BILL ANALYSIS Ó SENATE COMMITTEE ON GOVERNANCE AND FINANCE Senator Robert M. Hertzberg, Chair 2015 - 2016 Regular ------------------------------------------------------------------ |Bill No: |SB 1367 |Hearing |4/13/16 | | | |Date: | | |----------+---------------------------------+-----------+---------| |Author: |Runner |Tax Levy: |No | |----------+---------------------------------+-----------+---------| |Version: |2/19/16 |Fiscal: |No | ------------------------------------------------------------------ ----------------------------------------------------------------- |Consultant|Favorini-Csorba | |: | | ----------------------------------------------------------------- Harmful substances: local regulation Authorizes local governments to regulate the sale of certain harmful substances by ordinance. Background The California Constitution allows a city or county to "make and enforce within its limits, all local, police, sanitary and other ordinances and regulations not in conflict with general laws, known as the police power of cities." It is from this fundamental power that local governments derive their authority to regulate land uses through planning, zoning ordinances, and use permits. Local agencies also use this police power to abate nuisances and protect public health, safety and welfare. The Uniform Controlled Substances Act classifies drugs into five schedules-intended to reflect decreasing order of harm and increasing medical utility or safety-and provides penalties for possession of and commerce in controlled substances. 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 a scheduled drug. Such a drug is defined as a controlled substance "analog." Schedule I drugs are deemed to have no medical utility and a high potential for abuse. Schedule II drugs have legitimate medical uses, but also a high potential for abuse and are SB 1367 (Runner) 2/19/16 Page 2 of ? potentially dangerous. State law also prohibits the sale of drug paraphernalia unless the paraphernalia is in a separate room inaccessible to minors. Two types of synthetic drugs have recently risen in prominence: synthetic cannabinoids, and synthetic cathinones ("bath salts"). Synthetic cannabinoids are chemicals that bind to the same receptors in the brain as chemicals in cannabis plants. Synthetic cannabinoids were originally developed in order to conduct basic medical research on the potential for therapeutic uses. However, they were found to have intoxicating effects and began to appear for purchase in the United States in 2008 as products labeled "spice." Synthetic cannabinoids can have harmful health effects, including seizures, vomiting, and in some cases death. According to a report by the Substance Abuse and Mental Health Administration, synthetic cannabinoids were linked to over 28,000 emergency department visits in 2011, more than a quarter of which involved children ages 12-18. The chemical formulas of synthetic cannabinoids rapidly change; for example, the number of synthetic cannabinoids tracked by the European Union's drug jumped from 29 in 2013 to 137 in 2015. This rapid proliferation of chemical formulas makes it difficult to comprehensively ban all synthetic cannabinoids, because once a particular formula is banned, manufacturers tweak the formula to produce a new, uncontrolled cannabinoid. Synthetic cannabinoids are not classified by schedule under California law, but are separately defined and prohibited. SB 420 (Hernandez, 2011) made certain specific chemical formulations of synthetic cannabinoids illegal to sell or furnish, and SB 1283 (Galgiani, 2014) made those chemicals illegal to use or possess as of January 1, 2016. Since they are not scheduled drugs, the laws on analogs of controlled substances do not apply to synthetic cannabinoids. Bath salts are synthetic equivalents of cathinone, a psychoactive chemical found in the khat plant. State law categorizes bath salts as Schedule II controlled substances (drugs with high potential for abuse), which makes their possession, sale, or transportation illegal and subject to certain penalties. Much like synthetic cannabinoids, the chemical formula for bath salts can be slightly altered to avoid meeting the legal definition of a synthetic cathinone. However, SB 1367 (Runner) 2/19/16 Page 3 of ? because bath salts are scheduled substances, any analogs of bath salts are also illegal. Synthetic cannabinoids and bath salts are often sold online or in stores that specialize in the sale of drug paraphernalia, and are purchased by individuals seeking a "legal high." These products are labeled as "not for human consumption" in an effort to avoid regulation by the Food and Drug Administration. As a result, minors are frequent consumers of these chemicals. Some officials want to make it easier for local governments to regulate the sale of synthetic cannabinoids and bath salts. Proposed Law Senate Bill 1367 allows a city or county to adopt an ordinance to regulate the sale of substances that pose a threat to human life or health, and a particular risk to minors, if the city council or board of supervisors makes all of the following findings: The substance is labeled for purposes other than human consumption. The sale of the substance is not already regulated by the state or federal government as toxic to humans. The substance can cause intoxication, disability, or death if it enters the human body. There is substantial evidence that the substance has been advertised, purchased, or consumed as a recreational drug. The unregulated sale of the substance poses a risk to minors in the community. Regulating the sale would mitigate the risk to minors. The ordinance may require vendors to take actions regarding the sale of the identified substances, specifically to: (1) maintain records of purchase, (2) make inventory available for inspection, (3) secure the substance from access by minors, (4) maintain a registry of sale to ensure that the substance is not SB 1367 (Runner) 2/19/16 Page 4 of ? sold to any person under 18 years of age, or (5) require a penalty for noncompliance of up to $250 per violation. SB 1367 also requires a public hearing and notice of the ordinance. State Revenue Impact No estimate. Comments 1. Purpose of the bill . State law already recognizes the importance of protecting minors from harmful substances. For example, state law prohibits the sale of certain glues to minors because they may cause intoxication and other harms if purposefully inhaled. Synthetic cannabinoids and bath salts pose an even greater danger because the constant changes to formulas mean that the potency and effects of the drugs are unknown to the users. Yet the potential for formula changes also mean that the standard approach to banning these substances is no longer effective. Even where these chemicals may be illegal under California's drug analog laws, it can be difficult to prosecute a violation because identifying an analog often requires laboratory testing and expert analysis and testimony on chemical structures and the effects of the drug. Small cities and counties may not have the resources or facilities to perform the needed work. SB 1367 provides cities and counties with an additional tool for regulating the sale of these dangerous substances to children. It bridges a gap in state law where harm from these substances may be known to local governments, but state drug laws have not yet caught up. SB 1367 provides local governments with the ability to rapidly respond once a new harmful substance appears in the community. 2. Preemption . The California Supreme Court noted in Candid Enterprises, Inc. v. Grossmont Union High School Dist. (1985) that state law preempts local authority when there is a conflict SB 1367 (Runner) 2/19/16 Page 5 of ? between the two, either expressly or by legislative implication. An implicit conflict may exist if "the subject matter has been partially covered by general law couched in such terms as to indicate clearly that a paramount state concern will not tolerate further or additional local action." Cities and counties can already use their police power to regulate synthetic cannabinoids or other harmful substances. By spelling out the ways that locals can regulate these substances, SB 1367 may pose a risk of preempting other local actions. In addition, SB 1367 does not explicitly include the authority to prohibit the sale of an identified substance to minors as a condition a local government can impose on vendors. In order to ensure that local authority to enact other regulations of these substances remains intact and that local governments are clear on the authority that the bill provides them, the Committee may wish to consider amending SB 1367 to expressly recognize other potential local regulations and to explicitly allow cities and counties to prohibit the sale of these substances to minors. 3. Sure, but will it work ? SB 1367 allows regulation of "identified substances," but local governments may find it difficult to define the regulated substances in a way that overcomes the constant changes to the chemicals. For example, if a local government identifies bath salts as a harmful substance and regulates their sale, a vendor may change the name under which the substance is marketed. However, an ordinance that covers a broader category, such as harmful substances generally, may violate constitutional due process requirements because a vendor may not be able to know what specific substances are in fact regulated. Local governments may find themselves playing the same game of cat and mouse with vendors of these products that state legislators and regulators currently face. 4. Regulators, mount up . Many drugs and other potentially harmful substances are regulated statewide, rather than on a jurisdiction by jurisdiction basis. SB 1367 encourages individual local governments to adopt regulations for the sale of potentially harmful substances, but the physiological effects of these drugs don't vary based on geographic location. SB 1367 raises questions about whether the sale of such substances should be prohibited or regulated on a statewide level. 5. Related legislation . Two bills in the current legislative SB 1367 (Runner) 2/19/16 Page 6 of ? session attempt to comprehensively outlaw synthetic cannabinoids and other synthetic drugs. SB 139 (Galgiani, 2015) adds an extensive list of specified categories of synthetic cannabinoids, specific formulations of synthetic cathinones, and other specific chemicals to the list of synthetic cannabinoids already prohibited under law. SB 1036 (Hernandez, 2016) makes illegal analogs of synthetic cannabinoids, as defined in existing law, in the same way as analogs of scheduled drugs. Support and Opposition (4/7/16) Support : Association for Los Angeles Deputy Sheriffs; California Association of Code Enforcement Officers; California College and University Police Chiefs Association; California Narcotic Officers Association; Los Angeles County Professional Peace Officers Association; Los Angeles Police Protective League; Riverside Sheriffs Association. Opposition : Unknown. -- END --