Designer Drug Defenses

Drug Paraphernalia

The Federal Analog Act is the weapon the Federal Government is using to go after popular “designer drugs”. These designer drugs include “bath salts” which contains one or more amphetamine-type substance. Designer drugs also include Spice and k2 which are synthetic cannabinoids.

The labels “Spice” and “K2″ actually refers to more than one type of drug. How many and which drugs? Good question! This issue typically comes up when a client comes into my office and tells me he is selling a synthetic cannabinoid but the chemical it is made of is not on any Drug Enforcement Agency (DEA) list or State of Nevada list for any prohibited controlled substances. He asks me if it is okay to market this as Spice since the exact chemical is listed as banned. Unfortunately, it’s not that simple. For example, if the client is selling Spice or k2 with the main chemical ingredient AM-2201, it would be an answer because AM-2201 is banned by the DEA. However, if the client told me he is selling Spice or k2 with the main chemical ingredient 5FUR-144, then it’s not that easy an answer. The reason for that is 5FUR-144 is not listed as banned as of the publication date of this article. However, just because it’s not listed as banned does NOT mean it’s legal for my client to sell. This is what is confusing to clients – how can it be illegal to sell something that is not listed as banned or illegal to sell?

The answer is spelled out in the Federal Analog Act of 1986 passed by Congress and signed into law by the President. Under the Federal Analog Act, a drug can be prohibited if its chemical structure is “substantially similar” to a controlled substance in schedule I or II. Let’s go back to the 5FUR-144 drug. There is a strong argument to be made that 5FUR-144 is not substantially similar to AM-2201 because the chemical structures between 5FUR-144 and AM-2201 are different enough to not be substantially similar. This is where we need a chemist to testify as an expert that they are not substantially similar.

But having a chemist testify that 5FUR-144 is not substantially similar to AM-2201 or any other controlled substance in schedule I or II does not end the debate. I’m sure the Government will present their own expert chemists to testify that 5FUR-144 is substantially similar to the illegal AM-2201. In fact, there have been recent federal prosecutions in Florida of 5FUR-144. The cases are new and so it’s too early to see if the defendants there will be found not guilty or if the Government will be able to obtain a conviction. I have been informed by the U.S. Attorney’s Office here in Nevada that they are prosecuting all “Spice” variations, but whether they obtain a conviction will depend upon whether they can prove that the analog drug, such as 5FUR-144, is substantially similar to controlled substances in schedule I or II.

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