BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 1367|
|Office of Senate Floor Analyses | |
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THIRD READING
Bill No: SB 1367
Author: Runner (R) and Galgiani (D)
Amended: 4/20/16
Vote: 21
SENATE GOVERNANCE & FIN. COMMITTEE: 6-0, 4/13/16
AYES: Hertzberg, Beall, Hernandez, Lara, Moorlach, Pavley
NO VOTE RECORDED: Nguyen
SUBJECT: Harmful substances: local regulation
SOURCE: Author
DIGEST: This bill authorizes local governments to regulate the
sale of certain harmful substances by ordinance.
ANALYSIS:
Existing law:
1)Allows a city or county to, under the California Constitution:
a) 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.
b) Regulate land uses through planning, zoning ordinances,
and use permits.
c) Abate nuisances and protect public health, safety and
welfare.
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2)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.
3)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,
defined as a controlled substance "analog."
4)Prohibits the sale of drug paraphernalia unless the
paraphernalia is in a separate room inaccessible to minors.
This bill:
1)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:
a) The substance is labeled for purposes other than human
consumption.
b) The sale of the substance is not already regulated by
the state or federal government as toxic to humans.
c) The substance can cause intoxication, disability, or
death if it enters the human body.
d) There is substantial evidence that the substance has
been advertised, purchased, or consumed as a recreational
drug.
e) The unregulated sale of the substance poses a risk to
minors in the community.
f) Regulating the sale would mitigate the risk to minors.
2)Allows the ordinance to require vendors to take actions
regarding the sale of the identified substances, specifically
to:
a) Maintain records of purchase.
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b) Make inventory available for inspection.
c) Secure the substance from access by minors.
d) Maintain a registry of sale to ensure that the substance
is not sold to any person under 18 years of age.
e) Require a penalty for noncompliance of up to $250 per
violation.
f) Prohibit the sale of the identified substance to minors.
g) Regulate the substance in any other manner allowed by
the California Constitution.
3)Requires a public hearing and notice of the ordinance.
Background
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
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California law, but are separately defined and prohibited. SB
420 (Hernandez, Chapter 420, Statutes of 2011) made certain
specific chemical formulations of synthetic cannabinoids illegal
to sell or furnish, and SB 1283 (Galgiani, Chapter 372, Statutes
of 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,
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.
Comments
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
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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.
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.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:NoLocal: No
SUPPORT: (Verified4/19/16)
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: (Verified4/19/16)
None received
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Prepared by:Anton Favorini-Csorba / GOV. & F. / (916) 651-4119
4/20/16 15:39:02
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