“DESIGNER DRUG” PROSECUTIONS

by Ashley D. Adams

(November 2103) The Federal Analog Act, 21 U.S.C. § 813, is a section of the United States Controlled Substances Act passed in 1986 which allows any chemical “substantially similar” to a controlled substance listed in Schedule I or II to be treated as if it were also listed in those schedules. These similar substances are often called designer drugs. A designer drug is a substance that has been synthetically created to mimic the effects of a controlled substance, but does not share the exact chemical structure of that substance.

Section 802(32)(A) defines an analogue as a substances that (1) has a chemical structure substantially similar to a controlled substance and (2) that has, is intended to have, or is represented as having pharmacological effects substantially similar to a controlled substance. Manufacturers of designer drugs such as spice and bath salts can be prosecuted under the Analog Act in certain circumstances.
The government must prove that the product was “intended for human consumption.” Although there has been little case lase decided on this issue, it is likely that courts will look to the following:

  1. Instructions, oral or written, provided with the item concerning its use;
  2. Descriptive materials accompanying the item which explain or depict its use;
  3. National and local advertising concerning its use;
  4. The manner in which the item is displayed for sale.

Penalties and prison sentences pursuant to the Act can be severe, as the term depends on the quantity sold.

If you have any issues, or questions regarding “Designer Drug” prosecutions, please contact Ashley D. Adams, PLC at 480.219.1366 or via this website. Ashley is a criminal defense attorney in Scottsdale and a former federal prosecutor.