Citing Imminent Hazard to Public Safety, DEA Temporarily Places Synthetic Cannabinoids Into Schedule I

By Karla L. Palmer & Larry K. Houck –

Consistent with its November 24, 2010 Notice of Intent, the Drug Enforcement Administration (“DEA”) published its Final Order temporarily placing five synthetic cannabinoids into Schedule I under the Federal Controlled Substances Act (“CSA”) to avoid imminent hazard to the public safety.  76 Fed. Reg. 11,075 (Mar. 1, 2011).  Effective March 1, 2011, the synthetic cannabinoids known as JWH-018, JWH-073, JWH-200, CP-47,497 and cannabicyclohexanol are subject to the Schedule I regulatory controls and administrative, civil and criminal sanctions imposed by the CSA and its implementing regulations.

DEA has authority to temporarily place a substance into Schedule I for one year without having to comply with the usual scheduling requirements under 21 U.S.C. § 811(b) if the agency finds such action necessary to avoid imminent hazard to the public health.  DEA last invoked temporary scheduling in April 2003 when it temporarily placed alpha-methyltryptamine and 5-methoxy-N,N-diisopropyltryptamine in Schedule I.  These substances were permanently placed in Schedule I in September 2004 following an extension of the temporary scheduling.  See 68 Fed. Reg. 16,427 (Apr. 4, 2003); 69 Fed. Reg. 17,034 (Apr. 1, 2004); 69 Fed. Reg. 58,050 (Sept. 29, 2004).

In making its determination, DEA considered three of the eight statutory scheduling factors (as it is required to do under 21 U.S.C. § 811(h)(3)): Each substance’s history and current pattern of abuse; its scope, duration and significance of abuse; and what, if any, risk each poses to the public health.  DEA explained that temporary placement of the cannabinoids into Schedule I is necessary to avoid imminent hazard to the public safety because they are not intended for human consumption and “there has been a rapid and significant increase in their abuse throughout the United States.  Id.  These substances, marketed under such names as “Spice” and “K2,” are sold as herbal incense or plant food, and although labeled as “not for human consumption,” are abused for their psychoactive properties.  Id. at 11,076.  DEA observed that at least eighteen states, the U.S. military and several countries have banned the substances.  DEA concluded that the substances “have the potential to be extremely harmful and, therefore, pose an imminent hazard to the public safety.”  Id. at 11,075.

DEA explained that synthetic cannabinoids are “a large family of chemically unrelated structures functionally (biologically) similar to THC,” the primary psychoactive substance in marijuana.  DEA noted that the five cannabinoids were originally developed for research purposes in the early 1980s and mid-1990s, and are not intended for human consumption.  The rise in use of these substances represents what DEA believes is a “recent phenomenon in the U.S. designer drug market” and “are perceived by the public as ‘legal’ alternatives to marijuana despite the fact that they are typically advertised as herbal incense or plant food.”  Id. at 11,076.  DEA concluded that each of the cannabinoids meet Schedule I criteria: They have a high potential for abuse; they have no currently accepted medical use in treatment in the United States; and they lack accepted safety for use under medical supervision.

The substances will remain in Schedule I for one year with the possibility of a six-month extension, during which time DEA and the Department of Health and Human Services will study the propriety of permanent control and scheduling.

Temporary placement of the cannabinoids into Schedule I subjects them to the regulatory controls and administrative, civil and criminal sanctions applicable to their manufacture, distribution, possession, importation and exportation.  Schedule I regulatory controls include registration by DEA of legitimate handlers, security to protect against their diversion, specific labeling and packaging, manufacturing quotas, physical inventories, recordkeeping, reporting and transfer by DEA-222 Official Order Forms.  Id. at 11,077-78.