Federal Analog Act
Encyclopedia
The Federal Analog Act, , is a controversial section of the United States
Controlled Substances Act
which allowed any chemical "substantially similar" to a controlled substance
listed in Schedule I or II to be treated as if it were also listed in those schedules, but only if intended for human consumption. These similar substances are often called designer drug
s.
decision for the district of Colorado
, considered the question of whether the drug alphaethyltryptamine
(AET) was a controlled substance analogue in the USA. The controlled drugs to which it was alleged that AET was substantially similar were the tryptamine analogues dimethyltryptamine
(DMT) and diethyltryptamine
(DET).
AET
DMT
DET
In this case, the court ruled that AET was not substantially similar to DMT or DET, on the grounds that (i) AET is a primary amine while DMT and DET are tertiary amines, (ii) AET cannot be synthesized from either DMT or DET, and (iii) the hallucinogenic or stimulant effects of AET are not substantially similar to the effects of DMT or DET. Furthermore the court ruled that the definition of controlled substance analogue given in the Federal Analog Act was unconstitutionally vague, in that
“Because the definition of "analogue" as applied here provides neither fair warning nor effective safeguards against arbitrary enforcement, it is void for vagueness
.”
The common law principle that the people should have the right to know what the law is, means that the wording of laws should be sufficiently clear and precise that it is possible to give a definitive answer as to whether a particular course of action is legal or illegal. However despite this ruling the Federal Analog Act was not revised, and instead AET was specifically scheduled to avoid any future discrepancies.
Nonetheless, as a district court decision, the force of precedent
for this case is limited to the federal district of Colorado.
The second case that is relevant is the case of USA v Washam (2002) 312 F.3d 926, 930, an appellate decision for the third judicial circuit
in which it was considered whether the drug 1,4-butanediol
(1,4-B) was a controlled substance analogue in the USA. The controlled drug which it was alleged 1,4-B was substantially similar to was gamma-hydroxybutyrate (GHB).
1,4-B
GHB
In this case the court ruled that 1,4-B was substantially similar to GHB, on the grounds that (i) “1,4-Butanediol and GHB are both linear compounds containing four carbons and that there is only one difference between the substances on one side of their molecules”, and (ii) that 1,4-B is metabolized into GHB by the body and so produces substantially similar physiological effects.
It was raised in defense that 1,4-B and GHB contain different functional groups, and that the food additive monosodium glutamate
(MSG) also metabolizes into GHB in the body, but these were not held to be grounds to consider 1,4-B not substantially similar to GHB.
It was also raised in the case of Washam that the Federal Analog Act was unconstitutionally vague, but in this case the court rejected this argument on the grounds that the defendant’s actions in concealing her activities and lying to DEA agents showed that she knew her actions were illegal, and furthermore that “…a person of common intelligence has sufficient notice under the statute that 1,4-Butanediol is a controlled substance analogue.” The court in Washam construed the Analogue Act to require parts A(i) and either A(ii) or A(iii), and concluded the Act was constitutionally permissible upon this construction.
As a result of Walsham, the Federal Analog Act has been upheld (at least for the states and territories comprising the third judicial circuit) and can be considered valid at the present time.
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
Controlled Substances Act
Controlled Substances Act
The Controlled Substances Act was enacted into law by the Congress of the United States as Title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970. The CSA is the federal U.S. drug policy under which the manufacture, importation, possession, use and distribution of certain...
which allowed any chemical "substantially similar" to a controlled substance
Controlled substance
A controlled substance is generally a drug or chemical whose manufacture, possession, or use are regulated by a government. This may include illegal drugs and prescription medications ....
listed in Schedule I or II to be treated as if it were also listed in those schedules, but only if intended for human consumption. These similar substances are often called designer drug
Designer drug
Designer drug is a term used to describe drugs that are created to get around existing drug laws, usually by preparing analogs or derivatives of existing drugs by modifying their chemical structure to varying degrees, or less commonly by finding drugs with entirely different chemical structures...
s.
Definition
(32)- (A) Except as provided in subparagraph (C), the term controlled substance analogue means a substance -
- (i) the chemical structureChemical structureA chemical structure includes molecular geometry, electronic structure and crystal structure of molecules. Molecular geometry refers to the spatial arrangement of atoms in a molecule and the chemical bonds that hold the atoms together. Molecular geometry can range from the very simple, such as...
of which is substantially similar to the chemical structure of a controlled substance in schedule I or II; - (ii) which has a stimulantStimulantStimulants are psychoactive drugs which induce temporary improvements in either mental or physical function or both. Examples of these kinds of effects may include enhanced alertness, wakefulness, and locomotion, among others...
, depressantDepressantA depressant, or central depressant, is a drug or endogenous compound that depresses the function or activity of a specific part of the brain...
, or hallucinogenicPsychedelics, dissociatives and deliriantsThis general group of pharmacological agents can be divided into three broad categories: psychedelics, dissociatives, and deliriants. These classes of psychoactive drugs have in common that they can cause subjective changes in perception, thought, emotion and consciousness...
effect on the central nervous systemCentral nervous systemThe central nervous system is the part of the nervous system that integrates the information that it receives from, and coordinates the activity of, all parts of the bodies of bilaterian animals—that is, all multicellular animals except sponges and radially symmetric animals such as jellyfish...
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.
- (i) the chemical structure
- (B) The designation of gamma butyrolactone or any other chemical as a listed chemical pursuant to paragraph (34) or (35) does not preclude a finding pursuant to subparagraph (A) of this paragraph that the chemical is a controlled substance analogue.
- (C) Such term does not include -
- (i) a controlled substance;
- (ii) any substance for which there is an approved new drug application;
- (iii) with respect to a particular person any substance, if an exemption is in effect for investigational use, for that person, under section 355 of this title to the extent conduct with respect to such substance is pursuant to such exemption; or
- (iv) any substance to the extent not intended for human consumption before such an exemption takes effect with respect to that substance.
Case Law
Two cases of note have examined the interpretation of the Federal Analog Act in the USA. Firstly, the case of USA v. Damon S. Forbes et al. (1992) 806 F.Supp. 232, a district courtUnited States district court
The United States district courts are the general trial courts of the United States federal court system. Both civil and criminal cases are filed in the district court, which is a court of law, equity, and admiralty. There is a United States bankruptcy court associated with each United States...
decision for the district of Colorado
Colorado
Colorado is a U.S. state that encompasses much of the Rocky Mountains as well as the northeastern portion of the Colorado Plateau and the western edge of the Great Plains...
, considered the question of whether the drug alphaethyltryptamine
Alpha-Ethyltryptamine
α-ethyltryptamine , also known as etryptamine, is a psychedelic, stimulant and entactogen of the tryptamine chemical class.- History :...
(AET) was a controlled substance analogue in the USA. The controlled drugs to which it was alleged that AET was substantially similar were the tryptamine analogues dimethyltryptamine
Dimethyltryptamine
N,N-Dimethyltryptamine is a naturally occurring psychedelic compound of the tryptamine family. DMT is found in several plants, and also in trace amounts in humans and other mammals, where it is originally derived from the essential amino acid tryptophan, and ultimately produced by the enzyme INMT...
(DMT) and diethyltryptamine
Diethyltryptamine
DET, also known under its chemical name N,N-diethyltryptamine and as T-9, is a psychedelic drug closely related to DMT and 4-HO-DET...
(DET).
AET
DMT
DET
In this case, the court ruled that AET was not substantially similar to DMT or DET, on the grounds that (i) AET is a primary amine while DMT and DET are tertiary amines, (ii) AET cannot be synthesized from either DMT or DET, and (iii) the hallucinogenic or stimulant effects of AET are not substantially similar to the effects of DMT or DET. Furthermore the court ruled that the definition of controlled substance analogue given in the Federal Analog Act was unconstitutionally vague, in that
“Because the definition of "analogue" as applied here provides neither fair warning nor effective safeguards against arbitrary enforcement, it is void for vagueness
Void for vagueness
Void for vagueness is a legal concept in American constitutional law that states that a given statute is void and unenforceable if it is too vague for the average citizen to understand. There are several ways, senses or reasons a statute might be considered vague...
.”
The common law principle that the people should have the right to know what the law is, means that the wording of laws should be sufficiently clear and precise that it is possible to give a definitive answer as to whether a particular course of action is legal or illegal. However despite this ruling the Federal Analog Act was not revised, and instead AET was specifically scheduled to avoid any future discrepancies.
Nonetheless, as a district court decision, the force of precedent
Binding precedent
In law, a binding precedent is a precedent which must be followed by all lower courts under common law legal systems. In English law it is usually created by the decision of a higher court, such as the Supreme Court of the United Kingdom, which took over the judicial functions of the House of...
for this case is limited to the federal district of Colorado.
The second case that is relevant is the case of USA v Washam (2002) 312 F.3d 926, 930, an appellate decision for the third judicial circuit
United States Court of Appeals for the Third Circuit
The United States Court of Appeals for the Third Circuit is a federal court with appellate jurisdiction over the district courts for the following districts:* District of Delaware* District of New Jersey...
in which it was considered whether the drug 1,4-butanediol
1,4-Butanediol
1,4-Butanediol is the organic compound with the formula HOCH2CH2CH2CH2OH. This colorless viscous liquid is derived from butane by placement of alcohol groups at each end of the chain. It is one of four stable isomers of butanediol.-Synthesis:...
(1,4-B) was a controlled substance analogue in the USA. The controlled drug which it was alleged 1,4-B was substantially similar to was gamma-hydroxybutyrate (GHB).
1,4-B
GHB
In this case the court ruled that 1,4-B was substantially similar to GHB, on the grounds that (i) “1,4-Butanediol and GHB are both linear compounds containing four carbons and that there is only one difference between the substances on one side of their molecules”, and (ii) that 1,4-B is metabolized into GHB by the body and so produces substantially similar physiological effects.
It was raised in defense that 1,4-B and GHB contain different functional groups, and that the food additive monosodium glutamate
Monosodium glutamate
Monosodium glutamate, also known as sodium glutamate or MSG, is the sodium salt of glutamic acid, one of the most abundant naturally occurring non-essential amino acids....
(MSG) also metabolizes into GHB in the body, but these were not held to be grounds to consider 1,4-B not substantially similar to GHB.
It was also raised in the case of Washam that the Federal Analog Act was unconstitutionally vague, but in this case the court rejected this argument on the grounds that the defendant’s actions in concealing her activities and lying to DEA agents showed that she knew her actions were illegal, and furthermore that “…a person of common intelligence has sufficient notice under the statute that 1,4-Butanediol is a controlled substance analogue.” The court in Washam construed the Analogue Act to require parts A(i) and either A(ii) or A(iii), and concluded the Act was constitutionally permissible upon this construction.
As a result of Walsham, the Federal Analog Act has been upheld (at least for the states and territories comprising the third judicial circuit) and can be considered valid at the present time.
External links
- DEA Title 21, Section 813 (Main text). Drug Enforcement Agency
- Title 21, Section 813 (Key definitions, including the definition of "controlled substance analogue"). Drug Enforcement Agency