Designer Drugs Lead to Designer Legislation
Francesca Liquori, NAGTRI Program Counsel
This article is Part I of a NAAGazette series that addresses the nation’s designer drug epidemic. It explores legislative steps taken federally and by the states to reduce the supply of these drugs.
Synthetic drugs are produced by modifying the chemical structure of existing illicit substances, with the goal of mimicking those substances’ effects while evading criminal prosecution. They are often referred to as “designer drugs” because they do not exist naturally. There are seven main classes of these drugs. While these substances are marketed as safe alternatives to illegal narcotics, they are often just as dangerous, if not more, than the substances they mimic. This article will focus on two such classes, synthetic cathinones and synthetic cannabinoids, and the emergence of such classes of drugs in the mainstream retail market, as well as the efficacy of legislation enacted to combat the use of these hazardous substances.
Cathinone is a psychoactive stimulant naturally found in the khat plant. The chemical makeup of cathinone is almost identical to that of amphetamine. Today, synthetic cathinones are marketed as legal alternatives to cocaine and methamphetamine. Users ingest these substances in a number of ways, including snorting, taking orally, smoking or via injection. Like cocaine and amphetamine, synthetic stimulants disrupt the dopamine and norephedrine brain systems that are the centers of addiction. However, like hallucinogens, synthetic stimulants also disrupt the serotonin system, which affects motivation, mood and perception. Therefore, synthetic drugs can combine the addictive properties of stimulants with the perception altering properties of hallucinogens.
Side effects of synthetic cathinones include paranoid and violent behavior, seizures, panic attacks, increased blood pressure and heart rate, chest pain, nausea and vomiting. Users have reported experiencing hallucinations, psychosis and suicidal thoughts that have lasted for three to four days. Researchers have found that the use of these drugs can permanently alter brain chemistry, meaning that some of the side effects associated with the use of synthetic cathinones can be permanent.
Synthetic cannabinoids are compounds which are chemically similar to tetrahydrocannabinol (THC), the psychoactive ingredient in marijuana. The synthetic materials are sprayed on a mix of herbs and spices. Users then smoke the substance or drink it as a tea. Synthetic cannabinoids bind to the cannabinoid receptors in the brain more tightly than THC itself, which often leads to powerful and unpredictable effects, such as severe episodes of acute psychotic effects. Common side effects of synthetic cannabinoid use include hallucinations, delusions, severe agitation, elevated heart rate and blood pressure, vomiting, seizures, and blackouts.
Synthetic Drugs in Legitimate Retail Markets
Synthetic cathinones were first developed over 100 years ago, with some of the earliest synthetics developed as anti-depressants. Synthetic cannabinoids were developed in the 1980s by pharmaceutical companies and academic institutions researching pain management and the effect of cannabis on the brain. As these drugs were developed, the developers’ studies, and the drugs’ chemical makeup were published in scientific journals and books. These resources are now used to manufacture synthetic drugs for illegal use.
Synthetic drugs were initially manufactured in small clandestine laboratories and sold on the street, similar to narcotics such as cocaine and heroin. However, since 2008, synthetic cannabinoids and cathinones have appeared in legitimate retail markets, such as liquor stores, gas stations, head shops, and on the Internet. The drugs are typically manufactured in large laboratories in China, Pakistan and India, and often packaged for distribution in Europe. They are then smuggled into the United States as misbranded imports.
These synthetic drugs are marketed towards young adults, with brand names like “Mr. Smiles” and “Moon Rocks.” While these substances are typically labeled “not for human consumption,” they are marketed as legal and safe alternatives to controlled substances and often sold alongside pipes and other paraphernalia. Synthetic cathinones are typically manufactured in powder and crystal form, and sold in packets labeled “bath salts” or “plant food.” Synthetic cannabinoids are usually labeled as “incense” or “potpourri.”
The Dangers of Synthetic Drugs
In addition to the unpredictable side effects caused by synthetic drug use, there is little information regarding the long-term effects of these substances. Equally disturbing is the nature of the current synthetics retail market. Retailers are generating huge profits. There is no regulation of the manufacture, distribution or packaging of these substances. The chemical makeup and potency of the products varies from package to package and store to store. It is impossible to know the condition of the factories in which these drugs were created and assembled.
Even with the inherent risks associated with the use of synthetic drugs, as a result of the suppliers’ new marketing and distribution strategy, synthetic drug use has drastically increased over the past five years. Individuals who would otherwise never have access to drug dealers can now purchase these substances online or in a local retail store. In 2011, one in nine high school seniors had used popular synthetic cannabinoids “Spice” or “K2” over the past year, making synthetic marijuana the second most frequently used illicit drug, after marijuana, among high school seniors. During that same year, the National Drug Intelligence Center (NDIC) published a situation report that labeled synthetic cathinones “an emerging domestic threat.”
As the use of synthetic drugs has increased, so have the reports of overdose deaths and use-related injuries. In 2012, poison centers received 2,691 calls from exposure to synthetic cathinones and 5,230 calls relating to exposure to synthetic marijuana. Strikingly, 60 percent of individuals admitted to an Emergency Department for reported Spice use in 2011 were between 12 and 20 years old.
The dangerous and frightening side effects of synthetic drugs have been heavily reported in the news. For example, in 2011, an Army sergeant killed his wife and 5-year-old child and then took his own life, after ingesting synthetic cathinones. In 2012, a Pennsylvania man smoked synthetic marijuana and then shook his girlfriend’s 2-month-old son to death. Last year, smoking synthetic marijuana caused a 16-year-old Texas teenager to experience psychotic hallucinations, and she was eventually placed in a medically-induced coma. An MRI revealed she had suffered several severe strokes.
As the popularity of synthetic drugs has increased, both federal and state authorities have explored ways to combat the drugs availability. What follows is an assessment of the recent legislative steps taken to combat synthetic drug use.
The Controlled Substance Act of 1980 (CSA) criminalizes the manufacture, use, importation and distribution of certain drugs and substances. The CSA divides regulated substances into five schedules, based on medicinal use, potential for abuse, safety and dependence. Schedule I is the most restrictive, and includes substances that are addictive and do not have a currently accepted medical use in treatment in the United States.
There are two ways in which a substance can be scheduled under the CSA. First, Congress can schedule substances legislatively. Additionally, the Comprehensive Crime Control Act of 1984 gave the U.S. attorney general, together with the secretary of the U.S. Department of Health and Human Services (HHS), the power to temporarily schedule substances. The attorney general has delegated these powers to the U.S. Drug Enforcement Agency (DEA). To temporarily schedule a substance, the substance must meet the scheduling requirements outlined in the CSA. In addition, the agencies must examine eight factors, including the history and pattern of current abuse of the substance, and find that three of the eight factors exist. Last, the agencies must also determine that the scheduling is necessary to “avoid imminent hazards to public safety.” Once a substance is temporarily scheduled, the DEA and the HHS determine whether the scheduling should be permanent.
The scheduling process, while less time consuming than legislative scheduling, is still quite lengthy. This can make the process of scheduling the synthetic substances that mimic the chemical structure of already scheduled drugs cumbersome. Therefore, as a response to the emergence of some synthetic opioids, the Controlled Substances Analogue Enforcement Act of 1986 (AEA) added the definition of an analogue to the CSA. The AEA mandated that if a certain substance is found to be an “analogue” of a Schedule I or II controlled substance, that analogue substance is to be treated as a Schedule I controlled substance for the purposes of any federal law. Thus, the AEA served as a method of criminalizing synthetic drugs without having to ban them individually under the CSA.
In order for a substance to be classified as a controlled substance analogue, the substance’s chemical structure must be substantially similar to the chemical structure of a CSA Schedule I or II controlled substance. Additionally, the substance must either (1) have a similar or greater pharmacological effect on the central nervous system than a Schedule I or II controlled substance or (2) with respect to a particular person, that such person represents or intends the substance to have a pharmacological effect substantially similar to or greater than a Schedule I or II controlled substance. Last, the substance at issue must be intended for human consumption.
Armed with the ability to prosecute the possession and sale of synthetic drugs, federal authorities have staged a number of long-term operations, including Project Synergy and Operation Logjam, which resulted in the arrest of numerous individuals and the seizure of large amounts of synthetic drugs and millions of dollars. However, law enforcement has learned that prosecuting defendants using the AEA is quite difficult. For example, to prove that a defendant possessed a drug listed in the CSA, such as cocaine, a prosecutor simply must show simple possession, and that the chemical makeup of the substance possessed was identical to that of cocaine. In contrast, to prove that a defendant possessed a cocaine analogue, a prosecutor must show a substantial similarity among the chemical structures of cocaine and the substance at issue, the effect that the substance at issue has on the central nervous system, and that the defendant intended that the drug be intended for human consumption.
It is the last requirement that has caused the most problems with the prosecution of these cases. Retailers attempt to avoid prosecution under the AEA by labeling their products as not intended for human consumption. While courts have held that such labeling is not dispositive of a defendant’s intent, an investigation is still necessary to prove a suspect’s intent. This can be costly, in both time and money. Additionally, another difficulty with the prosecution of these cases is that investigators must first purchase the drug and then have it analyzed to determine if it meets the “substantially similar” threshold. In contrast with the analysis of common scheduled drugs, such as heroin and cocaine, not all local drug laboratories have the ability to test synthetic drugs. This testing goes beyond simple detection of a substance. While the DEA’s regional laboratories have the capabilities to perform the testing, there is currently a vast synthetic drug testing backlog.
Moreover, at trial, there is often a “battle of the experts,” with forensic scientists debating the meaning of “substantially similar,” and whether the two substances at issue meet that requirement. A single successful AEA prosecution does not render the substance an analogue for subsequent prosecutions, meaning that subsequent cases within the same jurisdictions will still essentially be “battles of the experts.” The definition of “substantially similar” has also been subjected to arguments that it is overly vague. While federal courts have uniformly dismissed such arguments, overcoming this argument is yet another time consuming burden plaguing prosecutors throughout the country.
In 2012, Congress attempted to mitigate these problems by broadening the emergency scheduling powers granted to the DEA through the Drug Abuse Prevention Act of 2012 (DPA) so that synthetic drugs could more easily be specifically scheduled within the CSA. The legislation lengthened the period of time that a drug could be temporarily scheduled, and also permanently scheduled 11 synthetic stimulants and hallucinogens to Schedule I. Since then, the DEA has temporarily scheduled over 25 new synthetic cathinones and cannabinoids.
However, even with the shortening of the scheduling process, the process is still too lengthy to keep up with current chemistry. By 2012, the prevalence of synthetics was so extensive, and the chemists’ ability to alter the composition of the drugs to evade with federal laws was so well established, that these laws did not have the intended deterrent effect. Many law enforcement authorities have grimly referred to the process as “whack-a-mole” – a drug is temporarily scheduled and soon after, chemists develop five more variations of the substance that are not scheduled.
The states were faster to respond to the threat of synthetic drugs than the federal government. A majority of the states began to ban synthetics before 2012. State synthetic drug analogue legislation typically falls into three categories: bans of specific synthetic substances, generic language bans, and the banning of substances based on how the substances affect the human body. Each variety has its strengths and its shortcomings. As illustrated below, legislation which includes a combination of these three categories is the most effective method of cutting off the supply of synthetic drugs.
Most states’ scheduling processes are simpler than the CSA scheduling procedures. Because the states have to combat the “whack-a-mole” problem described above, many states have simplified their emergency scheduling procedures even further, in order to make adding additional synthetics a faster and easier process than before. However, given the manufacturers’ abilities to “tweak” the chemical makeup of these substances to avoid prosecution, analogue legislation is necessary for the states as well.
Much of the states’ analogue legislation mirrors the language of the AEA. For example, Idaho’s statute criminalizes any substance that has a “similar chemical structure” as THC. To date, none of the generic language ban statutes have been successfully challenged on vagueness grounds, though defendants continue to posit this argument. North Carolina was the first state to have its ban successfully challenged on the grounds of insufficient notice. In State v. Nickel, the North Dakota Supreme Court upheld the dismissal of charges for possession and distribution of synthetic cannabinoids and cathinones because in its rush to ban synthetic drugs, the North Dakota Board of Pharmacy failed to give proper notice of the new law, as required by the statute.
Some states have enacted generic language analogue legislation which uses a disjunctive rather than a conjunctive controlled substance analogue definition. For example, California’s statute defines an analogue as a substance that either has a chemical structure substantially similar to the chemical structure of a controlled substance or has or 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, or greater than, the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance. While this language can certainly avoid some of the burdens in prosecuting these crimes, such laws can have unintended consequences, such as the ability to criminalize alcohol, nicotine and caffeine.
Due to the challenges involved with proving the “substantial similarity” of two chemical structures, states have begun to explore language that criminalizes substances based on how the substance acts within the human body. Alabama’s statute defines a synthetic cannabinoid as a substance that is chemically similar (rather than substantially similar) to a scheduled controlled substance, which has been demonstrated to have binding activity at one or more cannabinoid receptors or is capable of exhibiting cannabinoid-like activity. Similarly, Maryland’s recently enacted Senate Bill 109 outlaws the possession or sale of cannabimimetic agents, or compounds that mimic the effects of THC and other psychoactive compounds in marijuana. Oklahoma’s synthetic controlled substance ban simply requires that the drug produce a similar physiological or psychological effect on the central nervous system as a scheduled controlled substance.
Oklahoma’s statute also attempts to ease the difficulty of proving that a substance is “not for human consumption.” The law advises courts to consider certain representations made about the drug, such as “statements made to the recipient that the substance may be resold for an inordinate profit.” Minnesota law bans a controlled substance analogue to the extent that it is implicitly or explicitly intended for human consumption. Indiana’s SB 536 criminalizes the possession, distribution or manufacture of a “synthetic drug lookalike substance,” defined as one or more of the following: (1) a substance that a reasonable person would believe is a synthetic drug or (2) a substance that a reasonable person would believe is being purchased or sold as a synthetic drug or (3) a substance that a person knows or should have known was intended to be consumed, and that consumption was intended to cause or stimulate intoxication, with the exceptions of food, alcohol, dietary supplements and tobacco.
While all of the above legislation has helped to combat the synthetic drug epidemic, prosecutors still face many difficulties in proving their cases. Often, there is not enough scientific research on both the chemical structure of these substances and the effect on the body. As a result, prosecutors are still faced with a “battle of the experts” when it comes time to try the case. Moreover, as noted above, while states generally have easier and faster methods for scheduling substances, clandestine chemists motivated by heavy profits have still been able to alter substances to evade criminal penalties faster than the substances can be scheduled.
States have therefore been exploring alternative ways to combat the industry, including utilizing licensing, labeling and nuisance abatement statutes. For example, Florida deprives synthetic retailers of the ability to sell lottery tickets, cutting into their ultimate profits. Additionally, Indiana state law mandates the revocation of retailers’ merchant certificates. In Maryland, liquor licensees can lose their licenses if found selling these substances.
In certain states, such as Tennessee, premises where these synthetic drugs are sold are subject to abatement. All furnishings, fixtures, equipment, moneys and stock used to maintain the nuisance can be seized. Tennessee has also used consumer protection and agricultural laws to combat retail sales of synthetic drugs. For example, some synthetic drugs are labeled “plant food.” Tennessee law requires that all fertilizers be registered with the commissioner of agriculture before being distributed in the state, makes illegal the misbranding of fertilizers and creates seizure laws such that any fertilizer not in compliance with the law may be seized as a matter of course.
New York has taken similar steps to Tennessee. In 2012, the state attorney general filed suit against 12 retailers who sold synthetic cannabinoids and cathinones, arguing that the retailers violated state labeling laws by omitting manufacturing information, product content, and safety and health risks associated with product use, as well as by labeling the products “not for human consumption.” The lawsuit further alleged that the retailers were involved in fraud and deceptive acts and practices. To date, at least some of the retailers have been enjoined from selling or offering the items for sale, and the retailers were subject to penalties.
Municipalities have also acted to combat the synthetic drug epidemic. For example, the City of Duluth, Minn., has had success in using its public nuisance law to combat a synthetic drug retailer. A store, called Last Place on Earth, sold synthetic cathinones and synthetic marijuana. The store’s patrons were loud, lewd and violent and often loitered outside the store. Nearby businesses suffered from a significant loss in revenue as a result due to a loss in foot traffic. The business also negatively affected the city’s resources, as there was an 81 percent increase in requests for law enforcement in the area during the time that the store was in business in 2012. Nearly 30 percent of all Children in Need of Protection or Services petitions were related to synthetic drug use. As a result, the city served the business with notice of public nuisance. In City of Duluth v. 120 East Superior Street, the court held ample evidence in the record of public nuisance, so issuance of an injunction was proper.
The emergence of synthetic cannabinoids and cathinones has had massive public safety implications throughout the country. An examination of the current federal and state synthetics legislation shows that many efforts have been undertaken to combat this problem, but that the prosecution of the possession and sale of these substances remains challenging. This article addressed the legislative steps taken to reduce the demand side of the synthetic drug market. The second article in the NAAGazette series will explore the effect that prevention and education models have had on the synthetic drug epidemic.
Zunny Losoya, Synthetic Drugs – Emergence, Legislation and the Criminal and Legal Aftermath of Broad Legislation, quoting Rommie L. Duckworth, Bath Salts and Synthetic Marijuana: An Emerging Threat, Fire Engineering, Nov. 2013 at 33.
 Drug Enforcement Administration, 2013 National Drug Threat Assessment Summary, p. 14, available at http://www.justice.gov/dea/resource-center/DIR-017-13%20NDTA%20Summary%20final.pdf (last visited February 2, 2014).
 Timothy P. Stackhouse, Regulators in Wackyland: Capturing the Last of the Designer Drugs, 54 Ariz. L. Rev. 1105, 1112, citing http://www.emcdda.europa.eu/publica%20tions/drug-profiles/synthetic-cathinones.
 Dangerous Synthetic Drugs: Testimony Before the Caucus on International Narcotics Control, United States Senate (September 25, 2013) (written statement of Nora D. Volkow, M.D., p. 4).
 http://www.aapcc.org/alerts/bath-salts/ (last visited February 2, 2014).
 Volkow Testimony at 2.
 Stackhouse, supra n. 2 at 1113.
 Dangerous Synthetic Drugs: Testimony Before the Caucus on International Narcotics Control, United States Senate (September 25, 2013) (Testimony of Joseph T. Rannazzisi, p. 1), citing F. Ivy Carroll, Anita H. Lewin, S. Wayne Mascarella, Herbert H. Seltzman and P.Anatha Reddy. Designer drugs: a medicinal chemistry perspective. Annals of New York Academy of Sciences 2012, 1248, 18-38.
Legislative Hearing to Address Bioterrorism, Controlled Substances, and Public Health Issues: Testimony Before the Subcommittee on Health Committee on Energy and Commerce, United States House of Representatives (Testimony of Joseph T. Rannazzisi, p.5).
 A head shop is a shop specializing in articles of interest to drug users. “Head shop.” Merriam-Webster Online Dictionary, 2014. Available at http://www.merriam-webster.com/dictionary/head%20shop(last visited February 2, 2014).
 Jake Schaller, Not for Bathing: Bath salts and the New Menace of Synthetic Drugs, 16 J. Health Care L. & Pol’y, 245, 248, quoting Rannazzisi 2011 Testimony.
 Rannazzisi, 2013 Testimony, at 6.
 The products are also often marketed as being undetectable by drug testing. In fact, a recent study showed that current drug testing often doesn’t capture synthetic cannabinoid use. Specifically, in a sample of men 30 years or younger within the Washington, D.C. parole and probation system, 39% of those who cleanly passed a traditional drug screen tested positive for synthetic cannabinoids. Between one-quarter and one-third of young men who were tested in the Washington, D.C. criminal justice system had positive test results for synthetic cannabinoids, regardless of whether they had failed or passed a traditional drug screen. Id. at 27; see also Community Drug Early Warning System: The CDEWS Pilot Project, available at http://www.whitehouse.gov/sites/default/files/finalreport_with_cover_09172013.pdf (last visited February 2, 2014).
 Rannazzisi, 2013 Testimony, at 5.
 Rannazzisi, 2013 Testimony, at 4.
 Fake Pot is a Real Problem for Regulators, http://www.npr.org/2012/07/12/156615024/fake-pot-is-a-real-problem-for-regulators (last visited February 2, 2014). The synthetic drug market is a roughly $5 billion industry.
 Schaller, supra n. 10 at 250.
 National Institute on Drug Abuse, Drug Facts: High School and Youth Trends, available at http://www.drugabuse.gov/publications/drugfacts/high-school-youth-trends (last visited February 2, 2014).
 United States Department of Justice National Drug Intelligence Center, Synthetic Cathinones (Bath Salts): An Emerging Domestic Threat, available at http://www.justice.gov/archive/ndic/pubs44/44571/44571p.pdf (last visited February 2, 2014).
 http://www.aapcc.org/alerts/synthetic-marijuana. While there has been a decrease in this number over the past year, some experts partially attribute the decrease to an increase in familiarity with and knowledge of the drugs within the health care community that allows physicians to treat the patients without calling poison control for guidance. See Dangerous Synthetic Drugs: Testimony Before the Caucus on International Narcotics Control, United States Senate (September 25, 2013) (Testimony of Michael P. Boticelli, p. 3).
 Center for Behavioral Health Statistics and Quality, SAMHSA, Drug Abuse Warning Network 2011.
 Dunmore Man Pleads Guilty to Baby Boy’s Murder, Faces up to 40 Years in Prison, http://m.citizensvoice.com/news/dunmore-man-pleads-guilty-to-baby-boy-s-murder-faces-up-to-40-years-in-prison-1.1303270 (last visited January 31, 2014).
 Teen Narrowly Escapes Death After Smoking Synthetic Marijuana, http://www.cnn.com/2013/02/04/health/synthetic-marijuana-irpt/ (last visited January 31, 2014).
 21 USC 801 et seq. (2013).
 THC and various cathinones are listed within Schedule I of the CSA.
 21 U.S.C. ¿ 811(h) (2012).
 Dangerous Synthetic Drugs: Testimony Before the Caucus on International Narcotics Control, United States Senate (Testimony of Timothy J. Heaphy, p.2).
 In July 2013, federal authorities arrested over 230 suspects and seized over ten thousand kilograms of synthetic drugs and $53 million over the course of two days. Investigators were able to track the profits of many of the retailers who sold the drugs to foreign nationals in the Middle East. Press release, DEA, Updated Results from DEA’s Largest-Ever Global Synthetic Drug Takedown Yesterday (June 26, 2013), available at http://www.justice.gov/dea/divisions/hq/2013/hq062613.shtml (last visited February 3, 2014).
 In July 2012, federal authorities arrested over 90 suspects throughout the country, seized millions of packages of synthetic drugs, and over $30 million. Press release, DEA, DEA News: Nationwide Synthetic Drug Takedown (July 26, 2012), available at http://www.justice.gov/usao/id/news/images/dearelease07262012.pdf (last visited February 3, 2014).
 U.S. v. Sullivan, 714 F. 3d 1104, 1107 (8th Cir. 2013); see also U.S. v. Storage Spaces, 777 F.2d 1363 (9th Cir. 1985).
 DEA’s National Repository for Drug Identification (NFLIS) has seven field labs located throughout the country. http://www.deadiversion.usdoj.gov/nflis (last visited February 4, 2014).
 The NFLIS labs are capable of analyzing approximately 54,000 exhibits annually. In 2012, for example, the labs received 68,000 submissions.
 Rannazzisi, 2011 Testimony at 11.
 US v. Roberts, 363 F.3d 118 (2d Cir. 2004); US v. Fedida, 942 F.Supp 2d 1270 (M.D. Fla. 2013).
 Stackhouse, supra n. 2 at 1120. 34 states and the District of Columbia have controlled substance analogue statutes or their equalivant within their controlled substances acts. National Alliance for Model Drug Laws, Controlled Substance Analogs Statutory Comparison and Compilation (2012), available at http://www.namsdl.org/library/7C341200-1C23-D4F9-74CEC9BE0E87F653/ (last visited February 3, 2014). 45 states now criminalize synthetic cathinones, cannabinoids or both. Rannazzisi, 2013 Testimony at 15.
 Stackhouse, supra n. 2 at 1124.
 Idaho S.B. 1136 (2013). The statute also includes a generic ban on synthetic cannabinoids.
 See State v. Srack, 314 P.3d 890 (Kan. Ct. App. 2013); see also State v. Beaudette, 99 So.3d 679 (La. 2012); State v. Heinrichs, 839 N.W.2d 6771 (Iowa Ct. App. 2013).
 Stackhouse, supra n.2 at 1123.
 State v. Nickel, 806 N.W. 2d 155, 160 (N.D. 2011).
 However, in a later case, the court held that the notice issue was resolved once the emergency scheduling of the drug became permanent and was published in the state’s code. Haag v. State, 2012 N.D. 241 (N.D. 2012).
 Cal. Health & Safety Code ¿ 11401 (2012). To date, prosecutions under this statute have not been successfully challenged on the disjunctive argument posited above.
 See U.S. v. Turcotte, 405 F.3d 515, 522-523 (7th Circ. Ill. 2005) (explaining why many courts have read the current AEA language conjunctively rather than subjunctively).
 National Alliance on Model State Drug Laws, Supplement to Controlled Substance Analogues Statutory Comparison, p.2, available at http://www.namsdl.org/library/7C346E97-1C23-D4F9-7437110A4CDE3D30/(last visited February 3, 2014).
 The statute also specifically lists chemical substances that are considered to be cannabimimetic agents.
 Stackhouse, supra n.2 at 1120.
 Okla. Stat. tit. 63 ¿ 2-101(37).
 The constitutionality of this statute was upheld in Little Arm Inc. et a. v. Prosecutors et al., No. 1:13-cv-862, S.D. Ind., filed May 28, 2013. The court rejected the defendants’ claims, including the argument that the statute violated the 14th amendment because it was impossible for an average person to determine whether he possessed a “synthetic lookalike substance.”
 People v. George Moss, 2013 N.Y. Misc. Lexis 5607 (2013).
 City of Duluth v. 120 E. Superior St., 2013 Minn. App. Unpub. LEXIS 881 (Minn. Ct. App. Sept. 16, 2013). The owner of the store was later convicted in federal court of over 51 charges relating to the sale of synthetic drugs. Guilty Verdict in Minn. Synthetic Case, http://www.mprnews.org/story/2013/10/07/last-place-on-earth-convicted (last visited February 3, 2014).