoylindolecarboxamides, adamantylindazolecarboxamides and naphthoylnaphthalene.
Analogue Laws: The purpose of analogue laws are to ban drugs that are not classified as a controlled substance but are very similar to ones that have been identified and outlawed. Generally, these laws require that the analogue drug be substantially similar in chemical structure and intoxicating (pharmacological) effects as a scheduled controlled substance. According to the National Alliance for Model State Drug Laws, 34 states have analogue laws, and a number of states have amended their analogue laws to specifically address emerging synthetic substances.
The task of keeping pace with these constantly evolving substances has led states to take creative approaches to regulating them. States have delegated scheduling authority, modified consumer protection laws, and utilized existing laws to prosecute distributors.
Administrative Action: States have delegated scheduling authority to pharmacy boards or other agencies to quickly ban substances when they are identified. Some state legislatures have authorized agencies to pass temporary bans that will then be reviewed and codified by the legislature after a specified period of time, while others have given agency bans the full force and effect of statutory law.
For example, in 2012, Minnesota authorized the Board of Pharmacy to use an expedited rule-making process to temporarily add substances to schedule I. The Legislature must subsequently approve the new additions. Alternatively, New York statute authorizes the commissioner of the Department of Health to make any permanent rules and regulations that further the purpose of the public health code. The commissioner has banned the manufacture, sale and use of numerous synthetic drugs.
Product Labeling, Branding and Regulation: States have also targeted drug manufactures and sellers through product labeling and branding laws. Illinois created criminal penalties for false advertising or misbranding “synthetic drug products.” Other states have created civil penalties or are utilizing business licensing and other regulations to sanction businesses that illegally sell these substances.
Prosecution Strategies: When a synthetic drug has not yet been scheduled or otherwise prohibited by law, prosecutors have used existing laws to target distributors. For example, cathinones are often marketed as plant food and labeled “not for human consumption” to avoid prosecution under analog laws. Because of this attempt to avoid criminal prosecution, states like Tennessee have held distributors accountable under agricultural regulations requiring all fertilizers to be registered with the Commissioner of Agriculture before being distributed. Nuisance abatement laws have also been used combat distribution. Often times these laws allow for seizure of all furnishings, fixtures, equipment, money and stock used to sustain the nuisance.
On July 9, 2012, the federal Synthetic Drug Abuse Prevention Act of 2012 was signed into law. The law adds certain classes of synthetic cannabinoids and two substituted cathinones—mephedrone and MDPV—to the federal controlled substances act.