DEA Announces Emergency Scheduling of Synthetic Cannabinoids

By Karla L. Palmer and Peter M. Jaensch

On November 24, 2010, using its emergency authority under section 202 of the Controlled Substances Act (“CSA”) (21 U.S.C. § 812), the U.S. Drug Enforcement Administration (“DEA”) published a Notice of Intent to temporarily place five synthetic cannabinoids in Schedule I of the CSA.  75 Fed. Reg. 71635 (Nov. 24, 2010). The five chemicals, JWH-018, JWH-073, JWH-200, CP-47,497, and cannabicyclohexanol, are used to make “fake pot” products.  These “smokable herbal blends” have been marketed as being legal substances, and have been increasing in popularity among teenagers and young adults because they produce a high similar to that produced by marijuana (also a Schedule I substance).

The DEA announced in its related press release that the products consist of “plant material that has been coated with research chemicals that mimic THC, the active ingredient in marijuana.”  Brands that the DEA specifically referenced include “Spice, “K2”, “Blaze” and “Red X Dawn,” and are typically labeled as “incense” in order to disguise their actual and intended purpose.  Although the products typically are marketed with disclaimers that they are not intended for human consumption, retailers promote the fact that a routine urinanalysis will not detect their presence, and they specifically market the products to young adults and teens.  See 75 Fed. Reg. at 71637.  The FDA has not approved these chemicals for human consumption, and the products are not safe for use under medical supervision.  Nor is there any oversight concerning their manufacturing process.  The DEA’s call for emergency scheduling was driven in part by the increase in incident reports from poison control centers, hospitals and various law enforcement agencies concerning the abuse of these synthetic cannabinoids.

Under its emergency authority, to which the DEA may turn as necessary to avoid an imminent hazard to the public safety, these substances will remain in Schedule I  for one year, with the possibility of a 6-month extension.  During the temporary scheduling period, the DEA and the Department of Health and Human Services will study the propriety of a permanent controlled substance status.  In order to temporarily schedule the substances using its emergency authority,  the DEA was required to consider three of the eight factors in 21 U.S.C. § 811(c).  The DEA set forth its findings with respect to the following factors 4, 5, and 6: (4) history and current pattern of abuse (finding that the increasing popularity of these products has led to both long term and acute public health and safety problems); (5) the scope, duration and significance of abuse (since appearing in the United States in 2008, there have been over 1500 reported health-related communications related to the use of these spiked products; and (6), what, if any risk to the public health exists (finding for several detailed reasons that the products pose an imminent threat to public health and safety).

Schedule I controlled substances are those substances that, in addition to having a high potential for abuse, have no recognized medical use. The five chemicals will be subject to the “regulatory controls, and administrative, civil, and criminal sanctions applicable to the manufacture, distribution, possession, importing and exporting of a Schedule I controlled substance under the CSA.”  75 Fed. Reg. 71637. As of October 15, 2010, 15 states and European and Scandinavian countries have taken measures to control these synthetic products.