BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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AB 486 (Hueso)
As Amended June 22, 2011
Hearing date: July 5, 2011
Health and Safety Code
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SYNTHETIC STIMULANT DRUGS
HISTORY
Source: Author
Prior Legislation: AB 1015 (Torlakson) - Ch. 266, Stats. 2009
AB 1141 (Anderson) - Ch. 292, Stats. 2008
AB 259 (Adams) - Ch. 184, Stats. 2008
Support: Unknown
Opposition:None known
Assembly Floor Vote: N/A
KEY ISSUE
SHOULD ANY PERSON WHO SELLS, DISPENSES, GIVES, OR DISTRIBUTES
NAPHTHYLPYROVALERONE AND SPECIFIED VARIATIONS, OR CATHINONE AND
SPECIFIED VARIATIONS, BE GUILTY OF A MISDEMEANOR?
PURPOSE
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The purpose of this bill is to provide that any person who
sells, gives, dispenses, or distributes naphthylpyrovalerone and
specified variations, and cathinone and specified variations, or
who offers to do such acts, is guilty of a misdemeanor.
Existing law classifies controlled substances in five schedules
according to their danger and potential for abuse. Schedule I
controlled substances generally are the most restricted.
(Health & Saf. Code �� 11054-11058.)
Existing law provides penalties for possession of and commerce
in controlled substances. (Health & Saf. Code �� 11350-11401.)
Existing law lists cathinone as a Schedule II controlled
substance as a stimulant.
Existing law provides that simple possession of cathinone is a
misdemeanor, punishable by a jail term of up to six month, a
fine of up to $1,000, or both. (Health & Saf. Code � 11377,
subd. (b)(3).)
Existing law provides that possession for sale of khat or
cathinone is a felony punishable by 16 months, 2 years, or 3
years in state prison. (Health & Saf. Code � 11378.)
Existing law provides that transportation, sale, or furnishing
of khat or cathinone is a felony punishable by 2, 3, or 4 years
in state prison and a fine of up to $10,000. (Health & Saf.
Code � 11379.)
Existing law provides criminal penalties for possession of or
commerce in specified drugs and chemicals that are not included
in the controlled substance schedules. Examples include:
Salvia Divinorum: Sale of salvia divinorum to a minor is
a misdemeanor. (Pen. Code
� 379.)
Nitrous oxide: Sale of nitrous oxide to a minor is a
misdemeanor. Possession of nitrous oxide with the intent to
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become intoxicated is a misdemeanor. (Pen. Code ��
381b-381c.)
Toluene - Sale of toluene to a minor is a misdemeanor.
Possession of toluene with intent to become intoxicated is
a misdemeanor. (Pen. Code �� 380-381.)
This bill 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 by a jail term of up to six months, a
fine of up to $1,000, or both.
This bill does not include naphthylprovalerone, as specified,
and cathinone, as specified, in the controlled substance
schedules.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
As these cases have progressed, prison conditions have
continued to be assailed, and the scrutiny of the federal courts
over California's prisons has intensified.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court. On
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May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances.
In response to the unresolved prison capacity crisis, in early
2007 the Senate Committee on Public Safety began holding
legislative proposals which could further exacerbate prison
overcrowding through new or expanded felony prosecutions.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
According to the author:
Synthetic drugs mimic the effects of marijuana,
cocaine and other drugs. These products are often
marketed as herbal incense, bath salts or plant food.
These substances are dangerous and are legal in many
cases. In fact, they are often sold in liquor stores
as well as stores that sell drug paraphernalia and on
the Internet.
Senator Hern�ndez currently has a bill that
addresses some synthetic cannabinoids (SB 420, 2011).
AB 486 seeks to address synthetic stimulants which are
often referred to as "bath salts," "Ivory Wave," "Red
Dove," "Vanilla Sky," and many other names. The
manmade nature of synthetic stimulants makes these
substances difficult to regulate. Compounds that are
banned today are often altered in an attempt to meet
legal requirements. These synthetic stimulants are
currently being sold legally at convenience stores and
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on the Internet.
Synthetic stimulants are often labeled as "not
intended for human consumption," but they are clearly
intended as a hallucinogenic drug. The chemicals can
cause hallucinations, paranoia, rapid heart rates and
suicidal thoughts. One of the most
common chemicals used to make synthetic stimulants
is Methylenedioxypyrovalerone (MDPV). This chemical
has been banned in Louisiana, Florida, Pennsylvania,
and bills have been introduced in other states to
address MDPV.
The Drug Enforcement Agency (DEA) describes MDPV as a
central nervous system stimulant. According to the
DEA "The acute side effects of MDPV include
tachycardia, hypertension, vasoconstriction, and
sweating. The duration of the subjective effects is
about 3 to 4 hours and the side effects continuing a
total of 6 to 8 hours after administration. Higher
doses of MDPV have caused intense, prolonged panic
attacks in stimulant-intolerant users. Users have
reported bouts of psychosis induced by sleep
deprivation and becoming addicted after using higher
doses or using at more frequent dosing intervals."
Another compound that is often sold as a stimulant is
Naphthylpyrovalerone. This is a synthetic stimulant
that is also known as naphyrone and sold under the
name NRG-1. The structure of this new designer drug
is similar to that of pyrovalerone. This drug is
associated with similar effects as MDPV. In addition
to MDPV and Naphthylpyrovalerone, many synthetic drugs
also contain analogs of Cathinone.
Synthetic stimulants are believed to be
predominantly used by youth. The drugs are viewed as
a "legal high." Unfortunately, there appears to be a
belief that because this drug can be purchased legally
that it must be safe. This is clearly not the case.
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Synthetic stimulants can cause seizures,
hallucinations, paranoia, panic attacks, increased
heart rate, as well as other negative health impacts.
Synthetic drugs have also been attributed to at least
nine deaths in the U.S. since last year.
Cathinone is currently listed as a Schedule II drug in
California. However, "bath salts" and similar
products are currently being sold in this state. This
bill is needed to ensure the safety of California
residents. Synthetic stimulants are dangerous
chemical compounds that should be regulated. AB 486
will ensure that the sale of these products can be
prosecuted in California.
2. Background on Naphthylpyrovalerone from the United Kingdom
Advisory Council
on the Misuse of Drugs
The United Kingdom Advisory Council on the Misuse of Drugs
(ACMD) is an agency of the UK Home Office that advises policy
makers on drug issues. The ACMD recently reported on the
synthetic stimulants covered by this bill. Particularly as
concerns naphthylpyrovalerone and its variations, the ACMD
appears to have conducted more research and investigation on
these drugs than other drug monitoring entities, including very
thorough agencies in the European Union.
The ACMD states that naphthylpyrovalerone (or naphyrone) "acts
as a triple monoamine reuptake inhibitor, producing
psychostimulant effects." The report<1> noted that naphyrone
has been described as being stronger than cocaine or
amphetamines. However, a prominent product branded as NRG-1 may
not necessarily contain naphyrone or naphthylpyrovalerone, but
may contain "naphyrone or any number of other cathinones?
caffeine or other ? constituents."
Triple reuptake inhibitors affect the neurotranmitters dopamine,
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<1> UK Advisory Council on Misuse of Drugs (ACMD) Consideration
of naphthylpyrovalerone analogues and related compounds .
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serotonin and norepinephrine. Cocaine is a triple reuptake
inhibitor. (Methamphetamine affects dopamine neurotransmitters
and MDMA affects the serotonin system.) Naphyrone also appears
to cause direct release of neurotransmitters. In sum, naphyrone
appears to be a highly potent stimulant, perhaps many times
stronger than cocaine.
3. Analog Prosecution Issues Concerning Naphthylpyrovalerone
The ACMD report also stated: "Naphyrone has a close structural
resemblance to the cathinones such as mephedorne and
methylenedioxy-pyrovalerone (MDVP). Naphyrone, however, remains
outside the generic definition in which a number of cathinones ?
were controlled �in 2010]." In particular, the ACMD report
stated: "Naphyrone is a naphthyl analogue of the cathinones ?"
California controlled substance law includes five schedules.
The schedules list specified chemicals and often include the
salts and other variants of the scheduled drug. It would appear
that many of the listed controlled substances could be said to
include generic definitions.
California controlled substance law also allows prosecution of a
person for possession of and commerce in a drug that is an
"analog" of a Schedule I or II drug. (Health & Saf. Code ��
11400-11401.) The purpose of the analog law is to prevent
"street chemists" from circumventing drug laws by synthesizing
drugs "which have, are represented to have, or are intended to
have effects on the central nervous system which are
substantially similar to, or greater than" scheduled drugs.
(Health & Saf. Code � 11400.)
An analog is specifically defined thus:
(1) A substance the chemical structure of which is
substantially similar to the chemical structure of a
�Schedule I or II controlled substance].
(2) A substance which has, is represented as having,
or is intended to have a stimulant, depressant, or
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hallucinogenic effect on the central nervous system
that is substantially similar to, or greater than, the
stimulant, depressant, or hallucinogenic effect on the
central nervous system of a �Schedule I or II
controlled substance] (Health & Saf. Code � 11401.)
Appellate court decisions have held that the analog statute has
a broad application. Clearly, an analog need not fit within the
definition of a scheduled drug.
In People v. Becker (2010) 183 Cal.App.4th 1151, the appellate
court upheld the defendant's conviction for possession of MDMA
(Ecstacy) as an analog of methamphetamine, a Schedule II
controlled substance. The court found that there was substantial
evidence that MDMA produced effects that were "substantially
similar" to methamphetamine. The major testimony to support the
prosecution's case was that of the police investigator who
stated: "It's initially much like cocaine. It's methyldioxy
methamphetamine that is what MDMA is. So from the
methamphetamine, logically it's a stimulant, so you would get a
dramatically raised heartbeat . . . ." The investigator noted
that MDMA also has hallucinogenic effects. (Id., at p.
1154-1155.)
The Becker case supports a conclusion that the California analog
law is quite broad. Cathinone is a Schedule II stimulant.
(Health & Saf. Code � 11055, subd. (d)(8).) If the UK ACMD
report is correct that naphthylpyrovalerone "has a close
structural resemblance to cathinones" and that the drug is a
psychostimulant, naphthylprovalerone may be found to be an
analog of cathinone under California law. Further, as
naphthylpyrovalerone interacts with the same neurotransmitters
as cocaine, and produces similar effects, it could possibly be
said to be an analog of cocaine.
Committee staff is unaware of any case where a district attorney
was unable to prosecute sellers of so-called "bath salts" under
the analog statute. Nor is staff aware of any particular cases
where such a prosecution was upheld. However, discussions with
representatives of district attorneys indicate that the Los
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Angeles District Attorney may believe that his office can
prosecute bath salt (naphthylpyrovalerone) cases pursuant to the
analog law.
COULD SELLERS OF SO-CALLED BATH SALTS
(NAPHTHYLPYROVALERONE) BE PROSECUTED UNDER THE EXISTING
ANALOG LAW?
4. Analog Issues Concerning Cathinone and Related
Chemicals
This bill provides that commerce in cathinone and related
chemicals is a misdemeanor. However, as noted in Comment 3,
above, cathinone is a Schedule II controlled substance in
California. Commerce in the drug is a felony under existing
law. (Health & Saf. Code �� 11055, subd. (d)(8), and
11378-11379.) Simple possession of cathinone is a misdemeanor
(Health & Saf. Code � 11377, subd. (b)(3).)
Cathinone was added to Schedule II by AB 1141 (Anderson) in 2008
(Ch. 292.) Khat - the psychoactive leaves the Middle Eastern
shrub Catha Edulis - was also added to Schedule II. Khat is a
stimulant that is widely used in the Middle East and the Horn of
Africa. The leaves are chewed or made into a tea.
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The San Diego County District Attorney - the sponsor of AB 1411
- noted that there was a ready market among immigrants in
Southern California for smuggled khat. Cathinone is the
stimulant that is produced from Khat as an alkaloid, similar to
how cocaine is produced from coca leaves. Cathinone can also be
produced synthetically. Cathinone breaks down to cathine, a
less potent stimulant, within about 48 hours. (Much of the
background on khat and cathinone was drawn from the Website of
the New York State Office of Alcoholism and Substance Abuse
Services.)<2>
IS COMMERCE IN CATHINONE OR A RELATED CHEMICAL A FELONY
UNDER EXISTING LAW?
IS POSSESSION OF CATHINONE OR A RELATED CHEMICAL A MISDEMEANOR
UNDER EXISTING LAW?
5. Suggested Amendment to Allow Analog Prosecutions if this Bill
is Enacted
As noted above, cathinone is currently included as a Schedule II
drug in California. Simple possession of cathinone is a
misdemeanor and commerce in the drug is a felony. This bill
would enact a new misdemeanor for commerce in cathinone and
related chemicals. It appears that a substantial argument could
be made that possession or and commerce in naphthylpyrovalerone
could be prosecuted under the California analog statute.
However, Committee staff is not aware of any appellate decisions
specifically authorizing such prosecutions.
If this bill is enacted, defendants could make a very
substantial argument that they should be prosecuted for the
misdemeanors in this bill, not the existing specific crimes for
cathinone or an analog prosecution for naphthylpyrovalerone.
Statutory construction provides that a specific statute prevails
over a general statute when both cover the same subject. (In re
Williamson (1954) 43 Cal.2d 651, 654.) That argument would
appear to be persuasive as to naphthylpyrovalerone and could be
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<2> http://www.oasas.state.ny.us/AdMed/FYI/khat.cfm
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successful as concerns cathinone. Another rule of statutory
construction holds that where two statutes cover the same
subject, the more recent measure prevails, as that indicates
legislative intent to change the law. (People v. Bustamante
(1997) 57 Cal.App.4th 693, 701.) That would apply to the
cathinone provisions.
Concerns about conflicts between specific and general statutes
and between new and old statutes can be obviated with a "savings
clause." Such a clause provides that the enactment of a
specific or new statute does not prohibit prosecution under any
other provision of law. With such a clause in this bill,
prosecutors could choose to prosecute under this bill, the
existing cathinone provisions or the analog law.
SHOULD THIS BILL INCLUDE A SAVINGS CLAUSE PROVIDING THAT THIS
BILL SHALL NOT PROHIBIT PROSECUTION UNDER ANY OTHER PROVISION OF
LAW?
6. Difficulty of Prohibiting Synthetic Drugs
Drug policy experts have noted a trend toward the development,
distribution of synthetic drugs in recent years. The pace of
this trend has over the past few years. A major drug agency of
the European Union - the European Monitoring Center for Drugs
and Drug Addiction (EMCDDA) - annually report on emerging drug
trends. The 2010 report noted:
In 2009, 24 new synthetic psychoactive substances were
formally notified via the European early-warning
system. This is the largest number reported in a
single year, and the increase is mainly due to the
identification of nine new synthetic cannabinoids in
the past year. Also reported in 2009 were new
substances belonging to the chemical families usually
providing new psychoactive drugs: five
phenethylamines, two tryptamines and four synthetic
cathinones. No new piperazines or psychoactive plants
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were reported.<3>
A recent Bloomberg Businessweek story described the difficulty
of prohibiting new synthetic drugs, with particular emphasis on
synthetic cannabinoids:
Society may just be beginning to understand the
implications of a developing class of drugs that
deliver highs like the organic product without the
hassle of farming, that can be transported in small
bricks and not bales, that dogs can't or don't yet
know how to smell, and that leave no trace on drug
tests. There is every indication that synthetic
replicas of farmed drugs, legal or not, have arrived
for good.
Paul Cary, director of the Toxicology and Drug
Monitoring Laboratory at University of Missouri Health
Care in Columbia, Mo., works as an expert adviser for
the National Association of Drug Court Professionals.
While urine testing for some JWH compounds was
developed in late 2010, he says it remains expensive
and is available at only a handful of specialized labs
around the country. "Most designer drugs are produced
cheaply, extensively marketed, and quasi-legal. When
the labs and laws catch up, the chemists just move
on," he says. "The ability of laboratories to detect
designer drugs will always lag behind these illicit
chemists' ability to produce them." Adds DEA
spokesman Payne, "This stuff is not going away. We
are going to be dealing with synthetic use for a long
time, with new emerging chemicals coming up." <4>
WILL IT PROVE DIFFICULT TO PROHIBIT THE DEVELOPMENT OF SYNTHETIC
---------------------------
<3>
http://www.emcdda.europa.eu/online/annual-report/2010/new-drugs-a
nd-trends/2
<4>
http://www.businessweek.com/magazine/content/11_26/b4234058348635.
htm?chan=magazine+channel_top+stories
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DRUGS?
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