BILL ANALYSIS                                                                                                                                                                                                    Ó



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          Date of Hearing:  June 29, 2016


                       ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT


                           Susan Talamantes Eggman, Chair


          SB  
          1367 (Runner and Galgiani) - As Amended May 18, 2016


          SENATE VOTE:  38-0


          SUBJECT:  Harmful substances:  local regulation.


          SUMMARY:  Allows local agencies to regulate the sale of certain  
          harmful substances by ordinance.   Specifically, this bill:  


          1)Allows a city, county, or city and county, to regulate the  
            sale of a substance used as a recreational drug that poses a  
            threat to human life or health and a particular risk to minors  
            if the city council (council) or board of supervisors (board)  
            finds, after notice and a public hearing, that each of the  
            following conditions are true:



             a)   The substance is packaged or labeled as a product to be  
               used for purposes other than human consumption, ingestion,  
               inhalation, or dermal application;



             b)   The substance is sold under a product name or label that  








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               is clearly identifiable;



             c)   The sale of the substance is not regulated by the state  
               or federal government as toxic to humans and it is not  
               unlawful for any person, firm, or corporation to sell the  
               substance to a person under 18 years of age;



             d)   There is substantial evidence that the substance can  
               cause intoxication, disability, or death if it is ingested,  
               smoked, inhaled, or injected into the human body;



             e)   There is substantial evidence that the substance has in  
               fact been advertised, purchased, sold, or consumed as a  
               recreational drug;



             f)   The unregulated sale of the substance creates a  
               continuing and particular risk to the health and safety of  
               children and young adults in the community; and,



             g)   Regulating the sale of the substance would mitigate the  
               risk to minors in the community.



          2)Allows, upon finding that all of the above conditions have  
            been met, the council or board to regulate the sale of the  
            substance, identified by a product name or label, following  
            the adoption of an ordinance. 









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          3)Allows an ordinance adopted pursuant to this bill to require  
            vendors, no less than 30 days after actual notice, to comply  
            with any of the following conditions: 



             a)   Maintain all records of purchase of the substance  
               identified in the ordinance by a product name or label;



             b)   Make inventory of the substance identified in the  
               ordinance by a product name or label available for  
               inspection upon request of a peace officer;



             c)   Store the substance in a secure place that cannot be  
               accessed 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 payment of a penalty for noncompliance with the  
               ordinance enacted, pursuant to this bill, not to exceed  
               $250 per violation;



             f)   Prohibit the sale of the substance identified in the  
               ordinance by a product name or label to minors; or,










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             g)   Any other regulation allowable, pursuant to Section 7 of  
               Article XI of the California Constitution.



          EXISTING LAW:   


          1)Allows, pursuant to Section 7 of Article XI of the California  
            Constitution, 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.  


          2)Classifies drugs into five schedules 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.  


          5)Provides that any person who possesses for sale, sells or  
            furnishes any synthetic cannabinoid compound shall be punished  
            by imprisonment in the county jail for up to six months, a  
            fine of up to $1,000, or both.


          6)Provides that any person who sells, dispenses, distributes, or  
            gives the stimulant substances naphthylpyrovalerone or  
            cathinone, or specified variations of these drugs, or who  
            offers to do such acts, is guilty of a misdemeanor, punishable  








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            by a jail term of up to six months, a fine of up to $1,000, or  
            both.


          FISCAL EFFECT:  None


          COMMENTS:  


          1)Bill Summary.  This bill allows counties and cities to  
            regulate the sale of a substance used as a recreational drug  
            that poses a threat to human life or health and a particular  
            risk to minors.  Prior to regulating such sales, the council  
            or board must make seven specified findings regarding the  
            substance to be regulated, after notice and a public hearing.   
            Those seven findings are as follows:


             a)   The substance is packaged or labeled as a product to be  
               used for purposes other than human consumption, ingestion,  
               inhalation, or dermal application;



             b)   The substance is sold under a product name or label that  
               is clearly identifiable;



             c)   The sale of the substance is not regulated by the state  
               or federal government as toxic to humans and it is not  
               unlawful for any person, firm, or corporation to sell the  
               substance to a person under 18 years of age;



             d)   There is substantial evidence that the substance can  
               cause intoxication, disability, or death if it is ingested,  








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               smoked, inhaled, or injected into the human body;



             e)   There is substantial evidence that the substance has in  
               fact been advertised, purchased, sold, or consumed as a  
               recreational drug;



             f)   The unregulated sale of the substance creates a  
               continuing and particular risk to the health and safety of  
               children and young adults in the community; and,



             g)   Regulating the sale of the substance would mitigate the  
               risk to minors in the community.



            Upon making these findings and after adopting an ordinance,  
            the council or board may regulate the sale of the substance,  
            identified by a product name or label.  An ordinance adopted  
            pursuant to this bill may require vendors, no less than 30  
            days after actual notice, to comply with any of the following  
            conditions: 





             a)   Maintain all records of purchase of the substance  
               identified in the ordinance by a product name or label;



             b)   Make inventory of the substance identified in the  
               ordinance by a product name or label available for  








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               inspection upon request of a peace officer;



             c)   Store the substance in a secure place that cannot be  
               accessed 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 payment of a penalty for noncompliance with the  
               ordinance enacted, pursuant to this bill, not to exceed  
               $250 per violation;



             f)   Prohibit the sale of the substance identified in the  
               ordinance by a product name or label to minors; or,



             g)   Any other regulation allowable, pursuant to provisions  
               of the California Constitution , that allow 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 (commonly referred to as  
               "police powers").


            This bill is sponsored by the authors.


          2)Authors' Statement.  According to the authors, "California law  
            prohibits the sale of certain synthetic recreational drugs  
            which are labeled 'not for human consumption' but are marketed  








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            in a form that can be smoked or vaporized and inhaled.  These  
            drugs are often misrepresented as bath salts, incense or bird  
            seed under names like 'spice.'  These drugs are called  
            cannabinoids because they are related to the chemicals in  
            marijuana but are often much more toxic.



            "The proliferation of recreational drugs and the threat posed  
            to high school aged juveniles has been reflected in the number  
            of emergency room cases triggered by the consumption of  
            'spice.'  Unfortunately once the federal or state government  
            prohibits a substance such as 'spice' a new compound with a  
            slightly difference chemical configuration appears on the  
            market.





            "SB 1367 is designed to provide local government with an  
            expedited process for regulating substances harmful to minors  
            when they surface in the community and before the state or  
            federal government have an opportunity to consider prohibiting  
            sale of the new drug."


          3)Background.  Cannabinoids are drugs that bind to certain  
            receptors in the brain - the same receptors to which THC and  
            other drugs obtained from cannabis bind.  Synthetic  
            cannabinoids are often inaccurately described as "synthetic  
            marijuana" or "synthetic THC."  However, such terms are  
            something of a misnomer because the chemical makeup of  
            synthetic cannabinoids is frequently very different from the  
            chemical composition of THC.



            If a synthetic cannabinoid is shown to be chemically  








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            equivalent to THC, or if the effects of the drug are  
            equivalent to the effects of THC, conduct involving the  
            synthetic cannabinoid would be subject to prosecution because  
            the drug would be considered an analog of THC.  An analog is a  
            drug that is substantially similar in chemical structure or  
            effects to a scheduled drug.  Under California law, an analog  
            of a controlled substance is essentially treated as a  
            controlled substance.  Because many synthetic cannabinoids may  
            not be similar in properties or chemical structure to THC, the  
            ability of prosecutors to use the analog statute in synthetic  
            cannabinoid cases may be limited.





            The diverse chemical structures and effects on a user of  
            synthetic cannabinoids also make it difficult to draft a  
            statute including the drugs in the controlled substance  
            schedules as generic groups or classes of drugs, unlike  
            opiates for example.   It has been necessary to name each  
            class or form of similar synthetic cannabinoids, including  
            numerous individual chemicals.  There are dozens, if not  
            hundreds, of synthetic cannabinoids on the market.





            It has been reported that new forms of synthetic cannabinoids  
            are being developed to avoid detection in drug tests and to  
            induce greater intoxication.   Each new form has its own  
            distinctive binding affinity to cannabinoid receptors.  First  
            generation synthetic cannabinoids are believed to be more  
            benign than the newer generation cannabinoids, which are more  
            likely to cause cardiotoxicity and neurotoxicity.











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            Synthetic cannabinoids are not classified by schedule under  
            California law, but are separately defined and prohibited.  SB  
            420 (Hernández), Chapter 420, Statutes of 2011, made certain  
            specific chemical formulations of synthetic cannabinoids  
            illegal to sell or furnish.  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.  





            Synthetic cathinones, commonly called "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.









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          4)Policy Considerations.  The Committee may wish to consider the  
            following:


             a)   Is Legislation Necessary?  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 use through planning, zoning ordinances, and  
               use permits.  Local agencies also use this police power to  
               abate nuisances and protect public health, safety and  
               welfare.  Given that local agencies already have this broad  
               authority to regulate, the Committee may wish to consider  
               whether a bill is necessary or whether a city or county can  
               already choose to enact its own local regulations on  
               harmful substances.


             b)   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 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.  


             c)   Local vs. Statewide Regulation. Many drugs and other  
               potentially harmful substances are regulated statewide,  
               rather than on a jurisdiction by jurisdiction basis.  SB  








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               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.


             d)   Whack-a-Mole.  As noted above, the chemical compounds of  
               synthetic cannabinoids are continually changing.  While the  
               definitions in this bill may attempt to get around a list  
               of specific chemical compounds that becomes outdated as  
               soon as a new drug is formulated, it is not clear that  
               these broader definitions will help prevent the sale of  
               these substances.  If the substance must be "identified by  
               product name or label," it seems a product name or label  
               could be changed as easily as a chemical compound, if not  
               more so, in order to avoid regulation.  The Committee may  
               wish to consider if this bill will be effective in helping  
               prevent the sale of these harmful substances.


             e)   Harmless Products.  The findings that a local agency  
               governing board must make regarding a targeted substance  
               are vague enough that a local ordinance could  
               unintentionally regulate the sale of some products that  
               actually pose no harm.  The Committee may wish to consider  
               if the definitions of this bill are specific enough to  
               avoid this unintended outcome.


          5)Related Legislation.  SB 139 (Galgiani) of 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 139 is pending  
            in the Assembly Public Safety Committee.   










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             SB 1036 (Hernández) of 2016 makes it a crime to possess, sell,  
            transport, or manufacture an analog of a synthetic cannabinoid  
            compound, and 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.  SB 1036 is pending in the  
            Assembly Appropriations Committee.  


           6)Previous Legislation.  SB 1283 (Galgiani), Chapter 372,  
            Statutes of 2013, made the use or possession of specified  
            synthetic stimulant compounds or synthetic stimulant  
            derivatives punishable by a fine not exceeding $250.


            AB 2420 (Hueso) of 2012 would have created infraction and  
            misdemeanor penalties for possession or use of specified  
            synthetic stimulants and synthetic cannabinoids.  AB 2420 was  
            held in the Assembly Public Safety Committee.  





            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 stimulant derivative.   
            Violation of this section is 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 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  








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            any synthetic cannabinoid derivative.  Violation of this  
            section is 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. 


           


          7)Arguments in Support.  The Association for Los Angeles Deputy  
            Sheriffs, the California Association of Code Enforcement  
            Officers, the California College and University Police Chiefs  
            Association, the California Narcotic Officers Association, the  
            Los Angeles County Professional Peace Officers Association,  
            the Los Angeles Police Protective League, and the Riverside  
            Sheriffs Association, in support, state, "The proliferation of  
            recreational drugs and the threat posed to high school aged  
            juveniles has been reflected in the number of emergency room  
            cases triggered by the consumption of 'spice' and other  
            cannabinoid compounds.  Unfortunately, once the federal or  
            state government prohibits a substance such as 'spice' a new  
            compound with a slightly difference chemical configuration  
            appears on the market.  Those who sell these dangerous drugs  
            rely on the difficulty confronting law enforcement before new  
            state legislation can be passed to prohibit the latest 'spice'  
            like chemical compound.  SB 1367 is designed to provide local  
            government with an expedited process for regulating substances  
            harmful to minors when they surface in the community."



          8)Arguments in Opposition.  The California Retailers  
            Association, in opposition, writes, "Unfortunately, our  
            membership has faced many challenges complying with local  
            jurisdictions that have enacted differing regulations on  
            various issues in the past, some specifically dealing with  
            product regulation.  As national retailers with hundreds of  
            stores operating across the state, our frustration with  
            different requirements cannot be overstated.  SB 1367 raises  








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            concerns with our membership since the regulation of the sale  
            is open-ended. This could lead to a disjointed approach on how  
            the sale of these substances may be regulated.  For example,  
            one jurisdiction may require ID verification while another may  
            require a complete product ban.  Furthermore, the regulatory  
            sales approaches could differ depending on the substance.  Put  
            simply, SB 1367 could make compliance more difficult than it  
            has to be."
          


          REGISTERED SUPPORT / OPPOSITION:




          Support


          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


          Crime Victims United of California


          Los Angeles County Professional Peace Officers Association
                                                                             








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          Los Angeles Police Protective League


          Riverside Sheriffs Association




          Opposition


          California Retailers Association




          Analysis Prepared by:Angela Mapp / L. GOV. / (916)  
          319-3958