BILL ANALYSIS Ó SB 139 Page 1 Date of Hearing: June 28, 2016 Counsel: David Billingsley ASSEMBLY COMMITTEE ON PUBLIC SAFETY Reginald Byron Jones-Sawyer, Sr., Chair SB 139 (Galgiani) - As Amended June 15, 2016 SUMMARY: Raises penalties for possession of synthetic cannabinoids and synthetic stimulants. Expands list of substances prohibited as synthetic cannabinoids. Specifically, this bill: 1)Expands the definition of a synthetic cannabinoid compound by listing additional chemical categories as synthetic cannabinoids. SB 139 Page 2 2)Provides that a first offense of using or possessing a synthetic stimulant compound or synthetic cannabinoid is punishable as an infraction, a second offense is punishable as an infraction or a misdemeanor, and a third or subsequent offense is punishable as a misdemeanor. 3)Authorizes a person charged with certain crimes relating to synthetic stimulant compounds or synthetic cannabinoid compounds to be eligible to participate in a preguilty plea drug court program. 4)Makes technical changes to the definition of synthetic stimulant compound. EXISTING LAW: 1)Specifies that every person who sells, dispenses, distributes, furnishes, administers, or gives, or offers to sell, dispense, distribute, furnish, administer, or give, or possesses for sale any synthetic cannabinoid compound, or any synthetic cannabinoid derivative, to any person, is guilty of a misdemeanor, punishable by imprisonment in a county jail not exceeding six months, or by a fine not exceeding one thousand dollars ($1,000), or by both that fine and imprisonment. (Health & Saf. Code, § 11357.5, subd. (a).) 2)States that every person who uses or possesses any synthetic cannabinoid compound, or any synthetic cannabinoid derivative, is guilty of an infraction, punishable by a fine not to exceed two hundred fifty dollars ($250). (Health & Saf. Code, § 11357.5, subd. (b).) 3)Defines "synthetic cannabinoid compound" as any of the SB 139 Page 3 following substances (Health & Saf. Code, § 11357.5, subd. (c).): a) 1-pentyl-3-(1-naphthoyl)indole (JWH-018); b) 1-butyl-3-(1-naphthoyl)indole (JWH-073); c) 1-[2-(4-morpholinyl)ethyl]-3-(1-naphthoyl)indole (JWH-200); d) 5-(1,1-dimethylheptyl)-2-[(1R,3S)-3-hydroxycyclohexyl]-phenol (CP-47,497); and e) 5-(1,1-dimethyloctyl)-2-[(1R,3S)-3-hydroxycyclohexyl]-phenol (cannabicyclohexanol; CP-47,497 C8 homologue). 4)Provides that every person who sells or distributes, or offers to sell or distribute, any synthetic stimulant compound, as specified, to any person, or who possesses that compound for sale, is guilty of a misdemeanor, punishable by imprisonment in a county jail not to exceed six months, or by a fine not to exceed one thousand dollars ($1,000), or by both that fine and imprisonment. (Health & Saf. Code, § 11375.5, subd. (a).) 5)Specifies that every person who uses or possesses any synthetic stimulant compound specified in subdivision (c), or any synthetic stimulant derivative, is guilty of an infraction, punishable by a fine not to exceed two hundred fifty dollars ($250). (Health & Saf. Code, § 11375.5, subd. SB 139 Page 4 (b).) 6)Provides that the list of prohibited synthetic stimulants include any quantity of the following substances, as specified, within any of the following specific chemical designations (Health & Saf. Code, § 11375.5, subd. (c).): a) Naphthylpyrovalerone whether or not further substituted in the naphthyl ring to any extent with alkyl, alkoxy, alkylenedioxy, haloalkyl, or halide substituents, whether or not further substituted in the naphthyl ring by one or more other univalent substituents, or whether or not further substituted in the carbon chain at the 3-, 4-, or 5-position with an alkyl substituent; and b) 2-amino-1-phenyl-1-propanone (cathinone) or variation in any of the following ways: i) By substitution in the phenyl ring to any extent with alkyl, alkoxy, alkylenedioxy, haloalkyl, or halide substituents, whether or not further substituted in the phenyl ring by one or more other univalent substituents. ii) By substitution at the 3-position with an alkyl substituent; iii) By substitution at the nitrogen atom with alkyl, dialkyl, or benzyl groups, or by inclusion of the nitrogen atom in a cyclic structure; and SB 139 Page 5 7)Specifies that a controlled substance analog shall be treated the same as specified controlled substances of which it is an analog. (Health & Saf. Code, § 11401, subd. (a).) 8)Provides that, except as specified, the term "controlled substance analog" means either of the following: a) A substance the chemical structure of which is substantially similar to the chemical structure of specified controlled substances; or (Health & Saf.Code, § 11401, subd. (b)(1).) b) A substance which has, is represented as having, or is intended to have a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to, or greater than, the stimulant, depressant, or hallucinogenic effect on the central nervous system of specified controlled substances. (Health & Saf. Code, § 11401, subd. (b)(2).) 9)Specifies that the term "controlled substance analog" does not mean "any substance for which there is an approved new drug application as specified under the federal Food, Drug, and Cosmetic Act or which is generally recognized as safe and effective as specified by the federal Food, Drug, and Cosmetic Act." (Health & Saf. Code, § 11401, subd. (c)(1).) 10)Lists controlled substances in five "schedules" - intended to list drugs in decreasing order of harm and increasing medical utility or safety - and provides penalties for possession of and commerce in controlled substances. (Health & Saf. Code §§ 11350-11401.) SB 139 Page 6 11)Requires non-violent drug possession offenders to be offered drug treatment on probation, which shall not include incarceration as a condition of probation, in the form of, Proposition 36 (Nov. 2000 election), the Substance Abuse and Crime Prevention Act of 2000 (SACPA). (Pen. Code, § 1210.1.) 12)Provides that non-violent drug possession offenses include: a) Unlawful use, possession for personal use, or transportation for personal use of a controlled substance; and,(Pen. Code, § 1210, subd. (a).) b) Being under the influence of a controlled substance. (Pen. Code, § 1210, subd. (a).) FISCAL EFFECT: Unknown. COMMENTS: 1)Author's Statement: According to the author, "Synthetic cannabinoid compounds have become a growing problem in our community. Part of the reason that drugs dealers are having so much success marketing the drug to teenagers and young adults is that they are able to market them as being legal. Up until my bill last year, simple possession of these drugs was actually perfectly legal under state law. This is despite their well-documented danger. Now it has come to my attention that underground chemists skirt the law by slightly altering the chemical compounds of these drugs, to come up with new versions, which technically, are NOT illegal yet. Senate Bill SB 139 Page 7 139 will close these loopholes in state law and allow law enforcement to be better equipped in getting these drugs away from our communities." 2)Synthetic Cannabinoids: Synthetic cannabinoids come in two basic forms. CB1 cannabinoids bind to CB1 cannabinoid receptors in the brain. CB2 cannabinoid receptors bind to cells throughout the body that are largely involved in regulating the immune system, although their full properties of CB2 are not known. It appears that CB2 cannabinoids could be used to treat inflammation. (THC binds to CB1 and CB2 receptors.) CB1 cannabinoids have psychoactive properties. Typically statutes, news reports and academic works concern CB1 synthetic cannabinoids. The European Monitoring Centre for Drugs and Drug Addiction (EMCDDA) is a European Union agency that "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: Synthetic cannabinoids ?. bind to the same cannabinoid receptors in the brain [as THC] ? More correctly designated as cannabinoid receptor agonists, they were developed over the past 40 years as therapeutic agents. ?However, it proved difficult to separate the desired properties from unwanted psychoactive effects. Although often referred to simply as synthetic cannabinoids [or synthetic marijuana], many of the substances are not structurally related to the so-called "classical" cannabinoids like THC? SB 139 Page 8 ?[L]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?leading to a prolonged psychoactive effect. ? [T]here could [also] be considerable ? batch variability? in terms of substances present and ?quantity. http://www.emcdda.europa.eu/topics/pods/synthetic-canna binoids Recent EMCDD Data on Synthetic Cannabinoids Include: A synthetic cannabinoid, JWH-018, was first detected in "Spice" products in 2008. 81 new psychoactive substances were reported to EMCDDA in 2013, 29 were synthetic cannabinoids. 105 synthetic cannabinoids in total [were] monitored by EU Early Warning System [in January of 2014]. 14 recognizable chemical families of synthetic cannabinoids are known. The EMCDD reports that most synthetic cannabinoids are manufactured in China and shipped though legitimate distribution networks. The White House Office of National Drug Control Policy states that most synthetic cannabinoids originate overseas, but that they are also being made on a small scale in the United States. https://www.whitehouse.gov/ondcp/ondcp-fact-sheets/synthetic-dr ugs-k2-spice-bath-salts The EMCDD reported on adverse consequences of synthetic SB 139 Page 9 cannabinoid use: The adverse health effects associated with synthetic cannabinoids are linked to both the intrinsic nature of the substances and to the way the products are produced. There have been numerous reports of non-fatal intoxications and a small number of deaths associated with their use. As noted above, some of these compounds are very potent; therefore the potential for toxic effects is high. Harm may result from uneven distribution of the substances within the herbal material, result[ing] in products containing doses that are higher than intended. The reported adverse effects of synthetic cannabinoid products include agitation, seizures, hypertension, emesis (vomiting) and hypokalemia (low potassium levels). ?There is some evidence?that synthetic cannabinoids can be associated with psychiatric symptoms, including psychosis. There are also investigations underway in the US regarding links between the use of synthetic cannabinoids? and acute kidney injury and recently, a case report associated the use of the cannabinoid JWH-018 with?strokes in two otherwise healthy males. http://www.emcdda.europa.eu/topics/pods/synthetic-canna binoids 3)Synthetic Stimulant Chemicals: It appears that the synthetic stimulant chemicals included in this bill are closely related to cathinone, the psychoactive chemical in the khat plant, which is commonly used in the Middle East. Khat and Cathinone are included in Schedule II stimulants. (Health and Saf. Code § 11055, subd. (d)(7)-(8).) Without this bill, it appears that possession of one of the specified synthetic chemicals would be a crime through the analog statute. The analog statute provides that any drug that has a chemical structure or properties that are similar to a scheduled drug can be the SB 139 Page 10 subject of prosecution as though the drug were included in the schedules. The United Kingdom Advisory Council on the Misuse of Drugs (ACMD) is an agency of the UK Home Office that advises policy makers on drug issues. In the past few years, the ACMD has reported on the synthetic stimulants covered by this bill. Synthetic cathinones are related to the parent compound cathinone, one of the psychoactive principals in khat? Cathinone derivatives are ?. analogues of a corresponding phenethylamine. The group includes several substances that have been used as active pharmaceutical ingredients ? Since the mid-2000s, unregulated ring-substituted cathinone derivatives have appeared in the European recreational drugs market. The most commonly available cathinones sold on the recreational market in the period up to 2010 appear to be mephedrone (Figure 3) and methylone. [The drugs]? are claimed to have effects similar to those of cocaine, amphetamine or MDMA, but little is known of their detailed pharmacology. Apart from cathinone [and other specified chemicals]. cathinone derivatives are not under international control. ?Like cocaine, the resulting 'high' of mephedrone is short-lived. Consequently, users may consume several doses in succession. ?[Specified chemical alterations] could [create] more potent [drugs]. It should be noted that?PMA and PMMA are known to have a particularly high toxicity, and this property might translate to their analogues. As noted above, cathinone is the main psychoactive chemical in the khat plan. Use of khat in the United States has grown in recent decades. The New York State Office of Alcohol and Substance Abuse Services produces research and educational material about drugs. The office has published the following discussion of khat: Khat has been grown for use as a stimulant for centuries in the Horn of Africa and the Arabian Peninsula. There, chewing khat SB 139 Page 11 predates the use of coffee and is used in a similar social context. Its fresh leaves and tops are chewed or?consumed as tea, [producing] euphoria and stimulation. The stimulant effect is most effective when the leaves are still fresh. Khat use has traditionally been confined to the regions where khat is grown, because only the fresh leaves have the desired? effects. In recent years improved [transportation] has increased the global distribution. ?In 1975, the [chemical] cathinone was isolated [from khat]. Cathinone is not very stable and breaks down to produce cathine and norephedrine. These chemicals belong to the PPA (phenylpropanolamine) family, a subset of the phenethylamines related to amphetamines and the catecholamines, epinephrine and norepinephrine. 4)Drug Analog Law in California: California law treats a substance that is the chemical or functional equivalent of a drug listed in Schedule I or II of the controlled substance schedules the same as the scheduled drug. Such a substance is defined as a controlled substance analog. California law allows prosecution of a person for possession of, or commerce in, of a substance that is an analog of a Schedule I or II drug. (Health & Saf. Code, §§ 11400-11401.) The purpose of the analog law is to prevent street chemists from circumventing drug laws by synthesizing drugs which have slight chemical or functional differences from the prohibited drug. Newly developed synthetic cannabinoids are not covered by the California analog statute synthetic cannabinoids are not included in Schedule I or II of the controlled substances schedules. Illegal synthetic cannabinoids are separately defined and prohibited. California's drug analog law provides two ways to establish that a substance is an analog of a drug. The first method relies on demonstrating that the substance has a chemical structure SB 139 Page 12 which is "substantially similar" to the chemical structure of the drug. (Health & Saf.Code, § 11401, subd. (b)(1).) The second method requires a showing that the substance has, is represented as having, or is intended to have a stimulant, depressant, or hallucinogenic effect on the central nervous system that is "substantially similar" to the effect of the drug. (Health & Saf. Code, § 11401, subd. (b)(2).) 5)Alterations of Chemical Compounds in the Future: The author has expressed concern that individuals manufacturing synthetic cannabanoids can avoid criminal repercussions by slightly changing the chemical compound of substance that is currently on the list of substances prohibited on the list of synthetic cannabinoids. The Author states ". . . it has come to my attention that underground chemists skirt the law by slightly altering the chemical compounds of these drugs, to come up with new versions, which technically, are NOT illegal yet." (Author's Statement, supra.) Existing law currently prohibits synthetic cannabinoids and synthetic cannabinoid derivatives. (Health & Saf. Code, § 11357.5, subd. (c).) Existing law lists five chemical compounds as synthetic cannabinoids. Each chemical compound is described by its chemical structure. The author has chosen to add a number of categories and substances (described by their chemical structure) to the existing list of prohibited synthetic cannabinoids. It is not clear that expanding the list will prevent street chemists from continuing to tweak the chemical structure of substances in the future in an attempt to create a substance which is not included in the list. SB 1036 (Hernandez) takes a different approach to prohibiting synthetic cannabinoids which are not specifically listed under the current statute. SB 1036 includes synthetic cannabinoids within the existing analog statute. If synthetic cannabinoids are included in the analog statute, the status of any substances with new chemical compositions can be established SB 139 Page 13 through expert opinion as an analog of the synthetic cannabinoids which are currently prohibited. SB 1036 (Hernández) is currently awaiting hearing in the Assembly Appropriations Committee. 6)Argument in Support: According to The California Police Chiefs Association, "SB 139 is aimed at prohibiting possession of 'bath salts' and 'spice' and encouraging entry into treatment programs. In addition, SB 139 is drafted so as to be chemically current, thereby preventing bath salts and spice manufacturers from chemically evading the law by making molecular adjustments to their manufacturing process. Senate Bill 139 will assure that Bath Salts cannot continue to cause harm. "Getting people into treatment is literally lifesaving. The effects of these drugs include agitation, paranoia, hallucinations, severe chest pains, increased pulse, high blood pressure, hyper-aggressive behavior and suicidal thinking/behavior/ Most disturbing, suicidal thinking/behavior may last even after the stimulatory effects of the drugs have worn off. Equally disturbing, the addictive nature of these drugs is so powerful that - even with these symptoms - users report an eagerness to go back and use again. Without treatment intervention, persons using these drugs face a continued downward cycle." 7)Argument in Opposition: According to The American Civil Liberties Union of California, "Using the criminal justice system to address substance abuse has led to a broken criminal justice system and billions of wasted taxpayer dollars. The state's current reliance on criminalization of drug abuse does not work, and increasing penalties for simple possession of the drugs targeted by SB 139 will do nothing to resolve existing problems. "Furthermore, the creation of new misdemeanors may further exacerbate California's jail overcrowding problem. According to Public Policy Institute of California, "[a]s of September SB 139 Page 14 2012, the average daily jail population was about 3,954 inmates over the statewide rated jail capacity of 76,910 inmates, set by the California Board of State and Community Corrections. Twenty-one counties had an average daily population greater than their rated capacity. Additionally, 18 counties were operating under court-ordered population caps for at least one jail in their county..." Given that the policy of incarceration for possession has been a dismal failure in California and the nation, we should not undertake to pass new penalties that will further strain the capacity of California's county jails." 8)Related Legislation: SB 1036 (Hernández), would expand the definition of controlled substance analog to include a substance the chemical structure of which is substantially similar to the chemical structure of a synthetic cannabinoid compound. SB 1036 is awaiting hearing in the Assembly Appropriation Committee. 9)Prior Legislation: a) SB 1283 (Galgiani), Chapter 372, Statutes of 2013, makes the use or possession of specified synthetic stimulant compounds or synthetic stimulant derivatives, punishable by a fine not exceeding $250. b) AB 2420 (Hueso,) 2011-2012 Legislative Session, would have created infraction and misdemeanor penalties for possession or use of specified synthetic stimulants and synthetic cannabinoids. AB 2420 failed passage in the Assembly Public Safety Committee. c) AB 486 (Hueso), Chapter 656, Statutes of 2011, prohibited the sale, dispensing, distribution, furnishment, administration or giving, or attempt to do so, of any synthetic stimulant compound of any specified synthetic stimulant derivative. Violation of this section is punishable by imprisonment in a county jail not exceeding 6 months, or by a fine not exceeding $1,000, or by both that SB 139 Page 15 fine and imprisonment. d) SB 420 (Hernandez), Chapter 420, Statutes of 2011, prohibited the sale, dispensing, distribution, administration or giving, or attempt to do so, of any synthetic cannabinoid compound or any synthetic cannabinoid derivative. Violation of this section is punishable by imprisonment in a county jail not exceeding 6 months, or by a fine not exceeding $1,000, or by both that fine and imprisonment. REGISTERED SUPPORT / OPPOSITION: Support California Narcotics Officers' Association (Sponsor) Association of Orange County Deputy Sheriffs California District Attorneys Association California Police Chiefs Association California Statewide Law Enforcement Association City of San Marcos Fraternal Order of Police, California State Lodge Long Beach Police Officers Association Sacramento County Deputy Sheriffs' Association San Diego County District Attorney SB 139 Page 16 Opposition American Civil Liberties Union of California Drug Policy Alliance Legal Services for Prisoners with Children Analysis Prepared by:David Billingsley / PUB. S. / (916) 319-3744