BILL ANALYSIS Ó SB 1036 Page 1 Date of Hearing: June 29, 2016 ASSEMBLY COMMITTEE ON APPROPRIATIONS Lorena Gonzalez, Chair SB 1036 (Hernandez) - As Introduced February 12, 2016 ----------------------------------------------------------------- |Policy | Public Safety |Vote:| 5 - 0 | |Committee: | | | | | | | | | | | | | | ----------------------------------------------------------------- Urgency: No State Mandated Local Program: YesReimbursable: No SUMMARY: 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. FISCAL EFFECT: SB 1036 Page 2 Unknown increased local nonreimbursable costs for incarceration, which will be offset to a degree by fine revenue. COMMENTS: 1)Background. 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, a substance that is an analog of a Schedule I or II drug. 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. 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. 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 Newly developed synthetic cannabinoids are not covered by the California analog statute as 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 analog law has been criticized as being too vague to provide sufficient legal guidance. The criticism has SB 1036 Page 3 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. 2)Purpose. According to the author, "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." SB 1036 includes synthetic cannabinoids within California's analog law. 3)Support: According to Consortium Management Group, "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." 4)Opposition: According to The American Civil Liberties Union of California, "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 SB 1036 Page 4 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." 5)Related Legislation: SB 139 (Galgiani), awaiting a hearing in Assembly Public Safety, expands the definition of a synthetic stimulant compound and a synthetic cannabinoid compound for purposes of existing law. 6)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 of up to $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 stimulant derivative. Violation of this section is punishable by imprisonment in a county jail by up to six months, and/or a fine of up to $1,000. 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 by up to six months, and/or a fine of up to $1,000. Analysis Prepared by:Pedro Reyes / APPR. / (916) 319-2081 SB 1036 Page 5