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  








                                                                  AB 259
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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  








                                                                  AB 259
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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  








                                                                  AB 259
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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.









                                                                  AB 259
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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  








                                                                  AB 259
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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.,   








                                                                  AB 259
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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