With a stroke of his pen, Governor Rick Scott added dozens of new chemical formulas to the list of substances banned in Florida. The bill gives law enforcement authorities more ammunition in their battle against so-called "designer drugs."
House Bill 1175, passed in the 2012 legislative session and signed by Governor Scott last Friday, amends Florida Statute 893.03 to add synthetic cannabinoid and bath salt substances to Schedule I of the state's controlled substance schedules. Products containing the chemicals are often sold in novelty stores as incense, potpourri or bath salts.
The list of banned substances keeps growing. As soon as lawmakers ban specific substances, someone makes a slight change to a chemical formula and there's a new product on the market. Attorneys say that makes prosecuting and defending cases a challenge.
Waylon Graham, a Panama City criminal defense attorney representing defendants charged with selling synthetic marijuana, said the law is unfair. According to Graham, his client received documentation from a distributor that the product purchased for sale in his store did not contain illegal substances. "Obviously, the retailer has an obligation… but these manufacturers and suppliers have been furnishing the retailers with a letter telling them that what they're selling is perfectly legal," said Graham. "So the retailer, after reasonable investigation, concludes ‘I can sell this product.'"
But Greg Wilson, Chief Assistant State Attorney for the 14th Judicial Circuit, said the retailer's obligation goes beyond taking such documentation at face value. "If you're selling the product, then you're liable for it," said Wilson. "If I were a merchant, I would independently test it myself before putting it out for sale to the public."
Captain Faith Bell of the Bay County Sheriff's Office said high profit margins can cause retailers to walk close to the edge of the law. Prices for synthetic marijuana – $40 for three grams – are comparable to the real thing, she said.
Last year, Sheriff Frank McKeithen sent a letter to local merchants outlining the dangers of synthetic drugs and asking them to voluntarily remove questionable products from their shelves. Some complied; those that didn't were later the targets of raids and arrests.
"We want compliance with the law, so if the merchant is willing to voluntarily remove products or make sure they test the products themselves through a certified lab before they put the products out to market, then they're taking that extra step and they're being responsible vendors," said Wilson.
But Graham said trying to keep pace with constantly changing chemical combinations is unreasonable. "Every year when they ban some of these substances, more pop up," he said. "It's like trying to tamp down mushrooms if you've got a soggy back yard... you can't get rid of all of them."
The "analog statute" is the legislature's attempt to rein in variations of known illegal substances. "There's no fix for every substance out there," said Wilson. "Even though the synthetic drugs keep coming out, the analog statute allows us to prosecute for those substances if they are substantially similar," said Wilson.
"You cannot protect everyone from everything," said Graham. If people figure out a way to abuse flour or paprika or black pepper and they want to snort it or smoke it, at some point you've got to say 'If that's what you want to do, go knock yourself out.'"
Wilson said the State Attorney's Office is currently prosecuting one synthetic drug case and six others are in the investigative stage.