As often happens when a new law passes and is being enforced for the first time, there are some disagreements about just what is illegal under the new Synthetic Drug Control Act of 2011 (which was actually passed under the FDA bill, named “Food and Drug Administration Safety and Innovation Act”).

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.