BILL ANALYSIS Ó
SB 1367
Page 1
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
SB 1367
Page 2
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.
SB 1367
Page 3
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,
SB 1367
Page 4
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
SB 1367
Page 5
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,
SB 1367
Page 6
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
SB 1367
Page 7
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
SB 1367
Page 8
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
SB 1367
Page 9
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.
SB 1367
Page 10
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.
SB 1367
Page 11
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
SB 1367
Page 12
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.
SB 1367
Page 13
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
SB 1367
Page 14
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
SB 1367
Page 15
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
SB 1367
Page 16
Los Angeles Police Protective League
Riverside Sheriffs Association
Opposition
California Retailers Association
Analysis Prepared by:Angela Mapp / L. GOV. / (916)
319-3958