Legislature(2013 - 2014)CAPITOL 120
04/11/2014 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB254 | |
| SJR22 | |
| SB171 | |
| SB187 | |
| SB108 | |
| HB108 | |
| SB187 | |
| SB173 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | SCR 2 | TELECONFERENCED | |
| + | SB 173 | TELECONFERENCED | |
| + | HB 370 | TELECONFERENCED | |
| + | HB 254 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | SB 171 | TELECONFERENCED | |
| += | SB 187 | TELECONFERENCED | |
| += | HB 60 | TELECONFERENCED | |
| += | HB 108 | TELECONFERENCED | |
| + | SJR 22 | TELECONFERENCED | |
| += | SB 108 | TELECONFERENCED | |
SB 173-SYNTHETIC DRUGS
2:37:11 PM
CHAIR KELLER announced that the next order of business would be
the CS FOR SENATE BILL NO. 173(JUD), "An Act relating to a
prohibition on the possession, offer, display, marketing,
advertising for sale, or sale of illicit synthetic drugs."
REPRESENTATIVE LYNN moved to adopt CSSB 173(JUD) as the working
document.
2:37:30 PM
EDRA MORLEDGE, Staff, to Senator Kevin Meyer, Alaska State
Legislature, noted that SB 173 was a companion bill to
Representative Millet's HB 362, which was heard on March 26,
2014. The bills are identical, and she conferred with the legal
department in order to address the questions that were raised at
that hearing. She pointed out a memo from the bill drafter,
Kathleen Strasbaugh.
CHAIR KELLER listed the witnesses who were available. He asked
Ms. Strasbaugh to explain the new version of SB 173.
MS. MORLEDGE said there has only been one version before the
committee, and that was HB 362, which is identical to SB 173,
which is now before the committee.
2:40:25 PM
CHAIR KELLER said he was satisfied with the legislation at that
time.
REPRESENTATIVE GRUENBERG asked if the memo Ms. Morledge referred
to is dated February 10, 2014.
MS. MORLEDGE said there is a more recent version.
2:41:17 PM
The committee took an at-ease from 2:41 p.m. to 2:46 p.m.
2:46:23 PM
REPRESENTATIVE GRUENBERG, [referring to the March 28, 2014, memo
from Kathleen Strasbaugh to Senator Meyer containing nine
questions with answers/recommendations regarding SB 173], said
he would be interested in knowing the sponsor's views "as we
take up each one, because there are some that Kathleen
specifically recommends we adopt, and some that she doesn't seem
to recommend, and I don't know if there's anything that falls
in-between."
REPRESENTATIVE PRUITT said, "There are three of these
[question/answers in Ms. Strasbaugh's memo] that caught my eye."
With regard to number 6, he asked if the bill contains a
loophole.
2:48:16 PM
KATHLEEN STRASBAUGH, Attorney, Legislative Legal and
Research Services, Legislative Affairs Agency, said she
would not call it a loophole. The law is designed to
address a particular type of product and transaction, which
is characterized by the lack of disclosure of the contents
and misleading packaging. It does not address the chemical
composition of the substance, she explained. If a purveyor
of one of these products did correctly label it, it would
not be in violation of this law, but a few other things
might occur. If there is no disclosure, the product cannot
be imported, she stated. Additionally, the product may not
be found safe for human consumption, so the disclosure of
the contents may make the product run afoul of federal
regulations. Misrepresentation, with or without disclosure
of contents, is something that the FDA (Food and Drug
Administration) enforces, but it tends to go after larger
purveyors, she said. The basis of the statute is directed
toward mislabeling, she added.
2:50:28 PM
REPRESENTATIVE PRUITT related that he is not very familiar
with the FDA, which he finds to be confusing. He spoke of
misleading claims on supplement packaging, which may state
that a product was not reviewed by the FDA, so he asked if
the maker of the [synthetic drugs] could do the same.
MS. STRASBAUGH said the FDA will go after a supplement
product if its claims are inaccurate, but not necessarily
every supplement. The FDA website has a list of
enforcement items addressing supplements, she added.
"There are some circumstances under which misleading claims
can be prosecuted under federal law," she said.
2:53:14 PM
REPRESENTATIVE LEDOUX said if something is packaged with a
list of all of the ingredients with a notice that the
product is not safe for human consumption, will that be a
violation of anything?
MS. STRASBAUGH answered that an accurate portrayal of the
product and the terms of effect might well not be pursuable
under this law. In order to be in violation of SB 173, it
would have to violate the misrepresentation provisions.
2:55:19 PM
CYNTHIA FRANKLIN, Prosecutor, Municipality of Anchorage,
said Anchorage passed an ordinance similar to SB 173 in
January, 2014, and there has been some enforcement. The
ordinance addresses the packaging, which is designed to
address the lack of laws, so the idea of manufacturers just
listing all ingredients is not realistic, she stated. The
purveyors of these products are drug dealers, she
explained, and that is why the packages do not contain the
contents. The dealers often do not know what the chemicals
are. She said this is not a legitimate consumer product-it
is drug dealers packaging up drugs and selling them as IPod
cleaners, potpourri, and aromatic substances, for example.
She understands why the committee is trying to imagine what
could come about and how the drug dealers might respond,
but it is difficult for her to imagine the dealers saying
"let's just list all of these substances that we're coming
up with to create these crazy synthetic drugs" to get
around this law. She explained that the law is to address
the retailing of the product in Alaska's communities,
because the retailers have insisted that because they
cannot keep up with the chemical combinations that the drug
dealers are coming up with, that the products are therefore
legal and they can sell them over the counter.
2:58:11 PM
MS. FRANKLIN said the response of the Anchorage ordinance
has been retailers taking the products off of the shelves.
Whether or not the retailer would accept a product that
looked, in every way, like these illegal substances except
that they have the ingredients listed out, would be a two-
fold question: Would the retailer sell it, and, if officers
seized it, would it be prosecuted? It can be a sliding
scale, she stated. If the label says it is potpourri and
is not for human consumption, and the ingredients are
listed, "would I, as the prosecutor, be able to prosecute
that case successfully?" She said it would likely depend
on the other things on the package that are encompassed by
the statute. As a career prosecutor, she does not see that
happening, because [it is a false] assumption that these
are legitimate products with a person on the other end who
is trying to sell a legitimate product. These are drugs
coming into our communities, she said, and the reason they
are not properly labeled is because they are labeled and
sold by drug dealers who do not even know what is in them.
2:59:33 PM
REPRESENTATIVE LEDOUX asked if the state or municipality
can prosecute on a product listed with a half million
different things that says it is not safe for human
consumption. "Does the municipal prosecutor take these
things and test them out to make sure that everything that
they say is listed is listed and that there isn't anything
else in them?" The items may now be off the shelves, but
just like the drug dealers have figured out that they need
to change the ingredients in order to circumvent the law,
"why wouldn't they figure out that they need to change the
packaging in order to circumvent the law?"
3:00:38 PM
MS. FRANKLIN said she thinks the officers would look at a
package and make a determination, and they might seize the
package and not issue a citation until prosecutors looked
at it. She said if the item met the ordinance guidelines,
the prosecutor would file a citation. The municipality is
not testing the substances; the idea is to address them
without requiring the traditional forensic analysis that
the manufacturers have kept ahead of, she explained. She
said to keep in mind that that these products are shipped
nationally, and listing the ingredients will make it
difficult to stay ahead of all state and federal laws. She
said that listing the actual ingredients on the product is
not the response she foresees to this legislation.
3:04:31 PM
REPRESENTATIVE GRUENBERG said he would like to hear from
someone on the defense bar, because there are a number of
very significant legal issues. Prosecutors are charged
with enforcing the laws and making sure that anything they
draft can survive challenges. He said he wants someone to
go through SB 173 to highlight the problems and the
challenges, "so we can deal realistically with whether this
bill is going to be enforced."
CHAIR KELLER said he will get someone.
REPRESENTATIVE LEDOUX said she suspects this bill might
survive a constitutional challenge-or there will be no
challenges-because it has a civil penalty, where providing
a public defender is not required and there is no right to
a trial by jury.
3:06:40 PM
REPRESENTATIVE GRUENBERG said whether SB 173 survives a
challenge is not the question. It will ultimately be a
business decision by the government on whether it is worth
prosecuting somebody for a little bottle, he stated. He
noted page 3, line 8, regarding compliance with state or
federal law, and asked if the product were manufactured in
Idaho but sent to Alaska to be sold, would it be the law of
Idaho that sets the standard, the law of Alaska, or a
violation of interstate commerce?
3:08:15 PM
MS. MORLEDGE said the sponsor's intent is that the activity
would fall under Alaska law.
REPRESENTATIVE GRUENBERG said someone should testify on the
issue of interstate commerce under federal law.
CHAIR KELLER said Mr. Steiner is on the phone.
REPRESENTATIVE GRUENBERG asked if there are any practical
or constitutional issues with SB 173.
3:10:38 PM
QUINLAN STEINER, Public Defender, Public Defender Agency, Alaska
Department of Administration, noted that he worked on SB 173
when it had a criminal penalty, and he had concerns at that
time. The bill sponsor clarified that the penalty is now a
violation, so his concerns were satisfied and he did not
see any problems. "It wouldn't implicate the public
defender at all," but it is broadly written and that would
have caused him concern when attaching a criminal penalty,
but as a civil penalty it is not as dramatic, he explained.
REPRESENTATIVE GRUENBERG asked Mr. Steiner to look at SB
173 as a lawyer defending a person from civil penalties.
He asked if there things that may cause points of
litigation or problems.
MS. STEINER said he is reluctant to answer that. He does
not get involved with civil matters, and although it is
structured like a criminal penalty, SB 173 involves
commerce, and he is not comfortable assessing its impacts.
"These types of restrictions on food items and other things
you might eat or ingest is not something I'm familiar
with," he declared.
3:12:54 PM
REPRESENTATIVE PRUITT asked about the sixth point in Ms.
Strasbaugh's memo. Part of the problem [with these
products] is that the content can be changed, and now the
name can be changed, he said. He asked if this is the
"best thing that we have going forward to try to address
the issue where we're not having to try and come back every
year and fill in loopholes or oversights or changes that
these intelligent drug dealers or manufacturers are
making?" He asked if something needs to be added.
3:14:45 PM
MS. FRANKLIN said she sees this strategy as a tool to
address a huge problem in Anchorage, which is the over-the-
counter sale of such products and their representation as
being safe. The products are primarily marketed to young
people who believe that when they buy a product in a store,
it must be safe. She said a person can just walk into a
store and buy it, and the Anchorage ordinance was
specifically written to address the concept that there are
things sold in stores that are unregulated and, in this
case, extremely unsafe. She told the committee that she
has been prosecuting since 1989 and has lived through
various designer drug waves, and her belief is that this
type of legislation addressing the sale of these products
makes the problem go away.
3:16:30 PM
MS. FRANKLIN noted that that has happened in a short amount
time in Anchorage, because stores do not want to sell
illegal products, so once the Anchorage Assembly made the
ordinance, the stores did not want any part of [the trade].
Decreasing availability does address the problem. She
noted that the products can still be sold on the Internet,
and that is why the Anchorage ordinance contains the
possession element to allow officers to ticket individuals,
which will turn a person's $35 high into a $535 high.
3:17:07 PM
MS. FRANKLIN said, "We think of it as a tool; not the end-
all be-all." She explained that the names of the products
were included in the ordinance to make it easy for officers
if they encounter that particular package. She said she
realizes that it will be a challenge keeping up with
product names, but the assembly can update the city code
more easily than legislators can update state law. The
city anticipates that it will update the list of product
names, but it will be a challenge on the statewide level,
she stated. She noted that the packages she has seen are
homemade with misspelled words; they are manufactured in
someone's basement. The Anchorage Assembly specifically
designed the ordinance to negate the idea that something is
safe if it can be purchased over the counter. She said
that the minute that the retailers were convinced that the
community condemned the sale of these products, they took
them off the shelves.
3:19:27 PM
REPRESENTATIVE PRUITT said since the legislature meets only
once a year, he wants to be sure SB 173 is right. He said
he would like to address the aspect of listing the names
[of the products] and if there is nothing to stop [dealers]
from changing names. What wording would cover a product
with a different name so the legislature would not have to
wait a year to [add a name to the list]?
3:20:26 PM
MS. FRANKLIN said Anchorage Assembly members named the
names they were aware of, and those names came from
undercover purchases, confiscations from individuals in the
drunk tank, and other sources. So they knew such products
had a high likelihood of being [sold] in Alaska, but the
rest of language is designed to address products without
requiring a specific name, she explained. It is a two-fold
approach: listing the known products and giving officers
the tools to identify the products with different names.
3:21:39 PM
REPRESENTATIVE PRUITT asked what the penalty is in
Anchorage.
MS. FRANKLIN said it is a $500 fine per packet.
REPRESENTATIVE PRUITT said question 3 [in Ms. Strasbaugh's
memo] indicates that it is not necessary to clarify that
the $500 penalty is for each package. It might be
appropriate to clarify that, he opined. Additionally, he
said, before the committee is an article from the Alaska
Dispatch with a 2013 photo of WTF brand synthetic
marijuana, and that brand is not on the list in SB 173.
3:23:40 PM
CHAIR KELLER said the committee will take that up for
consideration.
REPRESENTATIVE LEDOUX suggested leaving this law up to
municipalities since they can update the list more easily.
CHAIR KELLER said that is a new question. He wants to
clarify the nine questions before the committee.
REPRESENTATIVE GRUENBERG said he was going in that
direction, and he has questions on the fiscal note.
3:25:01 PM
The committee took an at-ease from 3:25 p.m. to 3:26 p.m.
CHAIR KELLER noted that it is late in the day, and he will
set SB 173 aside and bring it up on Monday.
REPRESENTATIVE GRUENBERG said it will take time for him to
digest this bill, and he asked the sponsor's staff to talk
with committee members in their offices. He said there
could be a lot of money spent without much return, since
the municipalities are doing this anyway.
[SB 173 was held over.]