Fake Pot Is No Laughing Matter: DEA Publishes Another Notice of Intent to Temporarily Schedule Four Synthetic Cannabinoids

January 12, 2014

By Delia A. Stubbs

Pursuant to 21 U.S.C. § 811(h), DEA may temporarily place substances in Schedule I of the List of Controlled Substances upon a finding that such action is necessary to avoid an imminent hazard to public health and safety.  Using that authority, on January 10, 2013, DEA published a notice of its intent to temporarily place four synthetic cannabinoids in Schedule I:  quinolin-8-yl 1-pentyl-1H-indole-3-carboxylate (PB-22; QUPIC); quinolin-8-yl 1-(5-fluoropentyl)-1H-indole-3-carboxylate (5-fluoro-PB-22; 5F-PB-22); N-(1-amino-3-methyl-1-oxobutan-2-yl)-1-(4-fluorobenzyl)-1H-indazole-3-carboxamide (AB-FUBINACA); and N-(1-amino-3,3-dimethyl-1-oxobutan-2-yl)-1-pentyl-1H-indazole-3-carboxamide (ADB-PINACA).  Schedules of Controlled Substances: Temporary Placement of Four Synthetic Cannabinoids into Schedule I (“Notice”), 79 Fed. Reg. 1,776 (Jan. 10, 2014) (to be codified at 21 C.F.R. Part 1308). 

In its Notice, DEA explained that synthetic cannabinoids form “a large family of compounds that are functionally (biologically) similar to  . . . the main active ingredient in marijuana [(THC)].” Id. at 1,777.  It clarified that “synthetic cannabinoids, however, are not organic, but are chemicals created in a laboratory.”  Id.  As required, DEA made findings regarding the cannabinoids’ history and current patterns of abuse; the scope, duration, and significance of that abuse; and what, if any, risk they pose to the public health.  See 21 U.S.C. § 811(h)(3).  Like similar temporary scheduling notices for synthetic cannabinoids, see here, DEA noted that these substances first emerged for research purposes in the 1980’s, and since then, numerous synthetic cannabinoids have been identified as product adulterants and seized by law enforcement.  Notice at 1,778.  It found “[t]he vast majority of cannabinoids are manufactured in Asia,” and “[t]hey are sold under hundreds of different brand names, including ‘Spice,’ ‘K2,’ ‘Blaze,’ ‘Red X Dawn,’ ‘Paradise,’ ‘Demon,’ ‘Black Magic,’ ‘Spike,’ ‘Mr. Nice Guy,’ ‘Ninja,’ ‘Zohai,’ ‘Dream,’ ‘Genie,’ ‘Sence,’ ‘Smoke,’ ‘Skunk,’ ‘Serenity,’ ‘Yucatan,’ ‘Fire,’ and ‘Crazy Clown.’  Id. at 1,777.  DEA noted a sharp uptick in forensic and poison control reports regarding the substances since February 2013.  Id. at 1,778.  Relevant to the public health factor, DEA found noteworthy an incident that occurred in late August 2013, where 22 persons ranging from age 16 to 57 presented to emergency rooms in Brunswick, Georgia with symptoms such as “the inability to stand, foaming at the mouth, violence towards police . . . and memory lapse.”  Id. at 1,779.  The patients reportedly ingested a synthetic cannabinoid called “Crazy Clown,” which was later identified to contain ADB-PINACA.  Id.  Likewise, DEA found that, in September 2013, 221 patients visited emergency departments in Colorado after consuming “Black Mamba.”  Id.  The patients suffered from symptoms such as “having no gag reflex, inability to breathe on their own, hallucinations and psychotic episodes.”  Id.  “Laboratory analysis of samples from the Colorado incident confirmed that the substance abused in the ‘herbal incense’ products was ADB-PINACA.”  Id. at 1,778.

DEA’s emergency scheduling follows its increase in regulatory actions to address concerns about synthetic cannabinoids and other “synthetic/designer” drugs, such as synthetic cathinones, since 2011.  See prior posts, here, here, here, and here.  DEA Administrator, Michele Leonhart, recently highlighted these concerns before Congress, stating “[t]hese insidious substances are often marketed directly to teenagers and young adults as a ‘legal’ alternative to other illicit substances . . . .  In reality, they are incredibly dangerous, with users having unpredictable and sometimes deadly reactions . . . .”  Michele Leonhart, Statement Before the H. Comm. on Appropriations (Apr. 12, 2013).  Likewise, in its Notice, DEA warned that “[t]here is an incorrect assumption that these products are safe.”  Id. at 1,777.  It explained that “[s]ince abusers obtain these drugs through unknown sources, the identity, purity, and quantity of these substances is uncertain and inconsistent, thus posing significant adverse health risks to users.”  Id. at 1,779.

DEA’s temporary scheduling takes effect 30 days from the date it is published in the Federal RegisterId.  The Agency stated that it will not be taking public comment.  Id. at 1,780.   The Notice states that any final order will impose the administrative, civil, criminal sanctions and regulatory controls applicable to Schedule I substances under the CSA on the manufacture, distribution, possession, importation, exportation, research, and conduct of instructional activities of these substances.