HB 362-SYNTHETIC DRUGS  1:26:17 PM CHAIR KELLER announced that the next order of business would be HOUSE BILL NO. 362, "An Act relating to a prohibition on the offer, display, marketing, advertising for sale, or sale of illicit synthetic drugs." 1:27:52 PM REPRESENTATIVE MAX GRUENBERG moved to adopt HB 362, labeled 28LS1538\U, Strasbaugh, 3/18/14, as a working document. CHAIR KELLER objected for discussion purposes. 1:28:44 PM EDRA MORLEDGE, Staff, Senator Kevin Meyer, Alaska State Legislature, said that Senator Meyer is carrying the Senate Version (SB 173). She noted that he has previously sponsored legislation to outlaw synthetic cannabinoids, and the bills have passed. The cannabinoids go by various names, such as spice and bath salt, and they are commonly used as alternatives to cocaine and marijuana. The substance is sold by the gram in small packets in convenience stores and smoke shops, and it is easily accessible, she explained. Unfortunately, many people think these drugs are safe, including parents, because they are so readily available. "They're actually not safe; they cause many psychotropic effects on users," she stated. The bill is an attempt to stop the sale of these drugs by targeting the way they are packaged, rather than the chemical compounds they are made of. "What happens is, the manufacturers of these drugs, who are often overseas, simply change the compounds that we previously outlawed by a molecule or two, and all of a sudden, they're not illegal anymore," she explained. MS. MORLEDGE said that the Anchorage Assembly passed an ordinance to ban the packaging of synthetic cannabinoids, and the House and Senate bills are modeled after that ordinance, as it has been very successful. "They virtually wiped it out of all of the smokes shops and convenience stores," she stated. She surmised that Alaska is the only state attempting this approach-to target the packaging rather than the compound-and "it hasn't really been challenged as ... a state law." She noted that a similar ordinance was passed in Maine and there have been no challenges. 1:31:45 PM REPRESENTATIVE GABRIELLE LEDOUX asked if [the label] has to include some or all of the following criteria: false and misleading; does not specify the name of the synthetic drug; does not specify the name and place of the manufacturer, packer, or distributer; and all of [the criteria listed under paragraph (2)]. 1:32:11 PM MS. MORLEDGE noted that her understanding is that the substance would have to meet one criterion from [paragraph] (b)(1) and one from [paragraph] (b)(2). 1:32:31 PM KATHLEEN STRASBOUGH, Attorney, Legislative Legal Counsel, Legislative Legal and Research Services, Legislative Affairs Agency, said, yes, [the package] would have to have one from (b)(1) and one from (b)(2). 1:32:45 PM REPRESENTATIVE LEDOUX suggested that the manufacturer could simply put the ingredients on the label in order to be legal. MS. STRASBOUGH she said does not have all of the facts associated with the bill, but those who trade in these products do not like the scrutiny and do not want to provide that information. 1:33:45 PM MS. MORLEDGE said the items are being marketed as things that they are not, like incense. The packaging often states, "Not for human consumption," but that is exactly what it is intended for, she explained. She suggested that the Anchorage city prosecutor answer the question. CHAIR KELLER asked if instant coffee, a stimulant, could fall under this prohibition. 1:35:34 PM MS. STRASBOUGH said this bill depends upon mislabeling; a person selling coffee would likely not want to disguise it. There is another law, Imitation Controlled Substance, where something like that might occur, but the element of falsity is necessary for a violation to be committed under HB 362, she explained. CHAIR KELLER assumed [instant coffee could fall under the statute]. 1:36:47 PM REPRESENTATIVE GRUENBERG said he agrees with Chair Keller and also with Representative LeDoux. He turned to page 1, line 11, where the intent is correctly drafted because the item must have (A), (B), or (C), and "or" is the key word [under (b)(1)]. However, "and" appears on page 1, line 13, but there only needs to be one of (A) through (G) under [(b)(2)]. The word "or" does not appear at the end of line 18, like it appears at the end of line 11. He said he will offer an amendment at the appropriate time to ensure that it requires only one criterion from [(b)(2)] by inserting the word "or". 1:38:12 PM REPRESENTATIVE GRUENBERG asked if his suggestion is correct. CHAIR KELLER stated that that can be worked out with the sponsor. REPRESENTATIVE GRUENBERG said it is not clear to him whether each sale would be a separate violation. "If you sold 10 of these packages to one person and three to another, you would have committed 13 separate offenses?" 1:39:21 PM MS. MORLEDGE answered that the intent is a $500 violation per package. REPRESENTATIVE GRUENBERG said he will offer an amendment that specifies that intent. He then said he is concerned about the question that Chair Keller raised. "We have things that are depending upon having street names," and those names vary, so how can it withstand a test for vagueness? "I see this thing not being challenged as a whole bill but in an individual case where they have something from category A and something from category B, and I see one thing is legal, and somebody will say 'well, I bought a legal drug.'" 1:40:57 PM MS. MORLEDGE said the sponsor will be happy to work with Representative Gruenberg on refining the bill's language. REPRESENTATIVE BOB LYNN noted page 2, line 19, where the esoteric names [of the product] are listed. "What happens if somebody comes up with a new name that is not included in this list?" 1:41:34 PM REPRESENTATIVE GRUENBERG answered that the law would have to be amended. MS. MORLEDGE said the names are included now because they are known; perhaps when the names change, the list can be deleted. These are drugs that we would like off of the street immediately, she stated. REPRESENTATIVE LYNN asked if there was language that would include future street names. MS. MORLEDGE said, "We would be happy to work on that." 1:42:34 PM REPRESENTATIVE CHARISSE MILLETT said she is willing to work with both Representatives Gruenberg and Lynn. "It is an ever- changing group of names, and that's what we struggle with. And it's an ever-changing group of drugs that are mixed in with these," she noted. It is difficult to capture everything, but she wants to make sure kids do not have access to the drugs and people do not sell them. She reiterated that she will work with anyone to make the bill better. REPRESENTATIVE LEDOUX asked about a definition of "false and misleading." 1:43:39 PM MS. STRASBOUGH said those terms are in frequent use in the statutes. "I'm sure that a definition can be put together if someone wanted one," she added. REPRESENTATIVE LEDOUX asked if it is defined. MS. STRASBOUGH said she has not researched it, but it is her impression that the statute uses the term without definition. 1:44:46 PM REPRESENTATIVE LEDOUX said she is looking forward to an answer on why a person [selling the substance] would not just specify what is in the package and who manufactured it in order to make it legal. VASILIOS GIALOPSOS, Staff, Representative Charisse Millett, Alaska State Legislature, said that the overwhelming majority of these synthetic substances comes from China. In order for them to enter the United States under those pretenses, the substances would have to comply with the federal Food and Drug Administration (FDA), and they would not be able to do so. REPRESENTATIVE LEDOUX asked why the substances would not be able to meet the FDA requirements. If it cannot meet those requirements, why is it not illegal? MR. GIALOPSOS said that was an excellent question that he would not be answering at this point. 1:46:44 PM REPRESENTATIVE GRUENBERG noted that page 3, line 17, states that the commissioner of the Department of Public Safety may delegate its authority as appropriate. He asked if that phrase is normally used, because it does not specify any outer limits of what may be delegated. It could be unconstitutional, he added. He then noted that the language does not specify who the authority can be delegated to; it could be to a non-governmental agency, and he sees potential problems. 1:48:17 PM GUS SANDAHL, Kenai, Alaska, said he works in law enforcement, and he is very supportive of legislation that prohibits the sale and possession of these substances across all of Alaska. He appreciates the time taken to eliminate loopholes and for considering the bill. CHAIR KELLER said he agreed and complimented the sponsor. REPRESENTATIVE GRUENBERG said he had two more questions. Regarding the section with the penalties, page 3, lines 21-22, a person who violates the law is guilty of a violation. "Are you intending to punish the person who makes the drugs, who wholesales them, who retails it, or all three?" He then referred to page 3, line 30, [defining a synthetic drug] as a chemical intended to.... He asked who would have to have the intent, "and how are you going to prove it?" He said he supports the concept [of the bill], but he is trying to save it from potential serious challenges. REPRESENTATIVE LEDOUX surmised that a violation is a civil matter, rather than a criminal matter. "If it's civil, you're not entitled to a public defender; you're not entitled to a trial by jury; is that the reason for making it a violation as opposed to a misdemeanor?" CHAIR KELLER said that question will be answered later, and HB 362 was held over.