NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A6971
SPONSOR: Barclay TITLE OF BILL: An act to amend the public health law, the penal law
and the general business law, in relation to synthetic cannabinoids,
synthetic cannabinoid analog and substituted cathinones and prohibiting
the production and sale thereof
PURPOSE OR GENERAL IDEA OF BILL: To prohibit the sale and distribution
of synthetic cannabinoids (synthetic marijuana) and substituted cathi-
nones (bath salts) by adding, it to the control substance list. The
legislation amends the penal law to include synthetic cannabinoids or
synthetic cannabinoid analog and substituted cathinones. Additionally,
this legislation amends the General Business Law to prohibit the sale of
these products based on mislabeling.
SUMMARY OF SPECIFIC PROVISIONS:; Section 1 of the bill adds three new
subdivisions, to section 3302 of the Public Health Law.
Subdivision 42 Defines synthetic cannabinoids as a chemical compound
that is chemically synthesized. Synthetic cannabinoids arc chemicals
that have a binding effect on one or more cannabinoid receptors, or are
a chemical isomer, salt or salt of an isomer of a compound that has
demonstrated to have a binding activity at one or more cannabinoid
receptors. Additionally, a synthetic cannabinoid can be defined in regu-
lation by the Commissioner of Health as being a synthetic cannabinoid.
Subdivision 43 - Synthetic cannabinoid analog is defined as any chemical
that is substantially similar in chemical structure to a chemical
compound that has been determined to have binding activity at one or
more cannabinoid receptors. This definition would not apply to any
products that have been approved for medical use by the United States
Food and Drug Administration.
Subdivision 44 - Defines substituted cathinones as any chemical compound
that is chemically synthesized and (a) listed in the Schedule I of the
Controlled Substances list or; (b) has been designated in regulation by
the Commissioner of Health as having a chemical structure derivative of
cathinone; or (c) Any compound, other than buproprion, that is struc-
turally derived from 2-amino-I-phenyl-Ipropanone by modification in any
of the following ways: (i) By substitution in the phenyl ring to any
extent with alkyl,alkoxy, alkylenedioxy, baloalkyl, or halide substi-
tuents, whether or not further substituted in the phenyl ring by one or
more other univalent substituents;(ii) By substitution at the 3-position
with an alkyl substitutent; (iii) By substitution at the nitrogen atom
with alkyl or dialkyl croups, or by inclusion of the nitrogen atom in a
cyclic structure.
Section of the bill amends Subdivision 5 and 6 of section 220.00 of the
Penal law to add substituted cathinones to the definition of substances
listed in the schedules of controlled substances and synthetic marijuana
and synthetic cannabinoid analog to the definition of marijuana.
Section 2 of the bill amends Subdivision 6 of section 220.00 of the
Penal Law by adding, to the definition of marijuana to include synthetic
cannabinoid or synthetic cannabinoid analog.
Section 3 amends the General Business law by adding a new section 399-ff
to prohibit the sale of synthetic cannabinoid and substituted cathi-
nones.
Subdivision 1 - Defines synthetic cannabinoid and substituted cathinone
as previously defined in this legislation.
Subdivision 2 - Prohibits the sale of synthetic cannabinoid or substi-
tuted cathinone or any other substance intended to act as or advertised
as an alternative form of controlled substance.
Subdivision 3 - Whether a violation of this section has occurred is a
question of law for the court.
Subdivision 4 - If there is a violation of this section, an application
can be made to the Attorney General in the name of the people of the
state of New York to a court or justice having jurisdiction by a special
proceeding to issue an injunction. The defendant would have not less
than 5 days to cease selling the product after the injunction is issued.
If it is determined that the defendant has violated this section of the
law, the penalties for such a violation is the following: (i) a
violation of this section shall be a penalty of $5,000 for each separate
violation; (ii) a violation of the provisions of this section after
being previously convicted of such an offense within the previous 5
years shall be a Class A Misdemeanor punishable by a fine of $10,000 for
each separate violation; (iii) for selling to a person under the age of
eighteen shall be a Class E Felony as defined in Penal Law.
JUSTIFICATION: Synthetic drugs, those that mimic the effects of banned
drugs have increasing become a public safety concern throughout the
country. To circumvent state and federal drug laws, the manufacturers of
these synthetic drugs market their products under the guise' of being a
commonly used product, such as bath salts or incense. As a result, a
person can purchase these "mislabeled" items at a local convenience
store, smoke shop or on the internet.
When smoked or snorted, bath salts produce a reaction similar to what
cocaine produces. Likewise, synthetic cannabinoid ("synthetic marijua-
na") produces similar reactions to smoking or ingesting marijuana. News
reports, the medical community and the Poison Control Center have
reported that the users of these products were having strong psychotic
effects as a result of ingesting or smoking the drug, including extreme
paranoia, hallucinations, hypertension and suicidal thoughts.
Addressing this issue has proven to be a difficult task. As mentioned
earlier, these products are labeled as other products, such as shoe
deodorant, bath salts, or incense. Despite the various state and federal
laws and regulations that have been adopted to combat the sale and use
of these products, synthetic drug manufacturers have been successful in
circumventing the law because the state and federal government bans
drugs based on the chemical composition of the drug. Typically, once a
chemical compound is banned, manufacturers will simply alter the drugs
chemical composition. To give an example of how this ban is easily
circumvented, one manufacturer and distributor of incense states on its
website that it is DEA compliant.
In 2012, the Commissioner of the Department of Health issued an Execu-
tive Order banning the sale and distribution of certain products known
to be synthetic marijuana. This ban was later expanded in August to
include products known to be bath salts and other synthetic drugs that
were not included in the original ban. The penalties for using or sell-
ing synthetic drugs include a $500 fine and a fifteen day jail sentence.
Additionally, in July 2012, the federal government banned certain
synthetic marijuana and bath salts compounds.
While action has occurred at the state and federal level, the problem
with synthetic drugs still remain. Makers of these products continue to
alter the chemical composition of these drugs and they continue to
mislabel these products which are sold in stores.
This comprehensive legislation addresses the issue of mislabeling, chem-
ical compound swapping and implements stricter penalties. In respect to
synthetic cannabinoids, a.k.a. synthetic marijuana, it bans products
that produce the same effect on a person's cannabinoid receptors and
creates penalties for possession in line with marijuana possession. For
substituted cathinones, it bans certain molecular structures and expands
the previous law banning bath salts. Additionally, it adds it to the
controlled substance list and creates penalties for possession.
One important component of this legislation is that it gives the Commis-
sioner of the Department of Health broad powers to add synthetic drugs
to the list of prohibited substances without requiring the Legislature
to enact legislation to do so. This allows the Commissioner the ability
to act immediately if necessary to add synthetic drugs to the list of
prohibited substances and it eliminates the need for the legislature to
revisit this issue each time a new chemical compound is introduced. This
is a proactive approach to addressing the issue of chemical swapping.
Lastly, this legislation addresses the sale of these products in stores,
such as convenience stores and head shops. This part of the legislation
is structured similar to the legislation enacted in Illinois. It prohib-
its the sale of synthetic drugs based on mislabeling. This has been
another way that makers and those who sell these products in their
stores circumvent state and federal laws. Under this legislation, if a
person believes that a store is selling synthetic drugs, they can file a
complaint with the Attorney General. Based on the evidence provided,
the Attorney General can act and make an application to the court
requesting a special procedural, to issue an injunction to stop selling
the product. If it is determined by the court that the store violated
the law of mislabeling there are a series of penalties. For the first
violation, the penalty is $5,000 for each separate violation. For any
subsequent violations within 5 years, the penalty will be a Class A
Misdemeanor punishable by a fine of $10,000 for each violation. If the
store sold the mislabeled synthetic drag to a minor, the penalty would
be a Class E Felony.
PRIOR LEGISLATIVE HISTORY: New Bill.
FISCAL IMPLICATIONS: Undetermined.
EFFECTIVE DATE: Immediately.
STATE OF NEW YORK
________________________________________________________________________
6971
2013-2014 Regular Sessions
IN ASSEMBLY
April 29, 2013
___________
Introduced by M. of A. BARCLAY -- read once and referred to the Commit-
tee on Health
AN ACT to amend the public health law, the penal law and the general
business law, in relation to synthetic cannabinoids, synthetic canna-
binoid analog and substituted cathinones and prohibiting the
production and sale thereof
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 3302 of the public health law is amended by adding
2 three new subdivisions 42, 43 and 44 to read as follows:
3 42. "Synthetic cannabinoid" means any chemical compound that is chemi-
4 cally synthesized and:
5 (a) has been demonstrated to have a binding activity at one or more
6 cannabinoid receptors; or
7 (b) is a chemical isomer, salt or salt of an isomer of a compound that
8 has been demonstrated to have binding activity at one or more cannabi-
9 noid receptors; or
10 (c) has been designated in regulation by the commissioner as being a
11 synthetic cannabinoid.
12 "Synthetic cannabinoid" does not include any products that have been
13 approved for medical use by the United States Food and Drug Adminis-
14 tration.
15 43. "Synthetic cannabinoid analog" means any chemical that is substan-
16 tially similar in chemical structure to a chemical compound that has
17 been determined to have binding activity at one or more cannabinoid
18 receptors. It does not include any products that have been approved for
19 medical use by the United States Food and Drug Administration.
20 44. "Substituted cathinone" means any chemical compound that is chemi-
21 cally synthesized and:
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD04867-05-3
A. 6971 2
1 (a) is a compound listed in paragraph five, eight or nine of subdivi-
2 sion (f) of Schedule I of section thirty-three hundred six of this arti-
3 cle, or
4 (b) has been designated in regulation by the commissioner as having a
5 chemical structure derivative of cathinone, or
6 (c) any compound, other than buproprion, that is structurally derived
7 from 2-amino-1-phenyl-1-propanone by modification in any of the follow-
8 ing ways:
9 (i) by substitution in the phenyl ring to any extent with alkyl,
10 alkoxy, alkylenedioxy, haloalkyl, or halide substituents, whether or not
11 further substituted in the phenyl ring by one or more other univalent
12 substituents;
13 (ii) by substitution at the three-position with an alkyl substitutent;
14 (iii) by substitution at the nitrogen atom with alkyl or dialkyl
15 groups, or by inclusion of the nitrogen atom in a cyclic structure.
16 § 2. Subdivisions 5 and 6 of section 220.00 of the penal law, subdivi-
17 sion 5 as amended by chapter 537 of the laws of 1998, and subdivision 6
18 as amended by chapter 1051 of the laws of 1973, are amended to read as
19 follows:
20 5. "Controlled substance" means any substance listed in schedule I,
21 II, III, IV or V of section thirty-three hundred six of the public
22 health law other than marihuana, but including concentrated cannabis as
23 defined in paragraph (a) of subdivision four of section thirty-three
24 hundred two of such law, and substituted cathinones as defined in
25 section thirty-three hundred two of the public health law.
26 6. "Marihuana" means "marihuana" [or], "concentrated cannabis",
27 "synthetic cannabinoid" or "synthetic cannabinoid analog" as those terms
28 are defined in section thirty-three hundred two of the public health
29 law.
30 § 3. The general business law is amended by adding a new section 399-
31 ff to read as follows:
32 § 399-ff. Sale of synthetic cannabinoid and substituted cathinone
33 prohibited. 1. For purposes of this section, "synthetic cannabinoid"
34 means any substance defined by subdivision forty-two or forty-three of
35 section thirty-three hundred two of the public health law and "substi-
36 tuted cathinone" means any substance defined by subdivision forty-four
37 of section thirty-three hundred two of the public health law.
38 2. No person, corporation, partnership or limited liability company
39 shall knowingly sell or offer for sale any form of synthetic cannabi-
40 noid, substituted cathinone or any other substance intended to act as or
41 advertised as an alternative form of a controlled substance. No person,
42 corporation, partnership or limited liability company shall offer any
43 substance for sale where there has been an explicit or implied claim
44 made by the selling party that the substance sold will mimic or approxi-
45 mate the same effects of cannabinoid, synthetic cannabinoid, substituted
46 cathinone or any other substance intended to act as or advertised as an
47 alternative form of a controlled substance.
48 3. Whether a violation of this section has occurred is a question of
49 law for the court.
50 4. Whenever there shall be a violation of this section an application
51 may be made by the attorney general in the name of the people of the
52 state of New York to a court or justice having jurisdiction by a special
53 proceeding to issue an injunction, and upon notice to the defendant of
54 not less than five days, to enjoin and restrain the continuance of such
55 violations; and if it shall appear to the satisfaction of the court or
56 justice that the defendant has, in fact, violated this section, an
A. 6971 3
1 injunction may be issued by the court or justice, enjoining and
2 restraining any further violations, without requiring proof that any
3 person has, in fact, been injured or damaged thereby. In any such
4 proceeding, the court may make allowances to the attorney general as
5 provided in paragraph six of subdivision (a) of section eighty-three
6 hundred three of the civil practice law and rules, and direct restitu-
7 tion. A violation of the provisions of this section shall be an offense
8 punishable by a penalty of five thousand dollars for each separate
9 violation. A violation of the provisions of this section after having
10 been previously convicted of such an offense within the previous five
11 years shall be a class A misdemeanor punishable by a fine of ten thou-
12 sand dollars for each separate violation. The penalties for any such
13 violation should be such an illegal sale have been made to a person
14 under the age of eighteen shall be a class E felony as defined in the
15 penal law.
16 § 4. This act shall take effect immediately.
