Fake Pot Problems Persist, Despite Law Against It

By Alissa Smith, Virginia Statehouse News Friday, September 23, 2011

RICHMOND — Synthetic marijuana manufacturers have found a way to beat the law in a game of cat and mouse, leaving police and lawmakers with their hands tied in taking faux pot off the street.

Chemists are circumventing the state’s new law that lists ingredients used in making synthetic marijuana by manufacturing the fake pot with new chemical combinations.

To put an end to this game, lawmakers are considering fines for businesses selling faux pot, often packaged as K2 or Spice, at a time when businesses argue that less regulation, not more, is needed in today’s rocky economy.

Legislators also are proposing stiffer penalties or fines for people caught with synthetic marijuana.

But some argue the answer to these legal fumbles is simply legalizing real marijuana, something many officials may have a difficult time wrapping their heads around.

Policing efforts
Since the ban on faux pot took effect in March, police have found less synthetic marijuana, which simulates the high achieved from real marijuana, said Supervising Special Agent with the Virginia State Police Tom Murphy, who is the coordinator of the drug task force serving the Rockingham-Harrisonburg area.

As most of the synthetic marijuana is disappearing from convenience stores, truck stops and tobacco shops, users are purchasing it mainly from foreign companies over the Internet, Murphy said.

But law enforcement has not been able to charge store owners who have been selling such products, because the chemicals don’t match the banned substances listed in state law, Murphy said.

“These (manufacturers) know what they are doing. They have their chemists too,” Murphy said.

Murphy said it will take time for the law to catch up with those manufacturers and to identify all of the chemical combinations that might bring users the desired high.

Police departments statewide have sent three times as many samples of synthetic marijuana to the state crime lab for evaluation that do not match the banned compounds, according to the Virginia Department of Forensic Science.

More regulations
During a Virginia State Crime Commission meeting Tuesday, legislators pushed for penalties on businesses that carry and sell synthetic marijuana.

State Sen. Tommy Norment, R-James City, suggested imposing a penalty of $50,000 to $100,000 against businesses that sell these products to curb the market.

Currently, business owners could face a misdemeanor charge for possession. Dealing such products is a felony.

“The penalty would be so monetarily severe that the squeeze ain’t worth the juice,” Norment said.

Delegate Rob Bell, R-Albemarle, suggested a regulatory change, in which businesses could lose their liquor license for a month if caught selling the product.

He also asked Crime Commission staff to research potential legislation that would broaden the range of chemical compounds that would be banned, thereby avoiding annual changes to the law.

Norment was not optimistic when he said, “We’re not going to win this war. We’re going to be constantly doing this.”

Compounding the problem
When writing the ban, lawmakers included catch-all language that allows law enforcement to file charges for possession or distribution of unlisted compounds.

But prosecutors must demonstrate the compounds are essentially similar to the banned substances, and the compounds produce the same hazardous effects on the body as the listed substances, said Linda Jackson, chemistry program manager with the Virginia Department of Forensic Science.

However, state lab officials can’t provide that testimony, making it impossible for prosecutors to prove their case in court, Jackson said.

Because the compounds are new and not in widespread use, the lab lacks comparison samples to identify the unlisted substances, Jackson said.

Push for legalization
Lennice Werth, director of Virginians Against Drug Violence, said legalizing real marijuana would encourage “people to use a substance that has never killed anybody.”

Synthetic marijuana has “come to (the) forefront because people are searching for something to replace real pot with. Real pot is a pretty non-toxic substance,” Werth said.

Her organization advocates that all drugs from marijuana to methamphetamine should be regulated and prescribed under the supervision of doctors, but still legal and available.

Regulations may not be answer
Chief Deputy Attorney General Charles James, a crime commission member, said lawmakers were offering solutions — more regulations and fines — in search of a problem.

“We’re now grasping at straws whether or not we have as much of a problem with this product whether the legislation has had the desired effect,” James said. “It seems to me this might be an appropriate time to step back, determine the scope of the problem and tailor a remedy to the problem as opposed to speculating.”

Gov. Bob McDonnell’s administration has supported efforts to minimize regulations on businesses as a way to spur the state’s economy and create jobs.

And businesses such as truck stops and convenience stories do not support the regulatory changes, because they do not address the real problem, said Mike O’Connor, president of the Virginia Petroleum, Convenience and Grocery Association, which lobbies for the interests of gas stations, corner and grocery stores at the General Assembly.

O’Connor said that adding regulations that tie the sale of synthetic marijuana to the sale of alcohol is a slippery slope.

“If they sell a bag of chips are they going lose their liquor license?” O’Connor said.  “We would support legislation, if there is a problem with the Spice legislation, to tighten it.”