BILL ANALYSIS                                                                                                                                                                                                    

                                                                    SB 1036

                                                                    Page  1

          Date of Hearing:  June 14, 2016

          Counsel:               David Billingsley


                       Reginald Byron Jones-Sawyer, Sr., Chair

          1036 (Hernandez) - As Introduced February 12, 2016

          SUMMARY:  Makes it a crime to possess, sell, transport, or  
          manufacture an analog of a synthetic cannabinoid compound, aka  
          "Spice."  Expands 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. 

          EXISTING LAW:  


                                                                    SB 1036

                                                                    Page  2

          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)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).)

          4)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; and (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  


                                                                    SB 1036

                                                                    Page  3

               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).)

          5)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).)

          6)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   

          7)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.)  

           8)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


                                                                    SB 1036

                                                                    Page  4


          1)Author's Statement:  According to the author, "In 2011,  
            Governor Jerry Brown signed into law SB 420 (Hernandez),  
            banning the sale of a specific formulation of synthetic  
            cannabis, or 'spice.' Subsequently, spice manufacturers began  
            making slightly different variations, thus staying one step  
            ahead of the law.  This presents a uniquely difficult  
            situation for lawmakers, given the deliberate pace with which  
            any new legislation moves, making it impossible to quickly  
            outlaw new substances as they come on the market.  SB 1036  
            will allow for the banning of even slight variations in  
            synthetic marijuana, provided that the chemical makeup and  
            intoxicating effects are similar to the already-banned  

            "According to the National Conference on State Legislatures  
            (NCSL) which tracks legislation, analogue laws are: '?to ban  
            drugs that are not classified as a controlled substance but  
            are very similar to ones that have been identified and  
            outlawed. Generally, these laws require that the analogue drug  
            be substantially similar in chemical structure and  
            intoxicating (pharmacological) effects as a scheduled  
            controlled substance. According to the National Alliance for  
            Model State Drug Laws, 34 states have analogue laws, and a  
            number of states have amended their analogue laws to  
            specifically address emerging synthetic substances.'

            "While outlawing certain families of substances can be  
            helpful, the ingenuity of the criminal mind ensures that new,  
            potentially more dangerous drugs, will take their place.  
            Putting a comprehensive ban in place will assist in  
            forestalling these efforts."


                                                                    SB 1036

                                                                    Page  5

          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?

               ?[L]ittle is known about the detailed pharmacology and  
               toxicology of the synthetic cannabinoids and few  


                                                                    SB 1036

                                                                    Page  6

               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.   

            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.  
            The EMCDD reported on adverse consequences of synthetic  
            cannabinoid use:

               The adverse health effects associated with synthetic  


                                                                    SB 1036

                                                                    Page  7

               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.  
          3)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  


                                                                    SB 1036

                                                                    Page  8

          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  
            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).)  

          This bill would include synthetic cannabinoids within  
            California's analog law.

          4)Criticism of California's Analog Language:  California's  
            analog law has been criticized as being too vague to provide  
            sufficient legal guidance.  The criticism has focused on the  
            "substantial similarity" in the chemical structure or in the  
            effect, or intended effect on the central nervous system.   
            California courts have found "substantial similarity" meets  
            constitutional requirements.

          In People v. Silver (1991) 230 389, the defendant was  
            convicted of possession of sale and sale of MDMA, which the  
            jury found to be an analog of methamphetamine.  The defendant  
            appealed the conviction and challenged the analog law as  
            unconstitutionally vague.  The Appellate Court upheld held the  
            jury's verdict and found that the analog law was not  
            unconstitutionally vague.  In reaching that finding the court  
            said, "It may be true that the term "substantially similar"  
            has no scientific meaning, but the Constitution does not  
            require scientific or mathematical precision.  All that is  
            required is that the statute be reasonably certain so that  


                                                                    SB 1036

                                                                    Page  9

            persons of common intelligence need not guess at its meaning."  
             (Id. at 293-94.)

          If this bill becomes law, it will expand the definition of a  
            controlled substance analog to include a substance the  
            chemical structure of which is substantially similar to the  
            chemical structure of a synthetic cannabinoid compound.  This  
            bill will not change the criteria used to determine if a  
            substance is an analog. 

          5)Argument in Support:  According to Consortium Management  
            Group, "Synthetic cannabinoids over the last decade have found  
            a substantial market, especially among young people, who are  
            looking for an arguably legal alternative to marijuana.  Sold  
            under familiar brand names such as Spice, Scooby, Snax and K2  
            (an dozens of others), they seek to mimic the effects of THC  
            in natural cannabinoids.  However, they are more toxic and  
            unpredictable, and thus more dangerous, than cannabis.

          "The deadly impact is getting worse.  Deaths from synthetic  
            cannabinoids tripled in the first half of 2015 compared to the  
            first half of 2014.  During the same period, calls to poison  
            centers because of synthetic cannabinoids grew by 229%.  The  
            harm that arises from these drugs is further highlighted by  
            the comparable safety of natural cannabinoids.

          "A rash of tragic consequences resulting from the use of  
            synthetic cannabinoids led to new law federally and in many  
            states like California that ban synthetic cannabinoids.   
            However, manufacturers have tried to stay a step ahead of the  
            law by making changes at the chemical level so that the new  
            compound is legal.  Unfortunately, in some cases, the chemical  
            changes have made the synthetic cannabinoid even more  
            unpredictable and dangerous.

          "SB 1036 endeavors to stay ahead of the manufacturers by adding  
            synthetic cannabinoids to current law that makes analogs of a  
            controlled substance subject to the same prohibitions as the  
            controlled substance."


                                                                    SB 1036

                                                                    Page  10

          6)Argument in Opposition:  According to The American Civil  
            Liberties Union of California, "While we respect and support  
            the goal of reducing the harms associated with drug use,  
            further criminalization of these substances will not advance  
            this objective and may actually decrease public safety. Since  
            the emergence of synthetic cannabinoid use in the United  
            States, attempted control of the market has been characterized  
            by the enactment of legislation or regulations that seek to  
            ban certain substances, followed by the manufacturers' quick  
            development of new substances in an attempt to circumvent the  
            bans.  Although Section 11401 of the Health and Safety Code  
            purports to address this by treating all substances that are  
            chemically or pharmacologically substantially similar to  
            controlled substances as identical to controlled substances  
            for the purposes of penalties and punishment, manufacturers  
            are likely to continue developing and marketing new  
            formulations that skirt the boundaries of the law. 

          "By incentivizing manufacturers to constantly develop new  
            substances in response to bans, laws that criminalize  
            synthetic cannabinoids force users to continuously switch to  
            new substances whose safety profile is not known  
            scientifically or anecdotally. Rather than criminalizing  
            users, the legislature should aim to enhance public safety by  
            expanding the scientific knowledge available on existing  
            substances and educating the public about their potential  

          "The section that SB 1036 seeks to amend is also overbroad  
            because it treats any substance represented as having effects  
            substantially similar to or greater than the effects of a  
            controlled substance classified in Section 11054, 11055, or  
            11357.5 as identical to a controlled substance for the  
            purposes of penalties and punishment. Under this standard, a  
            person representing a quantity of sugar in their possession as  
            having effects substantially similar to those of a controlled  
            substance would be subject to prosecution.


                                                                    SB 1036

                                                                    Page  11

          "We are also concerned that the existing section which SB 1036  
            seeks to amend is vague and does not provide sufficient notice  
            to individual users as to when the use or possession of a  
            substance falls outside the law. Existing law does not define  
            'substantially similar;' the DEA has stated that in cases  
            under the Federal Analogue Act (which uses the same language),  
            the "substantially similar" threshold is subjective and may  
            differ from expert to expert.  As such, there seems to be no  
            way for a person to reasonably know whether they are subject  
            to criminal liability for their actions. 

          "More broadly, during a time of increasing public awareness and  
            consensus that the drug war has failed, there is a need to  
            address drug use and abuse as a public health issue. Now is  
            not the time to be counterproductively criminalizing more  
            substances and putting the public at greater risk of harm."

          7)Related Legislation: SB 139 (Galgiani), would expand the  
            definition of a synthetic stimulant compound and a synthetic  
            cannabinoid compound for purposes of existing law. SB 139 is  
            currently held at the Assembly Desk 

          8)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  


                                                                    SB 1036

                                                                    Page  12

               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  
               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  




          Association of Deputy District Attorneys

          Association for Los Angeles Deputy Sheriffs
          California Association of Code Enforcement Officers
          California College and University Police Chiefs Association
          California Narcotic Officers Association
          California Police Chiefs Association
          California State Sheriffs' Association
          Consortium Management Group
          Los Angeles County Professional Peace Officers Association


                                                                    SB 1036

                                                                    Page  13

          Los Angeles Police Protective League
          Office of the Sheriff, County of Los Angeles
          Peace Officers Research Association of California
          Riverside Sheriffs Association


          American Civil Liberties Union of California

          California Attorneys for Criminal Justice

          California Public Defenders Association
          Drug Policy Alliance

          Analysis Prepared by:David Billingsley / PUB. S. / (916)