The War Against “Designer Drugs”: Is it a Dead End Effort?

By: Mahira Khan

The United States has long been battling the war against drugs and narcotics, but in the past two to three years, the war has evolved as the new and difficult market of synthetic drugs has come ashore. Synthetic drugs carry similar violent and physical effects of many illegal drugs such as extreme hallucinations, temporary paralysis, seizures, and a short-term “high.” These drugs are man-made and mimic the effects of drugs such as cocaine and marijuana, but often times carry far more serious and potentially permanent consequences for the user; in some cases, even death. But what is the problem with banning the market? The problem is that these “designer drugs” are often made from legal substances, which leaves U.S. customs and law enforcement authorities powerless when these substances legally enter the country.

Synthetic drugs come in two classes: synthetic cannabinoids (Spice, K2, fake pot TranQuility) and substituted cathinones (bath salts, potpourri, water softener). The term “legal” and “fake” has tricked young people into thinking these drugs are inferior and thus, safer. As a result, the drugs have infiltrated the halls of schools and colleges. Hospitals are seeing skyrocketing numbers of patients coming in for treatment because of the drugs. Doctors report seeing patients who were nauseous, vomiting, and paranoid. According to the American Association of Poison Control Center, bath salts were responsible for 6072 emergency room visits in 2011, rising from the 303 visits in 2010. Similarly, fake pot is the culprit behind 6,955 visits compared to 2,906 in the same years. Some cases have resulted in tragic deaths. Last month, a fifteen year old experimented with a hallucinogen similar to LSD and died an hour later after sudden convulsions. Last year, an honor student was instantly killed when he took a drug called the “N-bomb,” also similar to LSD. Another case was of a thirty-four year old woman who lost her arm, shoulder, and collarbone due to flesh-eating bacteria caused by self-injection of bath salts.

In 2010, few states began banning synthetic drugs. Now, at least forty-one states, including Puerto Rico, have banned one or both classes of drugs. However, the manufacturers are outsmarting the U.S. government by making minor changes to the chemical make-up to create new and very similar substances not illegal under the law. But where are these drugs coming from? China has been reported to be the initial and currently main source of production; once they saw a high demand, production was increased. The moment one substance is banned, the manufacturers change their chemical formula and create a new drug that is still legal, making it hard for lawmakers and scientists to keep up as the new substances are emerging faster than they can be banned. Staying ahead of the manufacturers is not an option. CEO of Drug Abuse Dialogues, Carol Falkowski says, “You can’t outlaw what doesn’t exist yet.”

As a result, in 2011 and 2012 states began to enact broader language bans and targeted entire classes of the drugs instead of banning specific substances. The goal was to prevent the creation of new synthetic drugs while allowing the substances to be used for approved medical purposes and research. This led to the signing of Synthetic Drug Abuse Prevention Act of 2012 (SDAPA). The Act is unique because of the way the drugs are banned. In addition to a list of banned chemicals, the term “cannabimimetic agent” is defined. This allows substances to fall under the banned substances as long as it is similar or a “look-alike substance;” a much broader definition.

Prior to the SDAPA, law enforcement relied in the 1986 Controlled Substances Analogue Enforcement Act (CSAEA). “Analogue” substances under this Act, according to subsection 32 of section 802, are defined as those with substantially similar chemical structure, substantially similar effects, or substances that a person represents or intends to have a substantially similar effect. The Act was not enough to completely wipe out the market of synthetic drugs. Once a new drug was manufactured, there was still a need for laboratory experiments and studies to prove that it had substantially similar chemical structures and effects. The SDAPA makes the process easier by permanently banning twenty-six substances, eliminating the need for them to be tested under the CSAEA. But even if the SDAPA was limited to the twenty-six substances, there would still be a need to test substances not falling under those banned twenty-six to prove they fall under the definition of a “cannabimimetic agent.”

In order to wage the most effective war against synthetic drugs, the two Acts must be used together by law enforcement. Any substances not addressed by SDAPA will warrant a use of the CSAEA in order to eliminate new drugs from infiltrating the market. Finding a means to effectively ban all types of synthetic drugs is only one of the problems. There are also issues to address before a substance can be banned. Once a new drug is on the market, there will be some time between the creation of a new drug and federal action against it. Furthermore, it is state law, not federal, that controls the possession and local sales of the drugs. States would have to adopt laws matching the Act in order to effectively ban the drugs.

Some states with laws in place still cannot keep the drugs off the markets and streets because of the expenses of doing so. One state police department reported that testing the chemicals alone costs almost $10,000 per test and takes a lot of time. In order to effectively enforce the laws, additional state funding for local police departments may also be needed. Increased fines and harsher penalties for manufacturers and distributors may also help bring the market down. Some states have made selling and/or distributing the drugs a felony offense, with sentences from two to twelve years.

In the coming years, it is foreseeable that many other states will enact laws in accordance with both the SDAPA and CSAEA to create harsher penalties for those who are convicted of selling and/or distributing synthetic drugs. Further legislation must work to ban sites selling, advertising, or promoting the drugs from overseas; a plan currently being tested by the New South Wales Government of Australia.  I would suggest staying informed, knowing the risks, and increasing awareness through education. Public service announcements may at this time be the most effective approach to eliminating the drugs from the frontline (neighborhoods, schools, colleges, local stores, etc.) while legislation works to eliminate them from the nation as a whole.

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