21 U S. Code § 813 Treatment of controlled substance analogues U.S. Code LII Legal Information Institute

“Controlled substance plant” means a species of plant from which a controlled substance listed in Schedule I or II may be derived. If a judgment of guilt is reversed, set aside, or vacated and a new trial is ordered, the state may not prosecute in a single criminal action in the new trial any offense not joined in the former prosecution unless evidence to establish probable guilt for that offense was not known to the appropriate prosecution official at the time the first prosecution began. It is an affirmative defense to liability under this section that the synthetic substance produced, distributed, sold, or provided was approved for use, sale, or distribution by the United States Food and Drug Administration or other state or federal regulatory agency with authority to approve a substance for use, sale, or distribution. A person who is found liable under this section or other law for any amount of damages arising from the consumption or ingestion by another of a synthetic substance is jointly and severally liable with any other person for the entire amount of damages awarded. This section does not affect the right of a person to bring a common law cause of action against an individual whose consumption or ingestion of a synthetic cannabinoid resulted in causing the person bringing the suit to suffer personal injury or property damage.

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.

  • Since 1986, a law called the Federal Analogue Act has given prosecutors a tool to deal with so-called “designer drugs,” which crop up occasionally as a road around prohibited drugs.
  • The term includes the prescribing, administering, packaging, labeling, or compounding necessary to prepare the substance for delivery.
  • Refuses or fails to maintain security required by this chapter or a rule adopted under this chapter.
  • Legal advice must be tailored to the specific circumstances of each case, and the contents of this page is not a substitute for legal counsel.
  • Ct. 2298 , in which the Court held that “the Government must prove that a defendant knew that the substance with which he was dealing was a ‘controlled substance,’ even in prosecutions involving an analogue.” 135 S.
  • Each published schedule must show changes, if any, made in the schedule since its latest publication.

“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 alcohol allergy & intolerance symptoms & treatment to illegalize substances, one successfully and one unsuccessfully.

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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, don’t mix lithium & alcohol 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.

However, a few of them have been added to the list of controlled substances, which then enabled all of their direct analogs to become illegal as well. This includes compounds such as JWH-007, JWH-018, JWH-073, JWH-200, JWH-398, AM-1221, AM-2201, AM-694, and WIN-55,212-2. The law was passed in 1986 as a response to “designer drugs,” which are handcrafted substances made to mimic illegal drugs in order to circumvent bans. 232, considered the question of whether the drug alphaethyltryptamine was a controlled substance analogue in the USA.

federal analogue act

“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.

Interpretation of 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.

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 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.

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.

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.

Case Law

When charged with possession of analog or analogue drugs, you need an experienced NY designer drug defense lawyer to advocate for you. Cases related to designer drugs can be complicated because you may wish to argue the 7 stages of alcohol intoxication that the substance is not actually an analogue and is thus not illegal under state or federal controlled substances laws. An attorney with familiarity of the science behind drug manufacture can be an invaluable ally.

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.

federal analogue act

The defense to prosecution provided by Subsection does not preclude the admission of evidence obtained by law enforcement resulting from the request for emergency medical assistance if that evidence pertains to an offense for which the defense described by Subsection is not available. The provisions of this chapter relating to the possession of denatured sodium pentobarbital do not apply to possession by personnel of a humane society or an animal control agency for the purpose of destroying injured, sick, homeless, or unwanted animals if the humane society or animal control agency is registered with the Federal Drug Enforcement Administration. The provisions of this chapter relating to the distribution of denatured sodium pentobarbital do not apply to a person registered as required by Subchapter C, who is distributing the substance for that purpose to a humane society or an animal control agency registered with the Federal Drug Enforcement Administration. (b-1) If the director names a chemical substance as a chemical precursor for purposes of Subsection or designates a substance as an immediate precursor, a substance that is a precursor of the chemical precursor or the immediate precursor is not subject to control solely because it is a precursor of the chemical precursor or the immediate precursor. A veterinarian authorized to access information under Subsection regarding a controlled substance may access the information for prescriptions dispensed only for the animals of an owner and may not consider the personal prescription history of the owner. A dispenser is not subject to criminal, civil, or administrative penalties for dispensing or refusing to dispense a controlled substance under a prescription that exceeds the limits provided by Subsection .

What Is an “Analogue Drug”?

By an officer or investigator authorized to enforce this chapter within the scope of the officer’s or investigator’s official duties. If conduct that constitutes an offense under this section also constitutes an offense under any other law, the actor may be prosecuted under this section, the other law, or both. Refuses or fails to maintain security required by this chapter or a rule adopted under this chapter. Tampers with equipment that is manufactured or used to hold, apply, or transport anhydrous ammonia without the express consent of the owner of the equipment. If conduct constituting an offense under this section also constitutes an offense under another section of this code, the actor may be prosecuted under either section or under both sections. To the extent Subsection conflicts with another provision of this subtitle or another law, the other provision or the other law prevails.

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Dissemination by the board to the public in the form of a statistical tabulation or report if all information reasonably likely to reveal the identity of each patient, practitioner, or other person who is a subject of the information has been removed. “Ultimate user” means a person who has lawfully obtained and possesses a controlled substance for the person’s own use, for the use of a member of the person’s household, or for administering to an animal owned by the person or by a member of the person’s household. “Pharmacy” means a facility licensed by the Texas State Board of Pharmacy where a prescription for a controlled substance is received or processed in accordance with state or federal law.

U.S. Code § 813 – Treatment of controlled substance analogues

If the board provides access to information under Subsection relating to a person licensed or regulated by an agency listed in Subsection , the board shall notify that agency of the disclosure of the information not later than the 10th working day after the date the information is disclosed. The board shall remove from the information retrieval system, destroy, and make irretrievable the record of the identity of a patient submitted under this section to the board not later than the end of the 36th calendar month after the month in which the identity is entered into the system. However, the board may retain a patient identity that is necessary for use in a specific ongoing investigation conducted in accordance with this section until the 30th day after the end of the month in which the necessity for retention of the identity ends.

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