BILL ANALYSIS                                                                                                                                                                                                    

                              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   
          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   

          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  

               5-(1,1-dimethylheptyl)-2-[(1R,3S)-3-hydroxycyclohexyl]-phenol (CP-47,497) and ;

               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,  

             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  


          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  

             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.  

          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  

             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:   None on file as of January 6, 2016.

           Opposition:   None on file as of January 6, 2016.

                                      -- END --