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Notes on the Controlled Substance Analogue Act
by Richard Glen Boire, JD,  Center for Cognitive Liberty & Ethics

Elements of the Federal Statute

 The Controlled Substance Analogue Act remains the same today as when enacted in 1986. The act provides: “[a] controlled substance analogue shall, to the extent intended for human consumption, be treated . . .as a controlled substance in Schedule I.”[1] The term “controlled substance analogue” is defined as a substance:


(i) the chemical structure of which is substantially similar to the chemical structure of a controlled substance in schedule I or II;


(ii) which has 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; 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.
[2]

 The elements of the Controlled Substance Analogue Act can be summarized as follows:

 

ACT

OBJECT

INTENT

Attempted or actual possession, manufacture, distribution, import or export.

[Prong 1] Substance that is substantially similar to a schedule I or II controlled substance in chemical structure;

 

[Prong 2A] Substance that is substantially similar to a schedule I or II controlled substance in its stimulant, depressant, or  hallucinogenic effect;

 

or

 

[Prong 2B] Substance that is intended or represented to have a substantially similar stimulant, depressant, or hallucinogenic effect to a schedule I or II controlled substance.

Intended for human consumption.

 

 

 

 

 

 

 

  


<--
If this prong is relied upon by the prosecution, then the government must prove (in addition to “intent for human consumption”), either the specific intent or the representation of the defendant that the alleged analogue produces effects that are “substantially similar” to a schedule I or II substance.

 

 The conduct prohibited by the statute can be expressed as a relationship of the elements:

 ACT + OBJECT + INTENT = VIOLATION OF STATUTE

 

ACT

 This element is straightforward. It simply requires proof that the defendant possessed, manufactured, distributed, imported, or exported (or attempted any of these actions) with regard to the alleged analogue.

 

OBJECT

 The cases in which defendants have been prosecuted under the federal Controlled Substance Analogue Act have all focused their analysis on the object elements of the act.  

The initial cases[3] under the Controlled Substance Analogue Act involved MDMA, and turned on a particular procedural error made by the Drug Enforcement Agency when it first moved to schedule MDMA.  Because those cases were based on unique facts, they have little or no bearing on the question of today’s application of the act. Thus, this memorandum does not discuss them.

 The first case to actually examine the text of the federal definition of an analogue was United States v. Granberry.[4] Here, the defendant charged with possessing N-Hydroxy-3,4-methylenedioxyamphetamine (an alleged chemical analogue of MDMA) challenged the analogue statute on grounds of vagueness. The court rejected her argument, but presented very little analysis. The court merely recited the statutory definition of  “controlled substance analogue” and pronounced that it was clearly and specifically defined, and that the statute provides adequate notice of what conduct is prohibited.[5] In reaching its conclusion the court seems to have read in the requirement that the definition applies only to drugs that have been “chemically designed to be similar to controlled substances.”[6] While the use of this phrase by the court is merely dicta (non-binding language that other courts are free to ignore), it reveals an important point: this court felt the analogue act was meant to be applied only to laboratory-made drugs, not to naturally occurring substances, although the statute makes no such distinction on its face.[7]

 United States v. Forbes,[8] decided in 1992 by a federal district court in Colorado, is, the most significant case interpreting the federal analogue act. The defendants in Forbes were indicted on four counts of distributing AET (alphaethyl-tryptamine), a drug developed by Upjohn Chemical Company in the 1960s and marketed as an anti-depressant under the name “Monase.” The court noted that this was the first prosecution involving AET, a chemical that at the time of the defendants’ arrest was readily available to the public through the mails from at least two other chemical manufacturers.  In fact, the defendants had previously been arrested for distributing AET, but an assistant US Attorney had declined to prosecute them on that occasion because he independently concluded that AET did not meet the definition of a controlled substance analogue. 

The judge in Forbes concluded that the government had failed to prove that AET was substantially similar in its chemical structure and neurological effects to DMT (the scheduled substance it was allegedly analogous to).

The Forbes case is significant because the court held that the ‘object’ section of the analogue act sets forth a two-pronged test. As construed by the Forbes court, the statute requires (in addition to an “intent for human consumption”) that the substance in question must first of all be “substantially similar” chemically and then either have a stimulant, depressant, or hallucinogenic “substantially similar” to or greater than a schedule I or II controlled substance or be intended or represented to have such an effect. The court reasoned that such a construction was necessary to avoid absurd results, explaining:

If I adopt the government’s construction and read [prong 2A] independently, alcohol or caffeine would be controlled substance analogues, because in concentrated form they can have depressant or stimulant effects substantially similar to a controlled substance. Likewise, if I read [prong 2B] independently, powdered sugar would be an analogue if a defendant represented it was cocaine, effectively converting this law into a counterfeit drug statute. In both cases, a defendant could be prosecuted for selling a controlled substance analogue even though the alleged analogue did not have a chemical structure substantially similar to a schedule I or II controlled substance. Therefore, to prevent this unintended result, [prong 1] must apply to any substance that the government contends is a controlled substance analogue.[9]

 

Thus, the Forbes court ruled that a substance is only a controlled substance analogue if it was intended for human consumption and satisfies prong 1 and either prong 2A or prong 2B.

The Forbes court bolstered its analysis by referring to the legislative history that preceded enactment of the analogue act. In particular, the court explained that its interpretation of the act was based on the House report that preceded the act, noting, “I consider the House report to be persuasive history as to the Congress’ intent underlying its definition of a controlled substance analogue.” The court further explained:

The analogue statute is directed at underground chemists who tinker with the molecular structure of controlled substances to create new drugs that are not scheduled. If a substance could be an analogue without a substantially similar chemical structure, Congress’s stated purpose would be significantly expanded. Moreover, by essentially adopting the House definition, Congress evidenced its intent to require a two-pronged definition.[10]

 

Having determined the elemental structure of the act, the court then examined whether AET fell within the definition as so interpreted. This analysis led it to conclude that the analogue statute was unconstitutionally vague as applied to AET. The court found that the phrase “substantially similar” was a scientific term of art.[11] Thus, whether or not AET was “substantially similar” to DMT was a question to be answered based on evaluating the testimony of several chemists who testified trial. The court noted that the government’s own chemist was forced to admit during his testimony that reputable scientists in his field could disagree on whether AET had a chemical structure ‘substantially similar” to the chemical structure of DMT. Based on this testimony, the court concluded that if reputable chemists could not agree whether DMT and AET molecules were “substantially similar,” then a person of ordinary intelligence in possession of AET would be put in the legally untenable position of having to guess whether or not his actions violated the statute. This was especially true in the case before it, noted the court, because the defendants were not chemists. (Rather than manufacture the AET themselves, they allegedly purchased it from another source and simply redistributed it.)

 Noting also that the government had once dropped an earlier case against the defendants and had never sought to prosecute the other chemical companies that sold AET through the mail, the Forbes court opined that the statute was so vague as applied to AET that it permitted selective enforcement: “This prosecution illustrates precisely the evils attending delegation of basic policy decisions for ad hoc, subjective resolution by those who wield prosecutorial power.”[12]

 Finally, the Forbes court also made an interesting comment concerning the fact that the original creation of AET evidently pre-dated the first creation of synthetic DMT. While the statute is not limited on its face to analogues that post-date explicitly scheduled substances, the Forbes court read this requirement into the act because of the act’s stated purpose of attacking underground chemists who tinker with the molecules of controlled substances.

 The Forbes case was decided in 1992 and its analysis of the analogue act’s structure has not been overruled by any subsequent case. However, because Forbes was decided in a federal district court (the lowest rung on the federal judiciary ladder) no other federal court is bound by the decision. Nevertheless, it remains a persuasive case, and one which will surely be relied upon by any defendant who seeks to construct a defense around the argument that an alleged analogue is not “substantially similar in chemical structure” to an expressly scheduled substance.

 

INTENT

 

In any prosecution under the federal Controlled Substance Analogue Act, the government must prove that the alleged analog was “intended for human consumption.”

In United States v. Hofstatter[13] defendants were charged with possession of ephedrine and phenylpropanolamine (listed precursor chemicals) with intent to manufacture controlled substance analogues. Among several other arguments, the defendants asserted that the prosecutor failed to prove that they intended the final product for human consumption. In particular, the defendants presented evidence that the chemicals in question had numerous “legitimate uses’ including the growing of aesthetically pleasing crystals.[14] The court rejected their argument, finding that other evidence introduced at trial was sufficient to prove that the defendants did, indeed, intend their final product for human consumption. Particularly damning, noted the court, was a notebook seized from one of the defendants that included a qualitative analysis describing the degree of “euphoria” produced by a sampled dose of the finished product. In addition, the court noted that there was evidence that the defendants had purchased some chemicals using aliases – a fact that cast general suspicion on their claims of legitimacy.

The Hofstatter decision underscores the importance of the “intended for human consumption element,” noting that “this intent requirement sufficiently constrains law enforcement officials and discourages arbitrary or discriminatory application of the law.”[15]

Other than in Hofstatter, the phrase “intended for human consumption” has not received much consideration by courts – probably because in most analogue cases the pre-arrest investigation by law enforcement agents produced indisputable evidence that the defendant was producing, distributing, possessing, importing, or exporting the drug for eventual consumption. Nevertheless, in all prosecutions under the federal analogue act, the government must prove that the alleged analog was intended for human consumption. We can get some idea of the type of factors that might be considered (evidence of which would be introduced against the defendant at trial), by examining the federal Mail Order Drug Paraphernalia Control Act.[16] One portion of the federal paraphernalia act provides eight factors that are deemed relevant to determining whether or not a piece of equipment was intended to be used as drug paraphernalia. The eight factors are:

(1) Instructions, oral or written, provided with the item concerning its use;

(2) Descriptive materials accompanying the item which explain or depict its use;

(3) National and local advertising concerning its use;

(4) The manner in which the item is displayed for sale;

(5) whether the owner, or anyone in control of the item, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products;

(6) Direct or circumstantial evidence of the ratio of sales of the item(s) to the total sales of the business enterprise;

(7) The existence and scope of legitimate uses of the item in the community; and

(8) Expert testimony concerning its use.

 

It is self-evident, how factors similar to the above would be relevant – and indeed decisive – in a future analogue case in which the defendant maintains that the alleged analogue was not being sold, manufactured, possessed, or imported with the intent for eventual human consumption.

 


[1] 21 U.S.C. 813.

[2] 21 U.S.C. 802(32)(A).

As enacted, the federal Controlled Substance Analogue Act provides four express exemptions. Under the act, the term “controlled substance analogue” 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 505 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 355) 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.

[3] See e.g. United States v. Desurra 865 F.2d 651 (5th Cir. 1989); United States v. Raymer 941 F.2d 1031 (10th cir. 1991). Though neither Desurra nor Raymer address the definition of a controlled substance analogue directly, they stand for the proposition that if a substance is classified as a controlled substance and should that original classification fail for procedural reasons, then there is sufficient notice of the substance’s illegality so that prosecution as an analogue will not be unconstitutionally confusing or vague.  

[4] 916 F.2d 1008 (5th Cir. 1990).

[5] 916 F.2d at p.1010.

[6] Ibid.

[7] The Granberry court’s dicta is supported by the legislative history and stated purpose of the federal analogue act, which is aimed at attacking underground chemists who tinker with the molecules of controlled substances.

[8] 806 F.Supp. 232 (D. Colo. 1992).

[9] 806 F.Supp. 232, 235.

[10] 806 F.Supp. at p. 236.

[11] 806 F.Supp. at p. 237.

[12] 806 F.Supp. at p. 239.

[13] 8 F.3d 316 (6th Cir. 1993).

[14] 8 F.3d at p. 321.

[15] 8 F.3d at p. 322.

[16] 21 U.S.C. 863.