USA - spice gold/diamond legal in USA?

[bcubed]

The "cracking" of Spice gold makes SWIM wonder: what are the legal consequences of having a product, ostensibly sold as legal, that actually has an unlisted, "illegal" ingredient in it?

After all, there seems to be some presumption that, if one buys a product in a store that pays taxes, complies with zoning, etc, that products contianed within are legal. For example: if Lizard took a particular liking to a bottle of booze he buys at the liquor store, and it turns out the reason he likes it so much is 'cause it's actually a laudnum tincture (lol), it's hard to see lizard as being legally culpable. I can't see this changing if we substitute "legal highs shop" for the liquor store. I can see this changing--a bit--for internet purchases?

Also, if the DEA continues to argue the "analog" act is based on pharmacological effect, not chemical similarity, I'm not sure how lizard (who's never even seen an illict drug: just ask him if you don't beleive me) is even capable of telling a particular legal high falls askance here or not. Would this be a case of "ignorance being bliss?"

Reputation Comments on this post:

	Very interesting question.
	Good questions, good thread.

[Alfa]

I have asked about this at a Spice distributor in Europe and they told me the following:

The pack states "NOT FOR SALE TO THE USA" In bold letters.
Almost every web site selling Spice states that they are not allowed to sell to the USA.

The main importer of spice into the USA is very well aware of the contents and produces JWH products himself. He is very well aware of the risk that Spice and similar products (Ex-ses, Spike-99, Spicey-xxx, pep spice, yucatan fire, dream-x, red planet, 99-0 chillin, xxx chillin, Smoke, Sence, Zohai, etc) likely breach the US analog act.

Top lawyers which have worked on Operation web trip cases have looked into the legality of these products and they have adviced various companies not to sell to the USA, as these products are likely illegal in the USA.

Not knowing is not a good defense for possession of a controlled substance.

* Written down in my own words

There is also the product Canef, which comes from Canada. JWH-018 and its analogs are controlled substances under Canadian law. This makes it even more problematic.

I much doubt that the US will prosecute consumers of these products, but my guess is that the hunt will be on for US distributors soon.

[Pondlife]

I'm not familiar with US law, but from a UK perspective, and assuming the US analog act applied, I would say:

Ignorance of the law is no defence, so the fact that you did not know that a substance was an analog, or that a product contained a controlled substance would not be a valid defence. However it might count in mitigation.

A possible defence might be the absence of mens rea. In the UK (and I suspect the US as well), most crimes require both an Actus Reus ("guilty act") plus Mens Rea ("guilty mind"). The exception is strict liability offences, but I don't think drug offences are in that category.

[bcubed]

Mens Rea sounds pretty close to criminal intent.

I guess I'm finding it hard to imagine unwitting illicit drug use as criminally culpable...to take an extreme example, if some sicko "roofies" a date, you wouldn't (couldn't?) swoop in and bust her for "possesion of Rohypnol/Flunitrazepam." Also I know that the occasional jilted spouse has been known to administer a sub-psychoactive dose of a drug ("Care for some brownies, dear?") then phone in an anonymous tip (say spouse works as cop/teacher/pilot/etc.) Should one be fortunate enough to prove unwitting intake (good luck!), one would hope to be in the clear.

[TestPattern]

Originally Posted by Pondlife

I'm not familiar with US law, but from a UK perspective, and assuming the US analog act applied, I would say:

Ignorance of the law is no defence, so the fact that you did not know that a substance was an analog, or that a product contained a controlled substance would not be a valid defence. However it might count in mitigation.

A possible defence might be the absence of mens rea. In the UK (and I suspect the US as well), most crimes require both an Actus Reus ("guilty act") plus Mens Rea ("guilty mind"). The exception is strict liability offences, but I don't think drug offences are in that category.

You're correct - both the Actus Reus and Mens Rea must be proven to be present for a conviction to happen. The case will likely still go to trial, so long as the judge believes there is enough evidence to potentially produce a conviction, and the defense can then choose to pursuade the jury that the accused is not guilty because of the lack of criminal intent (mens rea) by advocating any of the popular mens rea defenses (entrapment, self-defense, necessity, duress, immaturity, intoxication, or insanity). It should be noted that intoxication is only a viable defense if the intoxication was done involuntarily - as described in the post above me. In the US, mens rea defenses are usually very hard to support, and of course, don't apply to crimes of strict liability, such as DUI charges.

Reputation Comments on this post:

excellent information

[bravedog]

But criminal intent seems ambiguous if it is established that the product was consumed to get a marijuana-like high. I agree this isn't exactly the same as the intent to break the law - but it might be close enough for at least a conviction [which might be reasonably appealed]. Not a lawyer, just basing this on stretches of law I've seen in US.

On the other hand, I disagree these JWH compounds discussed are likely to fall under analog laws because of their chemical dissimilarity to THC, which similarity in my understanding is required for a substance to fall under analog law. Though again, prosecution is not always based on law as written.

[gmeziscool2354]

yeah, there were posts about the legality of those designated chemicals a few weeks before the news of the cracking of spice and friends. Swim (i guess it has to be him now) is very disappointed that he did not get to try it as he saw the writing on the wall a long time ago after seeing the ingredient list on an internet forum several months earlier. also the lack of information on erowid made him think that there was something a little sketchy about said product

[Alfa]

I think this is very relevant:

Originally Posted by everhopeful

The consensus I have heard so far is that it probably wouldn't come in as a structural analogue but I had the "pleasure" of listening to a lawyer in the USA who knew zero about cannabinoids or chemistry, laugh and crow that if an association no matter how tenuous, could be drawn between it and cannabis he could virtually guarantee he could convince the average Judge it was a functional analogue and therefore illegal. So I guess in places that allow such things it (and everything else) is in trouble.

[bcubed]

Alfa:

Correct me if I'm wrong, but isn't the "functional analog" just the DEA's chosen interpretation of the Federal Analogue Act, not something that has legal precedent?

Not that I'm saying it'd be fun to be the test case...

EDIT: OK, seems upon light research functional analogue is pertinent if sold or consumed for the purpose of producing a altered state equivalent to that of a scheduled drug. So I suppose this is why the botanical sellers sell so much incense!

[bravedog]

Originally Posted by bcubed

OK, seems upon light research functional analogue is pertinent if sold or consumed for the purpose of producing a altered state equivalent to that of a scheduled drug.

I'm unaware of any such law in the US except the Analog Law you cite, which however also expressly requires a close chemical relationship. Can anyone please reference such a law based on quality of altered state alone regardless of chemical similarity? If such law exists I'm also interested in how it has been used [what herbal or whatever was prosecuted as a functional analog]. Thanks

[Stephenwolf]

wikipedia says * (A) Except as provided in subparagraph (C), the term controlled substance analogue means a substance -
o (i) the chemical structure of which is substantially similar to the chemical structure of a controlled substance in schedule I or II;
o (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
o (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.

[runitsthepolice]

What if a swim was using spice only for incense purposes with no intent to consume it? Don't they have to prove swiy intends to consume an analog in order to prosecute?

[bravedog]

Originally Posted by Stephenwolf

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

JWH-018 chemical structure is NOT substantially similar to THC or any other controlled substance, either as written in the analog law, or as interpreted by any US court I'm aware of to date [regardless of fantasies to the contrary by prosecutors or DEA about steamrolling this provision]. Therefore while not without some risk, based on both the written law and on legal precedent to date, it seems that use of 018 even as a psychoactive, is not illegal in the US. If anyone is aware of other laws on which a prosecution could be based I'd like reference.

The exception is members of the US military or other professions who could conceivably be punished essentially for moral turpitude.

Thanks

[Stephenwolf]

yes, that is correct, but something labeled as "smoking Blend" becomes difficult to claim that Smoking wasn't the intent.

[acidfrk]

Is spice gold/diamond legal in the us? I read on wikipedia that it "can be interpreted by law as the drug it mimics if sold for human consumption. The shops in my area were selling it until recently. One shops says its illegal and another across town still sells it. Where can I find out the true legal status? Spice is shipped from the UK. Will customs sieze it and will the buyer or seller be prosecuted? How does that work? Any help is greatly appreciated, thanks.

[Alfa]

The wise shops have stopped sales after this bust: Spice: Synthetic drug seized by US customs at DHL hub

Originally Posted by U.S. Customs and Border Protection office

The investigation is ongoing.

[Numie180]

Hi,

I had been buying Spice Diamond for awhile now, but suddenly I noticed that many web sites do not want to ship to the USA.
1. Has there been a ban on the substance entering the USA?
2. What countries cannot ship to the USA?

Any help will be appreciated.

Thanks

[chaosx]

someone else probably knows better than evil, but evil has read of some shipments being seized. maybe for some people it is not worth the hassle of dealing with customers in the usa, better to keep a lower profile legal or no. there are places to get simular products in the usa if you know where to look

[Psychonautica]

Dune?

[Alfa]

I have merged the relating threads in this forum. Please use the search engine before you post.

[Numie180]

I used Fusion before they stopped producting it in the USA - that's when I switch to Spice Diamond.

[Shelbo]

SWIY can still get spice diamond in the us at certain smart shops and auctions and from online vendors based out of FL, which means it only take 2 to 4 days to get to just about anywhere in the the lower 48. Zohia RX is also a great alternative. So far still legal, so far....but still wouldn't recommend being too open with it, let's not push things. Don't want to loose a good thing or have to try to explain to the fuzz that it's no biggie, they don't seem to be very understanding when they have it in their head you are having too much fun with your incense.

[Dubstep]

To even further complicate the situation, what would the legality be for patients in California holding a Prop. 215 license? If this falls under an analogue of THC, does Proposition 215 give patients the right to use analogues of marijuana (THC, CBD, CBN) as well?

SWIM thinks he recalls some issues with hash oil, particularly hash/hash oil produced with organic solvents such as butane. SWIM believes that that is conspiracy to manufacture, whereas the cold water hash is fine. Anyone have any insight as to how cannabinoids such as JWH-018, JWH-073, and CP 47,497 would be treated under California's Proposition 215 laws?

Originally Posted by bcubed

Also, if the DEA continues to argue the "analog" act is based on pharmacological effect, not chemical similarity, I'm not sure how lizard (who's never even seen an illict drug: just ask him if you don't beleive me) is even capable of telling a particular legal high falls askance here or not. Would this be a case of "ignorance being bliss?"

If that is the case, couldn't one argue that the subjective high from these synthetic cannabinoids is no different than the high of say, a potent sativa strain such as Super Silver Haze's difference to an Indica strain such as Romulan or Purple Kush? If following the pharmacological effect's logic, it would seem that since these cannabinoids do produce a similar effect as THC very little difference, it would be legal to possess and use as well?