Not for Human Consumption – How Designer Drug Manufacturers Evade Existing Laws
The quest to outlaw legal highs has been described as both a “game of cat and mouse” and “whack-a-mole,” and these descriptions convey the issues faced by law enforcement perfectly. The tricks employed by the illicit chemists enable them to avoid authorities, and it seems that no matter what the government does, loopholes are found. Understanding the techniques used in the manufacture of the drugs and how the chemists manage to avoid even the most recent legislation reveals why designer drugs can be as dangerous (if not more so) as their well-established illegal counterparts.
Altering the Chemical Structure
This is the most commonly used strategy for avoiding existing law. The process is pretty simple: the chemical structure of illegal drugs is what creates their effects, and similar structures are likely to have similar effects. Traditionally, the law bans specific substances, and this means that if the chemical structure is different, the substance isn’t technically illegal. If a law bans a specific substance, all the chemists would have to do is create an alternative formulation to make it legal. This is how the cat-and-mouse chase continues, and, inevitably, the law is a step or two behind the chemists. Until recently, this was the only method the federal government had to combat the constant influx of drugs; a little like trying to stop a swarm of ants by spearing them one by one with a single pin.
Two of the most famous designer drugs of recent years, “spice” and “bath salts” both used the label “Not for Human Consumption” to avoid legislation. This label allows the substances to legally enter the market without undergoing FDA testing to check for any similarity to illegal drugs. Hand sanitizer, for example, can be abused because it can be up to 60 percent alcohol. However, because it isn’t intended for human consumption, the fact that it contains alcohol isn’t really important. This loophole is commonly exploited by designer drug manufacturers.
In 2012, new rules were introduced that changed the method of combating the spread of designer drugs. Instead of outlawing only specific substances, the new rules include the Federal Analogue Act, which allows substances to be declared illegal if they are structurally similar or produce similar effects to known illegal substances. There is also a provision in the law that allows emergency bans, which can be very useful in reducing the risks associated with untested new chemicals.
Although the new laws allow for a much more flexible approach for determining which substances should be illegal, there are still issues with the strategy. For one, it is unrealistic to assume that no new compounds (without similarities to existing controlled substances) could possibly be created in the near future, but the bigger issue is that the definition of “similar” is not set in stone. With no benchmark against which to measure the similarity of substances, prosecuting the drug makers under the new legislation isn’t as simple as it sounds.
A report from the Tampa Bay Times indicates that lawyers aren’t confident in the new legislation because of this vague language. In Florida, the new act has never been used for that reason. The cases that do occur generally boil down to one attorney pointing out the various similarities between the substances, and the other attorney highlighting all of the differences between them.
There is also an additional problem: Under the law, in order to be prosecuted, manufacturers have to be aware that the substances they created were similar to something illegal. This clause is inserted to prevent innocent chemists from being victimized for chance chemical similarity, but it has the potential to be abused by illicit manufacturers. If they make the simple claim that they were unaware of the similarity to an illegal drug, punishing them is made exponentially more challenging.
Although the new legislation isn’t air-tight, it does represent a positive step forward in controlling designer drugs. It seems reasonable that there will always be manufacturers who exploit loopholes, but as more and more of them are closed, producing anything that is arguably legal will become more difficult.