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-081
The 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-018
The 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.

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31 Responses to “Were “incense” products containing JWH-018 and other cannabimimetics ever “legal” in the US?”

  1. Veral Says:

    My cousin sells this stuff. His business is booming, except in Mississippi where it’s stated it’s supposedly illegal. They’ve also ran him out of Alabama and portions of Florida.
    The bath salts are the main problem. There’s been several deaths in Louisiana alone from people melting and shooting the product up with a needle and who knows what else. Few months ago Slidell police did a raid of a house that were producing the bath salts in St. Tammany Parish. It’s not illegal and yet they were sentenced for possession and manufacturing.
    It’s downright wrong they can do this when there’s no law stating it’s illegal. Though supposedly the Feds passed a law where ‘Spice’ is supposed to be illegal up to a year so the DEA can decide if it can be regulated/controlled or illegal all together.

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  2. becca Says:

    I don’t see how it’s remotely meaningful to call something an ‘analog’ if it has an entirely different structure. And I don’t see why you would outlaw it if it didn’t have a similar function. So I think the probably *ought* to be interpreted as requiring both aspects.
    Of course, I consider the entire principle dubious. As a kid, I used to be the one to do all the rules lawyering. Nearly everyone grasps the intuitive fairness of ‘no retroactive rules’.

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  3. DrugMonkey Says:

    It’s downright wrong they can do this when there’s no law stating it’s illegal.
    and
    Nearly everyone grasps the intuitive fairness of ‘no retroactive rules’.
    Dudes. You are not reading carefully. There already is a law “stating it’s illegal”. If it has pharmacological similarity to a controlled substance, it falls afoul of the Analog provision in Federal law. The only question is whether local law enforcement thinks it is worth their while to act on these cases given whatever has been going down in the case law.

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  4. DrugMonkey Says:

    I don’t see how it’s remotely meaningful to call something an ‘analog’ if it has an entirely different structure.
    Perhaps because it has analogous effects? But seriously, we have a “narcotics” act that covers things that are not in the opiate class…you gonna stand on the failure of the original writers to carefully distinguish the more general drug-class terms as your justification to ignore the law?
    And I don’t see why you would outlaw it if it didn’t have a similar function. So I think the probably *ought* to be interpreted as requiring both aspects.
    One interesting example is the Schedule I compound cannabidiol which does not appear to confer any of the psychoactivity associated with delta-9

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  5. Steve Says:

    What’s failed to be mentioned is the very fact that they are sold as “incense” and “bath salts” gets them around the Analogue Act, even if they do fall under both paragraphs. It has to be proven that the people being charged are aware of its use for human consumption. The burden of proof is on the feds. Because of this is would cost the taxpayers so much more to prosecute than a normal marijuana bust. It was, in fact, perfectly legal in every way to sell the products as incense and bath salts. Only if it can be proved that they knew it was going to be used for human consumption does it become illegal.

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  6. DrugMonkey Says:

    Only if it can be proved that they knew it was going to be used for human consumption does it become illegal.
    I doubt this is accurate. I bet they have to rely on a claim that they didn’t know what was in it.

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  7. Steve Says:

    Did you read the Analogue Act all the way through? Here’s one (of many) you left out:
    iv) any substance to the extent not intended for human consumption before such an exemption takes effect with respect to that substance.
    So it is indeed very accurate. Not that people are ever using them for anything but human consumption, its is still the burden of the prosecution to prove it in a court of law. And unless they can and do, it is NOT illegal.

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  8. Steve Says:

    Actually, if you are just now joining this game you might want to research Operation Web Tryp. It answers a lot, and of course will educate people that just because its popular in the news and with tweens and twitters and whatever, doesn’t mean that this hasn’t been a battle thats been raging on for a few decades now.

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  9. DrugMonkey Says:

    and you are missing the fact that this is under the discretion of the AG to determine-from Section 811. Authority and Criteria for Classification of Substances .

    (3) The Attorney General may, by regulation, exempt any compound, mixture, or preparation containing a controlled substance from the application of all or any part of this subchapter if he finds such compound, mixture, or preparation meets the requirements of one of the following categories:

    (B) A compound, mixture, or preparation which contains any controlled substance, which is not for administration to a human being or animal, and which is packaged in such form or concentration, or with adulterants or denaturants, so that as packaged it does not present any significant potential for abuse.

    IANAL, so I won’t venture into the legalisms of what represents “burden of proof” in such a case. It seems very clear to me from the above, however, that the mere labeling of “not for human consumption” is insufficient to have high confidence of protection from prosecution.
    This is an example in the case of THC, cannabinoids and an Exemption for hemp products
    (and therefore cannot cause THC to enter the human body).

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  10. Steve Says:

    “insufficient to have high confidence of protection from prosecution.” Still does not make it illegal. Still does not even make one question if its legal or not. Its legal until they prove its for human consumption. Up to the discretion of the AG? How often did that happen? And if this is such damning evidence, why not include it in your original article?
    It’s most obvious because it was not used to bust sellers and users nation wide. You present this information not only like its all the information (it’s not), but that some how no one else seems to know about it. The feds know what laws they have. There won’t be any headlines stating “Scientist Dusts Off Old Drug Laws, Feds Slap Foreheads, Arrest Hundred of College Students”.

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  11. DrugMonkey Says:

    Still does not even make one question if its legal or not.
    Perhaps not you. It does make me conclude, I’m well beyond “question”.
    Not everyone feels it necessary to constantly parse the law and challenge legal precedent to see where the bounds of the technically legal arise. Others obviously do. I’m describing how I read the law, you describe how you read the law.
    You present this information not only like its all the information
    Really? A blog post is a complete treatise on a very complex area of law, now is it?

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  12. Steve Says:

    Fortunately, as stated, you are not a lawyer, and probably not a judge, or a prosecutor, or a member of law enforcement. So your opinion is that of the average citizen. As is mine.
    However, thankfully we live in the great nation that is the United States of America, where human rights are protected by law. Innocent until proven guilty.
    If you wish to hold the credibility of your blog posts its just a good idea to present all facts. I’m just saying. Especially if you pose the title as a question. You left out half the Analogue Act, including the part that makes the whole situation a grey legal area, which is why the question would need to be asked in the first place. Leaving it out and basing your whole argument on the obvious part of the Act makes it clear you want to leave out facts to hold a bias on the reporting angle. And thats just no good for science or the law, my friend.

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  13. DrugMonkey Says:

    Leaving it out and basing your whole argument on the obvious part of the Act makes it clear you want to leave out facts to hold a bias on the reporting angle.
    uh-huh. sure it does.
    The comment over at Brayton’s blog claimed the stuff “wasn’t illegal”. I presented my thoughts on why I thought this was idiotic as an unvarnished statement. You, in this thread, have failed to go much beyond my description of the clear gray area of the law that has been illustrated in the past year with respect to these compounds. You did so by landing upon a single clause, the for human consumption one, and presenting a highly selective interpretation of that, based on the link I provided about the AG discretion.
    Anyone with half a brain understands that these are complicated matters that are subject, ultimately, to the process of jurisprudence. Suggesting that one person’s interpretation is “biased” serves only to reflect the mirror back on one’s own biases. Clearly you are leaving out facts and creating convenient parsing of legal language that is abundantly clear to most unbiased viewers in pursuit of your clear bias to want to personally get high without legal penalty. see how that works?

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  14. Steve Says:

    Claiming I have half a brain and to assume that I would ever put these chemicals in my body is clamoring to the lowest of the low in internet arguing. If I actually cared about what happens to people legally with this stuff I sure wouldn’t be arguing with you about it. But insulting people? Feel big now?
    What I do care about is information being presented by what should be a credible source, and to most people would look like one, that is easily accessed by Google. Meaning a lot of people see it. This spreads misinformation and half-truths.
    That one single clause is the one that everything is about. Its about it being for human consumption. And you posed the question if it was legal. I am arguing that because certain things need to be proven in a court of law, it is technically legal until it is done so. It could be used in defense and doesn’t make the law as air tight as you’d like. I’m sorry if this demeans the value of your article.
    But since you have reduced this to a personal level and insults are now being thrown, I’ll leave this as my final post. Hopefully when you calm down a little about me poking a hole in your theory you can see what I am saying.

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  15. informania Says:

    cannabis has a stimulant, depressant, or hallucinogenic effect on the central nervous system?! Since when?? coffee does meet these requirements, if you ask me..
    So that whole damn law is a bunch of asstalk

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  16. Juice Says:

    If it makes you feel good and it’s not sold in a commercial store, just assume that it’s illegal, because this is the land of the free.

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  17. Juice Says:

    A Schedule I drug is defined as a chemical with no accepted medical purpose, and a high rate of abuse. Given that definition, why is nicotine legal?

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  18. Feline Says:

    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.
    Isn’t potency a reference to affinity, and efficacy to the degree of activation … And efficacy drives full vs partial agonism?

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  19. becca Says:

    My first reply got ated.
    First DM, I said nothing about justifying ignoring the law. The question you raised was whether these things were legal. In a purely practical sense, if it wasn’t prosecuted, one can make the argument that it wasn’t. Or do you really think it’s actually illegal in California to fake an orgasm?
    Second, if a pharmacology PhD student presented a compound as an analog of something it had no structural similarity with, her committee would (rightly) give her a hard time and perhaps fail her (particularly if she said something like “it doesn’t matter if it has the same structure, it has a similar function, therefore it’s an analog”). But the semantic issue of what you call the law aside, if you intend to have a law that does what you say that law does, I think it is very risky. For one thing, a big part of how we decide if drugs *ought* to have legality by prescription has nothing to do with whether they have a ‘stronger stimulant, depressant, or hallucinogenic effects’ than already banned compounds… it has to do with whether they have enough of a valid use to justify the risks of abuse. By this standard, almost any drug with stimulant, depressant, or hallucinogenic effect could be illegal. Heck, even ‘weaker’ drugs… it just depends on the dose. If you have enough caffeine, it’s a stronger stimulant than a small amount of methamphetamine. The limits of this law are just intrinsically unclear, and for that reason I think it’s a very poor law and should be thrown out.

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  20. jason Says:

    although the FDA was the federal agency that was involved in the arrest of the kansas retail owner, he is going to be tried under the STATE law, which already has banned 018. they are using the analog law of Kansas, NOT the federal analog law….my assumption with this, after a DEA agent in one of our towns told a clerk “the only reason we’re involved is that NONE of these ordinances is enforcable..basically, the ONLY laws effective currently are the DEA, and any STATE legsilation, not ordinances….and i might note that every single arrest that has been made so far, has been done so by state authorities, not federal….it is clear that either the DEA is letting everyone get ‘comfortable’ while they secretly build cases to take down big distributors, OR they are hesitant to try a case on the analog because if they lost it would basically open the flood gates up on ALL synthetics…..just my 2 cents….if you have a state legislated law, stop selling….if you don’t tread lightly, but you’re probably still safe to tread

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  21. DrugMonkey Says:

    Jason,
    part of the “case” the DEA is “waiting to build” is the rationale and evidence supporting a scheduling action, as with the 5 cannabimimetics referenced in the post. They have a process. Some of the scientists in that part of the DEA attend scientific meetings and describe their various watch lists.
    States seem to move a little more rapidly and on the basis of legislator pushing rather than comprehensive review of the evidence.

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  22. David/Abel Says:

    Drug, thanks for the plug.
    Indeed, the state and local statutes being passed around the US ban the chemicals much more widely than the explicit DEA rule, with some locales simply prosecuting the sale of plant-looking products sealed in Mylar bags.
    The legislation nearing passage in North Carolina is amazingly comprehensive chemically (posted here) such that one of my chemistry friends said that it reads like a patent application where one tries to cover as many compounds as possible, already synthesized or theoretical.
    Your post last February stimulated my thinking about the Analog Act and I still can’t find who exactly determine what’s an analogue and what isn’t. My cynical view is that enforcement of the Analog Act is so diffuse and indiscriminate that it exists for feds to prosecute whatever compounds they see fit. With the new DEA rule, anyone who is selling naphthoylindoles (named or unnamed) is setting themselves up for a big fall (Disclaimer: IANAL).

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  23. Fred Willcutt Says:

    Pretend I’m high on an analog from the JWH series while I wrote this blog comment –
    While I believe you’re correct by tossing the quote (_they_) “fiddled with the law until it enabled the police to arrest someone for doing something that wasn’t illegal when he started” in the rubbish where it belongs, I could sympathize with the animosity undoubtedly driving the posts by a few commentators above. An act doesn’t become illegal during prosecution, an act becomes illegal following legislation. And that is the problem, folks, of the Analog Act.
    The Analog(ue) Act criminalizes production/distribution/possession of substances which have –
    “(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;”
    It doesn’t require much cynicism to see through what is essentially a loosely hanging back-pocket wildcard net for the state to wield when determining a substance to be a threat to itself or the public order. Any law using strategically vague verbiage should at least strike feelings of discord within those still noble enough to expect/demand justice from the system we live within.
    What is interesting about the Analog Act is the startling lack of pretension with presentation. The state’s drug laws are not often laid bare for all to see the prime intent, something which is normally diffused through layers of posturing and framing – or buried by those who utilize dramatizations of their effects while seeking office. What this law does is make the act of ‘getting high’ illegal, regardless of what substance is used. It enables stakeholders the ability for law enforcement to take enforcement actions as they seek fit, without the struggle of annoying constitutional obstacles one must endure when law is normally made.
    ‘Substantially similar’ can easily encompass whatever the imagination desires, and the trinity of classifications used by the law can easily include anything capable of altering consciousness. Tryptophan, MSG, sugar, salt – surely these are all also illegal under the Analog Act, and the list is only restricted by a lack of imagination. Structurally? Pharmacologically? ‘similar chemical makeup’ depends only on delivery. I have yet to see an honest defense for the existence of laws of this nature within a constitutional republic. The intent behind the pushers of the ‘Analog Act’ legislation was to circumvent existing law as a method for enforcing law…against those they see as circumventing the law. (circumventing the law by not breaking it, heh) So… I suppose it could be defended, but I haven’t seen it.
    The sine qua non of all drug law is, and always has been, the paranoid perception of threat to the public order. Drug laws are the authoritarian reaction to these perceived societal threats to public order made manifest – their aim is the conservation of classical boundary conditions that define the public mind. I think they’re smoking some lousy shit – societal structures are only fragile when made rigid by clutching hands attempting to force them into shape.
    I say this because your post could be misinterpreted as a defense of the law by someone quickly scanning your blog while high on JWH/CP, which I, of course, am not – rather than something of a clearing of the air and a sorting of facts. also as an obligatory _stick it to ‘the man’_ response, an inclusion pursuant by executive order must be included as part of all public drug conversations.
    ——-
    Now do you see the actual effect of the Analog Act (through my role playing exercise as an analog drug user posting a comment on this blog) on an intended target? The Analog Act must be thrown out. Its very existence is a threat to the very fabric of public order and must be stricken from the books as soon as possible.
    Thank you for your time.

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  24. fancyflyer Says:

    Another point to consider about prohibitory laws and regs is that a thoughtful government must always be skeptical of black markets. I mean thoughtful in the sense of self-preserving and dutiful.
    An underground market can develop immense power (look south) even exceeding that of the government, and cause much disorder merely by its own operation. Aside from whatever societal damage a given substance might do, racketeering muscle can weaken governments through force, coercion and graft, and can be a grave threat to public safety. Do not expect the government’s position to change in this regard.

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  25. Mitchell Says:

    The author misses a MAJOR point of the US Analog act. This law ONLY applies when something is sold for human consumption. This is incense, so it doesn’t matter HOW similar the substance is.

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  26. tütüne son Says:

    What I do care about is information being presented by what should be a credible source, and to most people would look like one, that is easily accessed by Google. Meaning a lot of people see it. This spreads misinformation and half-truths.

    Like

  27. ahiggins Says:

    A comment from a mental health provider- the use of “bath salts”, incense products and other derivatives has skyrocketed in my community. The effects on people with psychiatric disorders are becoming more apparent and I believe the evidence is mounting that there is a strong correlation between the use of cannabis and the emergence and exacerbation of psychotic disorders. My understanding of the law is limited but my understanding of what is happening to my patients is very clear. The results are disheartening.

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  28. ptc9687 Says:

    Except it isn’t structurally an analogue to THC…… At all….
    Funny you found this little legality but THE DEA DIDN’T.
    That should tell you already that you’re wrong. The DEA had to pass an emergency 1 year ban on this drug because it DOES NOT fall under those laws.
    Good try at typing words though.

    Like

  29. Katharine Says:

    d00d, it doesn’t have to be structurally similar to produce similar pharmacological effects.
    Ever heard of phytoestrogens?

    Like


  30. Late in this but here it goes.
    The “Analogue Act” does not apply to synthetic cannabinoids for a few reasons. One, it is marketed as incense, like duster and nitrous oxide, it is a product with another purpose, until it got out that it was treated with the cannabinoid. two, the concept of “similar in chemical structure” is subjective and requires one to view a molecule in three dimensions, and be able to determine the concept of “remarkably similar” in a three dimensional box. The shape inside can be the same, but the orientation different and therefore not structurally similar enough for this law. Three, the compounds are not pharmacologically similar in action. As the report sates, one is a partial agonist, the other a full agonist. This is not really the meat though, this is…each molecule attaches to the CB1 receptor in different ways, resulting in different effects, we do not understand the full potential of this right now but there is a lot of CB1 in everything we do. Natural cannabis attaches in up to ten places, so saying it is similar to cannabis in binding assays such as HB 1254 attempts to do, is not meaningful, it requires additional information beyond this. The incense products have one or more additional ingredients, that may or may not contain a cannabinoid active compound. In the products that do contain these compounds, there are hundreds of potential results because the ratio of the compound to plant materials and the combined effects of the compound and the additional ingredients produce millions of different subjective results. This article assumes the idea that incense products are fake pot, which is so far from true, they share a destination in the CNS, the cannbinoid receptor, but they do not stay in the same room at the cannabinoid hotel, they are different that natural cannabis in all ways, and different from each other to such a degree that the Analogue Act is impotent against these products…there is also the issue of intent, you have to intend to break a CSA law, it is on this basis that the FL CSA was found unconstitutional last week.

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