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).] AB 259 Page 2 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 Page 3 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 Page 4 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 Page 5 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 Page 6 "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 Page 7 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 Page 8 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