BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
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SB 420 (Hernandez)
As Amended April 4, 2011
Hearing date: April 12, 2011
Health and Safety Code
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CONTROLLED SUBSTANCES:
SYNTHETIC CANNABINOID COMPOUNDS
HISTORY
Source: Author
Prior Legislation: AB 259 (Adams) - Ch. 184, Stats. 2008
AB 1141 (Anderson) - Ch. 292, Stats. 2008
Support: California State Sheriffs' Association; Peace Officers
Research Association of California
Opposition:California Public Defenders Association; California
Coalition for Women Prisoners; American Civil Liberties
Union
KEY ISSUES
SHOULD POSSESSION OF NO MORE THAN 28.5 GRAMS (ONE OUNCE) OF A
SPECIFIED SYNTHETIC CANNABINOID SUBSTANCE BE AN INFRACTION,
PUNISHABLE BY A FINE OF UP TO $100?
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SHOULD POSSESSION OF MORE THAN 28.5 GRAMS OF A SYNTHETIC
CANNABINOID BE A MISDEMEANOR, PUNISHABLE BY A JAIL TERM OF UP TO
SIX MONTHS, A FINE OF $500, OR BOTH?
(CONTINUED)
SHOULD POSSESSION FOR SALE OF A SYNTHETIC CANNABINOID BE A
MISDEMEANOR, PUNISHABLE BY A JAIL TERM OF UP TO SIX MONTHS, A FINE
OF UP TO $1,000, OR BOTH?
SHOULD POSSESSION BY AN ADULT OF NO MORE THAN 28.5 GRAMS OF A
SYNTHETIC CANNABINOID ON SCHOOL GROUNDS BE A MISDEMEANOR, PUNISHABLE
BY A JAIL TERM OF UP TO 10 DAYS, A FINE OF UP TO $500, OR BOTH?
SHOULD POSSESSION BY A MINOR OF NO MORE THAN 28.5 GRAMS OF A
SYNTHETIC CANNABINOID ON SCHOOL GROUNDS BE A MISDEMEANOR, PUNISHABLE
BY A FINE OF UP TO $250 FOR A FIRST OFFENSE, AND BY A FINE OF UP TO
$500, OR COMMITMENT TO A SPECIFIED JUVENILE FACILITY FOR UP TO 10
DAYS, OR BOTH, FOR A SUBSEQUENT OFFENSE?
PURPOSE
The purposes of this bill are to provide that 1) possession of
no more than 28.5 grams of a designated synthetic cannabinoid
substance<1> is an infraction, with a maximum fine of $100; 2)
possession of more than 28.5 grams of a synthetic cannabinoid is
a misdemeanor, punishable by a jail term of up to six months, a
fine of up to $500, or both; 3) possession of a synthetic
cannabinoid for sale is a misdemeanor, punishable by a jail term
of up to six months, a fine of up to $1,000 or both; 4)
possession by an adult of a synthetic cannabinoid on school
grounds is a misdemeanor, with a maximum jail term of 10 days, a
fine of up to $500, or both; 5) possession by a minor of a
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<1> For purposes of this analysis, a "synthetic cannabinoid
substance," or a "synthetic cannabinoid" means the five specific
chemicals covered by this bill, unless otherwise specified.
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synthetic cannabinoid on school grounds is a misdemeanor,
punishable by a fine of up to $250 for a first offense, and for
a subsequent offense by confinement for up to 10 days, or a fine
of up to $500, or both; and 6) the synthetic cannabinoid
substances covered by this bill are designated by reference to
specified chemical names.
Existing law provides that possession of not more than 28.5
grams (one ounce) of marijuana is an infraction, punishable
by a fine of up to $100.<2> (Health & Saf. Code § 11357,
subd. (b); Veh. Code § 23222.)
Existing law provides that anyone who possesses more than
28.5 grams of marijuana is guilty of a misdemeanor,
punishable by imprisonment in the county jail for up to six
months, a fine of up to $500, or both. (Health & Saf. Code §
11357, subd. (c).)
Existing law provides that possession of marijuana for sale
or distribution is a felony, punishable by a prison term of
16 months, two years or three years, and a fine of up to
$10,000. (Health & Saf. Code § 11359.)
Existing law provides that any person who sells, furnishes,
transports or imports marijuana is guilty of a felony,
punishable by a prison term of two, three or four years, and
a fine of up to $10,000. (Health & Saf. Code § 11360.)
Existing law provides that an adult who possesses not more
than 28.5 grams of marijuana upon school grounds, as
specified, is guilty of a misdemeanor, punishable by
--------------------------
<2> Existing law generally provides the following concerning
infractions: an infraction is not punishable by imprisonment; a
person charged with an infraction is not entitled to a trial by
jury; guilt of an infraction must be established beyond a
reasonable doubt; and indigent infraction defendants are not
entitled to counsel at public expense. (Pen. Code §§
19.6-19.7.)
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imprisonment in the county jail for no more than10 days, a
fine of up to $500, or both. (Health & Saf. Code § 11357,
subd. (d).)
Existing law provides that a minor who possesses not more
than 28.5 grams of marijuana on school grounds is guilty of a
misdemeanor, punishable by a fine of up to $250 for a first
offense. For a second offense he or she can be committed to
a specified juvenile facility for up to 10 days, fined up to
$500, or both. (Health & Saf. Code § 11357, subd. (e).)
This bill provides that any person who possesses not more
than 28.5 grams (one ounce) of a synthetic cannabinoid
compound is guilty of an infraction, punishable by a fine
of not more than $100.
This bill provides that any person who possesses more than
28.5 grams of a synthetic cannabinoid compound is guilty of
a misdemeanor, punishable by a jail term of up to six
months, a fine of not more than $500, or both.
This bill provides that any adult who possesses not more than
28.5 grams of a synthetic cannabinoid compound on school
grounds, as specified, is guilty of a misdemeanor, punishable
by a jail term of up to10 days, a fine of up to $500, or
both.
This bill provides that any minor who possesses not more than
28.5 grams of a synthetic cannabinoid compound on school
grounds is guilty of a misdemeanor, punishable by a fine of
up to $250 for a first offense. For a second offense, the
minor can be committed to a specified juvenile facility for
no more than10 days, fined up to $500, or both.
This bill provides that any person who possesses for sale
any synthetic cannabinoid compound shall be punished by
imprisonment in the county jail for up to six months, a
fine of up to $1,000, or both.
This bill provides that a synthetic cannabinoid compound
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refers to the following:
1) 1-pentyly-3-(1-naphthoyl)indole (JWH-018);
2) 1-butyl-3-(1-naphthoyl)indole (JWH-073);
3) 1-Ý2-(4-morpholinyl)ethyl]-3-(1-naphthoyl)indole
(JWH-200);
4)
5-(1,1-dimethylheptyl)-2-Ý(1R,3S)-3-hydroxycyclohexyl]-phenol (CP-47,497); and
5)
5-(1,1-dimethyloctyl)-2-Ý(1R,3S)-3-hydroxycyclohexy]-phenyl (cannabicyc-lohexanol; CP-47, 497 C8
homologue)
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
As these cases have progressed, prison conditions have
continued to be assailed, and the scrutiny of the federal courts
over California's prisons has intensified.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). 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 January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On Monday, June 14, 2010, the U.S. Supreme Court agreed to hear
the state's appeal of this order and, on Tuesday, November 30,
2010, the Court heard oral arguments. A decision is expected as
early as this spring.
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In response to the unresolved prison capacity crisis, in early
2007 the Senate Committee on Public Safety began holding
legislative proposals which could further exacerbate prison
overcrowding through new or expanded felony prosecutions.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1.Need for This Bill
According to the author:
This bill would make provide reasonable penalties for
possessing synthetic cannabinoid compounds for use and
for sale. Some people try to pass off this "fake pot"
or synthetic marijuana (actually synthetic cannabinoid
compounds) as "plant food" or "herbal incense."
Buyers can purchase synthetic cannabinoid compounds at
tobacco shops, gas stations, convenience stores,
online, and from other retailers. According to the
DEA, research articles propose that the packaging is
professional and conspicuous, targeting young people,
possibly eager to smoke marijuana, but afraid of
judicial consequences associated with illicit drug
use.
As of March 1, 2011, the U.S. DEA issued an emergency
order temporarily placing five synthetic cannabinoids
into Schedule I of the Controlled Substances Act
(CSA). The action is based on a finding that
cannabinoids pose an "imminent hazard to public
safety."
Based on scientific data currently available,
synthetic cannabinoids have the potential to be
extremely harmful. This bill is needed to avoid any
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potential danger to the public safety of California.
According to the U.S. Drug Enforcement Administration,
there are reports of widespread use of synthetic
cannabinoids, chemicals designed for research, not
consumption. The Naval Academy has expelled
midshipman and the Navy and Air Force have disciplined
about 370 personnel combined.
On March 24, 2010, the American Association of Poison
Control Centers reported receiving 112 calls from 15
states about synthetic cannabinoid to U.S. poison
centers since 2009. Nine months later, the number of
calls increased to over 2,700 from 49 states and the
District of Columbia. At least 18 states, several
countries, and the U.S. military have taken action to
control one or more of these chemicals. Emergency
room physicians report that users of these products
experience serious side effects, including
convulsions, anxiety, dangerously elevated heart
rates, increased blood pressure, vomiting, and
disorientation.
2.Background - Synthetic Cannabinoids
The European Monitoring Centre for Drugs and Drug Addiction
(EMCDDA) is a European Union agency. The EMCDDA website states
that it "exists to provide the EU ? with a factual overview of
European drug problems and a solid evidence base to support the
drugs debate."
The EMCDDA website includes the following information about
synthetic cannabinoids:
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Synthetic cannabinoids are functionally similar to
ÝTHC], the active principle of cannabis. ÝT]hey bind
to the same cannabinoid receptors in the brain Ýas
THC] ? More correctly designated as cannabinoid
receptor agonists, they were developed over the past
40 years as therapeutic agents, often for ? pain.
However, it proved difficult to separate the desired
properties from unwanted psychoactive effects.
Although often referred to simply as synthetic
cannabinoids, many of the substances are not
structurally related to the so-called 'classical'
cannabinoids, i.e. compounds, like THC?
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The synthetic cannabinoids fall into seven major
structural groups ?. Identification and quantitative
analysis is limited by the availability of pure
reference samples. No field tests ? will detect the
majority of synthetic cannabinoids. ÝF]orensic
analysis of blood samples for the recent intake
detection of synthetic cannabinoids Ýis] available in
some laboratories. ÝD]etection of metabolites in urine
samples is not yet fully developed.
ÝL]ittle is known about the detailed pharmacology and
toxicology of the synthetic cannabinoids and few
formal human studies have been published. It is
possible that, apart from high potency, some
cannabinoids could have? long half-lives potentially
leading to a prolonged psychoactive effect. ?ÝT]here
could be considerable ? batch variability? in terms of
substances present and ?quantity. Thus, there is a
higher potential for overdose than with cannabis.
(Italics added.)<3>
3.Difficulties Regulating or Banning Synthetic Cannabinoids
Synthetic cannabinoids are often inaccurately described as
"synthetic marijuana" or "synthetic THC" - the most prominent
psychoactive chemical in marijuana. However, as the preceding
comment illustrates, synthetic cannabinoids are apparently not
chemically related or similar to THC. If synthetic cannabinoids
were chemically similar to THC, synthetic cannabinoids would be
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<3>
http://www.emcdda.europa.eu/publications/drug-profiles/synthetic-
cannabinoids.
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classified as controlled substances because they would be
considered analogs of THC. Under California law, an analog of a
controlled substance is also a controlled substance.
Synthetic cannabinoids may be diverse as a class in chemical
structure and effects on a user. This makes it very difficult
to draft a statute generically banning synthetic cannabinoids.
It could be necessary to name each synthetic cannabinoid. There
are dozens, if not hundreds, of synthetic cannabinoids and more
could be developed. A legislative effort to ban synthetic
cannabinoids could be forever out of reach despite mighty
efforts.
A March 1, 2011, story on the website of Minnesota Public Radio
well-illustrated this issue:
? Duluth head shop Ýowner Jim Carlson] says a new
federal ban on the sale of five chemicals used to make
synthetic marijuana won't make much difference - he'll
just stock brands that use other, still-legal
substances. Synthetic marijuana has been sold ...
under various brands including Spice, K2, Blaze and
Red X Dawn. The Drug Enforcement Agency's ban ?
affects only five chemicals used in the products.
Carlson said that with about 210 similar chemicals
available, the manufacturers will try to keep one step
ahead of the government
"Unfortunately he is correct," said Barbara Carreno, a
DEA spokeswoman in Washington, who confirmed Tuesday
that many suppliers are offering retailers products
with new chemicals. "There are many of these
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substances and we chose five common ones because we
don't have the resources to study all of them."
WILL ATTEMPTS TO BAN SYNTHETIC CANNABINOIDS BE FRUSTRATED OR
MADE PARTICULARLY DIFFICULT BECAUSE OF THE LARGE AND VARIABLE
NUMBER OF SYNTHETIC CANNABINOIDS AVAILABLE NOW AND LIKELY TO BE
DEVELOPED?
SHOULD PENALTIES FOR POSSESSION OF SYNTHETIC CANNABINOIDS MIRROR
THOSE FOR MARIJUANA - AN INFRACTION FOR POSSESSION OF AN OUNCE
OR LESS, A MISDEMEANOR FOR POSSESSION OF AN OUNCE OR LESS ON
SCHOOL GROUNDS, AND A MISDEMEANOR FOR POSSESSION OF MORE THAN AN
OUNCE?
SHOULD POSSESSION OF A SYNTHETIC CANNABINOID FOR SALE BE A
MISDEMEANOR?
4.Particular Concerns About Use of Synthetic Cannabinoids by
Minors
The author's statement expresses concern synthetic cannabinoids
are marketed to minors. The author noted arguments by federal
drug authorities that minors are likely to use synthetic
cannabinoids because they are afraid of the legal prohibitions
on marijuana. If this bill is mainly directed at preventing
minors from obtaining synthetic cannabinoids, the bill could
perhaps be more specifically drafted to prohibit distribution of
synthetic cannabinoids to minors.
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Recent measures have addressed concerns that minors were using
potentially dangerous drugs. AB 259 (Adams) Chapter 184,
Statutes of 2008, prohibited sale of salvia divinorum to minors.
Salvia divinorum is a powerful, although short-acting
psychedelic drug. Concerns were raised that salvia divinorum
was marketed to minors as a safe and legal alternative to
marijuana and other drugs. Another recent bill, AB 1015
(Torlakson) Chapter 266, Statutes of 2009, prohibited the sale
of nitrous oxide to minors. (Prior to enactment of AB 1015, the
law prohibited possession of nitrous oxide by any person for the
purpose of intoxication.)
IF THE MAJOR CONCERN WITH THIS BILL IS THE USE OF SYNTHETIC
CANNABINOIDS BY MINORS, COULD THE BILL BE AMENDED TO PROHIBIT
SALE OR DISTRIBUTION OF SYNTHETIC CANNABINOIDS TO MINORS?
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