This article was written by Donald H. Flanary, III, an attorney with Flanary Law Firm, PLLC, and was presented during a drug seminar sponsored by the Texas Criminal Defense Lawyers Association on March 7, 2014 at the Crowne Plaza Houston-Downtown, Houston, Texas.
If you are charged with the possession, distribution, manufacturing, or trafficking in snythetic cannabinoids or marijuana related charges, then call us to discuss the case. We represent clients in serious drug crime cases throughout San Antonio, Bexar County, and the State of Texas.
Table of Contents
- What are Synthetic Cannabinoids?
- The History of Synthetic Marijuana
- Synthetic Cannabinoid Manufacture
- Sale of Synthetic Cannabinoids
- The Synthetic Chemicals
- Federal Statutes
- Arrests and Seizures
Synthetic cannabinoids are a class of psychoactive designer drugs created by mixing natural herbs with synthetic chemicals to produce a claimed alternative to marijuana. Most producers claim it can be smoked in the same manner as marijuana, whether out of a pipe, water bong, hookah, vaporizer, or simply rolled into a joint or blunt. While it was marketed to appear similar to marijuana, there is dispute whether it shares similar psychoactive and pharmacological characteristics.
Herbal smoking blends have been advertised in magazines such as High Times and Cannabis Culture for more than twenty years. These products were sold as legal alternatives to smoking marijuana.
The ‘legal smoke’ industry’s goal was to create a product that resembled the appearance, texture, effects, and taste of marijuana. However, it was common knowledge that the products only marginally imitated marijuana, and absolutely had no psychological effects whatsoever. The products consisted wholly of legal, non-psychoactive herbs mixed with other herbs; often shaped to resemble marijuana.
‘Legal smoke’ was mostly shaped into marijuana-shaped buds. These buds often were shaped by hydrating foliage herbs in water, adding a binding agent (often honey), and forming them into ‘buds’ or ‘colitas’ that resemble marijuana. The substance was a legal blend of herbs that has little to no recognized psychoactive effects. These are not the products under contention today. In fact, the legal buds that were once prominently advertised in the major marijuana magazines are no longer advertised.
In 2006, products appeared in Germany that were very similar to the well-known ‘legal buds.’ However the new products contained a chemical that was partly similar to a chemical found in marijuana. See United Nations Office on Drugs and Crime, Synthetic Cannabinoids in Herbal Products, page 4.
The genesis for these products predicates on the dissemination of laboratory instructions describing its creation with a few chemicals. Id. The method to create this first synthetic cannabinoid, JWH-018, has been described as ‘so easy, a half-brained undergraduate chemistry major’ could accomplish the task. See Legalize Marijuana, Says Inventor of ‘Spice’ Chemicals. The dissemination of the formula was intended to spur medical research, as the synthetic cannabinoids are primarily research chemicals. Id.
To create synthetic cannabinoids, the same foliage used to make ‘legal smoke’ is inundated with synthetic cannabinoids to create a psychoactive substance. The foliage merely acts as a vehicle for combustion. As the foliage is only a vehicle for combustion, the weight of the materials should be looked at differently.
The ‘buds’ are sometimes sprayed, but often soaked, in an Acetone solution to introduce the chemical to the foliage. These chemicals in synthetic marijuana vary, both in design and illegal scheduling. The earliest (and most popular) preparation, named Spice, contained JWH-018, as well as two compounds based on CP 47,497- all of these are synthetic cannabinoids. Id.
Synthetic cannabinoid recipes have been found to contain basic, often little used foliage herbs such as Mugwort, Lemongrass, Chamomile, Lavender, Hops, Muellin, Damiana, Marshmallow leaves, Skullcap, Wild Dagga, Wild Opium, Spearmint, Dream Herb, Chamomile.
The inundated herbs return to their typically dry state, usually a green color reminiscent of either low-grade or high-grade marijuana. Different combinations of foliage leaves will produce different tastes and visual appeal. Id. Coupling the foliage leaf with a collateral flavoring ingredients broadens the spectrum for both taste and aesthetics, not chemical compounds or psychoactive effects. Id.
The manufacturer’s goal is to produce a product that is reminiscent to marijuana strains, such as purple varietals, red varietals, along with flavor profiles such as strawberry, blackberry, blueberry, and kush flavors. These similarities relate to taste and aesthetics, not chemical compounds and psychoactive effects. Collateral ingredients consists of flavoring herbs such clove, passion flower, pine flavoring, orange zest, honey, and other ingredients. Id.
Foliage Herbs in Natural State
Foliage Herbs in Dried State
Sale of Synthetic Cannabinoids
Synthetic cannabinoid’s previous status as a legal substance has affected how sales are conducted. See Fake Pot Industry Changes. Synthetic cannabinoids, similar to the non-psychoactive buds in the past, are primarily sold in head shops and convenience stores, often under-the-counter. Id. The product is sold in foil pouches or small clear plastic containers. See United States Department of Justice, Drug Enforcement Administration.
The product is sold by weight, usually in three gram and ten gram bags. The packaging is colorful, creatively-named, and labeled as potpourri or incense. Commonly used names include K2, Spice, Skunk, Moon Rocks, and many others.
- 50 gram combination of foliage leaves
- 50 milliliters of Acetone
- 1 gram of JWH-018
- Spray bottle
- Glass, Ceramic, or Metal Baking Dish or Pan;
- Glass, Ceramic, or Metal Spatula, Spoon or Similar Utensil.
- Pour Acetone into glass mixing bowl or vial.
- In the same bowl or vial, add JWH-018 and mix well.
- Pour mixture into spray bottle.
- Spread foliage evenly on glass, ceramic, or metal baking dish or pan.
- Shake Acetone/JWH-018 spray bottle; begin to spray top and sides of foliage evenly.
- Use spatula to mix and re-distribute foliage. Spray evenly again.
- Repeat spraying and re-distributing until all the chemical solution has been used.
- Allow foliage to completely dry.
Scaling the manufacture to a larger scale does not change the overall approach to synthetic cannabinoids. Large operations utilize the same ingredients, but often soak the foliage in the acetone solution rather than spraying manually. Cement mixers are commonly used to evenly distribute and air dry the inundated foliage leaf.
Large scale operations purchase the precursor chemicals from overseas laboratories, often from China. The chemicals are commonly sold in half to multi-kilogram packages; custom made-to-order by small laboratories throughout Asia.
John W. Huffman, a professor of organic chemistry at Clemson University, was the first person to synthesize novel cannabinoids. Essentially, he had developed a class of chemicals claimed to mimic the effects of marijuana on the brain. Id. His initial research was funded by the National Association on Drug Abuse. Id. When he developed the chemicals, his focus was to create a drug that targeted endocannabinoid receptors in the body. Over the course of twenty years, his team developed 450 synthetic cannabinoid compounds.
The research goal was to develop medications to treat a host of illnesses, from AIDS, multiple sclerosis, chemotherapy sickness, and Alzheimer’s. Of these illnesses, Alzheimer’s had the most promise. The Hoffman cannabinoids are designated by his initials, followed by the chemical compound number, ranging from JWH-001 to JWH-450. Many of these chemicals are classified as Schedule I controlled substances.
Dr. Raphael Mechoulam, a professor of Medicinal Chemistry at the Hebrew University of Jerusalem is known for his research in synthetic cannabinoids. Similar to Prof. Hoffman, Dr. Mechoulam had developed synthetic cannabinoids to advance medical treatments. One cannabinoid, HU-211, is currently in Phase 1 trials for the treatment of brain cancer.
The Hebrew University synthetic cannabinoids have a nomenclature similar to Hoffman’s- they are named with the designation HU for Hebrew University, followed by three numbers: HU-211, HU-239, etc. HU-210 is currently on the Schedule 1 controlled substance. See also
Through grants from the National Institutes of Health, and the support of Northeastern University, Dr. Alexandros Makriyannis developed synthetic cannabinoids as research chemicals to aid in the discovery of new medicines. Specificially, he had developed the chemicals to learn how the central nervous and immune system can be modulated using cannabinoid receptors in the brain.
The Makriyannis synthetics follow the same nomenclature, the letters AM followed by a series of numbers. For example, AM-2201 and AM694- both are listed on Schedule I.
It’s a common misconception that synthetic cannabinoids are undetectable in urine and blood testing. The metabolites from synthetic cannabinoids are detectable, but only recently has their popularity justified the assays. Assessments have been developed to detect synthetic cannbinoids in blood, urine, and oral fluid for at least thirty different synthetic cannabinoid metabolites.
Field Testing Synthetic Marijuana
Field (presumptive) testing kits have also been developed for testing substances believed to contain synthetic cannabinoid. . Until recently, all suspected materials were sent to state and federal laboratories for testing. Tests have been developed that will assess for different chemicals in one test ampoule.
The DEA initially placed five synthetic cannabinoids into Schedule I of the Controlled Substances Act on March 1, 2011. The initial compounds were JWH-018, JWH-073, JWH-200, and cannabicyclohexanol. The Federal Register has posted DEA temporary schedule I placements as recently as January 10th and again on February 10th of this year. The Federal Government takes the position that all synthetic cannabinoid variants, the so-called “analogues,” are impliedly illegal under Title 21 U.S.C.A § 802(32)(A), the “Controlled Substances Act.”
In 2012, Congress passed the “Synthetic Drug Abuse Prevention Act.” It defined synthetic cannabinoids as cannabimimetic, meaning any agent that binds to the cannabinoid receptor type 1 in the central and peripheral nervous system.. The “Synthetic Drug Abuse Prevention Act” chemically defined specific cannabimimetics in controlled substance schedules I and II, including what chemical groups can be exchanged/altered to maintain its illegal status.
Title 21 U.S.C.A. 802, “The Controlled Substances Act,” states:
“(32)(A) Except as provided in subparagraph (C), the term “controlled substance analogue” means a substance– (i) the chemical structure of which is substantially similar to the chemical structure of a controlled substance in schedule I or II;
(ii) which has a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II; or
(iii) with respect to a particular person, which such person represents or intends to have a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II.”
The “analogue” definition has been criticized in the Federal Circuit Courts for some ambiguity, often requiring each circuit to construct the statute in light of Congressional intent and a broad reading of the statute. U.S. v. Fedida, 942 F.Supp.2d 1270, 1274 (2013). But the interpretation lies in how subparagraph (i) relates to (ii) and (iii). Id.
While all Circuits appear to be in agreement when it comes to vagueness challenges to 21 U.S.C. § 802(32)(A), there is a distinct split in the Circuits when it comes to how the statute should be read. While a majority of courts choose to use the conjunctive method, there are some that have gone with a disjunctive interpretation of the statute or have chosen not to rule on the issue entirely.
In United States v. Roberts, coming out of the Second Circuit the court held “the statutory definition of the term ‘controlled substance analogue’ was not unconstitutionally vague as applied to 1,4-butanediol, claimed to be an analogue of the controlled substance gamma hydroxybutyric acid (GHB).” United States v. Roberts, 363 F.3d 118 (2nd Cir.2004). In that case Michael Toback and Todd Roberts were charged with conspiring to distribute and did distribute 1,4-butanediol for human consumption. In recent years 1,4-butanediol “has been discovered to be a depressant, inducing a deep sleep…this property has caused it to be used as a ‘date rape’ drug.” Id. at 120.
Though 1,4-butanediol is not listed as a controlled substance the government argued “it is a ‘controlled substance analogue’ of GHB, which Congress listed as a Schedule I controlled substance in 2000.” Id. The government goes on to claim that “under the Controlled Substance Analogue Enforcement Act of 1986 (Act), some substances that have not been listed as controlled substances, but that are sufficiently similar to a listed substance, are, under certain additional circumstances, treated as Schedule I controlled substances for the purposes o federal drug law.” Id.
The district court held a hearing to determine how the “Act’s definition of ‘controlled substance analogue’ should be interpreted.” Id. The court had to determine whether to read the Act disjunctively or conjunctively. The court noted that under the disjunctive reading “a substance that satisfies one or more of the subsections is a ‘controlled substance analogue.’” United States v. Hodge, 321 F.3d 429 (3rd Cir.2003).
Under the conjunctive reading “the definition requires two things: first, (i) that the substance be chemically similar and, second, (ii) that it have a similar or greater psychopharmacological effect or (iii) that it be intended to have or be represented as having such an effect.” Id. The defense argued for the conjunctive reading, while the government sought a disjunctive reading of the Act.
The court found that neither reading was necessary because “the ‘which’ in (ii) and (iii) appears at the beginning of those clauses, suggesting that it might refer not to ‘substance’ in the preface of the definitions, but instead to ‘chemical structure’ in (i).” Id. The district court determined the conjunctive reading of the Act was the correct one and because the government never appealed the district court’s holding on that issue, the 2nd Circuit also accepted the conjunctive reading.
In United States v. Hodge, coming from the Third Circuit two defendants were convicted of “narcotics and weapons offenses based on sale of wax-and-flour ‘crack cocaine’ to undercover federal agents.” United States v. Hodge, 321 F.3d 429 (3rd Cir.2003). The 3rd Circuit held “(1) as a matter of first impression, in order [for a substance] to be ‘controlled substance analogue’ under Controlled Substance Analogue Enforcement Act [it] is required to have ‘substantially similar’ chemical structure to scheduled substance; and (2) the wax-and-flour mixture sold as ‘crack cocaine’ and thus could not be ‘controlled substance analogue’ under [the] Act.” Id.
The court first looked to the statutory definition of “controlled substance Analogue” as defined in 21 U.S.C. § 802(32)(A): (i) The chemical structure of which is substantially similar to the chemical structure of a controlled substance in schedule I or II; (ii) which has a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II; or (iii) with respect to a particular person, which such person represents or intends to have a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II.
The government again argues that the Act should be read using a disjunctive interpretation, while the defense claims the conjunctive reading is the method to use. In their argument for the conjunctive reading, the defendants state “a controlled substance must satisfy both clause (i) and either clause (ii) or (iii)…a candle wax and flour mixture is not ‘substantially similar’ in chemical structure to crack cocaine as required under clause (i).” Hodge, 321 F.3d at 433.
In this case the district court erred by choosing to read the definition disjunctively. The 3rd Circuit noted that all other federal court that had considered the issue read it conjunctively. In coming to its conclusion the 3rd Circuit “reject[ed] the District Court’s disjunctive reading and adopt instead the conjunctive reading endorsed in Forbes, Roberts, Clifford, Vickery, and Klecker.” Id. at 436 (citing United States v. Forbes, 806 F.Supp. 232 (D.Col.1992), United States v. Roberts, 2001 WL 1646732 (S.D.N.Y. 2001), United States v. Clifford, 197 F.Supp.2d 516 (E.D.Va.2002), United States v. Vickery, 199 F.Supp.2d 1363 (N.D.Ga.2002), United States v. Klecker, 228 F.Supp.2d 720, 727 (E.D.Va.2002).
The Court goes on to conclude that “the plain meaning of § 802(32)(A) is ambiguous and that the legislative history indisputably favors the conjunctive reading.” Id. The Court goes on state that when it comes to the Analogue Act, the “definition of controlled substance analogue reads more naturally in the conjunctive.” Id. at 436.
The Court sides with the conjunctive interpretation because of the definition of analogue. The Court notes that “clause (i) seems to state an independent requirement; even the dictionary defines chemical analogues in terms of their similar chemical structures.” Id. (citing American Heritage Dictionary 65-66 (3d ed.1992) (defining “analogue” in chemistry as “[a] structural derivative of a parent compound that often differs from it by a single element”). While “clauses (ii) and (iii) read in parallel and appear subordinate to clause (i) because the functional language in each begins with the relative pronoun ‘which.’” Id. (emphasis added). The Court determines “clauses (ii) and (iii) more likely modify clause (i)’s phrase ‘controlled substance in schedule I or II’ than the word ‘substance’ in the main clause.” Id. (emphasis added).
The Third Circuit finally had to concede “the disjunctive reading is plausible…[t]he word ‘or’ between clauses (ii) and (iii) does not prove that all three clauses of § 802(32)(A) are disjunctive, only that many people would read it that way.” Id. at 436-37. “With two possible readings, we conclude that § 8-2(32)(A) is ambiguous as to whether it should be read conjunctively or disjunctively.” Id. at 437.
After being convicted in the district court of possession and distribution of a controlled susbatnce analogue, James Turcotte appealed the decision to the Seventh Circuit in United States v. Turcotte. The Court held “(1) as a matter of first impression, [the] ambiguous definition of ‘controlled substance analogue’ in Controlled Substance Analogue Enforcement Act is to be read conjunctively and (2) though it did not prejudice the defendant, [the] district court erred in giving [a] disjunctive jury instruction concerning [the] definition of ‘controlled substance analogue.” United States v. Turcotte, 405 F.3d 515 (7th Cir.2005).
The Court first delves into the issue of resolving the query of whether to interpret the Controlled Substance Act in the disjunctive or conjunctive sense. It notes that “[t]he CSA provides that certain substances, while not officially scheduled as controlled substances themselves, may be regulated as such if they meet the definition of a ‘controlled substance analogue’ as stated in 21 U.S.C. § 802(32)(A).” Id. at 521.
The Court then looks at the legislative history and other federal courts that have confronted this same issue and determined the conjunctive reading is the proper method. “The majority of these courts base their rulings largely on the absurd results that might obtain under a disjunctive reading, noting that alcohol and caffeine could be criminalized as a controlled substance analogues based solely on the fact that, in concentrated form, they might have depressant or stimulant effects similar to illegal drugs.” Id. at 522. (citing U.S. v. Forbes, 806 F.Supp. 232 (D.Col.1992)).
“Similarly, the sale of everyday substances could be criminalized if the seller merely represents that they are banned substances or have physiological effects similar to illegal drugs.” Id. at 522-23. The Court looks to the intention of Congress to support its rationale, “[t]he Act was intended primarily to prevent scientists from slightly modifying the chemical structure of banned drugs to create new ‘designer drugs’ that would have similar physiological effects but would not be covered by the law’s controlled substance schedules.” Id. at 523.
“[T]here is not a scintilla of evidence that Congress intended to cover and criminalize sales of legal substances such as flour, salt, ginseng, vitamin B, etc., merely because the seller represents that they will yield a stimulant, depressant, or hallucinogenic effect like that of a controlled substance.” Id. at 524 (quoting United States v. Clifford, 197 F.Supp.2d 516, 520-21 (E.D.Virginia 2002)).
The court noted that “Congress is capable of indicating an unambiguous disjunctive intent when it so desires…in this very Act(§ 802(9)), a number of subordinate causes are listed in a fashion similar to § 802(32)(A), but each subsection is separated by the word ‘or’ to indicate a clear disjunctive intent. Id. at 523. (quoting Clifford, 197 F.Supp.2d 519-520) (emphasis added).
The court went on to conclude that the district court’s disjunctive jury instruction was error. It based its conclusion on the fact that “the Act does not clearly demand either reading” it looked to the policy considerations adopted by its sister courts and the Act’s structure and legislative history…based on accumulated precedent and common sense, joining the vast majority of federal courts in adopting the conjunctive reading of § 802(32)(A). Id.
In United States v. Brown, the Eleventh Circuit Ronald and Kevin Brown were convicted of conspiracy to distribute 1,4-butanediol, an alleged substance similar to gamma hydroxybutyric acid (GHB). In coming to its conclusion the court held “[vc_row][vc_column][vc_column_text][w]e have never decided whether § 802(32)(A) should be read disjunctively or conjunctively…[t]he district court concluded that most courts ‘have read the statute in the conjunctive which requires the government to prove clause (i) and either clause (ii) or (iii)…because both parties accept the district court’s conjunctive reading of the statute, we assume it is the correct one.” U.S. v. Brown, 415 F.3d 1257, 1261 (11th Cir.2005). The 11th Circuit has declined to rule, stating “We find there is no reason to take sides on the issue.” U.S. v. Fisher, 289 F.3d 1329, 1338 (11th Cir. 2002). The 5th Circuit has held that the statute was not vague but has not address the conjunctive/disjunctive question directly. U.S. v. Granberry, 916 F.2d 1008, 1010 (5th Cir. 1990).
Title 21 U.S.C.A. 802, “The Controlled Substances Act,” states: “(32)(A) Except as provided in subparagraph (C), the term “controlled substance analogue” means a substance– (i) the chemical structure of which is substantially similar to the chemical structure of a controlled substance in schedule I or II;”
Section 32(A)(i) states an “analogue” can be described as having a chemical structure substantially similar to the chemical structure of the controlled substance. However, currently there is no legally or scientifically described method of determining substantial, or even non-substantial similarity among chemicals. “The scientific community cannot even agree on a methodology to use to define structural similarity.” U.S. v. Forbes, 806 F.Supp. 232, 237 (1992).
This has led to some contention in the courts in how to define an “analogue” as a Schedule 1 controlled substance. U.S. v. Turcotte, 405 F.3d 515, 522-23 (7th Cir. 2005). In the past, the Courts looked to the Congressional intent in passing the ‘Controlled Substance Act.’ Id. The courts determined that an “analogue” was created when molecules were removed from an existing controlled substance, stating:
“The Act was intended primarily to prevent scientists from slightly modifying the chemical structure of banned drugs to create new “designer drugs” that would have similar physiological effects but would not be covered by the law’s controlled substances schedules. See, e.g., Hodge, 321 F.3d 429 (conducting an extensive review of the Act’s legislative history).” Id. at 523.
This construction has worked well until the advent of synthetic cannabinoids. Unlike synthetic bath salts, which are chemically similar to methamphetamines, synthetic cannabinoid chemicals are purposefully constructed for medical research purposes. This is distinguishable because the chemicals have been introduced to abuse, but are not derived from an existing illegal substance.
An advisory committee has formed to formulate methods to determine similarity. The Advisory Committee for the Evaluation of Controlled Substance Analogs (ACECSA) is “a newly-established group consisting of forensic and academic chemists, toxicologists, and other scientist. However, as of this date, no standards have been published.
In an effort to chemically define the structure, Congress passed the Synthetic Drug Abuse Prevention Act of 2012. 21 U.S.C. 812(c) §3190 (2012). The act adds more synthetic cannabinoid chemicals to the existing Controlled Substances Schedule I. Id. The act also defines a new term, ‘cannabimimetic agents.’ Id. The Act defines cannbimimetic agents “as any substance that is a cannabinoid receptor type 1 (CB1 receptor) agonist as demonstrated by binding studies and functional assays within certain [chemical] structural classes.” Id. The Act describes each class chemically and states what chemical groups, atom substitutions, or alternate configurations are illegal. Id. Any chemical meeting the statutory definition of the Act is added as a Schedule I drug. Id.
Synthetic cannabinoids, aside from the foliage vehicle, are a chemical compound. A chemical compound “is a form of matter that has a constant chemical composition and characteristic properties.” It cannot be physically separated into smaller parts without breaking chemical bonds. The chemical compound can only be separated into simpler substances using chemical reactions. Chemical Compounds have a unique and defined chemical structure, consisting of a fixed ratio of atoms held together in a defined spatial arrangement by chemical bonds.
In the past, chemists used ‘stick and circle’ diagrams to express a complex chemical composition on paper. Although traditional, a two-dimensional representation is not a true depiction of the chemical compound. Professional chemists rely on databases of chemical molecules that are searchable by properties such as chemical structure, chemical formula, molecular weight, etc. See PubChem. These databases display both the two-dimensional and three-dimensional image of the chemical compound.
A comparison between the two display methods readily identifies that the active chemical compound in marijuana, delta(9)-tetrahydrocannabinolic acid is not chemically similar in structure to the most common synthetic cannabinoid, JWH-018. A comparison of five synthetic cannabinoid compounds yield similar results. The examples were the first synthetic cannabinoids to be added to Schedule I. They are cannabicyclohexanol, cannabicyclohexanol homologue, JWH-018, JWH-200, and JWH-073.
Title 21 U.S.C.A. 802, “The Controlled Substances Act,” states:
“(32)(A) Except as provided in subparagraph (C), the term “controlled substance analogue” means a substance– (ii) which has a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II; or”
Section 32(A)(ii) of the Controlled Substances Act states that a controlled substance “analogue” has an effect that is substantially similar or greater than a substance on schedule I or II. The problem is, scientifically, there is no way to discern what effects any synthetic cannabinoid has on the central nervous system. U.S. v. Fedida, 942 F.Supp.2d 1270, 1281 (2013).
The drugs have never been clinically tested on humans; a scientific understanding of the effects is unknown. See Legalize Marijuana, Says Inventor of ‘Spice’ Chemicals. The government contends rats can be trained to indicate psychoactive properties through training; the rats will choose a lever to indicate they are ‘high.’ See DrugFacts: Synthetic Cathinones (“Bath Salts”). This method has been criticized in Federal courts. Fedida at 1279-80.
The defendants in Fedida also contend that the second clause of the Act, that the substance has a similar or greater effect of a scheduled substance, cannot be harmonized with the Supreme Court’s ruling in Daubert and the Federal Rules of Evidence. Id. at 1280.
Rule 702 provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. Fed. R. Evid. 702.
“This rule compels the court to act as a ‘gatekeeper’ in determining the admissibility of expert scientific evidence.” Fedida at 1280, quoting Daubert v. Merrell Dow Pharmaceuticals, 113 S.Ct. 2786, 2794 (1993). Daubert also expounds a three-part test in determining whether to enter expert testimony:
- the expert must be qualified to testify competently regarding the matters he intends to address;
- the methodology must be reliable under Daubert; and
- the testimony must assist the trier of fact through the application of scientific, technical, or specialized expertise to understand the evidence or to determine a fact in issue. Frazier, 387 F.3d at 1260.
The proponent of the expert testimony bears the burden of proving that the testimony satisfies each prong of this inquiry by a preponderance of the evidence. Id. at 1274.
The Supreme Court in Daubert also described the relevant factors to consider in weighing an expert’s methodology: “(1) whether the theory or technique “can be (and has been) tested”; (2) “whether the theory or technique has been subjected to peer review and publication”; (3) “in the case of a particular scientific technique, … the known or potential rate of error”; and (4) whether the theory or technique is generally accepted in the relevant scientific community. Daubert, 509 U.S. at 592–94, 113 S.Ct. 2786; accord Frazier, 387 F.3d at 1262. This list is non-exhaustive and the Court has “substantial discretion” in determining how to test an expert’s reliability. Hendrix ex rel. G.P. v. Evenflo Co., 609 F.3d 1183, 1194 (11th Cir.2010).” Id. at 1281.
In Fedida, the government’s expert witnesses testified the synthetic cannabinoids had a substantial effect similar to JWH-018, a schedule I substance. Id. However, the court found the available scientific literature was limited. Id. The court noted the lack of peer review or publication. Id.
Additionally, the experts’ methodology was little more than “the deduction of a working hypothesis supported by a general knowledge of chemistry and biochemistry.” Id. The court declined to rule on the admissibility of the government’s expert witnesses, but noted [it] “is not inclined to permit an expert to testify to a jury where the basis of his opinions rests only on broad scientific principles.” Id. at 1281, citing McCain v. Metabolife Int’l, Inc., 401 F.3d 1233, 1240–44 (11th Cir.2005).
Title 21 U.S.C.A. 802, “The Controlled Substances Act,” states:
“(32)(A) Except as provided in subparagraph (C), the term “controlled substance analogue” means a substance– (iii) with respect to a particular person, which such person represents or intends to have a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II.”
The Controlled Substances Act also holds a scienter responsible for a substance if it is represented to have similar, or substantially similar effects, or greater effects than a scheduled drug.
Synthetic cannabinoids are not the same as the psychoactive chemical found in marijuana. See Compound Summary for: Delta(9)-Tetrahydrocannabinolic Acid. The federal government recognized this fact with the passage of the Synthetic Drug Abuse Prevention Act of 2012. See Establishment of Drug Codes for 26 Substances.
The Act introduces the distinction between cannabis and synthetic chemicals, termed cannabimimetic agents. A cannibimimetic agent is a substance that mimics how the main psychoactive ingredient in marijuana binds to receptors in the brain. Schedule I [21 CFR 1308.11] Cannabis contains many different chemicals when smoked, however the main active ingredient is the psychoactive molecule delta-9 tetrahydrocannabinol, or THC.
THC is a super lipid-soluble compound. See Cellular Biology: How Cannabis Works in the Body. This means what when the smoke is inhaled, the THC slips right into the bloodstream and passes the blood-brain barrier almost immediately. See Cannabinoid agonists and JWH-018- Part 2.
Once in the brain, it targets/attaches two major receptors: CB1 and CB2. See The Science of Marijuana: How THC Affects the Brain. CB2 receptors do not produce psychoactive states See Cannabinoid Receptor Type 2. CB2 receptors are primarily involved in immune system regulation. 112x Activation of CB2 receptor cell results in suppression of immune system events, such as immune cell activation and proliferation, as well as production of some inflammatory mediators.
Similar to CB2 receptors, CB1 receptors are expressed widely throughout the brain in different areas. See Cannabinod Receptor. CB1 receptors are part of the synaptic relay found in neurons. 115x In simple terms, THC attaches to the CB1 receptor on post-synaptic neurons. Once a chemical (endogenous, natural, or man-made) attaches to the receptor, the postsynaptic neuron signals back to stop neurotransmitter release from the pre-synaptic neuron. Id.
Basically, stimulation of CB1 receptors on presynaptic neurons can suppress neurotransmitter release from those neurons. This means if we suppress inhibitory transmission from the hunger circuit in the hypothalamus, we have more excitation of the neuron, creating hunger. This is the reason marijuana smokers have increased appetites.
It is apparent that synthetic cannabinoids attach to neuron receptors. Id. A chemical that binds to a receptor and activates it, producing a biological response, is an agonist. See Wikipedia on Agonist. An antagonist does the opposite by silencing the signals sent by the receptor. Id. There is a grey area- partial agonists only partially stimulate the receptor. Id. In the human body, different internalization and recycling patterns of receptors emerge with different strengths of agonists. See Cannabinoid agonists and JWH-018- Part 1 and Part 2. THC is a PARTIAL agonist to the CB1 receptor.
JWH-018 is a FULL agonist of the receptor. “This is a major difference in and of itself- CB1 receptor responses, and immediate and long-term cellular adaptations in response to the drug, vary with different agonist efficacy.”
The effects of THC in marijuana is distinctly related to its partial agonist nature. 127x This means that synthetic cannabinoid chemicals will not make users ‘higher’ than marijuana or is ‘better’ than THC- only that the immediate and long-term effects are distinct. 128x They can’t be described as ‘the same thing but more powerful.’
Synthetic cannabinoids chemical were developed as a research tool to identify pharmacological treatments for various illnesses. See Scientist’s research produces a dangerous high.
They have not been clinically tested on humans; there are no studies examining the results of short and long-term synthetic cannabinoids use. Id. Currently, any knowledge about the dangers of synthetic cannabinoids come from poison control center statistics and individual medical cases.
Poison Control Centers have reported 5,230 calls concerning exposure to synthetic cannabinoids in 2012. The National Institute for Health reports “serious cardiac events with spice use, including tachyarrhythmias and myocardial infarctions.” See Ischemic stroke after use of the synthetic marijuana “spice”.
Additionally, The American Association of Poison Control Centers reports that synthetic cannabinoids have the following effects on the body: severe agitation and anxiety; fast, racing heartbeat and higher blood pressure; nausea and vomiting; muscle spasms, seizures, and tremors; intense hallucinations and psychotic episodes; and suicidal and other harmful thoughts and/or actions. See Synthetic Marijuana.
State and Federal law enforcement primarily investigate convenience stores, head shops and tobacco stores for sales. Updated Results From DEA’s Largest-Ever Global Synthetic Drug Takedown Yesterday.
Federal charges are usually applied the same as for any Schedule 1 drug. The Federal government has also levied charges for distribution, manufacture, and conspiracy. 135x Although also illegal under Texas law, the Federal government has taken the initiative in seeking and ceasing synthetic cannabinoid operations in Texas. The Department of Justice’s largest prosecution to date has been Operation Project Synergy. See Updated Results From DEA’s Largest-Ever Global Synthetic Drug Takedown Yesterday; See also Global Law Enforcement Collaboration Nets Largest Synthetic Drug Takedown.
The project was a joint operation involving the Drug Enforcement Agency, U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement (ICE), Homeland Security, the Federal Bureau of Investigation, and the Internal Revenue Service. Id. The Drug Enforcement Agency initiated the project on December 1, 2012- it continues to this day. Id. It has resulted in more than 227 arrests. Id. Between federal and state law enforcement, 416 search warrants have been executed in 35 states, 49 cities, and 5 countries. Id.
These warrants resulted in the seizure of $51 million in cash. Id. Also seized were 9,445 kg of individually packaged synthetic cannabinoids and 299 kg of cathiones, aka bath salts. Id. The project also seized precursor and foliage material for making synthetic cannabinoids. Id. Over 1,252 kg of synthetic cannabinoids were seized, along with 783 kg of treated plant material. Id. It is worth noting that law enforcement in Australia, Barbados, Panama, and Canada also participated in Project Synergy. Id.
Perhaps the largest seizure was for $1.4 million in Gaffney, South Carolina. See Arrests in DEA Synthetic Drug Operation. Officials with the DEA seized $800,000 from the home of Steven Petty, 42, and his wife Sirena Petty, 39. Id. Law enforcement seized the balance of $600,000 from nine various bank accounts. Id.
The couple was initially charged with conspiracy to possess with intent to distribute and distribution of a mixture or substance containing a detectable amount of UR-144 and XLR-11, both controlled substances. Id. The couple owned Carousel Music in Gaffney, South Carolina and Smokers Edge in Shelby, North Carolina. See Feds Seize 14 Million.
Law enforcement seized 20,000 packages of designer drugs. The superseding indictment states the defendants did conspire to knowingly and possess with intent to distribute substances containing XLR-11, UR-144, AM 2201, and PB-22, and that such substances were intended for human consumption. U.S. v. Petty, Indictment. Cr. No. 7:13cr5-8 Federal District of South Carolina (2013). The first charge alleges the defendants had knowledge that the substances were controlled substances, as defined in Title 21, U.S.C.A. §§ 841(a)(1) and 841(b)(1)(C). Id.
The second charge alleges money laundering. It alleges the defendants conducted financial transactions affecting interstate commerce with narcotics trafficking proceeds, knowing that the transactions were intended to carry-on and conceal the activity and the property, as defined in 21 USCA 841(a)(1), 802(32), 813, 846, and 18 USCA § 1956(a)(1)(A)(i). Id.
The defendants in Gaffney, couple Steven and Sirena Petty, each face 20 years in federal prison and a fine of $1million. Project Synergy even arrested former employee Jessica Weast, charging her similarly. Id. At the time this article was written, the trial had not yet been scheduled.