Legislature(2011 - 2012)BELTZ 105 (TSBldg)
03/14/2011 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB9 | |
| State of Litigation: Criminal Division, Department of Law (dol) | |
| HB7 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| + | HB 7 | TELECONFERENCED | |
| = | SB 9 | ||
| + | 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
chemicals.
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
isomers.
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
items.
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
marijuana.
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
illegal.
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
manufacture.
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
state.
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
consumption.
SENATOR MCGUIRE asked what it was tested on and what they were
trying to understand about THC if they didn't use human
subjects.
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
substance.
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
sales.
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
materials.
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
products.
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
seller.
3:01:13 PM
CHAIR FRENCH announced he would hold HB 7 in committee.
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