Bath Salts Under Siege: Eighth Circuit To Hear Challenge To Analogue Drug Act

Back in 2013, James Carlson, owner of the Last Place of Earth head shop in Duluth, Minnesota, was convicted on 51 counts of peddling synthetic drugs. He was sentenced to 17 1/2 years in prison and ordered to forfeit $6.5 million. Carlson was accused of selling synthetic drugs misbranded as incense, potpourri, bath salts, and glass cleaner, the effects of which mimic illegal narcotics and hallucinogens. Carlson’s defense? The government led him to believe the products he was selling were legal. Carlson feels so strongly that he was in the clear that he has taken his case to the Eighth Circuit Court of Appeals.

According to a report out of CBS Minnesota, Carlson is challenging the constitutionality of the Federal Analogue Drug Act, 21 U.S.C. § 813, a section of the Controlled Substance Act allowing any chemical “substantially similar” to a scheduled controlled substance to be treated as if it were one of the scheduled drugs. Carlson contends that the law is so vaguely worded that it is impossible to know if one is violating it. At his sentencing hearing in 2014, Carlson claimed that over 1,000 other Minnesota businesses were selling the same products.

The purpose of the Analogue Drug Act was to stay ahead of the curve in combating the ever changing molecular formulas of banned substances. With that said, we have grown weary of phrases like “substantially similar.”  What is and is not “substantially similar” is a question of fact opening the door to pickles like the one faced by Carlson.  Just as federal prosecutors can argue that the substances sold by Carlson are substantially similar to scheduled substances, so too can others argue that they are not.  And, there is your dilemma.

Whether or not the Court determines the statute is unconstitutionally vague, this case is yet another example of the problems of federal drug regulation. Again, the overarching principle – to protect the health and safety of the public – is a good one. But we must ask if there is a better way to go about it? Maybe we wouldn’t have to worry about the existence of “synthetic” drugs if we better addressed how we handle the pure ones.

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