K2/Spice: Establish Restrictions But Dont Criminalize It

Background
Recently, an herbal product known as K2 or Spice that is said to simulate the psychoactive effects of marijuana has come to the attention of lawmakers across the nation. K2 was virtually unknown until news media reported its presence at tobacco and novelty shops.1 People who have tried K2 often report psychoactive effects that are comparable to marijuana, but notably less pleasurable. In 2010, K2 was criminalized in Alabama2, Arkansas3, Georgia4, Iowa5, Kansas6, Kentucky7, Louisiana8, Missouri9, North Dakota10, and Tennessee11.

Criminalization will not reduce drug misuse. K2 can be acquired through online retailers, many based in foreign countries, a threat that will not be removed if K2 is prohibited. Researchers note that there are hundreds of further compounds with cannabinoid receptor activity and it can be assumed that further substances will appear on the market soon, which will be an ongoing challenge for toxicologists as well as for law enforcement.12 Criminalization replaces a legal market that can be sensibly regulated with an underground economy that empowers criminal activity.

What States Can Do: Regulate K2

Facts
K2 is not addictive. There is no evidence that humans are susceptible to psychological or physiological dependence on or addiction to K2. The potential for harm and abuse is low. There are no reported cases of K2 overdose. No poisoning injuries or deaths have been reported as a result of K2 consumption. Scheduling K2 as a controlled substance will have unintended detrimental consequences. If K2 were banned outright, young adults could face immediate, devastating and life-long legal barriers to education, employment, voting and government benefits for K2related drug law violations, despite a lack of evidence of harm to themselves or others. The use of scarce government funds to enforce, prosecute and incarcerate people who use K2 would put a strain on criminal justice resources.

Establish age controls and other restrictions. Outright criminalization would only drive the demand for the drug to the black market, which provides no age restrictions or other regulatory controls. Product labeling requirements, as well as marketing, branding and retail display restrictions, are proven to reduce youth access to tobacco products and impulse tobacco purchases among adults.13 Comprehensive drug education. This approach is working for tobacco, a far more harmful drug that has contributed to more deaths than alcohol and illicit drugs combined.14 As a result of education initiatives and age restrictions, tobacco use has declined dramatically over time despite its legality for adults.15

Sarah Wire, Cops: Imitation Pot as Bad as the Real Thing, The Associated Press, February 17, 2010. 2 In Alabama, HB 697 prohibits the sale and possession of JWH-018, JWH-073, and HU-210. Possession is a misdemeanor offense punishable by a fine and/or up to a year in prison. Possession with intent to sell is a class C felony punishable by 1 to 10 years imprisonment. (AL Code 13A-5-11 13A-5-12)
1

Drug Policy Alliance | 70 West 36th Street, 16th Floor, New York, NY 10018 nyc@drugpolicy.org | 212.613.8020 voice | 212.613.8021 fax Page 1


In Arkansas, the Arkansas Health Board issued an emergency ban on cannabinoids (analogues and derivatives included). To participate in the synthetic marijuana products market is a misdemeanor to be punished by a fine ranging from $100 to $500 and/or up to a month in prison. (Arkansas State Board of Health. Rules Pertaining to Synthetic Marijuana Products, July 2010) 4 In Georgia, HB 1309 designates three synthetic cannabinoids identified to be in K2 as Schedule I substances. Code Section 16-13-25 was amended to include JWH-018, HU-210, and CP 47,497 as Schedule I substances. In Georgia, possession of Schedule I substances (possession of less than an ounce) carry a punishment of a minimum of two years and maximum of fifteen years imprisonment for a first offense and a minimum of five and maximum of thirty years imprisonment for a subsequent offense. (GA Code Ann. 1613-30) 5 In Iowa, the Iowa Board of Pharmacy issued an emergency ban on the sale and possession of K2/Spice products. HU211, JWH-018, and JWH-073 were added to Schedule I. (Iowa Board of Pharmacy. Pharmacy Board 657, July 2010) 6 In Kansas, SB 348 designates three synthetic cannabinoids identified in K2/Spice as Schedule I substances. HU-210, JWH-018, and JWH-073 were added, with CP 47,497 not 6 added. Penalties for possession of a Schedule I substance range from up to a year imprisonment to 3 years imprisonment and/or a $2500 fine or $100,000, respectively. (KS Stat. Ann. 65-4101 et seq.) 7In Kentucky, HB 265 banned a number of synthetic cannabinoids. JWH-018, JWH-073, CP 47,497, HU-210, and HU-211 were named. Trafficking and manufacture are now class A misdemeanors punishable up to a year in prison and/or a $500 fine. Possession is now a class B misdemeanor punishable by up to a year imprisonment and/or a fine of $250. Property forfeiture laws apply. (Ky. Rev. Stat. 218A.1421) 8 In Louisiana, HB 173 banned synthetic cannabinoids including HU-210 and CP 49,497. Possession penalties range from $500 fine and/or up to 6 months imprisonment to a $5000 fine and/or up to 20 years imprisonment. (LA Rev. Stat. Ann. 40:966) 9 In Missouri, HB 1472 designates the five synthetic cannabinoids thus far identified in K2/Spice products as Schedule I substances. JWH-018, JWH-073, CP 49,497, HU9 210 and HU-211 were added. Possession of less than 35 grams is a class A misdemeanor punishable by up to a year in prison and/or a $1000 fine. Possession above 35 grams is a class C felony punishable by up to 7 years in prison and a $5000 fine, or double the proceeds made from selling the product, whichever is higher. (MO Rev. Stat. 558.011) 10 In North Dakota, the Board of Pharmacy added synthetic cannabinoids to Schedule I in an emergency meeting. Manufacture,distribution, and possession are prohibited. (North Dakota Board of Pharmacy. Final Emergency Rule of North Dakota Board of Pharmacy, May 2010) 11 In Tennessee, SB 2982 prohibits sale, possession, distribution, transportation, use, manufacture, and possession with intent to produce salvinorin A as well as three K2/Spice components. JWH-018, JWH-073 and HU-210 were specifically named. CP 47,497 was not added. Possession, distribution, or manufacture of any amount of these substances is a Class A misdemeanor punishable by up to
3

eleven months and twenty-nine days in jail and/or a fine up to $2,500. (Tenn. Code Ann. 39-17-418) 12 Auwrter V, Dresen S, Weinmann W, Mller M, Ptz M, Ferreirs N., Spice and other herbal blends: harmless incense or cannabinoid designer drugs?, Journal of Mass Spectrometry, 2009, 44, 832837. 13 See, for example, Becky Freeman, Simon Chapman, and Matthew Rimmer, The Case for Plain Packaging of Tobacco Products, Addiction 103 (2008): 580-90; Janine Paynter & Richard Edwards, The Impact of Tobacco Promotion at the Point of Sale: A Systematic Review, Nicotine & Tobacco Research 11 (2009): 2535; T. Harper, Why the Tobacco Industry Fears Point of Sale Display Bans, Tobacco Control 15 (2006): 270-271; Melanie Wakefield, Daniella Germain & Lisa Henriksen, The Effect of Retail Cigarette Pack Displays on Impulse Purchase, Addiction 103 (2007) 322328; Lawrence Deyton, Joshua Sharfstein, and Margaret Hamburg, Tobacco Product Regulation A Public Health Approach, New England Journal of Medicine 362 (2010):1753-1756; Louise M. Hassan et al., Exploring the Effectiveness of Cigarette Warning Labels: Findings from the United States and United Kingdom Arms of the International Tobacco Control (ITC) Four Country Survey, International Journal of Nonprofit and Voluntary Sector Marketing 13 (2008): 263274; Constantine I Vardavas et al., Adolescents Perceived Effectiveness of the Proposed European Graphic Tobacco Warning Labels, The European Journal of Public Health (2009); Rob Cunningham, Gruesome Photos on Cigarette Packages Reduce Tobacco Use, Bulletin of the World Health Organization 87 (2009): 569, http://www.who.int/bulletin/volumes/87/8/09-069559.pdf; J.E. Cohen et al., "Promotions at Point-of-Sale: The Last Hurrah, Canadian Journal of Public Health 99 (2008): 166-171; Simon Chapman, The Cancer Emperors New Clothes: Australias Historic Legislation for Plain Tobacco Packaging, British Medical Journal 340 (2010): 2436; Christine Savage, A Public Health Approach to Smoking Prevention: Health Warning Labels on Tobacco Products, Journal of Addictions Nursing 21 (2010): 146-148. 14 Centers for Disease Control and Prevention, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health, Smoking & Tobacco Use Fact Sheet: Tobacco-related mortality (updated September 2006), 3 December 2008, http://www.cdc.gov/tobacco/data_statistics/fact_sheets/health _effects/tobacco_related_mortality.htm. 15 Lloyd D. Johnston et al., Smoking Continues Gradual Decline Among U.S. Teens, Smokeless Tobacco Threatens a Comeback, Ann Arbor, MI: University of Michigan News Service, 14 December 2009, http://monitoringthefuture.org/pressreleases/09cigpr_complet e.pdf; Lloyd D. Johnston et al., "Teen Smoking Resumes Decline," Ann Arbor, MI: University of Michigan News Service, 11 December 2007, http://monitoringthefuture.org/pressreleases/07cigpr.pdf; Lloyd D. Johnston, et al., Table 1 - Trends in Prevalence of Use of Cigarettes for Eighth, Tenth, and Twelfth Graders, Monitoring the Future: 2007 Data From In-School Surveys of 8th-, 10th-, and 12th-Grade Students, Ann Arbor, MI: University of Michigan, 2007, http://monitoringthefuture.org/data/07data/pr07cig1.pdf.

Drug Policy Alliance | 70 West 36th Street, 16th Floor, New York, NY 10018 nyc@drugpolicy.org | 212.613.8020 voice | 212.613.8021 fax Page 2