BILL ANALYSIS Ó
SENATE COMMITTEE ON
BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT
Senator Jerry Hill, Chair
2015 - 2016 Regular
Bill No: SB 202 Hearing Date: January
11, 2016
-----------------------------------------------------------------
|Author: |Hernandez |
|----------+------------------------------------------------------|
|Version: |January 4, 2016 |
-----------------------------------------------------------------
----------------------------------------------------------------
|Urgency: |No |Fiscal: |Yes |
----------------------------------------------------------------
-----------------------------------------------------------------
|Consultant|Sarah Mason and Nicole Billington |
|: | |
-----------------------------------------------------------------
Subject: Controlled substances: Synthetic cannabinoids
SUMMARY: Authorizes the California State Board of Pharmacy to
include any other substance, in addition to those outlined under
current law, as a synthetic cannabinoid compound through the
adoption of a regulation. Sets forth various considerations the
Board must make in determining if a substance is included as a
synthetic cannabinoid compound.
Existing law:
1) Establishes the Pharmacy Law which provides for the licensure
and regulation of pharmacies, pharmacists and wholesalers of
dangerous drugs or devices by the Board of Pharmacy (Board)
within the Department of Consumer Affairs (DCA). (Business
and Professions Code § 4000 et seq.)
2) Establishes the California Uniform Controlled Substances Act
which regulates controlled substances. (Health and Safety
Code (HSC) § 11000 et seq.)
3) Classifies controlled substances in five schedules according
to their danger and potential for abuse. (HSC §§
11054-11058)
4) Provides that every person who sells, dispenses, distributes,
furnishes, administers, or gives, or offers to sell,
dispense, distribute, furnish, administer, or give, or
SB 202 (Hernandez) Page 2
of ?
possesses for sale any synthetic cannabinoid compound (SCC),
or any synthetic cannabinoid (SC) derivative, to any person,
is guilty of a misdemeanor, punishable by imprisonment in a
county jail not to exceed six months, or by a fine up to
$1,000, or by both that fine and imprisonment. (HSC §
11357.5.)
5) Provides that every person who uses or possesses any SCC, or
any SC derivative, is guilty of an infraction, punishable by
a fine not to exceed $250. (Id.)
6) Defines SCC, for purposes of the penalties outlined above, as
any of the following substances:
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) (Id.)
This bill:
1) Authorizes the California State Board of Pharmacy to include
any other substance, in addition to those outlined under
current law, as a SCC through the adoption of a regulation
and authorizes the Board to do so through emergency
regulations. Sets forth various considerations the Board
must make in determining if a substance is included as a SCC,
including:
a) The substance's actual or relative potential for abuse;
b) Scientific evidence of the substance's pharmacological
effect, if known;
c) The state of current scientific knowledge regarding the
substance;
SB 202 (Hernandez) Page 3
of ?
d) The substance's history and current pattern of abuse;
e) The scope, duration, and significance of abuse of the
substance;
f) The risk to public health caused by the substance;
g) The substance's potential to produce psychological or
physiological dependence;
h) Whether the substance is an immediate precursor of a
substance already included in this subdivision; and,
i) The substance's similarity to other substances already
considered SCCs.
FISCAL EFFECT: Unknown. This bill is keyed fiscal by
Legislative Counsel.
COMMENTS:
1. Purpose. The Author is the Sponsor of this bill. According
to the Author, the dangers of synthetic marijuana have been
well documented and multiple horror stories of the effects of
these chemicals have been reported in recent years.
Synthetic cannabinoids, which refer to a growing number of
man-made mind-altering chemicals that are either sprayed on
dried, shredded plant material so they can be smoked (herbal
incense), or sold as liquids to be vaporized and inhaled in
e-cigarettes and other devices (liquid incense), are
sometimes misleadingly called "synthetic marijuana" or "fake
weed" and marketed as safe, legal alternatives to that drug.
The Author states that these chemicals may actually affect
the brain much more powerfully than marijuana and that their
effects are unpredictable, and in some cases, severe or even
life threatening.
While existing law bans a certain chemical makeup of
synthetic marijuana, the Author is concerned that the
manufacturers of synthetic marijuana stay one step ahead of
the law by changing the active ingredients in their products,
SB 202 (Hernandez) Page 4
of ?
thereby keeping the product legal. Given how rapidly
different product variations change and the inability of the
legislative process to move as quickly to keep up to outlaw
the new formulations, the Author believes it is necessary for
swifter action to be taken. The adoption of emergency
regulations by the Board of Pharmacy to add specific
chemicals to the definition of a synthetic cannabinoid
compound will ensure that dangerous substances are made
illegal so that penalties for selling and distributing these
will apply.
2. Background. According the White House Office of National
Drug Control Policy, synthetic cannabinoids are the second
only to marijuana on the list of most frequently used drug
among 12th grade students in the United States. In 2012, one
in nine high school seniors reported use of synthetic
cannabinoids in the past year. The Centers for Disease
Control (CDC) reported that between January and May 2015,
poison centers in 48 states reported receiving 3,572 calls
related to synthetic cannabinoid use, a 229 percent increase
from the 1,085 calls received during the same January through
May period in 2014. The 2015 figures included a spike of
1,501 calls in April, and 15 reported deaths, a three-fold
increase over the five deaths that were reported in 2014.
According to CDC, "The increasing number of synthetic
cannabinoid variants available, higher toxicity of new
variants, and the potentially increased use as indicated by
calls to poison centers might suggest that synthetic
cannabinoids pose an emerging public health threat. Multiple
other recent outbreaks suggest a need for greater public
health surveillance and awareness, targeted public health
messaging, and enhanced efforts to remove these products from
the market."
As the use of synthetic cannabinoids has become increasingly
pervasive, regulation has struggled to provide an adequate
response. On the federal level, the Controlled Substances
Act of 1970 (Act) regulates the manufacture, importation,
distribution, possession, and use of certain controlled
substances. The Act contains five classifications called
"Schedules" with varying qualifications for inclusion in each
class. Often considered the most serious, Schedule I
controlled substances have a high potential for abuse and no
currently accepted use in United States medical treatments.
SB 202 (Hernandez) Page 5
of ?
Until 2012, synthetic cannabinoids were not permanently
covered under the Act.
The Controlled Substance Analogue Enforcement Act of 1986
(AEA) allowed a drug not covered under the Act to be treated
as a controlled substance if it is chemically and/or
pharmacologically similar to a Schedule I or Schedule II
controlled substance. However, AEA may only be applied to
substances intended for human consumption. Many synthetic
cannabinoids are labeled as "not intended for human
consumption" in an attempt to circumvent the AEA. Therefore,
the AEA has provided only weak authority over many of these
substances.
The United States Attorney General, in consultation with the
federal Drug Enforcement Administration has the authority to
temporarily place a substance onto Schedule I of the Act if
the substance poses an imminent hazard to public safety.
Before the Synthetic Drug Abuse Prevention Act of 2012, the
temporary scheduling of a substance could last only one year
with a possible six month extension. The Synthetic Drug
Abuse Prevention Act, however, extended this temporary
scheduling limit to two years, with a one year possible
extension. Throughout the past five years, the Attorney
General has exercised this authority for many variations of
synthetic cannabinoids. The use of temporary scheduling has
proved challenging, though, as the formula for synthetic
cannabinoids are often shifted and different substances used
in order to avoid being captured as a Schedule I substance.
Currently, there are two methods by which a substance may be
permanently scheduled under the Act. Administratively,
substances may be scheduled by the Attorney General in
consultation with the Secretary of Health and Human Services.
Congress may also schedule substances through legislative
action. The 2012 Synthetic Drug Abuse Prevention Act was an
example of the latter. In addition to doubling the maximum
time period for temporary scheduling, the Synthetic Drug
Abuse Prevention Act permanently added five classes of
synthetic cannabinoids as Schedule I drugs under the Act.
These classes were broad structural categories of synthetic
cannabinoids, and therefore provide a more general
application of the law.
SB 202 (Hernandez) Page 6
of ?
3. Efforts in Other States to Deal with the Dangers of Synthetic
Cannabinoids. At the state level, several regulatory
approaches have been used. The majority of states have taken
legislative action to ban specific versions of synthetic
cannabinoids by adding individual substances to the state's
controlled substances schedule. However, these specific bans
can be ineffective due to the continuously evolving formulas
of the products. As a result, some states have moved to
general bans that prohibit synthetic drugs by describing only
the general chemical makeup and/or by failing to list
individual substances. Colorado, for example, defines a
"synthetic cannabinoid" as, "any chemical compound that is
chemically synthesized and either: (I) Has been demonstrated
to have binding activity at one or more cannabinoid
receptors; or (II) is a chemical analog or isomer of a
compound that has been demonstrated to have binding activity
at one or more cannabinoid receptors" (NCSL). Other laws use
chemical "classes" to describe groupings of similar drugs.
Another method of combating synthetic cannabinoids in a more
general manner is via analog laws, which ban drugs of
sufficiently similar chemical structure or pharmacological
effect as that of a controlled substance. Generally, these
laws require that the analog drug be substantially similar in
chemical structure and have similar intoxicating
(pharmacological) effects as a scheduled controlled
substance. According to the National Alliance for Model State
Drug Laws, 34 states have analog laws, and a number of states
have amended their analog laws to specifically address
emerging synthetic substances.
Recently, some states have gone further to restrict the
labeling, display, and advertising of synthetic cannabinoids
through consumer protection laws. Illinois, for example,
created criminal penalties for false advertising or
misbranding "synthetic drug products." Other states have
created civil penalties or are utilizing business licensing
and other regulations to sanction businesses that illegally
sell these substances.
States have also used administrative action by delegating
scheduling authority to pharmacy boards or other agencies as
a means of quickly banning substances in these products when
they are identified. Some state legislatures have authorized
SB 202 (Hernandez) Page 7
of ?
agencies to pass temporary bans that will then be reviewed
and codified by the legislature after a specified period of
time, while others have given agency bans the full force and
effect of statutory law. For example, in 2012, Minnesota
authorized its Board of Pharmacy to use an expedited
rule-making process to temporarily add substances to Schedule
I. The Minnesota Legislature must subsequently approve these
new additions. Alternatively, New York statute authorizes
the Commissioner of the Department of Health to make any
permanent rules and regulations that further the purpose of
the public health code. The Commissioner has banned the
manufacture, sale and use of numerous synthetic drugs.
4. Current Related Legislation. SB 139 (Galgiani) makes it an
infraction to use or possess specified SC or stimulant drugs
and expands the definition of a SCC and SC to include
numerous chemical families or classes and a myriad of
individual chemicals. ( Status: The bill is currently
pending in the Assembly.)
5. Prior Related Legislation. SB 253 (Hueso) of 2013 would have
added SC possession, sale or furnishing or being under the
influence or selling or arranging the sale of a SC or
synthetic stimulant to the offenses for which a pupil can be
recommended for suspension or expulsion. The bill also would
have expanded penalties for possession of any SC and
synthetic stimulant compound or synthetic stimulant
derivative and would have expanded the definition of SC for
purposes of prohibitions that include additional compounds to
those outlined under current law. ( Status: The bill was
never heard in a policy committee of the Senate.)
SB 1283 (Hernandez, Chapter 372, Statutes of 2013) created an
infraction, with a maximum fine of $250, for use and
possession of specified SCCs and SC derivatives.
SB 420 (Hernandez, Chapter 420, Statutes of 2011) established
the provisions under current law 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 SCC or SC 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 $1,000, or by both that fine and imprisonment.
SB 202 (Hernandez) Page 8
of ?
AB 2420 (Hueso) of 2011 was similar to SB 253 above.
( Status: The bill failed passage in the Assembly Committee
on Public Safety.)
ACR 69 (Hueso, Resolution Chapter 84, Statutes of 2011) urged
law enforcement, first responders, schools, local elected
officials, and parents to educate youth and raise awareness
about the risks associated with synthetic drugs.
NOTE: Double-referral to Senate Committee on Public Safety
SUPPORT AND OPPOSITION:
Support: None on file as of January 6, 2016.
Opposition: None on file as of January 6, 2016.
-- END --