Were “incense” products containing JWH-018 and other cannabimimetics ever “legal” in the US?
March 17, 2011
A comment over at Brayton’s blog drew my attention. A D. Johnson notes:
A few days ago, police arrested Eric Srack, a business owner in Salina. Srack had been selling an herbal potpourri which people were using as a legal alternative to marijuana.
The comment is apparently referring to so-called “incense” products being sold in head shops, cigar stores (like mine) and convenience stores that contain cannabimimetic compounds. The JWH series (JWH-018, JWH-250, JWH-073 seem to be common), CP47,497 and a few other compounds are ligands for the endogenous cannabinoid receptor subtype 1 (CB1) just like good old Δ9-tetrahydrocannabinol (THC). Natural products pharmacologist David Kroll has an excellent intro to these compounds at Terra Sigillata and dr_leigh has a two-parter on the pharmacology here and here. The summary version is that these compounds have the same basic pharmacological effect as that of THC which confers much of the psychoactive properties of cannabis, i.e., stimulation of the CB1 receptor. In many cases these canabimimetic compounds are more potent than THC in their actions and they are what are referred to as full agonists, in contrast to the partial agonist actions of THC. Unsurprisingly, these “incense” products are capable of inducing dependence which looks reasonably similar to dependence produced by cannabis.
Back to our story…..
The stuff wasn’t illegal until around a month ago, when the police decided that it was chemically similar enough to something that was illegal to warrant an arrest.
In other words, the state government fiddled with the law until it enabled the police to arrest someone for doing something that wasn’t illegal when he started. Are these drug enforcement guys just bored?
As I responded at Brayton’s blog, this is inaccurate.
The Analog Act
“(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;
in theory makes these “incense” products that contain JWH-018 and/or other CB1 receptor agonist compounds illegal from the get-go. Because they have effects on the central nervous systems that are “substantially similar to or greater than” THC.
Under the US system, as you all know, the devil is in the detail- all the way from adjudicated case law all the way down to the willingness of local authorities to bother acting.
The past year or so with the cannabimimetic-containing “incense” products (and now “bath salts”) is proving to be highly educational on the way this all works. The DEA saying “we’re watching, collecting data and deciding whether to act by our established scheduling procedures” (here they go again, re: mephedrone and MDPV) has been interpreted by many as the DEA saying “this stuff is perfectly legal until we act“. I don’t think the latter is very firm ground on which to stand, given the Analog Act.
In practice, however, it would seem that many local jurisdictions are not interested in bothering the “incense” (and “bath salts”) sellers until they have clearer guidance- typically by the more rapidly acting state or local officials enacting specific bans. It is very possible that this is because of a practical interpretation via the case law in this area that both clauses have to be met. You have to have structural and pharmacological similarity to a Schedule I compound for a prosecution of an Analog to succeed. This is my interpretation of what went down over the past year, anyway.
Here’s where the story referenced by the commenter gets even more interesting. As noted by David Kroll, the DEA has now taken action to schedule five cannabimimetics that have been seen on the recreational market.
The detailed chemical names of the five compounds are listed here at the DEA Office of Diversion site but their common names are CP-47,497, JWH-018, JWH-073, JWH-200, and cannabicyclohexanol (a CP-47,497 analog).
The reporting on the Srack case, however, suggests that he was selling “potpourri” products containing JWH-081, a compound not specifically mentioned by the DEA. (One paper identifies this compound in drug-screen blood samples from Germany.) A review of drugs-forum, Wikipedia and bluelight should give you the idea that this is most certainly not a typo for the lead-indicator JWH-018!
JWH-081The Srack news bit seems to indicate that the local authorities are full willing to proceed on the basis of the Analog Act:
The criminal complaint against Srack asserts that JWH-081 is an analog, or substance with a similar chemical makeup, to the controlled substance JWH-018, an ingredient in early versions of synthetic marijuana that has been banned.
It is notable that they reference JWH-018 instead of THC. The JWH compounds are not structurally similar to THC, even though they produce a similar pharmacological action, and probably even a greater action in the psychoactive direction. Now that some of them are Scheduled, it should be easier to make the case against additional compounds in the series that are not specifically scheduled by the DEA.
JWH-018The bottom line is that the state has not “fiddled with the law until it enabled the police to arrest someone for doing something that wasn’t illegal when he started” in the Srack case. They have acted on the basis of a provision that has been in place for decades and under which the arrest/prosecution has been fairly conservative (the “and” instead of “or” interpretation of the two criteria) when it comes to cannabimimetic-infused “incense”. If anything, this recent episode should have made it even more apparent to “incense” sellers that once both criteria were met, the gloves would come off.