December 17, 2010
“FAKE POT” PRODUCTS
By: John Kasprak, Senior Attorney
You asked for information on “Spice” or “K2,” known as “fake pot” or “legal bud,” products. You are interested in any federal action concerning these products.
The federal Drug Enforcement Administration (DEA) has taken emergency action to outlaw chemicals used to make synthetic marijuana, meaning that it will be illegal to possess or sell products containing such chemicals for at least one year, until further action is taken. The ban takes effect on December 24, 2010. The chemicals used to make “fake pot” products, known as Spice, K2 and a variety of other names, will be further studied by the federal Department of Health and Human Services (HHS) and DEA to determine whether these chemicals and products should be permanently controlled.
“FAKE POT” PRODUCTS
Over the past year or so, smokable herbal blends marketed as “legal” and providing a marijuana-like high have become increasingly popular, particularly among teens and young adults. These products, known by names such as Spice, K2, Sence, Genie, Mr. Nice Guy, Blaze, Red X Dawn, and others, consist of plant material that has been coated with research chemicals that mimic THC, the active ingredient in marijuana.
They are sold at a variety of retail outlets, in head shops, and over the Internet. These chemicals have not been approved by the U.S. Food and Drug Administration (FDA) for human consumption and there is no oversight of the manufacturing process.
Since 2009, the DEA has received an increasing number of reports from poison centers, hospitals, and law enforcement agencies concerning these products. The federal Controlled Substances Act (CSA) allows the DEA administrator to emergency schedule an abused, harmful, non-medical substance in order to avoid an imminent public health crisis while the formal rulemaking process is conducted by the agency (21 U.S.C. 811(h)).
The DEA announced in late November 2010, that it was using its emergency scheduling authority to temporarily control five chemicals use to make “fake pot” products. These chemicals are JWH-018, JWH-073, JWH-200, CP-47,497 and cannabicyclohexanol. DEA's scheduling of these chemicals makes it illegal, except as authorized by law, to possess and sell them or products that contain them, for at least one year while the DEA and HHS further study whether they should be permanently controlled. DEA's authority derives from CSA, § 21 U.S.C. 811(h)).
A “Notice of Intent to Temporarily Control” was published in the Federal Register on November 24, 2010 to alert the public to this action. Within 30 days (by December 24), DEA will publish a “Final Rule to Temporarily Control” these chemicals in the Federal Register for at least 12 months with the possibility of a six month extension. They will be designated as “Schedule I” substances, the most restrictive category reserved for unsafe, highly abused substances with no medical usage (see http://www.deadiversion.usdoj.gov/fed_regs/rules/2010/fr1124.htm).
Synthetic cannabinoids have been developed over the last 30 years for research purposes to investigate the cannabinoid system. No legitimate non-research uses have been identified for them according to the DEA.