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
          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?





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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 
          ---------------------------
          <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 
          ---------------------------
          <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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