The prescriber clearly notes in the prescription record that the patient was diagnosed with cancer or sickle cell disease or is receiving hospice care, as applicable. For prescriptions described by Subdivision , patterns of prescribing combinations of those drugs and other dangerous combinations of drugs identified by the board. If the board withholds notification to an agency under Subsection , the board shall notify the agency of the disclosure of the information and the reason for withholding notification when the board determines that notification is no longer likely to interfere with an administrative or criminal investigation or prosecution. The Texas State Board of Pharmacy, through its executive director, has notified pharmacies in this state that pharmacists may dispense up to a 30-day supply of a prescription drug.
The second case that is relevant is the case of USA v Washam 312 F.3d 926, 930, in which it was considered whether the drug 1,4-butanediol (1,4-B) was a controlled substance analogue in the USA. The controlled drug which it was alleged 1,4-B was substantially similar to was gamma-hydroxybutyrate . Under part A, which can stand alone and is sufficient by itself to cause a substance to be classed as an analogue, any substance which is represented as having similar effects to a controlled drug will be treated as if it were that controlled drug. If you sold ordinary dextrose for the purpose of human consumption, but advertised it as being “like cocaine”, you could be prosecuted as if the sugar were actually cocaine. This is an important distinction, as if only part A needs to be fulfilled, then a compound with a substantially similar structure to a controlled drug but with no pharmacological effect, or completely different effects, could nevertheless be considered an analogue of that controlled drug despite having no abuse potential. Similarly if only part A needs to be fulfilled then a substance which produces substantially similar effects to a controlled drug despite having a completely different structure, could be considered an analogue of that controlled drug.
Designer Drugs and the Federal Analog Act
This note outlines the evolution of the designer drug problem; Congress’ response to it in the Controlled Substance Analogue Enforcement Act; and the act’s pitfalls, ramifications, and constitutional vulnerabilities. “Because the definition of ‘analogue’ as naltrexone for alcoholism applied here provides neither fair warning nor effective safeguards against arbitrary enforcement, it is void for vagueness.” File a petition for judicial review of the order contesting the occurrence of the violation, the amount of the penalty, or both.
- At the conclusion of an informal hearing requested under Subsection , the department may modify the amount of the recommended penalty.
- A document prepared under a rule adopted under this section must be completed, retained, and made available for inspection by the director.
- Cases related to designer drugs can be complicated because you may wish to argue that the substance is not actually an analogue and is thus not illegal under state or federal controlled substances laws.
- A prescription for a Schedule II controlled substance for a patient in a long-term care facility or for a hospice patient with a medical diagnosis documenting a terminal illness may be filled in partial quantities to include individual dosage units.
- The substance is an over-the-counter drug that qualifies for recognition as safe and effective under conditions established by federal regulations of the United States Food and Drug Administration governing over-the-counter drugs.
The administrative law judge shall make findings of fact and conclusions of law and promptly issue to the director a proposal for a decision about the occurrence of the violation and the amount of any proposed penalty. If a timely request for a formal hearing is not received, the director by order shall approve the determination from the informal hearing and impose the recommended penalty. Make a request for an informal hearing held by the department on the occurrence of the violation, the amount of the penalty, or both.
NY and Federal Laws on Analog Drug Possession or Analogue Drug Possession
The specific penalties faced for designer drug possession vary depending upon what type of analogue substance you have, what controlled substance the analog drug is similar to, and the amount of the substance under your control. Having higher amounts of an analogue drug can mean that you are charged not just with simple possession but charged with possession with intent to distribute, even absent proof of any attempt to distribute the drug. It is becoming more common for analogue drugs to find a foothold in the recreational drug community, even if they aren’t successful at circumventing the balancing risks, benefits of alcohol. Examples include bath salts, spice, and K2, all of which are powerful psychoactive drugs that aren’t specifically illegal. DMT analogs are a little bit harder to define because many forms of DMT are radically different from each other.
“Lawful possession” means the possession of a controlled substance that has been obtained in accordance with state or federal law. Is authorized by the base hospital or institutional training facility to administer, dispense, or prescribe controlled substances. “Deliver” means to transfer, actually or constructively, to another a controlled substance, counterfeit substance, or drug paraphernalia, regardless of whether there is an agency relationship.
What Is the Federal Analogue Act?
However, a jury in Federal District Court in Chicago in a different case found 1,4-butanediol not to be an analog of GHB under federal law, and the Seventh Circuit Court of Appeals upheld that verdict and so 1,4-butanediol is currently not a controlled substance analogue. The executive commissioner shall supervise the distribution of the tetrahydrocannabinols and their derivatives to program participants. An offense under Subsection is a Class B misdemeanor if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, less than 28 grams.
Similarly there is no guidance as to how similar the hallucinogenic, stimulant or depressant effect of a novel substance has to be to the effects of a controlled drug in order to be “substantially similar”. Since the wording of subparagraph A states that the effects of the substance in question must be “substantially similar to or greater than” the effects of the controlled drug, it implies that a substance which produces effects that were similar to, but considerably weaker than, the effects of the controlled drug in question, might not be covered by part A. With respect to a particular person, which such person represents or intends to have a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to . If the person gave a supersedeas bond and the amount of the penalty is reduced, the court shall order the release of the bond after the person pays the reduced amount. If the court does not sustain the finding that a violation occurred, the court shall order that a penalty is not owed.
Adding or removing a single carbon atom can drastically change the behavior of a drug, making such a phrase practically meaningless in a pharmaceutical context. An additional important point is that states are free to set and enforce their own laws, regardless of federal policies. Some states have instituted bans or restrictions on cannabinoids, something they can do without appealing to the Federal Analogue Act, which operates at the federal level. There were a ton of THC analogs on the market prior to the introduction of the Federal Analogue Act. The lack of any definition of “substantially similar” for either of parts A or A makes this Act very difficult for lawyers and judges to interpret, and indeed in one of the cases which have dealt with this Act, the wording has been criticized by the judge for being “unconstitutionally vague”. 100–690 substituted “any Federal law” for “this subchapter and subchapter II of this chapter”.
“Principal place of business” means a location where a person manufactures, distributes, dispenses, analyzes, or possesses a controlled substance. The term does not include a location where a practitioner dispenses a controlled substance on an outpatient basis unless the controlled substance is stored at that location. As with other drug offenses, a great defense starts with an examination of the government’s investigation. Berry Law works tirelessly to uphold and protect our clients’ constitutional rights, including the right to be free from unreasonable searches and seizures. If the officer unlawfully searched a vehicle, office, home, computer, or phone, the designer drug lawyers at Berry Law in Lincoln will fight to keep the evidence found during that search out of court. On appeal, he argued that his jury should have been told that proving criminal intent would require showing that he knew that his bath salts were chemically similar to a controlled substance and that they had a similar pharmacological effect.
An offense under Subsection is a felony of the first degree if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, 200 grams or more but less than 400 grams. An offense under Subsection is a felony of the second degree if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, four grams or more but less than 200 grams. An offense under Subsection is a felony of the third degree if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, one gram or more but less than four grams. The board by rule shall authorize a practitioner to determine whether it is necessary to obtain a particular patient identification number and to provide that number in the electronic prescription record. Shall take reasonable precautionary measures to ensure that an official prescription form issued to the practitioner is not used by another person to violate this subchapter or a rule adopted under this subchapter.
The notice of the director’s order under Subsection that is sent to the person in the manner provided by Chapter 2001, Government Code, must include a statement of the right of the person to judicial review of the order. Has symptoms or side effects from treatment that may be alleviated by medical use of tetrahydrocannabinols or their derivatives. Members serve without compensation but are entitled to reimbursement for actual and necessary expenses incurred in performing official duties. A document prepared under a rule adopted under this section must be completed, retained, and made available for inspection by the director. If a person who occupies or controls land or premises on which the plants are growing fails on the demand of a peace officer to produce an appropriate registration or proof that the person is the holder of the registration, the officer may seize and summarily forfeit the plants. “Summary forfeiture” or “summarily forfeit” means forfeiture without the necessity of any court action, a court order, or further proceedings.
“Institution of higher education” means any public or private technical institute, junior college, senior college or university, medical or dental unit, or other agency of higher education as defined by Section 61.003, Education Code. If it appears that a defendant or the state is prejudiced by a joinder of offenses, the court may order separate trials of the offenses or provide other relief as justice requires. If the accused is found guilty of more than one offense arising out of the same criminal episode prosecuted in a single criminal action, sentence for each offense for which the accused has been found guilty shall be pronounced, and those sentences run concurrently. Furnishes false or fraudulent material information in or omits material information from an application, report, record, or other document required to be kept or filed under this chapter.
United States v. Turcotte, 405 F.3d 515 (7th Cir. 2005) “With specific regard to 1,4 Butanediol, the jury has returned a special verdict which states that 1,4-Butanediol is not a Schedule I Narcotic Drug Controlled Substance analogue, because 1,4-Butanediol’s chemical structure is not significantly similar to the chemical structure of GHB. However, despite this ruling the Federal Analogue Act was not revised, and instead AET was specifically scheduled to avoid any future discrepancies. If a penalty is proposed under Subsection , the administrative law judge shall include in the proposal for a decision a finding setting out costs, fees, expenses, and reasonable and necessary attorney’s fees incurred by the state in bringing the proceeding. The director may adopt the finding and impose the costs, fees, and expenses on the person as part of the final order entered in the proceeding.
Controlled Substance Analogue Enforcement Act of 1986: The Compromising of Criminalization
“Dispenser” means a practitioner, institutional practitioner, pharmacist, or pharmacy that dispenses a controlled substance. The substance has a “chemical structure” which is “substantially similar” to an already-controlled substance. Two major court cases have attempted to use the Federal Analogue Act to illegalize substances, one successfully and one unsuccessfully.
If a substance listed in this section is also listed in another penalty group, the listing in the other penalty group controls. If the discrepancy, loss, or theft occurred during a shipment of the chemical precursor, include the name of the common carrier or person who transported the chemical precursor and the date that the chemical precursor was shipped. Subsection does not apply to a prescription for an opioid approved by the United States Food and Drug Administration for the treatment of substance addiction that is issued by a practitioner for the treatment of substance addiction. A person authorized to receive information may annually take the professional education course under this section to fulfil hours toward the ethics education requirement of the person’s license, certification, or registration.
A prescriber may reapply for a subsequent waiver not earlier than the 30th day before the date the waiver expires if the circumstances that necessitated the waiver continue. Each published schedule must show changes, if any, made in the schedule since its latest publication. Except as otherwise provided by Subsection (f-1), an emergency scheduling under this section expires on September 1 of each odd-numbered year for any scheduling that occurs before January 1 of that year. May lead to a more limited physical or psychological dependence liability than that of the substances listed in Schedule IV. Abuse of the substance may lead to moderate or low physical dependence or high psychological dependence. “Substitution” means the dispensing of a drug or a brand of drug other than that which is ordered or prescribed.
Interpretation of the Federal Analogue Act
The goal of the natural remedies for alcohol addiction treatment was to make it possible to control designer drugs without having to ban each one individually. The legal system is slow by design, making it challenging to stay on top of containing newly produced dangerous substances in a timely manner. It can take years for legislation to work its way through the system, and designer drugs can proliferate during that time. The designation of gamma butyrolactone or any other chemical as a listed chemical pursuant to paragraph or does not preclude a finding pursuant to subparagraph of this paragraph that the chemical is a controlled substance analogue.
On the other hand under part C, none of this applies if it can be proven that the substance is not intended for human consumption. It is unclear which way the burden of proof would lie, i.e. whether the defendant would have to prove that the substance was not for human consumption, or if the prosecution would have to prove that the substance was for human consumption. Normally the burden of proof rests on the prosecution, but this is not always the case for certain offences such as those involving drugs or terrorism. For purposes of this section, evidence that a substance was not marketed, advertised, or labeled for human consumption, by itself, shall not be sufficient to establish that the substance was not intended for human consumption. Following receipt of a copy of an affidavit under Subsection , the director may file with the court, before the sixth day after the date of receipt, a contest to the affidavit.