Demonstrating a typical belief held by law enforcement agencies and prosecutors, one prosecutor admits to purposely keeping victims of his prosecutions in the dark about what activities are considered illegal by law enforcement.

The quote above really illustrates that perception is everything. This prosecutor believes that keeping this information away from businesses prevents evasion of prosecution. That is his perception. However, imagine that you are a person who is just trying to comply with the law. That quotation then says that prosecutors don’t want you to know what is legal so they can then entrap you and take your property. What property you ask? The billions of dollars that the government wants to get their hands on, which the prosecutor above purposely referred to, as if being successful on terms that he personally considers unacceptable is a crime by itself.

Consider this sentence: “And that is why it is important that active criminal investigative data remain confidential so that synthetic drug makers and sellers do not destroy, hide or re-label existing products, or simply start fresh with modified synthetic compounds.”

Now think about what that really means – so that manufacturers do not COMPLY with the law by re-labeling existing products that they are compliant with the law, or simply start fresh with compounds that are COMPLIANT with the law.

In other words, this prosecutor and other law enforcement and government agencies across the country are basically saying that they don’t want manufacturers to be able to figure out how to follow the law. They WANT manufacturers to BREAK the law, so they can seize property and cash lawfully.

This doesn’t seem to us to be about protecting the public. In a country where the rule of law is supposed to be respected, it seems to us that preventing people from complying with the law by keeping information from them that allows them to do so is wrong, dishonest, and immoral. It especially seems hypocritical when these same parties who are boasting of their dishonest and shady practices are accusing the businesses they persecute of immorality.

According to a unofficially editorialized (meaning the story paints Carlson in a bad light by calling his products synthetic drugs, thereby implying the state is right, even though that is a conclusion that is in question) story appearing on the Duluth News Tribune website, Jim Carlson, owner of Duluth head shop The Last Place on Earth, is suing to recover products seized by local authorities. His attorney, Randall Tigue, argues that “authorities raided the Superior Street shop last week because they didn’t find anything illegal while executing what he called an unlawful search warrant there last September” (Duluth News Tribune).

Carlson has been fighting with authorities for close to a year now over selling herbal incense products at his head shop. He’s been raided more than once, if I’m not mistaken, and each time, he continues to sell the products. Carlson contends that he is doing nothing illegal.

In our opinion, although we’re certainly not informed as to all the details of the case, Carlson is likely correct. That doesn’t mean that he will prevail though. We believe this because our experience tells us that prosecutors and even police, as well as the judiciary, are barely informed of what is or is not illegal, nor when certain substances became or did not become illegal.

This is a new and developing area of law that many members of the legal field don’t entirely understand. Of all the members of the legal field involved in these prosecutions, defense attorneys are probably most well-informed as a result of their dealings with their clients, who usually know exactly what is legal or not, and when it did or did not become that way.

Futhermore, most of the people being prosecuted on herbal incense related charges these days probably didn’t know they were doing anything illegal (if they were). Most likely, they carefully researched the law and only continued to participate in the industry because they believed, after research, that their activities were totally legal. No one wants to go to jail, after all.

However, as those in the herbal incense industry have now discovered, being right is no protection from raids, expensive legal fees, prosecutions with fallacies as their basis, unjust seizures of property and cash, and convictions that are based on the defendant simply wanting an end to government  harassment than being guilty of anything.

We have learned that sometimes, it doesn’t even matter when or if a particular substance was illegal. Authorities will find a way to prosecute behaviors they believe are unacceptable or against society’s best interests. If one law doesn’t apply in our overly-criminalized society, they will find another.

You would be surprised at how hard it is to show that you are right in court. Prosecutors will vehemently argue points of law that they are totally in error over, and they do not always even remember the details of the case correctly, but then they make statements to judges in their arguments that aren’t factually correct, and no one objects. Lawyers are not all created equal, that is for sure.

It will be very interesting to see if Carlson prevails in court. What can we learn from this? The lesson here is that you are your own best advocate, and you should stay well-informed of the law and what’s going on in your community. Lawyers do not know everything about the law, you might have to push your attorney to learn more about the laws concerning these products, if you find yourself in a tough spot.

Spencer Siegel, who has practiced criminal defense law in Florida for more than 18 years, was quoted today in a story appearing on BusinessInsider.com, as saying that prosecutions resulting from the nationwide operation will not be successful because “90 to 99 percent of people involved had done everything they were supposed to do” to comply with the law.

“This is the world’s largest and [best] organized shakedown I’ve ever seen in my life,” he said. “They’re shaking it down because they don’t like the way the product sounds. But the product is not illegal.”

Mr. Siegel may indeed be correct, however, our experience is that the law finds its true meaning in application. That application to cases is made by human beings. What we know about human beings is this – they are more than capable of making mistakes. Our experience also tells us that judges and prosecutors frequently don’t even know what the law actually is in their state or when or if a substance was even scheduled at the time of an arrest or seizure.

The DEA’s stated purpose in conducting Logjam was to seriously cripple the industry. Although prosecutions aren’t likely to succeed, those prosecutions will cost defendants thousands of dollars, if not tens of thousands. In this particular industry, raids are more often than not conducted with the idea of harrying businesses into no longer selling their products, legal or not. And since this is a business, not a hobby, money talks.

So if selling herbal incense begins to lose its profitability, then like all business models that don’t make money, this one will go extinct too.

It seems to us that, at least partially, the goal of any Operation Logjam prosecution will be to cost defendants money and make selling herbal incense too costly to make a profit.

So although these prosecutions may not result in convictions, it’s important and wise to note that these prosecutions may still result in incense businesses folding or turning to other, less troublesome, products. Stay tuned.

Although we weren’t raided, thank God, we were confused by the raids. We’re familiar with some of the businesses that were raided, and as far as we knew, these businesses ran a clean operation, making sure they complied with the new Federal law. We definitely wouldn’t do business with them otherwise. Operation Logjam likely resulted in the confiscation of products that are currently legal under the new Federal Ban.

Federal Herbal Incense Ban Not Effective Till October 1?

We doubt it. We have seen stories stating that the new Federal Ban won’t go into effect until October 1. Although that is possible, our information says that the October 1 date is not factual, and we definitely will choose to err on the side of caution every time.

Emergency Scheduling Powers Being Used?

The Federal Ban granted new emergency scheduling powers to the DEA. Now we are hearing rumors that the DEA is using these new powers to schedule more compounds. We understand that information will come out on Monday as to the truth of that rumor. We will be sure to stay on top of this and make sure our product line is fully compliant.

If this rumor turns out to be true, then the DEA will not need to return the products that were currently legal even under the new Federal ban. That will not be a change from the standard anyway. Those next-generation products would then become illegal. Herbalaxation will make sure we are compliant with any revised schedule, immediately, by removing mention of any non-compliant products from our site and then destroying any non-compliant products before any such scheduling becomes effective.

Were Some Logjam Targets Selling Non-Compliant Products?

We have also heard that some businesses raided as part of Operation Logjam were selling old products that, under the new Federal ban, contain schedule I controlled substances. We suspect that Operation Logjam may have primarily targeted bath salts and manufacturers of bath salts, which of course we do not carry. If a business was continuing to sell products it knew was illegal, clearly, they put themselves at risk.

The DEA’s stated purpose in conducting Operation Logjam, though, was to seriously cripple the industry. We must say that they may have succeeded in doing so, by taking down several large manufacturers that were viewed as making quality products that sellers could be confident were also legal. It is now unclear what direction the herbal incense industry will go next.

We learned today that the DEA will prosecute some Logjam targets through the Federal Analog Law, which makes illegal any substances either chemically or pharmacologically similar to a schedule I controlled substance. Herbalaxation believes that our products are not covered under the Analog law. We do not believe our products contain any substances chemically or pharmacologically similar to any schedule I controlled substance, or we would not be selling it.

Herbalaxation will continue to keep our customers informed of any new developments we become aware of. We are careful to avoid selling anything we believe may be illegal and we will continue to do so. We believe it’s important to run our business using best practices utilized for any business, and we’ll keep doing that, providing legal products to our customers with good customer service and honest business transactions.

We have heard from some different sources that law enforcement agencies, or possibly regional groups within law enforcement agencies, are interpreting the new law as making illegal any product that is perceived by a law enforcement member as being herbal incense or some sort of K2.

Law enforcement personnel involved in these post-Fed-ban raids around the country have been quoted as saying that “all herbal incense is illegal” regardless of what ingredients the alleged herbal incense product may contain.

This interpretation seems to be at odds with the way the new law was written. The new law lists over 30 chemical compounds as being scheduled as Schedule I controlled substances. This means that these substances are now in the same class as heroin, for example. If all herbal incense was made illegal, regardless of the product’s ingredients, it seems pointless to include a list of 30 chemicals that are now scheduled. But then I’m not a lawmaker.

Some attorneys, though, disagree with interpreting the law’s effect as making all herbal incense illegal, period. These attorneys suggest that a product is only illegal if it is found to contain a controlled substance. Under this interpretation, products not containing a controlled substance would then be legal.

What is the best way to protect yourself from a raid by law enforcement? The simplest answer is this: comply with the law.

 

Make sure that you are not in possession of a product contaminated with a substance that is illegal. If you are a retailer and you trust your distributor, you should STILL protect yourself by randomly testing your products. The penalty for a first offense under the new law is a minimum 20 years. The fees for a simple lab test are far cheaper.

What else can you do to protect yourself? Invest in good legal advice. Get a lawyer on board who knows what he or she is talking about, and (note, I did not say “or”) join a trade association such as the Retail Compliance Association.

Basil, in a colorful bag, named “Tasty”, could be construed to be herbal incense.

Before I continue, let me clarify something – I’m not a lawyer. This not legal advice. I am using my common sense here, not an imaginary law degree. My belief, and I am not an attorney, is that the law most likely applies to the ingredients, not an overly-broad term like ‘herbal incense’. That term is not specific enough. Basil, in a colorful bag, named “Tasty”, could be construed to be herbal incense. Seem far-fetched? Remember, an ounce of prevention is worth a pound of cure, friends. So it is likely that the ingredients of a product are what defendants would likely be prosecuted for. Just remember – not everyone is educated about what the law is or is not, so

get yourself educated, test your products, and comply with the law, period.

Herbalaxation has been preparing for this ban to become effective ever since we first reported to you that the ban was headed for the president’s desk. Our facts were pretty much straight, though the legislative process is not our area of expertise. Many of you took advantage of our fire sale, where products were on sale at 60% off, some were even cheaper.

So now we are in the post Fed Ban world. Does that mean herbal incense is dead? No, it doesn’t. However, bath salts are or should be dead. We at Herbalaxation believe this is a benefit of the Fed Ban and we welcome the banning of bath salts, a product that we refrained from carrying, in all its forms. None of our herbal incense, potpourri, or non tablet or capsule products are for human consumption. We were horrified to read stories of crimes being committed by perpetrators alleged to have ingested bath salts, and we were grateful for two things – we made the decision not to make those products available, and now they are Federally-banned.

So what *does* the Fed Ban mean for herbal incense? It means that stories telling of horrible incidents brought on by consumption of bath salts or consumption of other products that should not be consumed will now lessen and, God-willing, cease. It means new products that we can confidently provide to our customers, products that are, to the best of our knowledge, legal *everywhere*.

In preparation for the Federal Ban’s enactment, we searched far and wide to find new products that comply with the new law, and which we can offer with confidence. We believe we’ve succeeded in this area. Off the top of this author’s head, I think Black Magic is the new bestseller, followed closely by the new, Fed-compliant Hi-5, and then Bayou Blaster Redoux. We’ve also worked at lowering our prices for our 50-state-legal products.

So stop by and check it out, and let us know what you think. We still stand behind our 100% satisfaction guarantee.

In the New York Daily News article regarding the deceitful (that’s my own editorialization, but I can do that, I’m only writing a blog ) passage of the national herbal incense ban, the writer stated that Senator Schumer hopes to have the federal herbal incense ban on the President’s desk for signature by July 4.

Herbalaxation will be totally federally compliant before that date. More details will follow as we get closer to the 4th.

Have a great weekend, everyone.

Well, the news is now being reported in the mainstream media, soooooo no more flack, ok? Learn more here.

Just in case you’re not too crazy about clicking on another link, I have quoted the New York Daily News for you:

The U.S. Senate passed a ban on the sale of potentially deadly synthetic pot after the rogue lawmaker who held it up for months was outfoxed by New York’s Chuck Schumer.
Kentucky Republican Rand Paul, a libertarian, used a filibuster to stymie a federal crackdown on the drug known as “potpourri or “herbal incense” — the subject of a Daily News investigation into its dangers.
Fearing that more young people could be harmed while Paul dug in his heels, Schumer made an end-run around Paul and tacked the ban onto a larger Food and Drug Administration bill.

Not enough? Why not go ahead and email the author of the editorialized story? Here’s a link. Now you can check it for yourself. According to the New York Daily News,

The big bill passed 96-1 on Thursday — and even Paul didn’t vote against it.

That’s not surprising. He didn’t know what he was voting for.

Did I say heavily editorialized? Why, yes, I did. The reason why — branding Senator Rand Paul as a “rogue lawmaker”? Visions of men in tights dance in my head. Paul’s objections to this bill are completely valid – the penalties are ridiculously harsh and not only that, everyone knows this legislation will indeed impede scientific research. Considering that some synthetic cannabinoids have lately been discovered to be beneficial to Multiple Schlerosis patients, halting the disease’s progress, this move seems ill-considered.

Meanwhile, our customers continue to enjoy cheap herbal incense prices on all products that may not be compliant with the Federal Ban. Remember, though, even if you buy the product before the ban is signed, that sales receipt won’t make the goods legal if you still have them after the ban, so therefore, we do not recommend keeping any product made illegal under the Fed ban after its effective date. Just shed your tears and move on.

Some manufacturers and large distributors have been saying that being under the auspices of the FDA may be in the industry’s favor, but I’m not really sure about that. One reason we’re not sure is because some manufacturers being pursued by Homeland Security have been told that that agency’s aim is to “bring the whole industry down”.

will be effective 48 hours from the President’s signature.

Now the question is when will it be signed? We have heard two or three answers.

Some industry insiders and lobbyists believe it won’t be signed until around July 4th.

Other industry experts, mainly attorneys, caution against too much optimism. Lawmakers may pressure the President to sign the legislation right away. Or the new law could be signed in two weeks.

The bottom line in this – we do not know when it will be signed. The situation calls for extremely close monitoring and that is exactly what we will be doing.

On the back of an FDA bill? What?

Yes, it sounds quite odd. Yet this is way of things in Washington, DC. Apparently, tacking one bill onto the back of another is a way of quietly getting legislation passed without too much debate or red tape. Of course, this clearly borders on deceit, but we are talking about politicians here, so could we expect any less?

In response to passage of this legislation, Herbalaxation is having a fire sale. Right now you can get top shelf herbal incense and herbal blends at 30% off. As the situation develops, the discounts will likely get steeper, but there is only a limited amount of stock, so it is best to act as soon as you can.

Here is a quote from a major manufacturer:

May 24, 2012 — HR 1254, The “Synthetic Drug Control Act of 2011’ has passed the Senate inspite of Senator Rand Pauls’ (R) KY, formal objection. Pauls’ Objection was based on the penalties included in the bill, he believes the penalties were too tough, according to Pauls’ spokesperson. The bill was quietly attached to a FDA Regulatory Bill according to Senator Chuck Shumers’ Office.
It is very likely no Senators really knew they were voting on this measure as it was hidden within the larger bill. This is a common practice for small bills that are controversial. The tactic is used to gain passage without drawing a great deal of attention.
In addition to the Cannabinoid Compounds, there were a number of compounds that are in so called “bath salt” products even more compounds like “2C1″ that are strong hallucinogenic compounds that are also now banned.

The bill is to be signed immediately after passage by President obama, so it is essentially in effect now.

Tags: National herbal incense ban, HR 1254, is herbal incense legal, Synthetic Drug Control Act of 2011

News around the Web indicates that the herbal incense industry is being pursued by the Department of Homeland Security. Stories from as early as last fall tell us that Homeland Security has become more and more involved in various investigations involving commerce and immigration. Their investigations have included a sting on seven IHOP restaurants in Ohio, a Baltimore raid on flea market sellers who were offering counterfeit goods for sale, and raids on various smoke shops and herbal incense distributors.

In some ways, Homeland Security’s involvement is troubling, considering that this agency was created in the wake of 9/11 and has more expansive powers than other law enforcement agencies, due to the civil-rights-eroding Patriot Act.

It may be easy to vilify Homeland Security, but it is important to remember that the intention behind this activity is to protect people. Law enforcement typically believes that their actions result in benefit to citizens, so it is wise to refrain from making judgments about these agencies. Nevertheless, this is America, and the First Amendment still stands. I will try and stay off my “Secret Police” peach crate and will avoid mentioning that the underwear bomb plot lately supposedly foiled by the CIA was in fact not even real…

Moving on, we feel that the industry’s move toward natural products is the silver lining to this cloud. Here at Herbalaxation, we have been offering all-natural products for a while. Our first all-natural product was Devil’s Lettuce, which is legal in all 50 states, as it is completely all-natural. Next we offered Blayze Aloha, a very popular all-natural. White Rabbit 7g was next, and then last week, we debuted “The Natural”, a product touted by its manufacturers to be the best all-natural out there. You decide.