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K2/Spice defense – The freedom of choice

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The man whose 1995 research paper led others to produce the synthetic cannabinoids/ imitation marijuana known as K2 or spice said that people who smoke K2 are "idiots." 

I certainly would not use K2, nor do I use marijuana, tobacco or alcohol. I understand the motivation for people to sell and use K2, but do not agree with using it. For those who believe it is legal, they may prefer it over the illegality of marijuana. If K2 cannot be detected by current urine drug tests currently used by employers and the criminal justice system, that might be another motivating factor for using it.

Of course when K2 users and sellers are permitted to be involved with K2, that helps further my own freedom of choice in my own life, which is why I also support marijuana legalization, even though I do not touch the stuff, and can count on one hand the number of times long ago that I tried it, all prior to law school.

Government can try to catch up with K2 by outlawing its components, but there are bound to be people who will find other legal highs that do not contain outlawed ingredients. The federal government, for one, tries to limit having to play such catch up by simply criminalizing the possession of "controlled substance analogues." 21 U.S.C. § 813. State laws should also be consulted concerning state bans on controlled substance analogues.

Specifically, "A controlled substance analogue shall, to the extent intended for human consumption, be treated, for the purposes of any Federal law as a controlled substance in schedule I." 


"[C]ontrolled substance analogue" generally means a substance –

        "(i) the chemical structure of which is substantially similar to the chemical structure of a controlled substance in schedule I or


        (ii) which has a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II; or

        (iii) with respect to a particular person, which such person represents or intends to have a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II."

21 U.S.C. § 802(32)(A).

      The United States Code provides a procedure for the Attorney General to add additional substances to the list of controlled substances, to prevent them from being sold over the counter. 21 U.S.C. § 811. In that regard, in March 2011, through the Justice Department’s Drug Enforcement Agency, the Attorney General temporarily placed five synthetic

"cannabinoids into the Controlled Substances Act (CSA) pursuant to the 3 temporary scheduling provisions. The substances are 1-pentyl-3-(1-naphthoyl)indole (JWH-018), 1-butyl-3-(1-naphthoyl)indole (JWH-073), 1-[2-(4-morpholinyl)ethyl]-3-(1-naphthoyl)indole (JWH-200), 5-(1,1-dimethylheptyl)-2-[(1R,3S)-3-hydroxycyclohexyl]-phenol (CP-47,497), and 5-(1,1-dimethyloctyl)-2-[(1R,3S)-3-hydroxycyclohexyl]-phenol (cannabicyclohexanol; CP-47,497 C8 homologue). This action is based on a finding by the Administrator that the placement of these synthetic cannabinoids into Schedule I of the CSA is necessary to avoid an imminent hazard to the public safety."

76 Fed. Reg. 11075 (March 1, 2011). That is a mouthful.

Consequently, for those advising buyers and sellers of imitation marijuana, it is important to remember to be reviewing and analyzing both state and federal law to see whether any components of the product are already specifically outlawed by statute or regulation, and also to review the federal controlled substance analogue statute and any equivalent statute in the relevant state.

Where I practice law, possession of an illegal substance or any other contraband requires knowledge, dominion and control over the substance. One defense against prosecutions for controlled substance analogues is to argue that sufficient proof is lacking to show that the defendant knew of the chemical composition of the alleged controlled substance analogue. Moreover, if the substance in question has not been specifically listed as outlawed by the government, then it becomes all the harder for the prosecution to prove that a synthetic cannabinoid defendant actually knew that s/he possessed banned substances.