BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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AB 748 (Gilmore)
As Introduced February 26, 2009
Hearing date: June 9, 2009
Health & Safety Code
JM:mc
MDMA AS A CONTROLLED SUBSTANCE:
INCLUSION ON SCHEDULE II
HISTORY
Source: Attorney General
Prior Legislation: AB 57 (Bates) - 2004, failed passage in
Senate Public Safety
AB 2300 (Bates) - 2002, failed passage in Senate
Public Safety
AB 258 (La Suer) - Ch. 841, Stats. 2001
SB 1103 (Margett) - 2002, failed in Senate Public
Safety
AB 1416 (Leach) - 2002, failed Assembly
Appropriations
Support: California District Attorneys Association; Los Angeles
County District Attorney; Kings County Board of
Supervisors; City of Corcoran Police Chief; California
Narcotics Officers Association; California Police
Chiefs; California Peace Officers' Association
Opposition:None known
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Assembly Floor Vote: Ayes 68 - Noes 3
KEY ISSUE
SHOULD MDMA<1> BE PLACED ON SCHEDULE II OF THE CONTROLLED SUBSTANCE
SCHEDULES?
PURPOSE
The purpose of this bill is to place MDMA
(3,4-methylenedioxymethamphetamine) on Schedule II of the
controlled substance schedules.
Existing law classifies controlled substances in five schedules
according to their danger and potential for abuse. Schedule I
controlled substances are deemed by law to have no accepted
medical use and may not be prescribed by a physician in the
regular course of practice. (Health and Saf. Code
11054-11058.)
Existing law provides that an analog of a scheduled controlled
substance shall be treated the same as the scheduled substance
for purposes of prosecution and punishment for specified acts
(other than merely being under the influence of the analog).
An analog is defined as a substance with similar chemical
properties or effects to another substance. (Health and Saf.
Code 11400-11401.)
Existing law , as set out in the decision of the court in People
v. Silver (1991) 230 Cal.App.3d 389, provides that MDMA is an
analog of methamphetamine. Thus, possession of or commercial
activity in MDMA can be punished as if the substance were
methamphetamine.<2>
Existing law places methamphetamine in Schedule II as a
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<1> 3,4-Methylenedioxymethamphetamine
<2> Committee staff could find few reported California
appellate cases concerning MDMA or MDA prosecutions.
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stimulant. (Health and Saf. Code
11055, subd. (d).)
Existing law provides that possession of any one of specified
controlled substances, including 3,4-methylenedioxy amphetamine
or methamphetamine, is an alternate felony-misdemeanor,
punishable by imprisonment in the county jail for up to one year,
or in state prison for 16 months, 2 years or 3 years. (Health
and Saf. Code 11377, subd. (a).)
Existing law provides that the possession for sale of any one of
specified controlled substances, including either
3,4-methylenedioxy amphetamine or methamphetamine, is a felony,
punishable by imprisonment in the state prison for 16 months, 2
years or 3 years. (Health and Saf. Code
11378.)
Existing law provides that the sale of any one of specified
controlled substances, including either 3,4 methylenedioxy
amphetamine or methamphetamine, is a felony, punishable by 2, 3,
or 4 years in state prison. (Health and Saf. Code 11379,
subd. (a).) Punishment for the transport for sale from one
county to another within California of either substance is
punishable by 3, 6, or 9 years in state prison. (Health and
Saf. Code 11379, subd. (b).)
Existing law provides that a person who manufactures, produces,
etc., any controlled substance is guilty of a felony and is
punishable by imprisonment in the state prison for 3, 5, or 7
years and a fine of up to $50,000. (Health and Saf. Code
11379.6.)
Existing law , as enacted in Proposition 36 of the November 2000
election, requires non-violent drug possession offenders and
parolees to receive drug treatment, with no initial
incarceration. A probationer who successfully completes his or
her prescribed treatment program may have his or her arrest and
conviction expunged. A parolee who successfully completes
treatment would not be returned to prison. (Pen. Code 1210,
1210.1 and 3063.1.)
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This bill includes MDMA (3,4-Methylenedioxymethamphetamine) on
Schedule II of the controlled substance schedules.
This bill specifically defines MDMA as a Schedule II stimulant,
the same classification as methamphetamine, an analog of MDMA.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
incarceration.<3>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
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<3> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
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the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(Citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
Although the evidence may be less than perfectly
clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .
Under the PLRA, any prisoner release order that we
issue will be narrowly drawn, extend no further than
necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
correct the violation of those rights. For this
reason, it is our present intention to adopt an order
requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
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design capacity (or somewhere in between) within a
period of two or three years.<4>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
1. Need for This Bill
According to the author:
AB 748 will classify MDMA, more popularly known as
Ecstasy, as a Schedule II drug in the Health and
Safety Code. Under current law, controlled substances
are classified into five scheduled phases, with the
greatest penalties and restrictions placed on
Schedules I and II. The federal government classifies
MDMA as Schedule I controlled substance, but
California does not schedule it at all.
MDMA has gained significant popularity as a social
drug, but these substances are some of the most
dangerous and destructive, leading to incidents of
date rape and other violent crimes. When it comes to
prosecuting those who want to bring these drugs into
our community, there must be no wiggle room in the
law. Adopting AB 748 will ensure that prosecutors are
not spending time and resources arguing in court the
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<4> Three Judge Court Tentative Ruling, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (Feb. 9, 2009).
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demerits of MDMA, instead of the merits of the case.
2. Under Existing Law, Prosecutions Can be Brought Under Laws
Covering Drug Analogs; this Bill Would Simplify MDMA
Prosecution
California law provides that a person can be prosecuted for
possession, trafficking or manufacturing a drug if the drug
involved in the charged act is an "analog" of a scheduled
controlled substance, regardless that the actual substance is
not specifically scheduled. (Health and Saf. Code 11401.)
The court in People v. Silver (1991) 230 Cal.App.3d 389, held
that a defendant could be successfully prosecuted for sale of
MDMA as an analog of methamphetamine. Thus, there appears to be
no bar to California prosecution of MDMA related conduct
pursuant to the scheduling of methamphetamine (or another drug
such as MDA).
The Los Angeles County District Attorney has argued that
requiring the prosecution to prove that MDMA is an analog of a
controlled substance is burdensome. The District Attorney
argues that jurors may be confused by the complex scientific
testimony needed to establish that MDMA is an analog of
methamphetamine.
SHOULD MDMA BE INCLUDED IN SCHEDULE II OF THE CONTROLLED
SUBSTANCE SCHEDULES?
3. MDMA - History - Original Federal Scheduling Hearing
Recommending Schedule III
MDMA was patented by Merck in Germany in 1912. Although it has
been previously reported that the drug was developed as an
appetite suppressant, Merck recently stated that MDMA was the
by-product of efforts to develop nasal congestion medicines.
During the 1950's, MDMA was included in some research by the
U.S. Army into psychoactive drugs. However, MDMA remained
largely unknown except for a few university and industry
biochemists. In the late 1970s, researchers and clinicians
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explored the use of MDMA in therapy. Researchers were
particularly impressed that MDMA induced profound empathy, an
important component of psychological recovery. MDMA was used to
treat post-traumatic stress, depression and other maladies.
Although therapists sought to limit MDMA publicity, extensive
Federal Drug Enforcement Administration hearings in the 1980s
brought MDMA to wide public attention including
sensationalized media reports. Despite the recommendation of
the presiding judge that the drug be placed in Schedule III,
MDMA was finally placed in Schedule I in 1988.<5> (21 CFR,
Part 1308.) Placement in Schedule III would have allowed
physician prescription.
It appears that the sensational media reports helped create a
growing market for non-therapeutic use of the drug. Drug
dealers supplied the market. Government prohibitions increased
publicity. Additional publicity created even more use.
Despite federal prohibitions, some unauthorized therapeutic use
has continued in the U.S. There have been anecdotal reports of
use by terminal cancer patients who have become withdrawn,
depressed and anxious. MDMA reportedly relieved overwhelming
anxiety, facilitated emotional intimacy and gave very effective
pain relief without the dulling of the mind that accompanies
narcotic painkillers.
AS RECOMMENDED BY THE JUDGE WHO PRESIDED OVER THE ORIGINAL
FEDERAL SCHEDULING HEARINGS, SHOULD MDMA BE PLACED IN SCHEDULE
III?
4. Limited MDMA Clinical Trials for Treatment of Post Traumatic
Stress Disorder Began in the United States April 2004;
Clinical Trials in other Countries.
With little media notice, protocols for clinical trials in South
Carolina for therapeutic use of MDMA to treat post-traumatic
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<5> MDMA had briefly been removed from Schedule I pursuant to a
court challenge.
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stress disorder (PTSD) were approved by the FDA between 2001 and
2004. The trial is sponsored and funded by MAPS - the
Multidisciplinary Association for Psychedelic Studies. The
double-blind, controlled study began on April 16, 2004, and
involved 21 patients who suffered from treatment-resistant PTSD.
Each patient had failed to respond to prior treatment with a
medication such as Prozac. The study was completed in September
2008. Data analysis and a report are being completed.
Clinical studies have been conducted in Spain on women who
suffered from treatment-resistant PTSD as a result of sexual
assault. Initial positive reports about the research drew
strong criticism from anti-drug activists and the study was
halted by the hospital where the study took place. The Spanish
government has not withdrawn approval for the trial.
Clinical studies for treatment of post-traumatic stress patients
are proceeding in Israel. Subjects in the trial suffer from
treatment resistant PTSD occasioned by war or terrorism. The
protocol from the study in Israel has been submitted to the
(U.S.) FDA in connection with trials and proposed trials in the
United States.
A MAPS sponsored clinical trial for subjects suffering from
treatment resistant PTSD is ongoing in Switzerland. About
one-half of the 12 subjects have been treated. This protocol
has also been submitted to the FDA.
A clinical trial has been approved in Canada and will begin this
year. A clinical trial is also being developed in Jordan, and
will likely involve Iraqi refugees.
5. MDMA Research - General Summary
Substantial MDMA research has been conducted on animals.
Numerous studies on human users of MDMA - typically long-term or
heavy users - have also been done. This research would be
difficult to fully describe in this analysis. Some of the
research has been quite controversial. Arguably, the results
have not been clear or consistent. (Some of the most notable or
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controversial research is noted below.)
MAPS researchers have tracked the research over the past 23
years. Lisa Jerome, Ph.D. summarized the state of the evidence
concerning MDMA use:
Many studies in nonhuman animals suggest that frequent
or high doses of MDMA can damage serotonin neurons,
and some studies in ecstasy using humans suggest that
repeated use, especially when heavy, can affect
serotonergic function and specific domains of
cognitive function. Ecstasy users exhibit impairment
in specific areas of cognitive function, particularly
verbal memory. However, when apparent, most long-term
effects seem to be more strongly associated with heavy
and not moderate use. The risk of impaired serotonin
function or verbal memory after exposure to one to
there doses of MDMA in the course of a controlled
study remains possible, but evidence from
retrospective and prospective studies of ecstasy users
suggest that this risk is minimal after a low number
of exposures. While there may also be risks related to
psychological well-being such as increased symptoms of
anxiety or depression, support for these long-term
effects are even less strong than for the previously
listed changes. (Jerome, Investigators Brochure -
MDMA - Dec. 2007/)
6. Few Controlled Studies have Examined the Use of MDMA by
First-Time Users - Recent Dutch Studies - Most Studies have
Involved Subject with Extensive Self Reported Use
Subjects with Extensive Prior Illicit MDMA Use in Unsupervised
Settings
Subjects in most MDMA studies were chosen because of
self-reported past use - often hundreds of doses - of the drug.
These subjects often took MDMA in "rave" settings where they may
have become dehydrated and overheated, factors that increase any
MDMA dangers. These subjects had also typically used many other
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drugs. In many cases, research subjects were recruited at
raves. Researchers could not determine the strength of MDMA
used, or whether the subjects had actually taken MDMA, rather
than other drugs such as MDA or LSD, which are commonly sold as
MDMA in rave settings.
Recent Controlled Studies Considering Novice MDMA Users
Few supervised, controlled studies have been done as to the
immediate and long-term effects of standardized doses of MDMA on
na?ve (first-time) users. This is particularly true in the
United States.
Dutch researchers have relatively recently (circa 2005)
conducted MDMA studies with subjects who had not previously used
MDMA. In one study, subjects took an average of two to six
doses. The maximum use was 10 doses. The brains of the
subjects were imaged before use and about seven weeks after use.
Researchers failed to find any chemical markers of neuronal
injury. They found very few changes in cerebral blood flow.
Another study involved 25 subjects (with 24 control subjects)
who had taken an average of two tablets each. (One person in
the study had reported cumulative MDMA use of 30 tablets.)
Researchers found no significant differences in brain activity
(as measured by an MRI) or in working memory and attention.
Still another study with approximately 60 subjects who took an
average of about 3 MDMA tablets found some association between
MDMA use and verbal memory, but none between attention or
working memory. All results were in the normal range.
These recent Dutch studies, of course, do not conclusively
establish whether or not there could be long-term effects from
relatively few uses of MDMA. The researchers, however, did not
find the types of changes seen in MDMA users.
7. Highly Publicized Study Projecting Grave Harm from Single MDMA
Dose has been Retracted - Researchers Injected Monkeys with
Methamphetamine, not MDMA
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Specific Problems with the 2000
A study by Johns Hopkins researcher George Ricaurte published in
2000 in Science Magazine (Science, 2002, 297: 2260-63) concluded
that a single recreational dose of MDMA could cause Parkinsonism
later in life. The report specifically noted allegedly new
evidence that MDMA could damage dopaminergic neurons, while
prior studies focused on serotonin. The study involved giving a
drug - reported to be MDMA - to squirrel monkeys and baboons.
Many scientists quickly questioned the results of the study.
For example, scientist commentators noted that the primates must
have been given extremely high doses because 20% of the animals
died in the study and two others suffered heatstroke.
Nevertheless, the study received extensive publicity, including
cover stories in major newsmagazines. Ricaurte testified before
Congress about the results and the study was used to support
passage of federal laws to limit "rave" gatherings.
In September 2003, Ricaurte retracted the study. He reported
that the monkeys had been given methamphetamine, not MDMA.
Ricaurte stated this error occurred because the vials containing
the drugs had been mislabeled. (The retraction noted that
damage to dopaminergic neurons would be expected from
methamphetamine use.)
After retraction of the study many scientists have called for
much more rigorous peer review of studies concerning
controversial controlled substances, particularly MDMA.
Further, the controversy surrounding Ricaurte's research appears
to have affected applications for clinical studies of MDMA.
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8. Standard Dose of MDMA in a Supervised Setting
Published reports by researchers and clinicians noted that the
primary effects of MDMA last about 4 hours. While a person is
under the influence of a normal dose of from 100 to 125
milligrams, MDMA rarely interferes with cognitive functioning or
perception and usually produces a warm feeling and a reduction
of fear and defensiveness. Subjects can usually "negotiate" and
handle psychological material and often can move toward or away
from certain thoughts or emotions.
9. MDMA and Brain Biochemical Processes
MDMA has been described as chemically similar in structure to
amphetamine and mescaline, but with unique properties. In
simplest terms, MDMA causes substantial release of serotonin
from nerve cells in the brain into the synapses (spaces) between
the cells. Serotonin is found throughout the body. In brain
nerve cells, serotonin acts as a neurotransmitter and plays a
critical role in mood regulation and numerous other functions.
Drugs such as Prozac (selective serotonin reuptake inhibitors)
regulate brain serotonin levels by inhibiting the ability of
nerve cells to reabsorb serotonin.
It is theorized that depression can result where serotonin
levels in the nerve synapses are too low to stimulate adequate
nerve activity. This theory has not been conclusively
established. Further, there has been some recent criticism of
the assumption that SSRIs relieve depression through blocking
reuptake of serotonin by brain neurons. Serotonin reuptake is
blocked within hours of SSRI ingestion, yet depression is
typically not abated for weeks into treatment. The lack of
understanding about how SSRIs work and similar questions about
how MDMA indicate that research on all drugs regulating the
serotonin system could be very important. SSRIs have been
approved for numerous medical and psychological conditions.
Limiting or impeding research into MDMA may limit our
understanding of the brain and the action of widely used drugs.
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10. Particular Concerns and Dangers of Use of MDMA with High
Ambient and Body Temperatures
There have been reports of some heat prostration or heat stroke
injuries and deaths related to MDMA use at raves. MDMA side
effects may be temperature sensitive. An increase in body
temperature combined with fluid depletion from hours of dancing
can put some persons at risk for heat related injury. This
appears to occur in a very small proportion of persons.
Organizations such as DanceSafe have promoted safety measures at
raves and similar events
11. Orphan Drugs - FDA Classification for Drugs to Treat Rare
Disorders
To encourage development of non-patent protected substances for
the treatment of rare disorders, federal law grants exclusive
rights to an entity that successfully applies for "orphan drug
status." Without orphan drug protection, drug makers would
generally have little incentive to develop non-patented drugs
for rare conditions. The developer of such a drug to treat a
rare disorder would have no protection from competition by
others who avoided the costs of testing and approval. The
standard clinical testing procedures must be followed in
addition to the orphan drug process.
If clinical trial results are promising, orphan drug status may
be sought for MDMA treatment of PTSD. This raises an issue of
whether the number of persons suffering from PTSD who would be
appropriately treated with MDMA is lower than 200,000, the
standard for orphan drug status.
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