Relates to synthetic cannabinoid, synthetic cannabinoid analog and substituted cathinones and prohibiting the production and sale thereof

Summary of specific provisions

Section 1 of the bill adds three new subdivisions to Section 3302 of the Public Health Law.

Subdivision 42 defines synthetic cannabinoids as a chemical compound that is chemically synthesized Synthetic cannabinoids are chemicals that have a binding effect on one or more cannabinoid receptors, or are a chemical isomer, salt or salt of an isomer of a compound that has demonstrated to have a binding activity at one or more cannabinoid receptors Additionally, a synthetic cannabinoid can be defined in regulation by the Commissioner of Health as being a synthetic cannabinoid.

Subdivision 43 defines synthetic cannabinoid analog as any chemical that is substantially similar in chemical structure to a chemical compound that has been determined to have binding activity at one or more cannabinoid receptors. This definition would not apply to any products that have been approved for medical use by the United States Food and Drug Administration.

Subdivision 44 defines substituted cathinones as any chemical compound that is chemically synthesized and (a) listed in the Schedule I of the Controlled Substances list or; (b) has been designated in regulation by the Commissioner of Health as having a chemical structure derivative of cathinone; or (c) any compound, other than buproprion, that is structurally derived from 2-amino-Iphenyl-Ipropanone by modification in any of the following ways: (i) By substitution in the phenyl ring to any extent with alkyl, alkoxy, alkylenedioxy, baloalkyl, or halide substituents, whether or not further substituted in the phenyl ring by one or more other univalent substituents;(ii) By substitution at the 3-position with an alkyl substitutent; (iii) By substitution at the nitrogen atom with alkyl or dialkyl croups, or by inclusion of the nitrogen atom in a cyclic structure.

Section 2 of the bill amends Subdivision 5 and 6 of Section 220.00 of the Penal Law to add substituted cathinones to the definition of substances listed in the schedule of controlled substances and synthetic marijuana and synthetic cannabinoid analog to the definition of marijuana.

Section 3 amends the General Business Law by adding a new Section 399-ff to prohibit the sale of synthetic cannabinoid and substituted cathinones.

Subdivision 1 - Defines synthetic cannabinoid and substituted cathinone as previously defined in this legislation.

Subdivision 2 - Prohibits the sale of synthetic cannabinoid or substituted cathinone or any other substance intended to act as or advertised as an alternative form of a controlled substance.

Subdivision 3 - Whether a violation of this section has occurred is a question of law for the court.

Subdivision 4 - If there is a violation of this section, an application can be made to the Attorney General in the name of the people of the State of New York to a court or justice having jurisdiction by a special proceeding to issue an injunction. The defendant would have not less than 5 days to cease selling the product after the injunction is issued. If it is determined that the defendant has violated this section of the law, the penalties for such a violation is the following: (i) a violation of this section shall be a penalty of $5,000 for each separate violation; (ii) a violation of the provisions of this section after being previously convicted of such an offense within the previous 5 years shall be a Class A Misdemeanor punishable by a fine of $10,000 for each separate violation; (iii) for selling to a person under the age of eighteen shall be a Class E Felony as defined in Penal Law.

Justification

Synthetic drugs, those that mimic the effects of banned drugs, have increasingly become a public safety concern throughout the country. To circumvent state and federal drug laws, the manufacturers of synthetic drugs market their products under the guise of being a commonly used product, such as bath salts or incense. As a result, a person can purchase these "mislabeled" items at a local convenience store, smoke shop or on the internet

When smoked or snorted, bath salts produce a reaction similar to what cocaine produces. Likewise, synthetic cannabinoid ("synthetic marijuana") produces similar reactions to smoking or ingesting marijuana. News reports, the medical community and the Poison Control Center have reported that the users of these products were having strong psychotic effects as a result of ingesting or smoking the drug, including extreme paranoia, hallucinations, hypertension and suicidal thoughts.

Addressing this issue has proven to be a difficult task. As mentioned earlier, these products are labeled as other products, such as shoe deodorant, bath salts, or incense. Despite the various state and federal laws and regulations that have been adopted to combat the sale and use of these products, synthetic drug manufacturers have been successful in circumventing the law because the state and federal governments ban drugs based on the chemical composition of the drug. Typically, once a chemical compound is banned, manufacturers will simply alter the drug's chemical composition. To give an example of how this ban is easily circumvented, one manufacturer and distributor of incense states on its website that it is DEA compliant.

In 2012, the Commissioner of the Department of Health issued an Executive Order banning the sale and distribution of certain products known to be synthetic marijuana. This ban was later expanded to include products known to be bath salts and other synthetic drugs that were not included in the original ban. The penalties for using or selling synthetic drugs include a $500 fine and a fifteen day jail sentence. Additionally, in July 2012, the federal government banned certain synthetic marijuana and bath salts compounds.

While action has occurred at the state and federal level, the problem with synthetic drugs still remain. Makers of these products continue to alter the chemical composition of these drugs and they continue to mislabel these products which are sold in stores.

This comprehensive legislation addresses the issue of mislabeling, chemical compound swapping and implements stricter penalties. In respect to synthetic cannabinoids, a.k.a. synthetic marijuana, it bans products that produce the same effect on a person's cannabinoid receptors and creates penalties for possession in line with marijuana possession. For substituted cathinones, it bans certain molecular structures and expands the previous law banning bath salts. Additionally, it adds it to the controlled substance list and creates penalties for possession.

One important component of this legislation is that it gives the Commissioner of the Department of Health broad powers to add synthetic drugs to the list of prohibited substances without requiring the Legislature to enact legislation to do so. This allows the Commissioner the ability to act immediately, if necessary, to add synthetic drugs to the list of prohibited substances and it eliminates the need for the Legislature to revisit this issue each time a new chemical compound is introduced. This is a proactive approach to addressing the issue of chemical swapping.

Lastly, this legislation addresses the sale of these products in stores, such as convenience stores and head shops. This part of the legislation is structured similar to the legislation enacted in Illinois. It prohibits the sale of synthetic drugs based on mislabeling. This has been another way that makers and those who sell these products in their stores circumvent state and federal laws. Under this legislation, if a person believes that a store is selling synthetic drugs, they can file a complaint with the Attorney General, Based on the evidence provided, the Attorney General can act and make an application to the court requesting a special procedural, to issue an injunction to stop selling the product. If it is determined by the court that the store violated the law of mislabeling there are a series of penalties. For the first violation, the penalty is $5,000 for each separate violation. For any subsequent violations within 5 years, the penalty will be a Class A Misdemeanor punishable by a fine of $10,000 for each violation. If the store sold the mislabeled synthetic drag to a minor, the penalty would be a Class E Felony.

Prior legislative history

New Bill

Fiscal implications

Undetermined.

Effective date

Immediately.