President Obama has signed The Synthetic Drug Abuse Prevention Act of 2012 into law, which will add 26 chemicals to the Schedule I list of the Controlled Substances Act; extend the executive authority of the DEA over synthetic drugs to three years; and criminalize the manufacture, distribution, sale, and use of certain synthetic drugs–including a minimum 20 year sentence for those who are directly responsible for the death or injury of another person by manufacturing, distribution or sales of synthetic drugs.
Previously, under the DEA Temporary Ban, the DEA had the power to ban new and emerging drugs if they and the U.S. Department of Health and Human Services could demonstrate within 18 months that the drug was harmful and lacked medicinal or industrial value. The new law will allow and additional 18 months so that the DEA can conduct the complex requisite research and scientific analysis to support a final scheduling determination.
The bill adds cannabimimetic agents from five structural classes to Schedule 1, which includes any material, compound, mixture, or preparation which contains any quantity of cannabimimetic agents, or which contains their salts, isomers, and salts of isomers whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation. The measure bans cannabinoid receptor type 1 (CB1 receptor) agonists within the five structural classes.
Also added as schedule 1 drugs are Mephedrone, MDPV, which are marketed as “bath salts”(synthetic cathinones), and nine 2C chemicals (synthetic stimulants).
As excited as we are to see this bill become law, we know that this legislation is only a first step in the long journey to ban these dangerous synthetic drugs. We know that this bill will not get these products off our streets, and that the list of chemical compounds included in the law was outdated before it was signed. We also know that the ‘bad guys’ had already introduced new chemicals into the market before the bill had reached the full Senate and House for vote.
This is the challenge we face. The drug manufacturers are creating new synthetic drugs almost weekly, but this legislative process has taken 21 months to complete.
Although we recognize the bill’s shortcomings, it is an important start. This bill is the first federal legislation designed to begin taking a bite out of the synthetic drug industry.
Shortcomings, you say?
The bill only only bans some of the synthetic cannabinoid chemicals that are being marketed as “incense,” “potpourri,” “herbal incense” or the best yet, “herbal organic sachet refills.” The Synthetic Drug Abuse and Prevention Law of 2012 leaves out 15 synthetic stimulant chemicals (“Bath Salts”) that were included in an important update of House Bill 1254 in September 2011.
Even if those drugs had been included in this bill, it would still fall short of the more than 100 “Bath Salt” and synthetic stimulant drugs circulating in the marketplace, and many of the compounds written into the legislation are already outlawed through DEA and state bans.
This legislation began in September of 2010, when Rep. Charlie Dent first brought the issue to the floor of the U. S. House of Representatives. At that time, most of Congressmen had no idea what synthetic drugs were, or that they were even an emerging or dangerous problem.
The legislative process, which moves slowly and publicly, can’t possibly keep up with the the pace at which synthetic drugs are introduced to the marketplace unless they abandon the strategy of listing individual drugs and drug classes in order to outlaw them.
Now this bill is in place, our lawmakers must move quickly to amend the Federal Analogue Act and close the loopholes that allow these drug dealers a legal defense to continue selling their poison in our communities. We call upon our legislators to begin the important process to amend and strengthen the Federal Analogue Act, and we recommend that our federal lawmakers look to Illinois HB 5233 and other innovate and creative state laws for inspiration. (We will discuss “closing the loophole” in depth later in this article.)
Exciting Legislative Process
Skip to Closing the Loop Hole if you do not find the legislative process exciting!
In the few last years, members of both the U.S. House of Representatives and Senate drafted two important synthetic drug bills. Both measures were eventually stalled by Sen. Rand Paul (R-KY), who refused the Unanimous Consent Agreement* to bring the bills to a vote in the Senate, even while young people across our country, and even in his home district, continued to die after buying dangerous synthetic hallucinogens in stores where they were displayed next to candy bars and bubble gum.
Last month, Sen. Robert “Rob” Portman (R-OH) combined three of the Senate bills into one measure, the “Portman Amendment,” and attached it to FDA legislation (S. 3187), which was considered a “sure thing,” with almost guaranteed passage. In the Senate Judiciary Committee, 15 synthetic cathinones (“bath salts”), which were in the House bill, were excluded from the legislation at the insistence of Sen. Patrick Leahy, Chairman of the Senate Judiciary Committee.
This is a list of the drugs that Senator Leahy struck from the bill:
- 3,4-methylenedioxymethcathinone (methylone).
- Naphthylpyrovalerone (naphyrone).
- 4-fluoromethcathinone (flephedrone).
- 4-methoxymethcathinone (methedrone; Bk-PMMA).
- Ethcathinone (N-Ethylcathinone).
- 3,4-methylenedioxyethcathinone (ethylone).
- Beta-keto-N-methyl-3,4-benzodioxyolybutanamine (butylone).
- N,N-dimethylcathinone (metamfepramone).
- Alpha-pyrrolidinopropiophenone (alpha-PPP).
- 4-methoxy-alpha-pyrrolidinopropiophenone (MOPPP).
- 3,4-methylenedioxy-alphapyrrolidinopropiophenone (MDPPP).
- Alpha-pyrrolidinovalerophenone (alpha-PVP).
- 6,7-dihydro-5H-indeno-(5,6-d)-1,3-dioxol-6-amine) (MDAI).
- 4’-Methyl-a-pyrrolidinobutiophenone (MPBP).
By mid June, the Portman Amendment was thought to be “dead in the water” by many insiders after the U.S. House of Representatives refused to put the measure through with reductions to the mandatory minimum sentencing for selling or distributing synthetic drugs responsible for death or bodily injury, again, upon the insistence of Sen. Rand Paul.
After the House reintroduced the mandatory sentencing language, the Senate then had to approve the changes made to the legislation. Majority Leader Sen. Harry Reid invoked Cloture on the bill, forcing Sen. Rand Paul’s hand after he threatened to “bring down” the FDA legislation. The Senators then passed the measure with 92-4 vote.
After stalling the senate legislation for nine months and the House legislation for six months, Sen. Rand Paul finally voted YEAH on the FDA bill with the mandatory minimum sentencing requirements that he previously objected to so fiercely. (All that posturing for nothing! Imagine how many tax dollars and lives were wasted on Rand Paul’s lone battle with the Senate in his attempt to kill the synthetic drug legislation.)
The Portman Amendment, now known as The Synthetic Drug Abuse and Prevention Law of 2012, combines three bills previously introduced by Sens. Chuck Grassley (R-Iowa), Chuck Schumer (D-NY), and Amy Klobuchar (D-MN). In addition to these legislators, we’d also like to thank U.S. Rep. Charlie Dent (R-PA), U.S. Sen. Robert Casey Jr. (D-PA), Sen. Orrin Hatch (R-UT), and Sen. Robert “Rob” Portman (R-OH), and their hard working staffers and volunteers, among others.
Closing the Loop Hole
The Federal Analogue Act is an amendment to the U.S. Controlled Substances Act (effective 1986).Under 21 U.S.C. § 802(32), as interpreted by the weight of court decisions, the government can prove that a substance is an analogue if: (1) the chemical structure of the substance is substantially similar to the chemical structure of a schedule I or II controlled substance; AND (2) the substance is pharmacologically similar to or greater than a schedule I or II controlled substance, i.e., has a similar or greater pharmacological effect on the central nervous system; OR (3) with respect to a particular person, that such person represents or intends the substance to have a pharmacological effect substantially similar to or greater than a schedule I or II controlled substance. The major differences between a substance specifically controlled under the CSA and a substance treated as an analogue in terms of preventing diversion and abuse include: Additional investigation is necessary on each and every potential analogue case to ascertain whether the substance was “intended for human consumption.” It is acceptable for a forensic chemist to present testimony regarding laboratory analysis results in order to identify a controlled substance, while additional testimony is necessary from experts in different scientific disciplines to establish that a particular substance is an analogue. In criminal prosecutions involving analogue substances, an additional burden is on the government to establish, through experts in the field of chemistry, that the substance is substantially similar in chemical structure to a schedule I controlled substance. This is by its nature an “opinion” and therefore subject to opposing views from other expert chemists. In criminal prosecutions involving analogue substances, an additional burden is on the government to establish, through experts in the field of pharmacology, that the substance is substantially similar in pharmacological activity to a schedule I controlled substance. Such expert testimony can be based on pharmacological models that are subject to opposing views from other expert pharmacologists. A single successful prosecution under the analogue provision of the CSA does not render the substance an analogue in subsequent prosecutions. Each prosecution must establish that the particular substance is an analogue under the statutory definition, as set out above. Because of these considerations, the current availability of the “analogue” process to prevent diversion and abuse of synthetic cannabinoids and stimulants is not adequate to address the problem, necessitating more assertive action through direct scheduling of these substances. http://www.justice.gov/dea/speeches/110412_testimony.pdf
The ‘bad guys’ introduce new synthetic drug chemicals into the market at a rate of about one every other week. It is impossible for us to add these chemicals to federal, state and local laws fast enough to protect our young people. Therefore, the laws must deem these chemicals illegal because they are structurally similar to banned chemicals and have the same effects on the body.
Greedy, drug dealers have done a great job defending themselves against the Federal Analogue Act by saying that they did not intend or knowingly sell or manufacture a drug that was meant for human consumption.
Everyone knows that potpourri or incense that is sold in little packages or vials by the gram is sold as a drug and not for mom to put in a bowl on the table, but this common sense is not necessarily effective in the courtroom
We recently purchased a regular bag of potpourri, weighed it, and did the math. The regular size bag of potpourri was 1.5 lbs., which is equal to 24 ounces. With 28 grams per ounce, there are 672 grams in my package of potpourri. The drug dealers are charging $14.00/gram, so our bag of potpourri would cost $8,736.00!!! So, are the bag guys innocently selling potpourri at $14.00/gram.
Do we honestly believe that homemakers are buying potpourri to scent their homes at over $8,000 a bag?? VERY highly unlikely! If you believe that, then I have some ocean property in Illinois up for sale.
Let’s stop allowing these greedy, sociopaths to get away with murder. It’s too late for Max Dobner and all of the other victims. But, it’s not too late for your kids, grandkids, nieces, nephews, friends, cousins, brothers, sisters, and other Americans.
It’s time that we protect our young people from these merchants of death!
* Technically, Sen. Paul only objected to the UC Agreement for the senate bill. However, he made his intentions clear for the House bill (HR 1254) and caused it to die in the senate, after it passed the U. S. House on December 9, 2011, with a 2/3 vote.