BILL ANALYSIS
AB 259
Page 1
Date of Hearing: March 27, 2007
Chief Counsel: Gregory Pagan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 259 (Adams) - As Amended: March 12, 2007
SUMMARY : Makes Salvia divinorum and Salvinorin A a Schedule I
controlled substance for the purpose of criminalizing the
unlawful possession, possession for sale, and sale of these
substances. Specifically, this bill makes:
1)The unlawful possession of Salvinorin A an alternate
felony/misdemeanor, punishable by up to one year in county
jail or by 16 months, 2 or 3 years in state prison.
2)The unlawful possession of Salvia divinorum a felony,
punishable by 16 months, 2 or 3 years in the state prison.
3)The unlawful possession of Salvia divinorum a felony,
punishable by two, three, or four years in the state prison.
4)The sale of Salvia divinorum a felony punishable by three,
four, or five years in the state prison.
EXISTING LAW :
1)Classifies controlled substances in five schedules according
to their danger and potential for abuse. Schedule I
controlled substances have the greatest restrictions and
penalties, including prohibiting the prescribing of a Schedule
I controlled substance. (Health and Safety Code Sections
11054 to 11058.)
2)Provides that the penalty for the possession, possession for
sale, and sale of an analog of a controlled substance shall be
the same as the penalty for the classified controlled
substance. (Health and Safety Code Section 11401.)
3)Classifies hallucinogenic substances, not including Salvia
divinorum or Sivinorin A, as Schedule I controlled substances.
[21 Code of Federal Regulations Section 1308.11(d)(10).]
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FISCAL EFFECT : Unknown
COMMENTS :
1)Authors Statement : According to the author, "Recently, a
substance has been discovered being sold on the Internet and
in local 'smoke and head' shops across the state which has
been identified as a hallucinogenic herb. This substance is
called 'Salvia' or ' Salvia divinorum'. As of now, this
substance is legal to sell, possess, and use in the State of
California. 'Salvia' should not be confused with the numerous
Salvia plants which can be purchased from nurseries as
ornamental plants. For the most part, 'Salvia divonorum' is
grown in Mexico but cuttings can be grown in the United
States. The effects produced by Salvia divinorum are not
comparable to any other effects produced by the other
psychoactive substances (i.e., peyote, psilocybin, LSD, etc.).
This also includes variables of the user, such as body
weight, sensitivity, strength, and dose taken and method used.
The effects can range from subtle to extremely strong,
causing an individual to have out-of-body experiences and
create a real potential for physical danger to oneself and
others. Salvia cannot be considered a 'party drug' or have
any social use whatsoever. In fact, people under the effects
of Salvia are usually not social with others and do not
interact with people while having their hallucinating
experience. This substance is being used by individuals of
all ages, but becoming more popular among high school
students."
2)Federal Controlled Substance Schedules : Although there is no
similar list of statutory criteria in California, this state
generally follows federal classification procedure, as
specified:
a) Schedule I :
i) The drug or other substance has a high potential for
abuse.
ii) The drug or other substance has no currently
accepted medical use in treatment in the United States.
iii) There is a lack of accepted safety for use of the
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drug or other substance under medical supervision.
b) Schedule II :
i) The drug or other substance has a high potential for
abuse.
ii) The drug or other substance has a currently accepted
medical use in treatment in the United States or a
currently accepted medical use with severe restrictions.
iii) Abuse of the drug or other substances may lead to
severe psychological or physical dependence.
c) Schedule III :
i) The drug or other substance has a potential for
abuse less than the drugs or other substances in
Schedules I and II.
ii) The drug or other substance has a currently accepted
medical use in treatment in the United States.
iii) Abuse of the drug or other substance may lead to
moderate or low physical dependence or high psychological
dependence.
d) Schedule IV :
i) The drug or other substance has a low potential for
abuse relative to the drugs or other substances in
Schedule III.
ii) The drug or other substance has a currently accepted
medical use in treatment in the United States.
iii) Abuse of the drug or other substance may lead to
limited physical dependence or psychological dependence
relative to the drugs or other substances in Schedule
III.
e) Schedule V :
i) The drug or other substance has a low potential for
abuse relative to the drugs or other substances in
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Schedule IV.
ii) The drug or other substance has a currently accepted
medical use in treatment in the United States.
iii) Abuse of the drug or other substance may lead to
limited physical dependence or psychological dependence
relative to the drugs or other substances in Schedule IV.
1)Scheduling of Controlled Substances : California classifies
controlled substances in five schedules according to their
danger and potential for abuse. Schedule I controlled
substances have the greatest restrictions and penalties,
including prohibiting the prescribing of a Schedule I
controlled substance. California does not have formal
controlled substance classification procedure. Instead,
California relies on the federal controlled substance schedule
to determine the appropriateness of scheduling a particular
substance.
21 United States Codes Section 811 gives the United States
Attorney General the authority to add a controlled substance
to the schedule or transfer a controlled substance between the
schedules according to specific criteria. Before initiating
proceedings to control a drug or other substance, remove a
drug or other substance from the schedules, and after
gathering the necessary data, the Attorney General requests
from the Secretary of Health and Human Services a scientific
and medical evaluation, and his or her recommendations, as to
whether such drug or other substance should be so controlled
or removed. The recommendations are required to include a
recommendation with respect to the appropriate schedule. If
the Attorney General determines if these facts and all other
relevant data constitute substantial evidence of potential for
abuse such as to warrant control or removal, he or she shall
initiate proceedings for control or removal as the case may
be.
The Attorney General is required to consider the following
with respect to each drug or substance proposed to be
controlled or removed from the schedules:
a) Its actual or relative potential for abuse.
b) Scientific evidence of its pharmacological effect, if
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known.
c) The state of current scientific knowledge regarding the
drug or other substance.
d) Its history and current pattern of abuse.
e) The scope, duration, and significance of abuse.
f) What, if any, risk there is to the public health.
g) Its psychic or physiological dependence liability.
h) Whether the substance is an immediate precursor of a
substance already controlled under this subchapter.
2)Schedule I Controlled Substances : Under federal law, a drug
or other substance may not be placed on Schedule I unless the
Attorney General finds that: (a) the drug or other substance
has a high potential for abuse, (b) the drug or other
substance has nor current accepted medical use in treatment,
or (c) there is a lack of accepted safety for use of the drug
or other substance under medical supervision. The author has
not submitted any evidence or medical documentation that
Salvia divinorum has a potential for abuse or that it presents
a significant risk to health and safety. It would be
unprecedented for California to add Saliva divinorum to the
Schedule I controlled substance list when the substance has
not been scrutinized by the United States Attorney General or
when Saliva divinorum has not been added to the federal
controlled substance schedule. There are not any drugs or
substances on California's controlled substance schedule that
are not on the federal schedule.
3)Scheduling Issues . A November 2002 report from the Center for
Cognitive Liberty and Ethics states, "Salvia divinorum is not
scheduled under the federal Controlled Substances Act nor is
its active principle salvinorin A.
"Salvinorin A's chemical structure appears to be unique among
other psychoactive molecules, and among existing controlled.
Because it is not 'substantially similar' in chemical
structure to an existing controlled substance it doe s not
fall within the Controlled Substances Analogue Act.
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"In order to place Salvia divinorum or salvinorin A in Schedule
I of the Controlled Substances Act, three criteria must be
satisfied. The plant must be show to have:
a) "A high potential for abuse;
b) "No currently accepted medical use in treatment in the
United States; and,
c) "A lack of accepted safety for use under medical
supervision. [21 U.S.C. Sec. 812(b).]
"Placement of the plant or chemical in Schedule I cannot be
scientifically justified. The plant and chemical have minimal
abuse potential and no addictive potential. Recent studies
published in peer-reviewed journals have emphasized that
further studies with salvinorin A and/or Salvia divinorum may
lead to the development on 'novel psychotherapeutic compounds'
(Roth 2002) with 'significant research and therapeutic
potential in fields such as psychopharmacology, psychiatry and
complementary disciplines such as herbal medicine'."
4)Prison Overcrowding : California faces a dangerous prison
overcrowding crisis which is unprecedented. As explained in a
recent Little Hoover Commission Report:
"California's correctional system is in a tailspin that
threatens public safety and raises the risk of fiscal
disaster. The failing correctional system is the largest and
most immediate crisis facing policy-makers . . . .
"State prisons are packed beyond capacity. Inmates sleep in
classrooms, gyms and hallways. Federal judges control inmate
medical care and oversee mental health, use of force,
disabilities act compliance, dental care, parolee due process
rights and most aspects of the juvenile justice system.
Thousands of local jail inmates are let out early every week
as a result of overcrowding and court-ordered population caps.
The state may soon face the same fate.
" . . . (A) federal judge has given the state six months to make
progress on overcrowding or face the appointment of a panel of
federal judges who will manage the prison population."
In light of the escalating overcrowding situation in
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California's state prison system, should the Legislature make
the possession of Salvinorum A be made punishable by 16
months, 2 or 3 years in state prison? Should Salvia divinorum
and Savinorum A be made Schedule I controlled substances
without medial or scientific evidence of their potential for
abuse or lack of accepted safety?
5)Argument in Support : The San Bernardino County Sheriffs'
Department states, "This bill would require the sage plant,
Salvia divinorum, a hallucinogenic substance, to be added to
the list in Schedule I. Recently, this substance has been
discovered being sold on the Internet and in local 'smoke and
head' shops across the state which has been identified as a
hallucinogenic herb. This substance is called 'Salvia' or
'Salvia divinorum'. As of now, this substance is legal to
sell, possess, and use in the State of California.
"It is not often we, as law enforcement officials, have the
chance to catch the 'newest craze' at its infancy. Today, we
have the chance to be proactive in our efforts rather than
reactive after some tragedy. It is my hope that those in the
Legislature will feel the same and schedule this substance,
removing it from thousands of store shelves, hopefully before
innocent people are injured or killed.
6)Argument in Opposition : The Drug Policy Alliance Network
argues, "Under the Federal Controlled Substances Act, three
evidentiary criteria must be met for a substance to be
classified as Schedule I: (a) high abuse potential, (b) lack
of accepted medical use, and (c) lack of safety for use under
medical supervision.
"By these criteria, Salvia divinorum only satisfies prong two,
but that is principally due to the current lack of laboratory
and clinical research into its potential therapeutic
properties. Salvia divinorum was used for both medicinal and
religious purposes by the Mazatec Indians in Oaxaca well
before the arrival of European colonial powers. Among the
native uses for the plant are the treatment of diarrhea,
headache, and rheumatism.
"While Salvia divinorum has been labeled a 'drug of concern' by
the Drug Enforcement Administration, it should also be noted
that the National Institute on Drug Abuse has funded some
recent research, albeit on a limited basis. [See, e.g.,
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Thomas E. Prisinzano, 'Psychopharmacology of the
Hallucinogenic Sage Salvia divinorum,' Life Sciences 78 (2005)
527-531.]"
REGISTERED SUPPORT / OPPOSITION :
Support
California Peace Officers Association
California Peace Officers Research Association
California State Sheriffs' Association
Sacramento County Sheriff's Department
San Bernardino County Sheriff's Department
Opposition
Drug Policy Alliance Network
Daniel J. Siebert, Pharmacognosist
Peter Addy, Institute of Transpersonal Psychology
One private individual
Analysis Prepared by : Gregory Pagan / PUB. S. / (916)
319-3744