Legislature(2011 - 2012)BELTZ 105 (TSBldg)

03/14/2011 01:30 PM JUDICIARY

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01:30:47 PM Start
01:33:42 PM SB9
01:35:32 PM State of Litigation: Criminal Division, Department of Law (dol)
01:55:14 PM HB7
03:01:23 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ Status of Litigation: Criminal Division, TELECONFERENCED
Department of Law
Heard & Held
Moved SB 9 Out of Committee
+ Bills Previously Heard/Scheduled TELECONFERENCED
                 HB   7-SYNTHETIC CANNABINOIDS                                                                              
1:55:14 PM                                                                                                                    
CHAIR FRENCH  announced the  consideration of  HB 7. [CSHB  7(JUD)                                                              
was before the  committee.] He asked the sponsor's  representative                                                              
how this differs from the companion bill                                                                                        
1:55:33 PM                                                                                                                    
KENDRA KLOSTER,  staff to Representative  Cathy Munoz,  sponsor of                                                              
HB 7,  explained that  the bill  schedules 10 different  chemicals                                                              
that are known  as synthetic cannabinoids. Use  of these chemicals                                                              
can  cause hallucinations,  panic  attacks, and  death. She  noted                                                              
that one  death occurred in the  Anchorage area and  most recently                                                              
an 18  year-old  in Iowa had  a severe  reaction  to one of  these                                                              
chemicals and he died.                                                                                                          
SB  7 classifies  these 10  synthetic cannabinoids  as a  schedule                                                              
III controlled  substance. The Department  of Law  and Legislative                                                              
Legal  Services   both  agree   that  this   is  the   appropriate                                                              
classification.  She  noted  that   on  March  1,  2011  the  Drug                                                              
Enforcement   Administration  (DEA)   classified  five   of  these                                                              
chemicals as a schedule I controlled substance.                                                                                 
CHAIR FRENCH  asked what  a schedule  I classification  means from                                                              
the DEA perspective.                                                                                                            
MS.  KLOSTER  replied  that classification  applies  to  the  most                                                              
dangerous  drugs   that  have  no  medical  purpose.   This  is  a                                                              
temporary classification  while further research is  done, but the                                                              
DEA  felt   that  immediate  action   was  warranted   because  of                                                              
burgeoning use.                                                                                                                 
CHAIR  FRENCH   asked  if   the  DEA  classification   essentially                                                              
criminalizes these chemicals without congressional action.                                                                      
1:57:56 PM                                                                                                                    
MS.  KLOSTER   responded  that   the  five  chemicals   that  were                                                              
classified are  now illegal  to sell and  possess. This  action is                                                              
authorized under  the Controlled Substance Act,  primarily because                                                              
of imminent  danger to  the public. She  noted that  the Anchorage                                                              
Assembly passed an  ordinance on this and the City  and Borough of                                                              
Juneau Assembly is considering one.                                                                                             
CHAIR  FRENCH clarified  that  the CBJ  passed  the ordinance.  He                                                              
added  that he'll  talk with  the  sponsor, but  the committee  is                                                              
focused  on setting  the  penalty  levels so  that  they stop  the                                                              
behavior without needlessly making a lot more criminals.                                                                        
MS.  KLOSTER commented  on how  difficult  it is  to detect  these                                                              
CHAIR  FRENCH said  the committee  heard  from Orin  Dym who  said                                                              
it's possible to detect them, but the test is expensive.                                                                        
2:00:14 PM                                                                                                                    
SENATOR  WIELECHOWSKI  reviewed  the  language in  Section  1  and                                                              
asked  for  an  explanation  of   salts,  isomers,  and  salts  of                                                              
MS. KLOSTER  explained that with a  salt a hydrogen atom  has been                                                              
removed, but it's  basically the same product. With  an isomer the                                                              
atoms  have been  rearranged and  it's  theoretically a  different                                                              
substance,  but the  molecular structure  is the  same. She  added                                                              
that similar  language is used for  schedule II drugs and  this is                                                              
an update to ensure that similar products are captured.                                                                         
SENATOR  WIELECHOWSKI asked  if  this might  ban common  household                                                              
MS. KLOSTER answered no.                                                                                                        
SENATOR WIELECHOWSKI  asked  if someone who  possessed a  teaspoon                                                              
of the substance  would be convicted under the bill  since it says                                                              
any quantity.                                                                                                                   
MS. KLOSTER  explained that it would  be a class A  misdemeanor to                                                              
possess three  grams or  less of a  schedule III drug.  Possession                                                              
of over three grams would be a felony.                                                                                          
SENATOR  WIELECHOWSKI   said  his   understanding  is   that  this                                                              
substance is typically sold in three-ounce packages.                                                                            
MS.  KLOSTER clarified  that large  amounts can  be purchased  and                                                              
then  broken into  small  portions, but  an  Internet purchase  is                                                              
generally a three-gram package.                                                                                                 
CHAIR  FRENCH  directed  attention   to  the  handout  showing  an                                                              
Internet  solicitation for  real  K2 incense  and  the first  size                                                              
option is a three-gram packet.                                                                                                  
SENATOR  PASKVAN reviewed  the explanation  of  salts and  isomers                                                              
and  questioned   why  these  synthetic  cannabinoids   should  be                                                              
classified differently than marijuana.                                                                                          
MS. KLOSTER  replied they're  trying to mimic  the effects  of THC                                                              
but  these  chemicals  are more  potent  and  hallucinogenic  than                                                              
marijuana. That's  why the  DEA classified these  as a  schedule I                                                              
controlled   substance   and   other  states   consider   them   a                                                              
hallucinogen, she stated.                                                                                                       
2:04:48 PM                                                                                                                    
SENATOR  PASKVAN asked  if someone  will testify  to that  because                                                              
the same argument was used on marijuana 40 years ago.                                                                           
MS.  KLOSTER   said  there  is   testimony  in  the   packet  from                                                              
individuals who have tried it.                                                                                                  
CHAIR  FRENCH  pointed  out  that   a  young  person  from  Juneau                                                              
testified that he tried it and had a very bad experience.                                                                       
SENATOR  WIELECHOWSKI   asked  if  anyone  has  died   from  using                                                              
MS. KLOSTER replied  she isn't aware of anyone but  this is a very                                                              
different and more dangerous product than marijuana.                                                                            
2:06:27 PM                                                                                                                    
CHAIR FRENCH  reiterated that the  committee is looking at  how it                                                              
can take this off  the street without producing a  lot more felons                                                              
that cost the state $50,000 a year to house.                                                                                    
SENATOR MCGUIRE  said she is very  hesitant to create  more felons                                                              
and is  inclined to make  this a misdemeanor  until the  public is                                                              
better educated and understands synthetic cannabinoids.                                                                         
2:15:26 PM                                                                                                                    
MS. KLOSTER  said the intention  of the sponsor  is not to  make a                                                              
bunch of kids felons  but to remove this product  from the shelves                                                              
and to bring awareness of how dangerous this really is.                                                                         
SENATOR  WIELECHOWSKI  asked  if  tobacco and  alcohol  should  be                                                              
banned  because they  are the first  and second  leading cause  of                                                              
death in the country.                                                                                                           
MS.  KLOSTER agreed  that those  are also  harmful substances  and                                                              
suggested that that's for another piece of legislation.                                                                         
2:18:15 PM                                                                                                                    
SENATOR PASKVAN asked  if the three-gram measurement  is the inert                                                              
leaf or the unlawful substance.                                                                                                 
MS. KLOSTER replied  the leafy product with the chemical  on it is                                                              
what would be measured, not just the chemical itself.                                                                           
CHAIR FRENCH said that's his understanding as well.                                                                             
SENATOR  WIELECHOWSKI  asked if  she  had data  on  the number  of                                                              
people who are in jail because of drug possession.                                                                              
MS. KLOSTER  said the  information  should be  in the packets  and                                                              
reminded  the members  that in  drug cases  the person  may be  in                                                              
jail for a number of reasons.                                                                                                   
2:20:57 PM                                                                                                                    
SENATOR WIELECHOWSKI  noted that the bill lists just  10 items are                                                              
he wondered  if the  Legislature will need  to address  this every                                                              
year as new chemical combinations are developed.                                                                                
MS. KLOSTER  said yes; the  10 chemicals  that are listed  are the                                                              
ones that  other states and  the DEA have  outlawed, but  the bill                                                              
can't prohibit similar  compounds without being specific.  As more                                                              
chemicals are  banned we  hope that retailers  won't want  to sell                                                              
them, she said.                                                                                                                 
CHAIR FRENCH  reminded the  committee that  the drafter  testified                                                              
that he drafted the bill to be as broad as possible.                                                                            
SENATOR  WIELECHOWSKI  asked  if   there  would  a  grandfathering                                                              
accommodation for a  person who purchased Spice when  it was legal                                                              
and forgot  about it, so  they had it in  their house when  it was                                                              
MS. KLOSTER  replied once it's illegal  it would be just  like any                                                              
other drug and it would be illegal to possess.                                                                                  
2:24:33 PM                                                                                                                    
KATE  BURKHART,  Executive  Director, Advisory  Board  on  Alcohol                                                              
Abuse  and Drug Abuse  (ABADA),  stated that  she is not  speaking                                                              
for the Department  of Health and Social Services,  but the record                                                              
should  show  that  ABADA  is  in strong  support  of  HB  7.  She                                                              
expressed  appreciation  for  the   discussion  on  balancing  the                                                              
significant   health  and   safety   risks   with  the   necessary                                                              
consideration of  the appropriate penalty. She explained  that the                                                              
substances  that  are being  regulated  were  developed  in a  lab                                                              
under a  federal grant  to do research  on the  effects of  THC on                                                              
the  brain, and  were  never intended  for  human  use. These  are                                                              
chemicals  that were  created in  a  lab and  should therefore  be                                                              
regulated  at  a  higher  level   in  the  schedule  than  organic                                                              
products like marijuana or Salvia divinorum, she stated.                                                                        
MS.  BURKHART noted  that previous  testimony from  the crime  lab                                                              
indicated  that   three  grams  is  equivalent  to   six  to  nine                                                              
cigarettes of  the product, which  makes the idea that  amounts in                                                              
excess of that  are for personal use somewhat  specious. She added                                                              
that  regardless  of whether  this  product  is regulated  at  the                                                              
statewide  level,  employers  are   seeking  ways  to  test  their                                                              
employees  and several  Alaska businesses  have  responded to  the                                                              
market  and now  offer an  effective  test for  $149. She  thanked                                                              
both Representative  Munoz and Senator  Meyer for  their attention                                                              
on this issue.                                                                                                                  
2:27:25 PM                                                                                                                    
SENATOR  PASKVAN asked  if Alaska  can ban import  of the  product                                                              
into the state.                                                                                                                 
MS.  BURKHART  said if  this  bill  passes  it  would be  a  state                                                              
offense once  the product crosses  the state line. It's  already a                                                              
federal offense  under the  DEA's emergency  scheduling,  but that                                                              
federal regulation is only good for 12-18 months.                                                                               
SENATOR  PASKVAN asked  if she  believes that  most teens  believe                                                              
this is similar to marijuana.                                                                                                   
MS.  BURKHART replied  that  was a  standard  assumption when  the                                                              
product first came  on the market, but the word  is getting around                                                              
that it's  not like a marijuana  high and the  health consequences                                                              
are severe.                                                                                                                     
SENATOR PASKVAN  asked if it wouldn't  make more sense  to ban the                                                              
importation  and sale  of  the product  in  Alaska  as opposed  to                                                              
focusing on a teen who thinks it's similar to marijuana.                                                                        
MS. BURKHART  replied that's  a reasonable  consideration  and the                                                              
committee can  do that by  focusing on  what is reasonable  for an                                                              
adolescent who  thinks he or she  should try it versus  a business                                                              
that is profiting on misinformation about the product.                                                                          
SENATOR  PASKVAN asked  if  a distributor  could  be convicted  if                                                              
importation were banned.                                                                                                        
2:31:21 PM                                                                                                                    
MS.   BURKHART   deferred  questions   about   investigation   and                                                              
enforcement  of a ban  to law  enforcement and  the Department  of                                                              
Law (DOL).                                                                                                                      
SENATOR  WIELECHOWSKI  asked  if   the  product  is  expensive  to                                                              
MS.  BURKHART   replied  the  research   indicates  that   it's  a                                                              
sophisticated  process. Most of  what comes  to Alaska  comes from                                                              
abroad,  but  it's  readily and  inexpensively  available  in  the                                                              
SENATOR MCGUIRE  asked what she  knows about the federal  study to                                                              
mimic the affects of THC.                                                                                                       
MS.  BURKHART  replied she  understands  that  it was  a  National                                                              
Institute of Drug  Abuse (NIDA) grant the purpose of  which was to                                                              
determine  the  affects of  THC  on  the  brain. A  synthetic  was                                                              
created for  the purposes of  that research,  which led to  a host                                                              
of  synthetic  cannabinoids.  The researcher  has  clearly  stated                                                              
that  the synthetic  was  never  meant to  be  suitable for  human                                                              
SENATOR MCGUIRE  asked what  it was tested  on and what  they were                                                              
trying  to  understand   about  THC  if  they   didn't  use  human                                                              
MS. BURKHARDT  said the  information she  read indicated  that the                                                              
test subjects were primates.                                                                                                    
CHAIR FRENCH  commented that  the DEA  has taken emergency  action                                                              
on this and  he believes that there  is no quicker way  to end its                                                              
presence in  Alaska than to  have the FBI  arrest and  prosecute a                                                              
retailer in federal court.                                                                                                      
SENATOR PASKVAN  said he  understands that  she's saying  that the                                                              
derivatives  aren't   suitable  for  human  consumption,   but  he                                                              
suspects  that  the  federal  government   also  established  that                                                              
marijuana  wasn't   suitable  for  human  consumption.   He  would                                                              
therefore  like to  hear the  broad  spectrum differences  between                                                              
marijuana  and  the synthetic  cannabinoids.  He  reiterated  that                                                              
he'd like to focus  on the sellers, not the kids  who are making a                                                              
poor decision to try the substance.                                                                                             
2:36:12 PM                                                                                                                    
STEVEN  STUBER, representing  himself,  said he  can't talk  about                                                              
the affects [of  synthetic cannabinoids] because  he's never tried                                                              
it, but he  is a shop owner  who follows the law explicitly.  As a                                                              
business owner who  pays taxes, employs a number  of Alaskans, and                                                              
pays them  well, he  expressed concern  that  the bill would  make                                                              
him a  felon overnight  because of  the immediate effective  date.                                                              
This  is  neither  constitutional  nor  fair, he  stated.  If  due                                                              
notice  were given  he would  obviously  pull and  dispose of  the                                                              
product, but expecting  him to flush $20,000 worth  of product, as                                                              
has  been suggested,  is  a  financial hardship  and  unreasonable                                                              
since he  is doing nothing illegal.  The testimony today  has been                                                              
very one-sided and  there is an amazing amount of  "the other side                                                              
of the story," he stated.                                                                                                       
Mr. Stuber said  that up to 85 percent of his  customers are 40-55                                                              
year-old white males  who work on the North Slope  and are looking                                                              
for something  that has  an effect that  is similar  to marijuana.                                                              
Saying  that  this  is a  dangerous  drug  is  sensationalist  and                                                              
reminiscent  of "Reefer Madness."  He claimed  that what  he sells                                                              
isn't as dangerous  as it's purported to be and  suggested looking                                                              
at the statistics  on how many  children died in Alaska  last year                                                              
in  alcohol-related   offenses.  If  this  is  so   dissimilar  to                                                              
marijuana,  why do  hundreds of  my customers  who are  upstanding                                                              
citizens disagree, he questioned.                                                                                               
MR.  STUBER  reiterated  that  he  is  a  responsible,  upstanding                                                              
citizen  who pays  his  taxes and  he  doesn't  believe that  it's                                                              
right  that  he  or  his  employees   could  be  felons  tomorrow.                                                              
Reasonable notice to  get the product off the shelf  is only fair.                                                              
We  will continue  to comply  with any  law that's  out there,  he                                                              
stated.  Kids shouldn't  have  this product  and  it shouldn't  be                                                              
legal to  sell it to  anyone under age  19, but his  customers are                                                              
not kids.                                                                                                                       
2:44:27 PM                                                                                                                    
SENATOR WIELECHOWSKI  asked how  many customers  he has and  if he                                                              
is  aware of  any  who have  suffered  adverse  affects from  this                                                              
MR. STUBER said  he might have 1,000 customers and  he sells about                                                              
$40,000 of  this product each month.  One customer claimed  he had                                                              
an  adverse  reaction  and  didn't  want  to  use  the  particular                                                              
product  again, but  that's  the  only one  in  $300,000 worth  of                                                              
CHAIR FRENCH  asked what deadline the  DEA set for getting  rid of                                                              
the material.                                                                                                                   
MR. STUBER replied  the DEA banned five chemicals  in November and                                                              
said it could  register them within  30 days, but it didn't  do so                                                              
until March.  He wholesaled  his inventory at  less than  cost and                                                              
complied two months  ahead of time. Now everything  he sells has a                                                              
DEA compliant  sticker on  it and  he posts  a DEA registered  lab                                                              
report stating that his business is following the law.                                                                          
CHAIR FRENCH  said if the DEA order  and this bill cover  the same                                                              
MR. STUBER said yes.                                                                                                            
SENATOR   PASKVAN   remarked  that   there   could   be  20   more                                                              
permutations out there.                                                                                                         
CHAIR FRENCH asked Mr. Stuber if that's correct.                                                                                
MR. STUBER  said he believes  that it would  be closer to  100. He                                                              
opined that  over the  next several  years this  will likely  be a                                                              
game  of  cat   and  mouse  between  the  manufacturers   and  the                                                              
government as each  chemical compound is altered  infinitesimally.                                                              
This is the experience  other states have had. He  noted that this                                                              
law is better than almost any he's seen.                                                                                        
SENATOR WIELECHOWSKI  asked if a  better policy would be  to enact                                                              
a very heavy tax on the substance.                                                                                              
MR. STUBER said absolutely, 100 percent.                                                                                        
CHAIR  FRENCH pointed  out that  the  packets contain  information                                                              
from the  DEA that  states that  the five  banned substances  have                                                              
the  potential  to  be  extremely  harmful  due  to  manufacturing                                                              
methods  and  high  pharmacological  potency  but  that  the  full                                                              
danger has not yet been determined with scientific certainty.                                                                   
CHAIR  FRENCH  closed  public testimony  and  said  the  committee                                                              
would  hear   invited  testimony   as  necessary.  He   asked  Ms.                                                              
Carpeneti to remind  the committee of the possession  limits for a                                                              
schedule III controlled substance.                                                                                              
2:51:05 PM                                                                                                                    
ANNE  CARPENETI, Assistant  Attorney  General, Criminal  Division,                                                              
Department of  Law (DOL), stated  that under AS  11.71.040 (a)(4),                                                              
it's a class  C felony to possess  any amount of a  schedule IIIA,                                                              
IVA, VA, or VIA  controlled substance on a school  bus or close to                                                              
a  school ground  or  youth  center.  AS 11.71.050  provides  that                                                              
possession  of less  than  3 grams  of a  IIIA  or IVA  controlled                                                              
substance is a class  A misdemeanor and possession  of more than 3                                                              
grams is a class C felony.                                                                                                      
CHAIR FRENCH  asked if the amount  is calculated by the  weight of                                                              
the plant material upon which the drug is sprayed.                                                                              
MS.  CARPENETI  said that's  correct;  it  would be  difficult  to                                                              
remove  the spray  compound from  the  plant material.  Discussion                                                              
from other committees  has indicated that it would  be a good idea                                                              
to  consider   that  the   plant  material   isn't  dangerous   or                                                              
controlled, just the spray compound.                                                                                            
CHAIR FRENCH  observed that  it would be  a different  category of                                                              
offense to possess a gram of the pure substance.                                                                                
SENATOR WIELECHOWSKI  commented that it's an  interesting question                                                              
because  the bulk  of the  substance  isn't illegal  but a  person                                                              
would be charged based on that weight.                                                                                          
MS. CARPENETI said she understands the concern.                                                                                 
SENATOR  WIELECHOWSKI asked  for  assurance that  the language  on                                                              
page  1,   lines  5-10,   wouldn't  criminalize  basic   household                                                              
MS. CARPENETI deferred to the drafter.                                                                                          
2:56:13 PM                                                                                                                    
CHAIR FRENCH  reminded the  committee that  the drafter  testified                                                              
previously  that  he  structured  the  bill  to  be  as  broad  as                                                              
possible without  being overly broad.  He asked Mr.  Luckhaupt how                                                              
he  balanced  the need  to  give  notice  when the  substance  can                                                              
readily mutate.                                                                                                                 
JERRY  LUCKHAUPT,  Assistant  Revisor   of  Statutes,  Legislative                                                              
Legal Services,  explained that he  employed the same  strategy as                                                              
with  other controlled  substances.  He used  the  intra-language,                                                              
which is  salts, isomers,  or salts  of isomers  that is  used for                                                              
other  similar   substances  set  out  in  statute.   The  federal                                                              
government   uses  the   same   language   in  classifying   those                                                              
substances. The  ten new  substances that are  listed in  the bill                                                              
are  what other  states  have already  classified.  Some of  these                                                              
were created  as a result of the  study, but the others  have been                                                              
around for  some time.  They're all  synthetic THCs not  synthetic                                                              
marijuana. Delta 9  THC is the active ingredient  in marijuana and                                                              
that's currently  a schedule  III controlled substance.  Marijuana                                                              
is  defined  to   not  include  THC.  The  marijuana   is  weighed                                                              
separately  and when  the  THC is  refined,  to  make hashish  for                                                              
example,  it's  a schedule  III  controlled  substance.  Currently                                                              
it's an  unclassified penalty if  the seller sells to  someone who                                                              
is  under  age 19  and  at  least  three years  younger  than  the                                                              
3:01:13 PM                                                                                                                    
CHAIR FRENCH announced he would hold HB 7 in committee.                                                                         

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