HOUSE BILL NO. 7 "An Act classifying certain synthetic cannabinoids as schedule IIA controlled substances; and providing for an effective date." REPRESENTATIVE CATHY MUNOZ, SPONSOR, discussed CSHB 7 (JUD). She delineated that synthetic cannabinoids were materials that contained hallucinogenic chemicals that were sprayed on leafy plant material. The materials were sold on the internet and in stores under a variety of names including K2 and Spice. To increase popularity and distinguish the product from drugs such as LSD, the products were marketed as a synthetic marijuana or incense. She had first heard about Spice or K2 from the parent of a boy who had experienced a serious adverse reaction to the drug. She explained that within moments of inhalation the young man experienced severe vomiting, loss of reality, the inability to walk and talk, and violent outbursts. She read an excerpt from a letter written by the young man: "I only had a small amount and in less than two minutes I was losing my perception of what was real in every way. I lost control of my legs and I couldn't walk. I couldn't talk. I can remember thinking to myself that I wasn't going to come out of this craziness and this might be how I end up dying. I remember telling my brother to call 911 and going to the hospital." Representative Munoz relayed that many similar stories had surfaced since her office began working on the bill and that many states had enacted bans on the material. Synthetic cannabinoids were relatively new to the United States and were manufactured in China and Europe. Germany, Sweden, Russia and England had all banned the substance. Given the accessibility of the substance, its low cost, and its difficulty to drug test, popularity was increasing in the U.S., particularly among the youth population. She explained that the herbal and chemical compounds commonly produced a reaction similar to marijuana. The original legislation would have classified the substances as schedule IIA, which included compounds that contained hallucinogenic substances. With the advice of the Department of Law (DOL), the bill was amended to classify certain synthetic cannabinoids as schedule IIIA controlled substances. She asked a member of her staff to describe the legislation in detail. 1:40:51 PM KENDRA KLOSTER, STAFF, REPRESENTATIVE CATHY MUNOZ, explained that they had worked with DOL and Legislative Legal to classify the product as a schedule IIIA controlled substance. Other synthetic THCs [tetrahydrocannabinols] fell under the IIIA category. The bill listed the different chemical compounds of the synthetic THC contained in the product that were determined by the DEA [Drug Enforcement Agency] and research conducted in other states. The Municipality of Anchorage supported the legislation and already had a ban on the substance. Sergeant Robert Thompson of the Fairbanks Police Department had provided a written statement expressing the department's support of the bill (copy on file). The department had experienced a problem with a driver who had been under the influence of K2 and had experienced seizures. The department had been unable to charge the driver with an offence as the product was not classified as a controlled substance. The legislation was also supported by many constituents, the Advisory Board on Alcoholism and Drug Abuse, the Mat-Su Substance Abuse Prevention Coalition, the Alaska Peace Officers Association, the Alaska Association of Chiefs of Police, and the Women Police of Alaska. Co-Chair Stoltze informed the committee that technical questions about the classification of the substance could be directed to the Department of Public Safety Scientific Crime Detection Lab (SCDL). Representative Gara wondered if the effects of K2 or Spice resembled those of marijuana or hashish and whether the penalty should be similar to one of those substances. ORIN DYM, FORENSIC LABORATORY MANAGER, DEPARTMENT OF PUBLIC SAFETY SCIENTIFIC CRIME DETECTION LAB (via teleconference), was not a toxicologist and could not speak to the effects of the substances. He explained that synthetic compounds were not natural products and had to be synthesized and that K2 or Spice was definitely a synthetic or "designer" drug. Marijuana was a plant material that naturally excreted THCs. He could not speak to how the product should be specifically classified. JERRY LUCKHAUPT, ASSISTANT REVISOR OF STATUTES, LEGISLATIVE LEGAL SERVICES, informed the committee that the Judiciary Committee had placed the synthetic THCs in with the other classified THCs. Currently schedule IIIA drugs included natural THC, the active ingredient in marijuana; and three synthetic THCs. The committee elected to place the drugs under the same category given their similarities and same classification. Representative Gara asked about the penalty for a first conviction. Mr. Luckhaupt replied that the penalty for distribution or manufacturing was a felony. There was no major difference between schedules I, II, and III related to penalties for the manufacturing or delivery of a substance. Possession could be either a felony or a misdemeanor, depending upon the amount of the substance. He explained that for schedule III substances the possession of less than three grams was a misdemeanor and above three grams was a felony. The possession of a schedule II drug was a felony in any amount. 1:47:12 PM Representative Gara asked how three grams compared to the size of a marijuana joint. Mr. Dym responded that a typical marijuana cigarette weighed approximately 0.3 grams or one- third of a gram and that three grams equaled approximately nine to ten hand-rolled cigarettes. Representative Guttenberg wondered how the substance was manufactured. He asked whether an organic product or chemicals for a lab were required to make the substance. Mr. Dym responded that the process involved an exotic chemistry that required quite a bit of knowledge, skill, and equipment. The process was not a typical backyard "clandestine" operation. Representative Guttenberg asked whether there was a specific source that provided most of the product to Alaska. Mr. Dym replied that he did not have specific detail and that previous testimony had traced the production to a couple of overseas companies. Representative Neuman asked what the prison sentence would be for the possession of 3 grams. Mr. Luckhaupt responded that the penalty for a class A misdemeanor was up to one year in jail and that the maximum sentence for a class C felony was up to 5 years in prison. There was no presumptive term for a class C felony and typically a person who was convicted would receive a prison sentence of less than one year. Representative Neuman asked about the typical sentence for three grams of marijuana. Co-Chair Stoltze noted that DOL and the Alaska Court System could probably provide more precise information. He had hoped to move the bill out of committee but there had been several fiscal note questions raised by Legislative Finance. Representative Wilson asked how a police officer would be able to test whether a driver was under the influence of K2 or Spice. Ms. Kloster replied that police departments would determine how tests should be conducted. She explained that the drug impacted people much differently than alcohol did. Current drug testing methods were not able to pick up K2 or Spice and tests for the drug were more invasive than tests for alcohol. Representative Wilson wondered whether a blood test would be a reliable method to determine that a person was under the influence of the drug. Mr. Luckhaupt responded that the prosecution of a person who had been under the influence of a controlled substance was always problematic. Prosecutors attempted to prove a person's altered state based other factors such as, possession of drugs, a person's actions, and a blood test taken at the time of the offence. He relayed that currently a test was not available that would reveal the drug. The reason the person in Fairbanks admitted that he had taken the drug was because it had not been illegal. 1:54:35 PM Representative Wilson wondered whether prosecution would be based on the possession of the substance rather than on its ingestion. Mr. Luckhaupt replied that proof that a person was driving under the influence (DUI) would still be required. He communicated that it was difficult but not impossible to convict a person for being under the influence of a controlled substance. Representative Gara believed that in previous years the legislature had classified too many things as felonies. He stated that a misdemeanor was a serious crime and was the appropriate crime level in some cases. He was concerned about the practice of adding non-violent crimes to the felony list. He wondered whether there was a way to make the distribution of a significant amount of the drug a felony and to make the possession of a small amount a misdemeanor. Mr. Luckhaupt responded that the Judiciary Committee tried to reduce the penalty so that the possession of a small amount would result in a misdemeanor. The distribution and sale of a schedule III substance was always a felony. The sale of a schedule IVA substance would result in a misdemeanor. He stated that dropping the level to a schedule IVA would be problematic given that normal THC and the existing three synthetic THCs were classified as schedule III substances. Representative Gara asked whether it was possible for distribution to remain a felony and for the possession of more than three grams to be classified as a misdemeanor. Mr. Luckhaupt answered in the affirmative. He explained that a fourth or fifth degree of misconduct involving a controlled substance could be created and that a specific level could be specified for the synthetic THCs. Representative Gara discussed that felony charges would be fought much harder than misdemeanor charges and that it was important to factor in the fairness and the costs of jail time, and prosecution. Co-Chair Stoltze opened public testimony. Vice-Chair Fairclough MOVED to ADOPT CSHB 7 (JUD) 27- LS0044\T. KATE BURKHART, EXECUTIVE DIRECTOR, ADVISORY BOARD OF ALCOHOLISM AND DRUG ABUSE, DEPARTMENT OF HEALTH AND SOCIAL SERVICES, discussed that the board was created by statute to advise the executive and legislative branches on issues related to substance abuse. The board was located under the Department of Health and Social Services but did not speak for the department. She voiced the board's support of the legislation. She delineated that the chemicals used in K2 were created as part of a federally funded research project that studied the effects of THC on the human brain. The product was made in a highly sophisticated lab and was never intended for human consumption. The reported effects of the product were not similar to naturally occurring substances such as marijuana. She referred to testimony provided by a Juneau doctor that discussed the symptoms of a person who had been admitted to the intensive care unit. The American Association of Poison Control Centers had received over 3,000 calls regarding poisoning incidents in the prior year and 400 calls in January 2011. The substance was implicated in criminal activity, DUIs, violent crime, hallucinations, one known death in Alaska, and at least one suicide. The product had potential social costs not only in the loss of life and injury, but in emergency room and medical costs as well. The board felt strongly that the substance should be regulated at a higher level than marijuana given the severity of the effects of the substance. Co-Chair Stoltze asked whether the substance qualified under the medical marijuana statute that had been created by initiative. Ms. Burkhart replied that it did not. She emphasized that K2 was a manmade product that was applied to a natural plant base. 2:02:38 PM Representative Edgmon asked whether there had been any accounts of the substance reaching rural Alaska and whether reports of the impact of the drug had been statewide. Ms. Burkhart replied that the board had only heard reports from urban areas of the state. The board was concerned about extensive reports of abuse in the military. She relayed that the U.S. Army had banned the substance and had court marshaled over one dozen service members in Alaska. The Navy had also experienced the same problem. The board was concerned that the drug might infiltrate into rural areas given the potential use of the drug among the state's National Guardsmen. Representative Neuman asked whether there were other common drugs or substances with a similar chemical structure that could be confused with K2. Ms. Burkhart responded that the chemicals were very specific formulas. The bill would regulate five very specific chemical compositions. Due to the specificity of the bill, products that may be similar were not included. The board appreciated that the bill was tracking with the temporary federal regulation enacted by the Drug Enforcement Agency and was following regulation planned by the federal government and 13 other states. She believed that a chemist could manufacture a substance that was equally exciting and harmful with a different chemical composition that would not be controlled by the bill. Co-Chair Stoltze closed public testimony. Vice-Chair Fairclough communicated that she had a young constituent who had experienced an adverse reaction to the drug that had resulted in the girl's inability to move and subsequently in an emergency room visit. She was in support of the bill and wanted to make certain that it was done correctly. She believed that there were only two national labs that were able to test for the drug. One lab did urine analysis and the other tested blood. She wondered about economic opportunity and whether something could be marketed through SCDL for other laboratories throughout the state that would help fund the position and provide a safety net for Alaskans that were having a violent reaction to the drug. She referenced the fiscal note and wondered whether the state could provide an engine to help other states quantify people taking the drug. She opined that the issue at hand was one of safety and hoped that anyone who was having an adverse reaction to the drug would recognize what was happening immediately. She hoped that officers would ask the appropriate questions to identify that a person's reaction was different than anticipated and that medical treatment would be sought immediately. Vice-Chair Fairclough discussed the corrected Department of Corrections (DOC) fiscal note #2 that had been changed from zero to almost $200,000 per person. She explained that the range listed on the fiscal note was not very helpful to the committee. She wondered whether there was someone present from the department that could speak to the indeterminate note. 2:08:21 PM Vice-Chair Fairclough asked Representative Munoz to contact DOC regarding the fiscal note. Co-Chair Stoltze clarified that the co-chair staff would contact the department. Representative Munoz agreed that the increased fiscal note #2 was unclear and that they would communicate with DOC. Co-Chair Stoltze noted that David Teal, Legislative Finance, and James Armstrong, staff to Representative Stoltze would also participate in a discussion to determine the accuracy of the fiscal note. Representative Costello pointed out that some of the documentation referred to the substance as a schedule IIA and in other areas as a schedule IIIA. She wanted to make certain it was shown consistently as schedule IIIA. Representative Munoz clarified that the bill had been amended in the Judiciary Committee to change the classification of the substance from IIA to IIIA. Ms. Kloster relayed that the fiscal notes would all be updated to reference the schedule IIIA classification. Representative Costello appreciated that the legislation had been introduced. She emphasized that the drug had hit the streets of Anchorage with a tenacity that needed to be addressed. Representative Munoz expressed that testimony from her community had moved and motivated her to help address the problem. Vice-Chair Fairclough moved on to fiscal note #3. The note had a $126,800 first year impact that was followed by $106,600. She wondered whether the Department of Public Safety (DPS) could provide clarity on the appropriate testing mechanism for the product, the cost, and the expected turnaround time. Mr. Dym responded that there were two tests available. The first was a toxicology test that involved the analysis of blood or urine. The second test related to the analysis of solid material possession cases. The SCDL currently had no toxicology program and testing was outsourced to the State of Washington. A grant from the Alaska Highway Safety Office paid for the sample testing. He explained that Washington subcontracted the work in the case of synthetic cannabinoids because there were only a few places that were able to test for the drug. The fiscal note related to possession cases and funded the necessary workforce to handle the increased number of submissions and to ensure the laboratory maintained its rapid turnaround time. Vice-Chair Fairclough asked for clarification on the meaning of rapid turnaround time. Mr. Dym replied that most drug cases moved to court from the time of incident in less than 60 days and more frequently in 45 days. The lab was turning 68 percent of the drug cases in less than 31 days and it worked to not exceed the 45-day to 50-day window. Vice-Chair Fairclough appreciated the excellent turnaround time. She asked whether the fiscal note contained funding related to tests that were outsourced to the State of Washington. Mr. Dym replied that the fiscal note did not include funding related to outsourced tests. He explained that all driving offenses would be handled under the department's existing contract and grant money. 2:14:38 PM Vice-Chair Fairclough asked whether the 480 cases supported by the fiscal note were only related to possession cases. Mr. Dym answered in the affirmative. The lab would be able to handle up to 480 samples before increasing the turnaround time. Vice-Chair Fairclough asked whether the fiscal note focused only on distributors and did not cover people who experienced adverse safety implications. Mr. Dym answered in many cases a person suspected of driving under the influence was also in possession of illegal material. In such cases an analysis was conducted on a blood sample to test for the DUI and another analysis was conducted on the substance. Vice-Chair Fairclough questioned whether a blood analysis for alcohol would identify the presence of K2. Mr. Dym replied that the test would not identify the substance. He added that when alcohol was suspected and the blood sample at the lab came back negative, the lab would send the sample out for toxicology analysis. Vice-Chair Fairclough asked whether local hospitals had the ability to perform toxicology testing that would identify K2 in the blood of an admitted patient. Mr. Dym did not know. He doubted that they would be able to identify the substance given the rarity of expertise on the material. Vice-Chair Fairclough recounted a story about a young woman who had been found unconscious. It had only been possible to determine what was wrong with the girl because another youth came forward with information about a substance that they had smoked that they had thought was marijuana. She explained that the hospital had run toxicology tests to identify the poison in the girl's bloodstream. Representative Wilson asked whether the substance was routinely tested for when a person was pulled over for a DUI. She asked whether a sample that was sent for analysis would automatically be tested for everything. Mr. Dym explained that toxicology samples were initially screened for alcohol and were then passed on for further analysis. An officer or the prosecutor's office could request for a sample to undergo additional toxicology testing when a person suspected of impairment tested negative for alcohol. He noted that the lab had just received their first positive toxicology test. Representative Wilson asked what it would cost to send all samples to the State of Washington for toxicology testing. Mr. Dym replied that the fiscal note only covered possession cases that would go to SCDL. The lab's contract covered up to 520 requests per year and it believed that there was enough room to cover potential DUI samples that could arise. Representative Guttenberg pointed to Page 2, Sections 7-16 of the bill that described various compounds. In Section 16 the bill discussed ensuring that similar compounds were included. He communicated that the bill appeared to focus on specific definitions and also included language to prevent the exclusion of certain products with slightly altered chemical compositions. He wondered whether any other products could potentially be included under the description in the bill. Mr. Dym answered that the bill included language on geometric or positional isomers. He explained core components had been identified that could be modified by chemists. Language about positional isomers took care of most items that could be similar. He noted that explaining the chemical terms and definitions would put a slight burden on the lab particularly in court. He delineated that the bill would not cover a new drug but it would cover cases in which there had been rapidly modified chemical tweaks. Representative Guttenberg asked whether the focus was limited to the particular drug and did not include items that it did not intend, such as aspirin. Mr. Dym believed that the language in the bill was specific to the class of synthetic cannabinoids and others that were very closely related. Ms. Kloster discussed that the bill updated language related to schedule III drugs that was similar to existing language for schedule II drugs. She discussed that the removal of one molecule would not have a significant effect on the substance. Representative Guttenberg wanted to make certain that the bill did not include a substance that they did not intend to make illegal. Representative Doogan cited concern about fiscal note #4. He discussed that the drug was probably not produced in Alaska, there was no test in Alaska to determine use of the substance, and only one positive test had been received from an outsourced lab. He did not understand how the fiscal note could be $126,000 and was not inclined to add a position given the lack of evidence that there was a need. He explained that a position could always be added at a later time in the event that the substance turned out to be widespread. 2:25:22 PM Co-Chair Stoltze remarked that there would be a conversation with his staff, the Office of Management and Budget (OMB), and the sponsor and regarding the fiscal notes. Vice-Chair Fairclough hoped to communicate that there was a harmful substance in Alaska that looked similar to rolled marijuana and that people should be aware that products were labeled controlled substances for a reason. She relayed that people should be careful and that they were risking their lives by using the substance. Representative Gara wondered whether prosecutions that would occur as a result of the legislation should be included in a fiscal note from the Public Defender Agency, DOL, or the Office of Public Advocacy. Co-Chair Stoltze reported that DOL was following the issue and that there would be a conversation with OMB about the fiscal notes. HB 7 was HEARD and HELD in committee for further consideration.