6 Big Questions on the DEA Ban of K2 Spice Synthetic Marijuana “Fake Pot” Compounds

The much-awaited DEA final rule on temporarily assigning five synthetic cannabimimetics to Schedule I of the US Controlled Substances Act was published in the Federal Register today.

From the DEA Public Affairs office press release:

MAR 01 – WASHINGTON, D.C. – The United States Drug Enforcement Administration (DEA) today exercised its emergency scheduling authority to control five chemicals (JWH-018, JWH-073, JWH-200, CP-47,497, and cannabicyclohexanol) used to make so-called “fake pot” products. Except as authorized by law, this action makes possessing and selling these chemicals or the products that contain them illegal in the United States. This emergency action was necessary to prevent an imminent threat to public health and safety. The temporary scheduling action will remain in effect for at least one year while the DEA and the United States Department of Health and Human Services (DHHS) further study whether these chemicals should be permanently controlled.

The DEA cites the public health risks of these compounds as supported by reports from poison control centers around the US over the last year or so. As a result, individual states and municipalities have been passing legislation outlawing many of these compounds locally and, understandably, the military being particularly aggressive in acting on the use of these products by servicemen and women. Daniel de Vise at The Washington Post had a very nice article yesterday detailing the offenses among midshipmen at the US Naval Academy. In North Carolina, we’ve had an exhaustive piece of legislation proposed in the state legislature with enough latitude that it essentially bans hundreds if not thousands of compounds, the majority of which have yet to even be synthesized.

Here are a few questions that come to mind with the sudden announcement of the DEA final rule:

1. Will local law enforcement authorities be greeting retailers this morning?

K2 Spice and other herbal incense products are sold all across my town – from gas stations and convenience stores to head shops and adult novelty stores. Upon opening their doors this morning, my local merchants are suddenly felons. The ruling gives no advice to retailers as to how they should properly dispose of this contraband. I certainly don’t think any of them will be calling their local DEA office for advice.

2. How does law enforcement know if a product is legal or not?

K2 and other Spice products are sold in sealed Mylar bags that lack any sort of certificate of analysis. Retailers have been preparing for this ban since the 24th November 2010 DEA announcement of intent to issue this temporary order by devising what they perceive as legal alternatives. Commenters to this blog have let us know that other JWH compounds not listed by the DEA, such as JWH-250, are now being put into Spice products to proactively circumvent the pending ban. I doubt seriously that law enforcement authorities will be traveling around with mobile analytical chemistry labs to determine if a retailer is carrying legal or illegal products. It seems to me that the default action will be to prosecute retailers who are selling any herbal incense in a Mylar bag.

3. Do state or federal authorities have adequate analytical chemistry resources to properly prosecute newly-illegal offenses?

So, say then that you are a retailer who is arrested today. Will state or federal crime investigation laboratories have the analytical and personnel resources to analyze the chemical content of the products you are selling?

4. Will reporters be arrested, too?

Over the last year, I’ve seen scads of footage of local TV reporters buying K2 Spice products to show on newscasts and in reports. If they still have any of this laying around their cubicles, what should they do?

5. What about the Controlled Substances Analog Act? Who decides what’s an analog?

As I wrote at my Chemical & Engineering News blog at CENtral Science, the DEA has the authority to prosecute cases involving the possession and/or sale of chemical or pharmacological analogs to controlled substances. By this definition, many chemicals in “legal” spice alternatives might still be deemed illegal and constitute a criminal offense. Who decides?

My take is that the Analog Act has always been amorphous enough to simply put fear and uncertainty into the hearts of any thinking of using or selling a compound that even looks like a Schedule I substance.

6. Isn’t this a nanny-state assault on small businesses?

Much hullaballoo has begun in the legal highs retail community by organizations such as The Retail Compliance Assocation (RCA) and a group of Minnesota retailers represented by Minneapolis attorney, Marc Kurzman. These groups have contended that the DEA ban violates the Regulatory Flexibility Act (my discussion here). In essence, the retailers groups argue that this new law adversely impacts the economic viability of small businesses.

From a political standpoint, I’m somewhat amused by what I perceive as hypocrisy, at the state level at least. State legislators who have put forth bills banning these substances are largely Republican. Yet this political faction is all for minimizing government intrusion into our lives.

I know that some of the retailer organizations are planning legal battles but I’m not convinced of their likelihood of success. While state laws might be good targets for legal challenge, federal law is a completely different story. I’m not a lawyer but history tells me that once the DEA is involved, you’re better off just going about some other sort of business.

I’ll continue to be with you as this fascinating story of chemistry, pharmacology, law, and economics continues to unfold.

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