Once again we visit another angle of the synthetic marijuana story, a blogfodder gift that just keeps on giving.
As regular readers are likely to know, synthetic chemicals that behave like the active constituents of marijuana – cannabimimetics, if you will – have been all the rage across the US as legal alternatives in “herbal incense” products such as K2 Spice. Back on November 24th, the US Drug Enforcement Administration announced in a Notice of Intent to temporarily place five synthetic cannabimimetics on Schedule I of the Controlled Substances Act, the category for drugs with no accepted medical use, high potential for abuse, and lack of safety. This move would make illegal the sale, possession, and use of products with any of the five compounds.
After a 30-day notice period, the DEA was expected to publish its final rule on December 24th and many press outlets reported that the ban was in effect. However, I’ve been searching the Federal Register every day and have seen nothing about the final rule. One follow-up action has appeared: a correction dated on January 7th and published on the 13th stating that “due to an administrative error” the DEA had inadvertently included statements about The Congressional Review Act and The Regulatory Flexibility Act.
Sounds like some semantic government gobbledygook, right?
Well, sort of – but highly relevant to this issue at hand. The Regulatory Flexibility Act is legislation passed in 1980 with bipartisan support that limits the role of government regulations that would adversely affect small businesses. As the regulatory environment for US businesses increased throughout the 20th century, small businesses were threatened by regulations whose costs could be better absorbed by large corporations. As a result, small businesses rightfully sought some protection against new regulations that would put them at a disadvantage relative to larger companies.
And who sells K2 Spice and related products?
Small businesses – convenience stores, cigar shops, head shops, and small internet-based retailers.
In fact, I noted in our November 27 post how I was struck by mention of The Regulatory Flexibility Act in the DEA’s Notice of Intent:
One last thing that I found interesting in the rule was wording to the effect that the banning of the compounds “will not have a significant economic impact on a substantial number of small entities,” and won’t unduly tax regulatory authorities as an unfunded mandate. I assume that “small entities” does not refer to local store owners, one of which in Victoria, Texas who noted in this article that they sell between $8,000 and $10,000 of these products per month.
“It’s going big time. It’s even surpassing porn and adult toys,” said [Donna] Shook [D&D Novelties owner]. “I mainly sell it because there has been a huge request among my customers.”
I’m sure there will be more discussion of this temporary scheduling of compounds in K2 Spice and other synthetic marijuana products.
Well, discussion there has been. In fact, a San Francisco Bay area-based legal support organization, The Retailers Compliance Association (RCA), has been established to advocate for small businesses that will be affected by the DEA emergency scheduling. In fact, the RCA has already filed a challenge to this pending ruling.
In an e-mail interview on Tuesday, I asked RCA Executive Director Daniel P. Francis for his take on the DEA removing these passages from the Notice of Intent. He responded:
“[W]e want to hold the DEA to the requirements of those acts. The DEA knows they cant stand up to the requirements, so the DEA struck the paragraphs in reference to them from the Notice of Intent. Our attorneys filed a challenge on that basis.”
“We absolutely believe that this ban will seriously affect small business that offer the products. There is no doubt whatsoever about that. It will result in layoffs and some store closings, I believe it is a very important thing to protect our businesses from overreaching government actions.”
Francis isn’t a retailer himself. His day job is as Director for a start-up health plan called EquityHealth. Here, he notes the impetus for launching the RCA:
I was asked to start the organization as a result of a relationship I have with a distributor who was concerned about the DEA and their threat to ban these products. I researched the issues, talked to many retailers and others in the industry and sought legal advice, and it became clear to me that something needed to be done, this was the media, driving a fabricated crisis, to provoke lawmakers, and I was certain the DEA was behind this organized effort to misinform the people.
At therca.org, retailers are encouraged to join the RCA for $399 a year. Member benefits include legal notification and consultation, compliance tools, updates on government activities, and retailer-only conference calls. The organization states that they have, “retained a highly qualified law firm that has had clients in the past such as CBS and Larry Flint amongst others and has a successful track record in defending businesses from unconstitutional intrusions by government agencies that goes back over 30 years.” Their low-tech website states boldly that they, “are prepared to take the DEA to the Supreme Court if necessary to fight the attempted emergency ban.”
As Francis wrote to me, he faults the media for their overblown stories on the health risks of K2 Spice and other products. For that reason, the RCA site notes that, “our professional Public Relations staff is also working to make sure inaccurate media stories and media propaganda is identified as what it is, and challenge the media to back up their stories with facts.”
As a scientist, I recognize that blog comments are anecdotal – as good (or worse) than scientific case reports. But since February, 2010, I’ve been the recipient of many disturbing stories from users of these products. Some of these stories come from experienced marijuana users such as this comment that came in last night to my Terra Sigillata blog over at CENtral Science.
The RCA definitely has an uphill fight. But the DEA should also note that they really need to pay close attention to the documented health risks of these products as they move forward with their final rule. I’ll be very interested to see the outcome of these actions on the behalf of small businesses. I’ll leave Francis with the final word:
We are not against the DEA as an agency, we [are] protesting the use of a totalitarian power to create law that makes store clerks into felons when there are clear facts that say incarceration is not an effective way to manage these issues, treatment is, and regulations of the products is, but banning them will only result in the products going underground.
I’ve been unable to identify any retailers who have signed on as members and welcome comment from any who find value in the efforts of The Retailers Compliance Association.
Note: I always thought that the quote I put in the title, “Don’t agonize, organize,” came from the old labor union days. But when researching it, I learned that it was from Florynce Kennedy (1916-2000), the vocal civil and women’s rights leader and lawyer. Her story is highly deserving of another post at some point.