Synthetics360: Latest Trends, Court Rulings, Direction and Testing ______________________________________________________________________________ Robert O. Dawson - Juvenile Law Institute February 23, 2016 Wyndham Riverwalk Hotel San Antonio, Texas Presented by: Donald H. Flanary, III. Goldstein, Goldstein & Hilley 29th FLOOR TOWER LIFE BUILDING SAN ANTONIO, TEXAS 78205 (210) 226-1463 [email protected] Prepared by: Amanda Hernandez – Law Clerk Goldstein, Goldstein & Hilley [email protected] 1 Table of Contents I. THE BASICS: WHAT ARE SYNTHETIC CANNABINOIDS? .................... 3 II. A BRIEF HISTORY OF SYNTHETIC CANNABINOIDS ........................... 4 A. “LEGAL SMOKE” .......................................................................................... 4 B. “SPICE” AND OTHER “INCENSE BLENDS” ...................................................... 5 C. SYNTHETIC CANNABINOID MANUFACTURE .................................................. 6 D. COMMERCIAL QUANTITATES ..................................................................... 11 E. THE DANGERS OF SYNTHETIC CANNABINOIDS........................................... 11 III. THE SYNTHETIC CHEMICALS ................................................................ 12 A. THE HUFFMAN CHEMICALS ........................................................................ 12 B. THE HEBREW UNIVERSITY CHEMICALS ....................................................... 13 C. THE MAKRIYANNIS CHEMICALS ................................................................. 13 IV. DRUG TESTING ............................................................................................. 14 A. DRUG TESTING AND THE BODY ................................................................. 14 B. FIELD TESTING SYNTHETIC MARIJUANA .................................................... 14 V. SYNTHETIC MARIJUANA AND THE LAW ............................................. 15 A. FEDERAL STATUTES ................................................................................... 15 B. THE CONTROLLED SUBSTANCE ANALOGUE ENFORCEMENT ACT (CSAEA) ..................16 1. Does the drug qualify as an analogue under the CSAEA? ............. 16 2. Scienter Requirement? .................................................................... 19 C. TEXAS SYNTHETIC MARIJUANA LAWS ....................................................... 20 D. CONCLUSION .............................................................................................. 21 APPENDIX ............................................................................................................ 22 AAPCC SYNTHETIC MARIJUANA FACT SHEET ............................................... 23 AAPCC CHARTS ........................................................................................... 24 2 I. The Basics: What are synthetic cannabinoids? The National Institute on Drug Abuse reports that synthetic cannabinoids are man-made mind-altering chemicals that are either sold sprayed on dried, shredded plant material so they can be smoked (herbal incense) or as liquids to be vaporized and inhaled in e-cigarettes and similar devices (liquid incense).1 The chemicals used to produce synthetic cannabis create similar effects to delta-9 tetrahydrocannabinol (THC), the active ingredient in cannabis.2 Because of this, synthetic cannabinoids are often misleadingly called “synthetic marijuana.” In reality, synthetic cannabis differs greatly from marijuana and contains powerful chemicals that can cause dangerous health effects including psychotic episodes and seizures.3 Synthetic cannabis is marketed under different brand names, and usually marketed to appear similar to marijuana. It is even marketed as aphrodisiac tea, herbal incense and potpourri.4 1 National Institute on Drug Abuse, Drug Facts: Synthetic Cannabinoids, (Revised Nov. 2015) http://www.drugabuse.gov/publications/drugfacts/synthetic-cannabinoids 2 The Australian Drug Foundation, Synthetic Cannabis, http://www.druginfo.adf.org.au/drug-facts/synthetic- cannabis#what_is (last visited Jan. 31, 2016). 3 American Association of Poison Control Centers, Synthetic Cannabinoids,(2016) http://www.aapcc.org/alerts/synthetic-cannabinoids/ 4 See Id. at n.2 3 Fig. 1 Examples of Pre-ban Synthetic Cannabinoids II. A Brief History of Synthetic Cannabinoids A. “Legal Smoke” Herbal smoking blends have been advertised in magazines such as High Times and Cannabis Culture for more than twenty years. These products were sold as legal alternatives to smoking marijuana. The ‘legal smoke’ industry’s goal was to create a product that resembled the appearance, texture, effects, and taste of marijuana. Sometimes referred to as “synthetic marijuana,” the product is a mixture of dried leaves from various herbal plants. The mixtures can be various colors including green, brown, blonde, and red. Synthetic marijuana is usually sold in small foil or plastic zip bags, approximately 2 by 4 3 inches in size.5 Most of the herbal mixtures sold claim to contain herbs traditionally used for medicinal purposes, including Lion’s tail, Indian lotus, and honeyweed. However, at least one study revealed that some of the ingredients listed by manufactures could not be found in the products, noting that they may be nothing more than lawn clippings.6 The herbs are usually reshaped and compressed to resemble marijuana buds. These substances have little to no recognized psychoactive effects. ‘Legal smoke’ products such as these are not the products under contention today. In fact, the legal buds that were once prominently advertised in the major marijuana magazines are rarely advertised today. B. “Spice” and other “Incense Blends” The synthetic cannabinoid known as “Spice” was first sold in the United Kingdom in 2004 as a recreation drug.7 Just two years later, in 2006, the drug had a considerable hold on the market, and the brand name “Spice” became the generic term for all synthetic cannabis.8 In December 2008, synthetic cannabinoids laced on plant material were first reported in United States when a shipment of “Spice” was seized and analyzed by government officials.9 Since then, synthetic drugs such as cannabinoids are continuing to gain popularity quickly. 51 new synthetic cannabinoids were identified in 2012, compared to only four in 2009.10 In 2015, poison centers received reports of 7,779 exposures to synthetic cannabinoids.11 5 Buddy T, Effects of Synthetic Marijuana or “Fake Weed” Unknown, About Health (Updated Dec. 05, 2015) http://alcoholism.about.com/od/tipsforparents/a/legal_bud.htm 6 See Id. at n.5 7 Spice Addiction Support, What is Spice/K2? The Facts on Synthetic Marijuana, (December 28, 2015), http://spiceaddictionsupport.org/what-is-spice/ 8 See Id. at n.7 9 Office of National Drug Control Policy, Synthetic Drugs (a.k.a. K2, Spice, Bath Salts, etc.), https://www.whitehouse.gov/ondcp/ondcp-fact-sheets/synthetic-drugs-k2-spice-bath-salts (last visited Jan. 31, 2016) 10 See Id. at n.9 11 See Id. at n.3 5 Although these new synthetic cannabinoids are sold under more than 500 names, the most popular brands sold today are “Spice” and “K-2.”12 The products are sold as “herbal incense” and “potpourri” and are easily found at small convenience stores, head shops, gas stations, and via the Internet from both domestic sources and abroad.13 They are often labeled “not for human consumption” in attempt to shield the manufactures and sellers from criminal prosecution.14 Since 2009, 95 different synthetic cannabinoids that are being sold as “legal” alternatives to marijuana have been encountered by law enforcement.15 In addition, “vaping” the liquid form of synthetic cannabinoids is becoming more and more of popular trend. The increasing popularity of e-cigarettes, hookah pens, and similar devices, especially in high schools and universities, is the reason behind this movement.16 C. Synthetic Cannabinoid Manufacture Most synthetic cannabinoids are manufactured in Asia without manufacturing requirements or quality control standards.17 The chemical compounds are generally found in bulk powder form, and then dissolved in solvents such as acetone. After they are dissolved, the are applied to plant material to make the “herbal incense” products or left in a liquid form as liquid cannabinoids designed to be vaporized. Distributors then package it for retail distribution, again with no pharmaceutical-grade chemical purity standards.18 It is common knowledge that 12 See Id. at n.7 13 U.S. Department of Justice Drug Enforcement Administration, Drugs of Abuse, A DEA Resource Guide, (2015), http://www.dea.gov/pr/multimedia-library/publications/drug_of_abuse.pdf#page=64 14 See Id. at n.13 15 See Id. at n.13 16 See Id. at n.7 17 See Id. at n.13 18 See Id. at n.13 6 once this product is purchased, it can be easily smoked (using a pipe, water pipe, or rolling the material in cigarette papers) or vaporized through both disposable and reusable e-cigarettes.19 “Spice” and similar products may contain one of many synthetic cannabinoids such as JWH-018, JWH-073, JWH-200, AM-2201 UR-144, XLR-11, AKB4, cannabicyclohexanol and AB-CHMINACA, AB-PINACA or AB-FUBINACA. Even prescription drugs such as phenazapam, have been found in some of these chemical products.20 The chemicals usually vary from batch to batch because manufactures try to stay ahead of the law, so packets can produce different effects even though the branding and packaging look the same.21 These designer drugs are target the cannabinoid type 1 receptor (CB1R) in the brain, which is responsible for the psychoactive effects of THC in cannabis.22 Despite that similarity, the more that researches learn the more it is clear that these products are not even close to being the same drug as marijuana.23 It is becoming easier for manufactures to modify the molecular structure of the mind- altering chemicals that produces use to make products like “Spice,” which makes these products difficult to identify and study.24 Synthetic cannabinoids that were commonly available during the 2011-2013 were tested and the results showed that the compounds were several times as potent as THC.25 When the latest drugs from 2014-2015 were tested, the results showed 19 See Id. at n.13 20 See Id. at n.7 21 See Id. at n.2 22 Samuel Banister, Ian S McGregor, Roy Gerona, Labs Make New, Dangerous Synthetic Cannabinoid Drugs Faster Than We Can Ban Them, Medical Daily (Nov. 8, 2015 9:00 AM) http://www.medicaldaily.com/labs-make- new-dangerous-synthetic-cannabinoid-drugs-faster-we-can-ban-them-360600 23 Alice G. Walton, Why Synthetic Marijuana Is More Toxic To the Brain than Pot, Forbes (Aug. 28, 2014 10:40 AM) http://www.forbes.com/sites/alicegwalton/2014/08/28/6-reasons-synthetic-marijuana-spice-k2-is-so-toxic-to- the-brain/#29835d2d49eb 24 Angus Chen, Chemical Change In Synthetic Marijuana Suspected of Causing Illnesses, NPR (April 27, 2015 11:53 AM) http://www.npr.org/sections/health-shots/2015/04/27/402052478/chemical-change-in-synthetic- marijuana-suspected-of-causing-illnesses 25 See Id. at n.22 7 that they were up to 700 times more potent.26 In addition, most synthetic cannabinoids that were tested fully activated CB1R, whereas THC does not fully activate the receptor.27 The earliest preparation of “Spice” contained JWH-018, and that chemical remains to be one of the most common chemicals found in synthetic cannabis.28 John W. Huffman, the man who created JWH-018 and more than 450 other synthetic chemicals that mimic marijuana, said that JWH-018 “can be made by a halfway decent undergraduate chemistry major in three steps using commercially available materials.”29 Synthetic cannabinoid recipes have been found to contain basic, often little used foliage herbs such as Mugwort, Lemongrass, Chamomile, Lavender, Hops, Muellin, Damiana, Marshmallow leaves, Skullcap, Wild Dagga, Wild Opium, Spearmint, Dream Herb, and Chamomile.30 The inundated herbs usually return to their typically dry state, usually a green color reminiscent of either low-grade or high-grade marijuana. Different combinations of foliage leaves will produce different tastes and visual appeal. Various flavorings can also be added to broaden the spectrum from both taste and aesthetics.31 Collateral ingredients consist of flavoring herbs such as clove, passion flower, pine flavoring, orange zest, honey, cinnamon, and other ingredients.32 26 See Id. at n.22 27 See Id. at n.22 28 Leaf Science, The Surprising Origins of Synthetic Marijuana (Sep. 25, 2013), http://www.leafscience.com/2013/09/25/the-surprising-origins-of-synthetic-marijuana/ 29 See Id. at n.28 30 Wolfwine, Extreme Herbal Smokers (July 16, 2012), https://makeherbalblends.wordpress.com/ 31 See Id. at n.30 32 See Id. at n.30 8 Foliage Herbs in Natural State Mugwort Lemongrass Chamomile Hops Muellin Damiana Foliage Herbs in Dried State Dried Mugwort Dried Lemongrass Dried Chamomile 9 Hops Muellin Daimana Typical Recipe for Synthetic Cannabinoids “Mountain Mist Mix” Ingredients:  1 bottle of 100% pure Acetone  2 oz. foliage leaves, Mullein or Marshmellow is fine  1 gram - choice of JWH-018, JWH-073, JWH-200, or any other type of JWH Materials: Materials:  1 digital scale  1 milliliter measuring beaker  1 HDPE spray bottle  1 small mixing bowl  1 glass baking dish  1 pair of rubber gloves Procedure: 1. Measure out 5 milliters of Acetone and pour it into a small mixing bowl. 2. Weigh out 1 gram of quality JWH substance and pour it carefully into the mixing bowl. 3. Mix the JWH and Acetone until JWH is complete liquid. 4. Carefully pour Acetone JWH mixture into spray bottle. 5. Weigh out 2 oz. of foliage leaves and pour foliage into baking dish and spread it 10