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  1. [...] Kroll, Who Decides What’s An Analog of a Controlled Substance? *A look at synthetic marijuana, side effects from its use, and federal regulation of these [...]

  2. wishdoctor
    Apr 11 - 11:57 AM

    Congress made a very glaring tyographical error in the 1986 Act that causes the courts to apply their own editorial correction that goees beyond the plain language.

    I find it puzzling that very few people notice the gramamatical ambiguity off the Act in its omission of the word “and” after (i) and the widespread assumption that the “and” after (ii) applies to the conjunction of (i) and (ii) which are linked with a “or.”

    See http://www.cognitiveliberty.org/dll/fed_analog_memo1.htm

    “[a] controlled substance analogue shall, to the extent intended for human consumption, be treated . . .as a controlled substance in Schedule I.” The term “controlled substance analogue” is defined as a substance:

    (i) the chemical structure of which is substantially similar to the chemical structure of a controlled substance in schedule I or II;

    (ii) which has a stimulant, depressant, or 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 controlled substance in schedule I or II; or

    (iii) 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 or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II.
    ——

    If you don’t believe me, read it yourself in 21 USC § 802 Definitions (32):

    (32)
    (A)Except as provided in subparagraph (C), the term “controlled substance analogue” means a substance—
    (i)the chemical structure of which is substantially similar to the chemical structure of a controlled substance in schedule I or II;

    (ii)which has a stimulant, depressant, or 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 controlled substance in schedule I or II; or

    (iii)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 or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II.

    (B)The designation of gamma butyrolactone or any other chemical as a listed chemical pursuant to paragraph (34) or (35) does not preclude a finding pursuant to subparagraph (A) of this paragraph that the chemical is a controlled substance analogue.

    (C)Such term does not include—
    (i)a controlled substance;

    (ii)any substance for which there is an approved new drug application;

    (iii)with respect to a particular person any substance, if an exemption is in effect for investigational use, for that person, under section 355 of this title to the extent conduct with respect to such substance is pursuant to such exemption; or

    (iv)any substance to the extent not intended for human consumption before such an exemption takes effect with respect to that substance.

  3. wishdoctor
    Apr 11 - 1:02 PM

    In brief, the Act defines Analogues as:
    i ;
    ii; or
    iii.

    Because there are three conditions linked only by one “or” it’s logical to infer a “or” after i, which would be so broad a definition as to make it absurd and without needed rational basis and thus unconstitutional for vagueness and lack of rational basis.

    Courts have redefined the language by interpreting it as [i AND ii] OR iii. But does that make any sense, really?

    And you say it’s up to the DEA to interpret it and declare specific substances as analogues but the sthat finding would rest on the *intent* of the marketer, not any inherent quality of the substance.

    Any federal judge could send that typographical error back to Congress, but it hasn’t happened.

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