BILL ANALYSIS Ó
SENATE COMMITTEE ON GOVERNANCE AND FINANCE
Senator Robert M. Hertzberg, Chair
2015 - 2016 Regular
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|Bill No: |SB 1367 |Hearing |4/13/16 |
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|Author: |Runner |Tax Levy: |No |
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|Version: |2/19/16 |Fiscal: |No |
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|Consultant|Favorini-Csorba |
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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
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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,
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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
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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
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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
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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.
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