BILL ANALYSIS Ó
SB 1036
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Date of Hearing: June 14, 2016
Counsel: David Billingsley
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
SB
1036 (Hernandez) - As Introduced February 12, 2016
SUMMARY: Makes it a crime to possess, sell, transport, or
manufacture an analog of a synthetic cannabinoid compound, aka
"Spice." Expands the definition of controlled substance analog
to include a substance the chemical structure of which is
substantially similar to the chemical structure of a synthetic
cannabinoid compound.
EXISTING LAW:
SB 1036
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1)Specifies that every person who sells, dispenses, distributes,
furnishes, administers, or gives, or offers to sell, dispense,
distribute, furnish, administer, or give, or possesses for
sale any synthetic cannabinoid compound, or any synthetic
cannabinoid derivative, to any person, is guilty of a
misdemeanor, punishable by imprisonment in a county jail not
exceeding six months, or by a fine not exceeding one thousand
dollars ($1,000), or by both that fine and imprisonment.
(Health & Saf. Code, § 11357.5, subd. (a).)
2)States that every person who uses or possesses any synthetic
cannabinoid compound, or any synthetic cannabinoid derivative,
is guilty of an infraction, punishable by a fine not to exceed
two hundred fifty dollars ($250). (Health & Saf. Code, §
11357.5, subd. (b).)
3)Specifies that a controlled substance analog shall be treated
the same as specified controlled substances of which it is an
analog. (Health & Saf. Code, § 11401, subd. (a).)
4)Provides that, except as specified, the term "controlled
substance analog" means either of the following:
a) A substance the chemical structure of which is
substantially similar to the chemical structure of
specified controlled substances; and (Health & Saf.Code, §
11401, subd. (b)(1).)
b) 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
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similar to, or greater than, the stimulant, depressant, or
hallucinogenic effect on the central nervous system of
specified controlled substances. (Health & Saf. Code, §
11401, subd. (b)(2).)
5)Specifies that the term "controlled substance analog" does not
mean "any substance for which there is an approved new drug
application as specified under the federal Food, Drug, and
Cosmetic Act or which is generally recognized as safe and
effective as specified by the federal Food, Drug, and Cosmetic
Act." (Health & Saf. Code, § 11401, subd. (c)(1).)
6)Lists controlled substances in five "schedules" - intended to
list drugs in decreasing order of harm and increasing medical
utility or safety - and provides penalties for possession of
and commerce in controlled substances. (Health & Saf. Code §§
11350-11401.)
7)Requires non-violent drug possession offenders to be offered
drug treatment on probation, which shall not include
incarceration as a condition of probation, in the form of,
Proposition 36 (Nov. 2000 election), the Substance Abuse and
Crime Prevention Act of 2000 (SACPA). (Pen. Code, § 1210.1.)
8)Provides that non-violent drug possession offenses include:
a) Unlawful use, possession for personal use, or
transportation for personal use of a controlled substance;
and,(Pen. Code, § 1210, subd. (a).)
b) Being under the influence of a controlled substance.
(Pen. Code, § 1210, subd. (a).)
FISCAL EFFECT: Unknown
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COMMENTS:
1)Author's Statement: 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 (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."
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2)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, although their full properties
of CB2 are not known. It appears that CB2 cannabinoids could
be used to treat inflammation. (THC binds to CB1 and CB2
receptors.) CB1 cannabinoids have psychoactive properties.
Typically statutes, news reports and academic works concern
CB1 synthetic cannabinoids.
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
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.
Although often referred to simply as synthetic
cannabinoids [or synthetic marijuana], many 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
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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? in terms of
substances present and ?quantity.
http://www.emcdda.europa.eu/topics/pods/synthetic-canna
binoids
Recent EMCDD Data on Synthetic Cannabinoids Include:
A synthetic cannabinoid, JWH-018, was first detected in
"Spice" products in 2008.
81 new psychoactive substances were reported to EMCDDA in
2013, 29 were synthetic cannabinoids.
105 synthetic cannabinoids in total [were] monitored by EU
Early Warning System [in January of 2014].
14 recognizable chemical families of synthetic cannabinoids
are known.
The EMCDD reports that most synthetic cannabinoids are
manufactured in China and shipped though legitimate
distribution networks. The White House Office of National
Drug Control Policy states that most synthetic cannabinoids
originate overseas, but that they are also being made on a
small scale in the United States.
https://www.whitehouse.gov/ondcp/ondcp-fact-sheets/synthetic-dr
ugs-k2-spice-bath-salts
The EMCDD reported on adverse consequences of synthetic
cannabinoid use:
The adverse health effects associated with synthetic
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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.
http://www.emcdda.europa.eu/topics/pods/synthetic-canna
binoids
3)Drug Analog Law in California: 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 the scheduled drug. Such a substance is
defined as a controlled substance analog. California law
allows prosecution of a person for possession of, or commerce
in, of a substance that is an analog of a Schedule I or II
drug. (Health & Saf. Code, §§ 11400-11401.) The purpose of
the analog law is to prevent street chemists from
circumventing drug laws by synthesizing drugs which have
slight chemical or functional differences from the prohibited
drug.
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Newly developed synthetic cannabinoids are not covered by the
California analog statute synthetic cannabinoids are not
included in Schedule I or II of the controlled substances
schedules. Illegal synthetic cannabinoids are separately
defined and prohibited.
California's drug analog law provides two ways to establish that
a substance is an analog of a drug. The first method relies
on demonstrating that the substance has a chemical structure
which is "substantially similar" to the chemical structure of
the drug. (Health & Saf.Code, § 11401, subd. (b)(1).) The
second method requires a showing that the substance 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 the effect of the
drug. (Health & Saf. Code, § 11401, subd. (b)(2).)
This bill would include synthetic cannabinoids within
California's analog law.
4)Criticism of California's Analog Language: California's
analog law has been criticized as being too vague to provide
sufficient legal guidance. The criticism has focused on the
"substantial similarity" in the chemical structure or in the
effect, or intended effect on the central nervous system.
California courts have found "substantial similarity" meets
constitutional requirements.
In People v. Silver (1991) 230 Cal.app.3d 389, the defendant was
convicted of possession of sale and sale of MDMA, which the
jury found to be an analog of methamphetamine. The defendant
appealed the conviction and challenged the analog law as
unconstitutionally vague. The Appellate Court upheld held the
jury's verdict and found that the analog law was not
unconstitutionally vague. In reaching that finding the court
said, "It may be true that the term "substantially similar"
has no scientific meaning, but the Constitution does not
require scientific or mathematical precision. All that is
required is that the statute be reasonably certain so that
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persons of common intelligence need not guess at its meaning."
(Id. at 293-94.)
If this bill becomes law, it will expand the definition of a
controlled substance analog to include a substance the
chemical structure of which is substantially similar to the
chemical structure of a synthetic cannabinoid compound. This
bill will not change the criteria used to determine if a
substance is an analog.
5)Argument in Support: According to Consortium Management
Group, "Synthetic cannabinoids over 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 K2
(an dozens of others), they seek to mimic the effects of THC
in natural cannabinoids. However, they are more toxic and
unpredictable, and thus more dangerous, than cannabis.
"The deadly impact is getting worse. Deaths from synthetic
cannabinoids tripled in the first half of 2015 compared to the
first half of 2014. During the same period, calls to poison
centers because of synthetic cannabinoids grew by 229%. The
harm that arises from these drugs is further highlighted by
the comparable safety of natural cannabinoids.
"A rash of tragic consequences resulting from the use of
synthetic cannabinoids led to new law federally and in many
states like California that ban synthetic cannabinoids.
However, manufacturers have tried to stay a step ahead of the
law by making changes at the chemical level so that the new
compound is legal. Unfortunately, in some cases, the chemical
changes have made the synthetic cannabinoid even more
unpredictable and dangerous.
"SB 1036 endeavors to stay ahead of the manufacturers by adding
synthetic cannabinoids to current law that makes analogs of a
controlled substance subject to the same prohibitions as the
controlled substance."
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6)Argument in Opposition: According to The American Civil
Liberties Union of California, "While we respect and support
the goal of reducing the harms associated with drug use,
further criminalization of these substances will not advance
this objective and may actually decrease public safety. Since
the emergence of synthetic cannabinoid use in the United
States, attempted control of the market has been characterized
by the enactment of legislation or regulations that seek to
ban certain substances, followed by the manufacturers' quick
development of new substances in an attempt to circumvent the
bans. Although Section 11401 of the Health and Safety Code
purports to address this by treating all substances that are
chemically or pharmacologically substantially similar to
controlled substances as identical to controlled substances
for the purposes of penalties and punishment, manufacturers
are likely to continue developing and marketing new
formulations that skirt the boundaries of the law.
"By incentivizing manufacturers to constantly develop new
substances in response to bans, laws that criminalize
synthetic cannabinoids force users to continuously switch to
new substances whose safety profile is not known
scientifically or anecdotally. Rather than criminalizing
users, the legislature should aim to enhance public safety by
expanding the scientific knowledge available on existing
substances and educating the public about their potential
harms.
"The section that SB 1036 seeks to amend is also overbroad
because it treats any substance represented as having effects
substantially similar to or greater than the effects of a
controlled substance classified in Section 11054, 11055, or
11357.5 as identical to a controlled substance for the
purposes of penalties and punishment. Under this standard, a
person representing a quantity of sugar in their possession as
having effects substantially similar to those of a controlled
substance would be subject to prosecution.
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"We are also concerned that the existing section which SB 1036
seeks to amend is vague and does not provide sufficient notice
to individual users as to when the use or possession of a
substance falls outside the law. Existing law does not define
'substantially similar;' the DEA has stated that in cases
under the Federal Analogue Act (which uses the same language),
the "substantially similar" threshold is subjective and may
differ from expert to expert. As such, there seems to be no
way for a person to reasonably know whether they are subject
to criminal liability for their actions.
"More broadly, during a time of increasing public awareness and
consensus that the drug war has failed, there is a need to
address drug use and abuse as a public health issue. Now is
not the time to be counterproductively criminalizing more
substances and putting the public at greater risk of harm."
7)Related Legislation: SB 139 (Galgiani), would expand the
definition of a synthetic stimulant compound and a synthetic
cannabinoid compound for purposes of existing law. SB 139 is
currently held at the Assembly Desk
8)Prior Legislation:
a) SB 1283 (Galgiani), Chapter 372, Statutes of 2013, makes
the use or possession of specified synthetic stimulant
compounds or synthetic stimulant derivatives, punishable by
a fine not exceeding $250.
b) AB 2420 (Hueso,) 2011-2012 Legislative Session, would
have created infraction and misdemeanor penalties for
possession or use of specified synthetic stimulants and
synthetic cannabinoids. AB 2420 failed passage in the
Assembly Public Safety Committee.
c) AB 486 (Hueso), Chapter 656, Statutes of 2011,
prohibited the sale, dispensing, distribution, furnishment,
administration or giving, or attempt to do so, of any
synthetic stimulant compound of any specified synthetic
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stimulant derivative. Violation of this section is
punishable by imprisonment in a county jail not exceeding 6
months, or by a fine not exceeding $1,000, or by both that
fine and imprisonment.
d) SB 420 (Hernandez), Chapter 420, Statutes of 2011,
prohibited the sale, dispensing, distribution,
administration or giving, or attempt to do so, of any
synthetic cannabinoid compound or any synthetic cannabinoid
derivative. Violation of this section is punishable by
imprisonment in a county jail not exceeding 6 months, or by
a fine not exceeding $1,000, or by both that fine and
imprisonment.
REGISTERED SUPPORT / OPPOSITION:
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
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Los Angeles Police Protective League
Office of the Sheriff, County of Los Angeles
Peace Officers Research Association of California
Riverside Sheriffs Association
Opposition
American Civil Liberties Union of California
California Attorneys for Criminal Justice
California Public Defenders Association
Drug Policy Alliance
Analysis Prepared by:David Billingsley / PUB. S. / (916)
319-3744