BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 1036 Hearing Date: April 5, 2016
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|Author: |Hernandez |
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|Version: |February 12, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|JM |
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Subject: Controlled Substances: Synthetic Cannabinoids:
Analogs
HISTORY
Source: Author
Prior Legislation:SB 139 (Galgiani) Currently held at the
Assembly Desk
AB 486 (Hueso) - Ch. 656, Stats. 2011
SB 420 (Hernandez) - Ch. 420, Stats. 2011
AB 2420 (Hueso) - Died in Assembly Public Safety,
2012
AB 1141 (Anderson) - Ch. 292, Stats 2007
Support: Association of Deputy District Attorneys; Association
for Los Angeles Deputy Sheriffs; California
Association of Code Enforcement Officers; California
College and University Police Chiefs Association;
California Narcotic Officers Association; California
Police Chiefs Association; California State Sheriffs'
Association; Consortium Management Group; Los Angeles
County Professional Peace Officers Association; Los
Angeles Police Protective League; Riverside Sheriffs
Association
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Opposition:American Civil Liberties Union; California Attorneys
for Criminal Justice; California Public Defenders
Association; Drug Policy Alliance
PURPOSE
The purpose of this bill is to provide that a synthetic
cannabinoid that is an analog of another synthetic cannabinoid
on the list of prohibited synthetic cannabinoids shall be
treated as though it were specifically included in the list.
Existing federal law classifies drugs into five schedules. (21
U.S.C. § 812.)
Existing California law generally follows federal law as to the
assigned schedule, but does not set out the criteria for the
schedules that are included in federal law. (Health & Saf,
Code § 11054 et seq.)
Existing law provides that an analog of a controlled substance
that is defined or listed as a Schedule I or II drug shall be
"treated the same" as the specifically scheduled drug. An
analog is defined as follows:
(1) A substance the chemical structure of which is
substantially similar to the chemical structure of a
controlled substance classified in Section 11054 or
11055.
(2) A substance which has, is represented as having,
or is intended 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
classified in Section 11054 or 11055. (Health & Saf.
Code § 11401, subds. (a)-(b).
Existing law provides the following exceptions to the
analog statute:
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(1) Any substance for which there is an approved new
drug application as defined under Section 505 of the
federal Food, Drug, and Cosmetic Act (21 U.S.C. Sec.
355) or which is generally recognized as safe and
effective for use pursuant to Sections 501, 502, and
503 of the federal Food, Drug, and Cosmetic Act (21
U.S. C. Secs. 351, 352, and 353) and 21 C.F.R. Section
330 et seq.
(2) With respect to a particular person, any
substance for which an exemption is in effect for
investigational use for that person under Section 505
of the federal Food, Drug, and Cosmetic Act (21 U.S.C.
Sec. 355), to the extent that the conduct with respect
to that substance is pursuant to the exemption.
(Health & Saf. Code § 11401, subd (c).)
Existing law prohibits possession of or commerce in specified
drugs by individual statutes, not by reference to or inclusion
in the controlled substance schedules. Such drugs include
synthetic cannabinoids and nitrous oxide. (Health & Saf. §
11357.5; Pen. Code § 381b and 381c.)
Existing law provides that any person who possesses for sale,
sells or furnishes any synthetic cannabinoid compound shall be
punished by imprisonment in the county jail for up to six
months, a fine of up to $1,000, or both. (Health & Saf. Code §
11357, subd. (a.)
Existing law provides that, a person who "uses or possesses" a
specified synthetic cannabinoid or specified synthetic stimulant
is guilty of an infraction. (Health and Saf. Code § 11357.5.)
This bill provides that a synthetic cannabinoid will be deemed
to be included in the list of prohibited synthetic cannabinoids
and subject to the same penalty as those synthetic cannabinoids
enumerated in current law, if the drug or chemical is an analog
of any synthetic cannabinoid that is specifically included in
that list.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past several years this Committee has scrutinized
legislation referred to its jurisdiction for any potential
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impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In December of 2015 the administration reported that as "of
December 9, 2015, 112,510 inmates were housed in the State's 34
adult institutions, which amounts to 136.0% of design bed
capacity, and 5,264 inmates were housed in out-of-state
facilities. The current population is 1,212 inmates below the
final court-ordered population benchmark of 137.5% of design bed
capacity, and has been under that benchmark since February
2015." (Defendants' December 2015 Status Report in Response to
February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge
Court, Coleman v. Brown, Plata v. Brown (fn. omitted).) One
year ago, 115,826 inmates were housed in the State's 34 adult
institutions, which amounted to 140.0% of design bed capacity,
and 8,864 inmates were housed in out-of-state facilities.
(Defendants' December 2014 Status Report in Response to February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).)
While significant gains have been made in reducing the prison
population, the state must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
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Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1.Need for This Bill
According to the author:
In 2011, Governor Jerry Brown signed into law SB 420
(Hernandez), banning the sale of a specific
formulation of synthetic cannabis, or "spice."
Subsequently, spice manufacturers began making
slightly different variations, thus staying one step
ahead of the law. This presents a uniquely difficult
situation for lawmakers, given the deliberate pace
with which any new legislation moves, making it
impossible to quickly outlaw new substances as they
come on the market. SB 1036 will allow for the
banning of even slight variations in synthetic
marijuana, provided that the chemical makeup and
intoxicating effects are similar to the already-banned
formulation.
According to the National Conference on State
Legislatures (NCSL) which tracks legislation, analogue
laws are: "?to ban drugs that are not classified as a
controlled substance but are very similar to ones that
have been identified and outlawed. Generally, these
laws require that the analogue drug be substantially
similar in chemical structure and intoxicating
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(pharmacological) effects as a scheduled controlled
substance. According to the National Alliance for
Model State Drug Laws, 34 states have analogue laws,
and a number of states have amended their analogue
laws to specifically address emerging synthetic
substances."
While outlawing certain families of substances can be
helpful, the ingenuity of the criminal mind ensures
that new, potentially more dangerous drugs, will take
their place. Putting a comprehensive ban in place will
assist in forestalling these efforts.
2.Controlled Substance Analogs - Health and Safety Code Sections
11400 and 11401
California law treats a substance that is the chemical or
functional equivalent of a drug listed in Schedule I or II of
the controlled substance schedules the same as a scheduled drug.
Such a drug is defined as a controlled substance analog.
Schedule I drugs are deemed to have no medical utility and a
high potential for abuse. Schedule II drugs have legitimate
medical uses, but also a high potential for abuse.
Newly developed synthetic cannabinoids, or synthetic
cannabinoids that are not on the existing list of prohibited
synthetic cannabinoids, are not covered by the California analog
statute. That is because they are not included in Schedule I or
II of the controlled substances schedules, or any of the five
schedules. Illegal synthetic cannabinoids are separately defined
and prohibited. T
As described elsewhere in this analysis, synthetic cannabinoids
are chemically and functionally unusual and variable.
Health and Safety Code Section 11401 defines an analog as
follows:
(1) A substance the chemical structure of which is
substantially similar to the chemical structure of a
controlled substance classified in Section 11054 or
11055.
(2) A substance which has, is represented as having,
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or is intended 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
classified in Section 11054 or 11055.
It is difficult to predict how this bill would be implemented in
practice. As noted in the comments below, the main commonality
among the extremely varied synthetic cannabinoids is that they
bind to the same receptors in the brain and elsewhere in the
body. It appears that it has been difficult to develop known
samples against which seized drugs or chemicals can be compared
to determine if a chemical is a synthetic cannabinoid, if it is
a synthetic cannabinoid on a list of prohibited chemicals, or to
determine if the chemical is an analog of specifically
prohibited synthetic cannabinoid.
Discussions with experts at <1>RTI International, a scientific
research firm that contracts with the Drug Enforcement
Administration, various government entities and private firms,
indicated that determining in litigation that any particular
chemical is an analog of a prohibited synthetic cannabinoid
might not be an easy task. This would be particularly true if a
defendant presented an expert to raise questions about whether a
questioned drug is substantially similar in chemical structure
to a prohibited synthetic cannabinoid. Commonalities have been
found in structure and composition among known synthetic
cannabinoids, but it appears that these commonalties do not
necessarily mean particular chemicals are analogs. Further, the
effects of synthetic cannabinoids are quite varied. Difficult
issues could be raised about whether a questioned drug has
substantially similar "effect on the central nervous system" of
a user.
Possession of a synthetic cannabinoid is an infraction.
Commerce is a misdemeanor. A defendant charged with an
infraction is not likely to hire scientific experts to challenge
an allegation that the drug seized from him or her is a
synthetic cannabinoid analog. A person who is in the business
of selling synthetic cannabinoids may be motivated to mount such
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<1>
http://www.rti.org/search.cfm?cx=015240139217186871124%3Axuvfq1dy
cqy&cof=FORID%3A11&ie=UTF-8&q=synthetic+cannabinoids&sa=Search
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a challenge.
Finally, RTI experts expressed concerns that entirely new
classes of synthetic cannabinoids could be developed that are
much different in composition and effect than even the varied
versions of synthetic cannabinoids that are known at this time.
As is discussed more fully below, the newer versions of
synthetic cannabinoids appear to be more dangerous and
unpredictable than the first generation of chemicals,
particularly those developed through academic research.
Arguably, the development of an analog standard that can apply
to new classes of synthetic cannabinoids may be necessary to
avoid creation of ever more dangerous chemicals. Without such a
standard, illicit drug makers will attempt to create compounds
not covered by current law. RTI is working to develop analytical
techniques to screen for and identify new designer drugs and
establish that questioned chemicals are analogs of currently
prohibited synthetic cannabinoids.<2>
3.Background - Synthetic Cannabinoids
Synthetic cannabinoids come in two basic forms. CB1
cannabinoids bind to CB1 cannabinoid receptors in the brain.
CB2 cannabinoid receptors bind to cells throughout the body that
are largely involved in regulating the immune system. THC binds
to CB1 and CB2 receptors. CB1 cannabinoids have psychoactive
properties.<3> Typically statutes, news reports and academic
works concern CB1 synthetic cannabinoids. Synthetic cannabinoid
compounds were developed in basic medical research for
controlled studies of the functions of cannabinoid receptors in
the brain and body. These receptors bind with endogenous
cannabinoids (produced naturally in the body) and with the
active chemicals in cannabis.
The European Monitoring Centre for Drugs and Drug Addiction
(EMCDDA) is a European Union agency that "exists to provide the
EU ? with a factual overview of European drug problems and a
solid evidence base to support the drugs debate."
The EMCDDA website includes the Following Information about
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<2>
https://www.rti.org/pubs/grabenaueranalysisofsyntheticcannabinoid
ssummaryfinal.pdf
<3> http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3567606/
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Synthetic Cannabinoids:
Synthetic cannabinoids ?. bind to the same cannabinoid
receptors in the brain [as THC] ? More correctly
designated as cannabinoid receptor agonists, they were
developed over the past 40 years as therapeutic
agents. ? However, it proved difficult to separate
the desired properties from unwanted psychoactive
effects. ?[M]any of the substances are not
structurally related to the so-called "classical"
cannabinoids like THC?[L]ittle is known about the
detailed pharmacology and toxicology of the synthetic
cannabinoids and few formal human studies have been
published. It is possible that, apart from high
potency, some cannabinoids could have? long
half-lives?leading to a prolonged psychoactive effect.
? [T]here could [also] be considerable ? batch
variability?
Recent EMCDDA reports and data on synthetic cannabinoids
include:
A synthetic cannabinoid, JWH-018, was first detected in
"Spice" products in 2008.
29 synthetic cannabinoids were reported to EMCDDA in 2013.
105 synthetic cannabinoids were monitored by EU warning system
in January of 2014.
14 recognizable chemical families of synthetic cannabinoids
are known.
The EMCDDA reports that most synthetic cannabinoids are
manufactured in China and shipped though legitimate distribution
networks.<4> The White House Office of National Drug Control
Policy<5> states that most synthetic cannabinoids originate
overseas.
The EMCDDA reported on adverse consequences of synthetic
cannabinoid use:
---------------------------
<4>
http://www.emcdda.europa.eu/topics/pods/synthetic-cannabinoids
<5>
https://www.whitehouse.gov/ondcp/ondcp-fact-sheets/synthetic-drug
s-k2-spice-bath-salts
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The adverse health effects associated with synthetic
cannabinoids are linked to both the intrinsic nature
of the substances and to the way the products are
produced. There have been numerous reports of
non-fatal intoxications and a small number of deaths
associated with their use. As noted above, some of
these compounds are very potent; therefore the
potential for toxic effects is high. Harm may result
from uneven distribution of the substances within the
herbal material, result[ing] in products containing
doses that are higher than intended. The reported
adverse effects of synthetic cannabinoid products
include agitation, seizures, hypertension, emesis
(vomiting) and hypokalemia (low potassium levels).
?There is some evidence?that synthetic cannabinoids
can be associated with psychiatric symptoms, including
psychosis. There are also investigations underway in
the US regarding links between the use of synthetic
cannabinoids? and acute kidney injury and recently, a
case report associated the use of the cannabinoid
JWH-018 with?strokes in two otherwise healthy males.
4.Emergency Room Visits Related to Synthetic Cannabinoids
From 2010 through 2011, reported emergency room (ER) visits
linked to synthetic cannabinoids increased from 11,406 to
28,531. The vast majority of patients were young males, ages 12
through 20.<6> This is a relatively small number of ER visits,
as total drug-related ER visits numbered 2,460,000 in 2011. Of
the 2,300,000 ER visits in 2010, approximately 460,000 concerned
marijuana and approximately 11,000 concerned synthetic
cannabinoids. However, the reported number of synthetic
cannabinoid ER visits likely understates actual visits, as
testing availability is limited and some medical personnel might
not be familiar with the drugs. The ER studies reported that
very few patients engaged in follow-up treatment. It is not
clear whether ER doctors did not make referrals for additional
care, or if patients chose not to seek it.
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<6>
http://www.samhsa.gov/data/sites/default/files/SR-1378/SR-1378.pd
f
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Very recently, ER visits for synthetic cannabinoids have spiked.
As use of these drugs appears to be dropping, the surge in ER
visits is likely the result of a dangerous change in chemical
composition of the drugs. One who obtains a synthetic
cannabinoid can only guess as to its composition and effects.<7>
The New York Times explained in an April 24, 2015 article:
"[Synthetic cannabinoids ?typically imported from China by
American distributors, come in hundreds of varieties; new
formulations appear monthly, with molecules subtly tweaked to
try to skirt the DEA's list of illegal drugs as well as
drug-detecting urine tests. ? [E]each new variety can present
distinct health risks caused by its underlying chemistry or
contaminants in renegade manufacturing facilities."
5.Synthetic Cannabinoid and Synthetic Stimulant Use is Falling
Rapidly Among Young People - Growing Problems with use of
Spice by the Homeless
The University of Michigan Monitoring the Future survey first
asked 8th and 10th graders about their use of synthetic
[cannabinoids] in 2011. The survey found that in 2012 annual
prevalence rates were 4.4% and 8.8%, respectively. Use in all
grades dropped in 2013, and the decline was sharp and
significant among 12th graders The declines continued into
2014 and were significant for both 10th and 12th graders; use
for all grades declined 40% in 2014 from peak use in 2011
Awareness of the dangers of synthetic cannabinoid was up sharply
among 12 graders.<8>
The use of synthetic stimulants among 8, 10th and 12 graders was
first reported in the survey in 2012, with approximately 1% of
students having tried the drug. Use of synthetic stimulants has
also declined significantly - down approximately 20% from 2012
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<7>
http://www.nytimes.com/2015/04/25/health/surge-in-hospital-visits
-linked-to-a-drug-called-spice-alarms-health-officials.html
<8>
http://monitoringthefuture.org/pubs/monographs/mtf-overview2014.p
df
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to 2014.<9>
The decline in the use of synthetic cannabinoids and synthetic
stimulants was preceded by a precipitous drop in the use of the
psychedelic salvia divinorum - another drug that gained
popularity and some infamy around 2008. Since peak use (of
3.6%) by students in 2011 and 2012, use of salvia declined 61%.
Sale or distribution of salvia was made a misdemeanor in
2008, but no penalties exist for possession or use.<10> The
decline in use appears to result from negative experiences by
users, such as a frightening sensation of falling through space,
not criminal penalties.<11>
Numerous recent reports have documented growing use of synthetic
cannabinoids by homeless person in cities such as New York and
Los Angeles. The drugs are cheap, powerful and often
long-lasting, attracting persons with few resources and very
harsh and difficult living conditions. Newer versions of the
drugs may be particularly dangerous and the drugs are often
adulterated.<12>
6.Related Bill - SB 139 (Galgiani) adds 14 Chemical Families and
Hundreds of Individual Chemicals to the List of Prohibited
Synthetic Cannabinoids
SB 139 (Galgiani) would add 14 chemical families of synthetic
cannabinoids and hundreds of individual chemicals to the list of
prohibited synthetic cannabinoids. SB 139 appears to be
consistent with the current state of knowledge about the range
of existing synthetic cannabinoids. The background provided in
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<9>
http://www.monitoringthefuture.org//pubs/monographs/mtf-overview2
014.pdf
<10>
http://www.monitoringthefuture.org//pubs/monographs/mtf-overview2
014.pdf
<11>
http://www.drugpolicy.org/sites/default/files/FactSheet_Salvia.pd
f
<12>
http://www.vice.com/read/policing-synthetic-marijuana-on-las-skid
-row-731
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connection with SB 139 includes model statutes for prohibiting
synthetic cannabinoids and synthetic stimulants. The model
statute was drafted by the National Alliance for Model State
Drug Laws.<13> The chemicals SB 139 appear to be copied from
the model statute. The purpose of describing synthetic
cannabinoids by class or family is to include any new chemical
in each class as a prohibited substance. That is, if a new drug
is developed in any of the 14 classes, the chemical is
prohibited, regardless of whether the individual chemical is
included in the statute. It is not known whether many new
synthetic cannabinoid classes can or will be developed.
Synthesis of a new class or family of cannabinoids would not be
included in the list of prohibited chemicals.
Including chemical families in the list of prohibited chemicals
is similar to the use of an analog statute in prosecuting drug
crimes. The analog statute provides that a drug that is
structurally or functionally similar to an illegal drug illegal
to the same extent as the specifically prohibited drug.
Structural differences among various synthetic cannabinoids and
substantial differences in effects produced by synthetic
cannabinoids have hindered use of analog statutes or generic
definitions of synthetic cannabinoids, as the only commonality
many of these drugs may have is that they are all cannabinoid
agonists, meaning the chemicals bind to cannabinoid receptors in
the brain. It is concerning that researchers have begun to find
evidence that illicit drug makers are developing chemicals that
bind to multiple receptors in the brain, likely making testing
and prohibition more difficult. Further, once a synthetic
cannabinoid is discovered, it has been difficult to produce pure
samples of the drug that are necessary for testing drugs that
have been seized from potential criminal defendants.
7. Argument in Support
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<13> http://www.namsdl.org/about.cfm . According to its website,
NAMSDL is funded by Congress and coordinates policy initiatives
with the Office of National Drug Control Policy.
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Consortium Management Group argues in support of this bill:
Synthetic cannabinoids in the last decade have found a
substantial market, especially among young people who
are looking for an arguably legal alternative to
marijuana. Sold under familiar brand names such as
Spice, Scooby Snax and Ks, they seek to mimic the
effects of TCH in natural cannabinoids. However, they
are toxic and unpredictable, and thus more dangerous
than cannabis. The deadly impact is getting worse.
Deaths have tripled in the first half of 2015 compared
to the first half of 2014. During the same period,
[synthetic cannabinoid-related] calls to poison
centers grew by 229%. These harms are further
highlighted by the comparable safety of natural
cannabinoids. Tragic consequences of use of these
drugs have led to new federal and state laws that ban
synthetic cannabinoids. However, manufacturers have
tried to stay a step ahead of the law by changing the
chemicals so that the new compound is legal. In some
cases, these changes have made synthetic cannabinoids
more unpredictable and dangerous. SB 1036 endeavors
to stay ahead of the manufacturers by adding synthetic
cannabinoids to current law that makes analogs of
specified controlled substances subject to the same
prohibitions as the controlled substances themselves.
CMG works with Caliva, a major medical marijuana
dispensary in San Jose. CMG strongly supports new
laws enacted to create structure for and ensure
oversight of the growing medical cannabis industry. A
goal of this new statutory scheme is to ensure
protection for medical marijuana patients. Allowing
the perpetuation of an unpredictable, life-threatening
synthetic compound that is inappropriately
characterized as an alternative to cannabis is
antithetical to that goal.
8. Argument in Opposition
The Drug Policy Alliance argues in opposition:
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DPA opposes punishing people for simple possession of
a controlled substance. There is no evidence that
criminalizing drug possession reduces drug use or
harm. Forty-five years of the war on drugs
demonstrates that prohibition and punishment have not
reduced drug use, but have exacerbated associated
harms.
California criminalized possession of specified
synthetic cannabinoids in legislation that became
effective on January 1st of this year. Laws
criminalizing synthetic compounds have not contributed
to decreasing the already low rates of use anywhere in
the United States. And there is no urgent need to
widen the net of punishment in California. On the
contrary, criminalization can exacerbate health risks
by pushing risky behavior underground where people who
need help the most are the least likely to get it.
This is particularly true for synthetic cannabinoid
compounds which can be easily acquired through online
retailers, many based in foreign countries - a threat
that will not be removed by California prohibitions.
Moreover, expanding drug prohibition to include new
synthetic drugs will result in significantly more
wasteful drug war spending without deceasing rates of
distribution or use.
Rather than enact more prohibitions, the state and
federal governments should fund research to better
understand the potential harms of synthetic cannabis
and educate the public. Comprehensive education and
prevention are working to greatly reduce tobacco use,
a drug that has contributed to more deaths than
alcohol and illicit drugs combined. Lawmakers across
the country are calling for a public health, rather
than criminal justice, approach to dealing with
illicit drugs. AB 1036 (Hernandez) takes the wrong
approach by perpetuating the criminalization of a
health issue.
-- END -
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