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The Federal Controlled Substances Analogue Act: An Antiquated Solution Meets an Evolving Problem

Written by Hari Sathappan, second year law student at The Ohio State University: Moritz College of Law
1. Introduction

In the past year, our country has been swept by a wave of new “designer drugs.”  That term conjures the image or at least the connotation of expensive, high-end, recreational drugs.  Regardless of the modifiers, the presence of the term “drugs” would lead one to believe that “designer drugs” are at least just as illegal as everyday recreational drugs.  As this post aims to show, this is, unfortunately, not the case.  Designer drugs are drugs specifically designed—that is to say, chemically altered—to exploit the weakness in the Controlled Substances Act.

The Controlled Substances Act operates by making it illegal to distribute an exactingly specific list of “scheduled” chemical substances.  By altering just one molecule in a substance’s chemical structure, the substance loses its legal status as a “controlled substance” and becomes a controlled substance “analogue.”  The difference is hardly trivial.  Investigation and prosecution of analogues is far more difficult than that of controlled substances.

2. Comparing the Analogue Act to the Controlled Substances Act

First, the statutory provisions:

Substances are considered “scheduled” when they are listed in 21 U.S.C. § 812.  Substances are scheduled under their chemical name.  (i.e. THC is scheduled as “tetrahydrocannabinols”).  Once a substance is scheduled, it is illegal to distribute or possess with intent to distribute.  Controlled Substances Act, 21 U.S.C. § 841.  However, changing just one molecule of a controlled substance moves it out of § 841 and, if prosecution is to happen at all, into the purview of § 813.  Analogue Act, 21 U.S.C. § 813.  Section 813 states that “analogues” shall be treated as a controlled substance, so long as the analogue is intended for human consumption.

21 U.S.C. § 841 makes it illegal to knowingly or intentionally distribute a controlled substance.  In order to indict under § 841, the substance in question must be scheduled.  A designer drug is a substance that has been synthetically created to mimic the effects of a controlled substance, but does not share the exact chemical structure of that substance.  Section 802(32)(A) defines an analogue as a substances that (1) has a chemical structure substantially similar to a controlled substance and (2) that has, is intended to have, or is represented as having pharmacological effects substantially similar to a controlled substance.

There has been some debate as to the proper construction of § 802(32)(A).  See United States v. Turcotte, 405 F.3d 515, 521–24 (7th Cir. 2005).  However, a majority of federal courts have held that there are three parts to the test.  Id  at 522.  To be indicted under the Analogue Act, the substances must: (1) have a “chemical structure” substantially similar to a controlled substance; (2) have, be intended to have, or represented as having “pharmacological effects” substantially similar to a controlled substance; and must (3) be intended for “human consumption.”  United States v. Klecker, 348 F.3d 69, 71 (4th Cir. 2003).

Second, I have already stated that the differences in the two Acts are hardly trivial.  What are those differences?

The Prohibited Conduct.  It is illegal to knowingly or intentionally distribute a controlled substance.  21 U.S.C. § 841.  Analogues should be treated like controlled substances insofar as they are intended for human consumption.  21 U.S.C. § 813.  Here is the first difference.  If a defendant knowingly distributes ecstasy, he has little legal recourse.  However, someone who knowingly distributes “bath salts” (an ecstasy analogue) can claim that they did not intend their customers to consume the product.  Selling an ecstasy analogue is not illegal if the distributor intended his customers to use the product in their baths.  Disproving such a claim is an extra hurdle—and, argued in this post, an unnecessary hurdle—that must be leapt in investigation and prosecution.

Nature of the Substance.  Under the Controlled Substances Act, it must be proven that the substance the distributor was distributing was a “controlled substance.” This means that it must be proven that the substance has the chemical structure specifically listed in § 812.  Lab tests make this a simple enough task.  The Analogue Act, however, is slightly, yet significantly, different.  Under the Analogue Act, it must be proven that the substance the distributor was distributing was an “analogue.”  Part one of the test states that this means that it must be proven that the substance has a chemical structure “substantially similar” to a controlled substance.  What does “substantially similar” mean?  Is it so vague that a person might not actually know whether he is breaking the law?  Even more interestingly, when must the substance be substantially similar?  Before it is consumed?  While it is being metabolized?  All of these issues are discussed below.

3. The Problem

Investigation and prosecution under the Analogue Act is a far more odious task than that under the Controlled Substances Act.  Proving (or disproving) the “human consumption” and “chemical structure” parts incur additional costs to all parties involved—law enforcement, the prosecution, the court, and even the defense.  See Gregory Kau, Flashback to the Federal Analog Act of 1986: Mixing Rules and Standards in the Cauldron, 156 U. Pa. L.  Rev. 1077, 1091–92 (2008).  What this means is that prosecution, with its limited resources, may need to let some, otherwise actionable, cases slip through the cracks.

The first cost burden arises under the “human consumption” part of the Analogue Act.  With a controlled substance, investigation of mid-level distributors generally involves a confidential informant wearing a wire or video recording device. See 2 Wayne R.  LaFave, Searches and Seizures § 3.3 (4th ed. 2011).  Law enforcement oversees a series of controlled buys, where the informant purchases the controlled substances and the transaction is captured on tape (either audio or video).  Id. This evidence is essentially a slam dunk and is relatively inexpensive.  If a plea agreement is not entered into, a jury can watch the tape and make its determination.  This process is more complicated and more expensive under the Analogue Act.  If the same informant goes to the same distributor, but instead buys an analogue, not even a video recording is necessarily sufficient.

One of the more popular designer drugs currently in circulation is a substance called “bath salts” – the drug that infamously turned a user in Miami into a “zombie” that police found gnawing at a homeless man’s face.  “Bath salts” are not salts you put in your bath tub.  They are an analogue of ecstasy.  The name “bath salts” is a shibboleth—a password—that exploits the “human consumption” part of the Analogue Act.  Packages bear the label “Not For Human Consumption.” These precautions serve the clever distributor as a shield against the informant that comes into his shop with a wire.  The distributor can stipulate that he did sell the product to the informant, however, he can then allege that he didn’t think, nor intend, that the informant was going to consume the product.  Instead of using their usual methods of investigation, police must expend more time and more resources proving that the drugs being sold are being sold as drugs.

Sometimes this process can be easy.  Sometimes, and with luck, a distributor will answer an informant’s leading questions: “Do you have any other flavors?” or “How long will the high last?” Answers to these questions help prove the “human consumption” part.  However, if a distributor is intelligent, he won’t answer.  This means law enforcement needs to set up surveillance.  They need to do dumpster dives.  They need to collect syringes and vials from around the shops.  All of these are steps that would not need to be taken in the investigation of a controlled substance.

The second cost burden affects costs to the prosecution, the court, and even the defense.  Taking an analogue case to court means that it must be proven that the substance sold has a chemical structure “substantially similar” to a controlled substance.  This means expert witnesses, on both sides.  This means more costs and longer trials.

The “substantially similar” issue raises not only a practical problem in cost, but also an ideological one.  In United States v.  Roberts, the court held that the chemical BD was not an analogue of GHB.  No.  01 CR 410 (RWS0, 2002 WL 31014834, at *6 (S.D. N.Y. Sept. 9, 2002) [hereinafter Roberts I] (reversed by United States v.  Roberts, 383 F.3d 118 (2d Cir. 2004) [hereinafter Roberts II]).  The court found that, notwithstanding the fact that only two atoms were different between the molecules, it was persuasive that the two atoms changed significantly altered GHB’s chemical properties.  Roberts I, at *3.  The two atoms changed were located in GHB’s functional groups.  Id.  GHB is generally considered an acid, whereas BD is an alcohol.  Id.  The defense pointed out that the molecules would be found in different sections of a chemistry textbook.  Id.  Further, GHB is negatively charged on one end and positively charged on the other, making it unstable, and causing the molecule to fold.  Id.  BD, conversely, is stable.  Id.  The Court was not persuaded by the government’s argument that, after consumption, BD is metabolized into GHBId. at *5.  The court stated that this sort of analysis conflated the “chemical structure” and “pharmacological effects” parts of the test.  Id.  It wanted a showing of substantially similar chemical structure and then a showing of substantially similar effects—not a mixing of the two.  Id.  On appeal, the Second Circuit was more persuaded by the government’s position.  Roberts II, at 125–26.  For the same reasons as the district court, the court of appeals did not think that the two-atom difference or the metabolism arguments alone were sufficient.  Id. at 125.  However, they thought that together the chemical structure part was satisfied.  Id.

Many federal courts have gone one step further and criticized Roberts I outright.  See United States v. Washam, 312 F.3d 926, 932–33 (8th Cir. 2002).  Most federal courts believe that analysis begins “upon ingestion and not on a blackboard.” United States v. Brown, 279 F.Supp.2d 1238, 1243 (S.D. Ala. 2003).  The court in that case stated that the most sensible approach to the Analogue Act was one that recognized its concern with “human consumption.” Id.

The rationales in both Roberts I and Brown have merit.  On the one hand, it is sensible to consider each part of the test in regard to human consumption—human consumption, metabolism, and the effect this has on the body is the evil Congress is trying to fight, not the chemical structure of certain substances.  However, the statute is written as a three-part test.  Congress specifically asked courts to determine chemical structure, effects, and human consumption; it did not merely ask whether a substance was being used like a controlled substance.

The Problem Restated.  The Analogue Act serves an invaluable purpose in extending the reach of the Controlled Substances Act to substances not specifically scheduled in § 812.  As outlined above, however, extra hurdles hamstring this extended reach.  Under the current system, a designer drug is created to evade the Controlled Substances Act.  Law enforcement and prosecution must, instead, work under the weight of the Analogue Act.  As is the case with “bath salts” and “legal marijuana,” the designer drug becomes a terrifying problem and the need for swifter investigation and prosecution becomes necessary.  See What would cause this behavior? BATH SALTS?, YouTube (Mar. 2, 2012), http://www.youtube.com/watch?v=nizXTNeie-I.   Congress must now delve into the process of scheduling a substance that is inherently the same if not worse than substances already scheduled.  In the meantime, the nation suffers.

4. Recommended Course

Scrambling to schedule analogues is a way of the past.  The ability to manipulate chemical structures has become too easy and the threat designer drugs pose to our country is too great.  Some of the hurdles facing law enforcement and prosecutors must be removed in order to ensure that justice is administered.

The question then is what hurdle should (and can) be removed or modified while still preserving the rights of defendants.  The answer is the “human consumption” part.

Under § 813, analogues are supposed to be treated as controlled substances, except when the distributor doesn’t intend them for human consumption.  This implies first, that analogues aren’t dangerous when they aren’t intended for human consumption and second, that controlled substance are dangerous when they aren’t intended for human consumption.  What difference exists between controlled substances and analogues that makes this logic sound?  Their chemical structures?  That is not enough.  If a controlled substance is dangerous when it isn’t intended for human consumption, then its analogues should be too.

In order to be listed in Schedule I a substance must (A) have a high potential for abuse; (B) have no currently acceptable medical use in treatment; and (C) not have an accepted safety use under medical supervision.  21 U.S.C. § 812.  These requirements show Congress’s intent.  The Controlled Substances Act was meant to combat the threat of substance abuse.  Arguably, many of the current designer drugs, including “bath salts,” have a higher risk of abuse than the controlled substances they are similar to.  Imposing the extra hurdle of “human consumption” seems counterintuitive.

Removing the “human consumption” part would leave the “chemical structure” and “pharmacological effects” tests intact.  These two parts are, alone, sufficient to protect the rights of defendants while still fully accomplishing Congress’s goals.  The threat is the effect these substances have on the human body.  This threat is present whether a distributor knows that his customers are going to consume his products or not.

Removal would un-encumber police investigations.  Analogue cases could be handled exactly like controlled substance cases—as they should be.  Further, removal would not make the Analogue Act’s reach too broad.  This post concedes that there might be some substances that are analogues that have perfectly legitimate uses.  In fact, this post concedes that there are controlled substances that have “acceptable medical use in treatment.”  The Controlled Substances Act already provides that distributing controlled substances for legitimate purposes is allowed when the distributor has the proper permit.  It is this permit process that should protect distributors of legitimate analogues as well—not an overly broad “human consumption” test that serves also to protect drug dealers.

For these reasons, I believe that the “human consumption” part of the Analogue Act is an unnecessary hurdle that requires reconsideration.


Written by Hari Sathappan

Hari Sathappan is a second year law student at The Ohio State University Moritz College of Law. He worked at the United States Attorney’s Office for the Northern District of West Virginia after his first year and is deeply interested in criminal law. He is hoping to work for the JAG Corps after graduation.