BILL ANALYSIS Ó SENATE COMMITTEE ON PUBLIC SAFETY Senator Loni Hancock, Chair S 2011-2012 Regular Session B 4 2 0 SB 420 (Hernandez) As Amended April 4, 2011 Hearing date: April 12, 2011 Health and Safety Code JM:mc 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? (More) SB 420 (Hernandez) PageB 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 --------------------------- <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. (More) SB 420 (Hernandez) PageC 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.) (More) SB 420 (Hernandez) PageD 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 (More) SB 420 (Hernandez) PageE 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. (More) SB 420 (Hernandez) PageF 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 (More) SB 420 (Hernandez) PageG 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: (More) SB 420 (Hernandez) PageH 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? (More) 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 --------------------------- <3> http://www.emcdda.europa.eu/publications/drug-profiles/synthetic- cannabinoids. (More) SB 420 (Hernandez) PageJ 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 SB 420 (Hernandez) PageK 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. SB 420 (Hernandez) PageL 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? ***************