Federal Analogue Act

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Federal Analogue Act
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Other short titles
Long titleAn Act to strengthen Federal efforts to encourage foreign cooperation in eradicating illicit drug crops and in halting international drug traffic, to improve enforcement of Federal drug laws and enhance interdiction of illicit drug shipments, to provide strong Federal leadership in establishing effective drug abuse prevention and education programs, to expand Federal support for drug abuse treatment and rehabilitation efforts, and for other purposes.
NicknamesControlled Substance Analogue Enforcement Act of 1986
Enacted bythe 99th United States Congress
Effective27 October 1986
Citations
Public law 99-570
Statutes at Large 100  Stat.   3207 aka 100 Stat. 3207-13
Legislative history

The Federal Analogue Act, 21 U.S.C.   § 813, is a section of the United States Controlled Substances Act passed in 1986 which allows any chemical "substantially similar" to a controlled substance listed in Schedule I or II to be treated as if it were listed in Schedule I, but only if intended for human consumption. These similar substances are often called designer drugs. The law's broad reach has been used to successfully prosecute possession of chemicals openly sold as dietary supplements and naturally contained in foods (e.g., the possession of phenethylamine, a compound found in chocolate, has been successfully prosecuted based on its "substantial similarity" to the controlled substance methamphetamine). [1] The law's constitutionality has been questioned by now Supreme Court Justice Neil Gorsuch [2] on the basis of Vagueness doctrine.

Contents


Definition

21 U.S.C.   § 802(32)

Case law

United States v. Forbes

United States v. Forbes, 806 F. Supp. 232 (D. Colo. 1992), a Colorado district court case, considered the question of whether the drug alphaethyltryptamine (AET) was a controlled substance analogue in the United States. The controlled drugs to which it was alleged that AET was substantially similar were the tryptamine analogues dimethyltryptamine (DMT) and diethyltryptamine (DET).

Alpha-Ethyltryptamine2.svg AET

Dimethyltryptamine2.svg DMT

Diethyltryptamine.svg DET

In this case, the court ruled that AET was not substantially similar to DMT or DET, on the grounds that (i) AET is a primary amine while DMT and DET are tertiary amines, (ii) AET cannot be synthesized from either DMT or DET, and (iii) the hallucinogenic or stimulant effects of AET are not substantially similar to the effects of DMT or DET. Furthermore, the court ruled that the definition of controlled substance analogue given in the Federal Analogue Act was unconstitutionally vague, in that

"Because the definition of 'analogue' as applied here provides neither fair warning nor effective safeguards against arbitrary enforcement, it is void for vagueness." [3]

The common law principle that the people should have the right to know what the law is, means that the wording of laws should be sufficiently clear and precise that it is possible to give a definitive answer as to whether a particular course of action is legal or illegal. However, despite this ruling the Federal Analogue Act was not revised, and instead AET was specifically scheduled to avoid any future discrepancies.

As a district court decision, this case is no binding precedent.

United States v. Washam

United States v. Washam (2002) 312 F.3d 926, 930 was an appellate decision for the eighth judicial circuit in which it was considered whether the drug 1,4-Butanediol (1,4-B) was a controlled substance analogue in the United States. The controlled drug which it was alleged 1,4-B was substantially similar to was gamma-hydroxybutyrate (GHB).

1,4-butanediol.svg 1,4-B

4-Hydroxybutansaure - 4-Hydroxybutanoic acid.svg GHB

In this case the court ruled that 1,4-B was substantially similar to GHB, on the grounds that (i) "1,4-Butanediol and GHB are both linear compounds containing four carbons and that there is only one difference between the substances on one side of their molecules", and, more importantly, (ii) that 1,4-B is metabolized into GHB by the body and so produces substantially similar physiological effects. [4]

It was raised in defense that 1,4-B and GHB contain different functional groups.[ citation needed ] but these were not held to be grounds to consider 1,4-B not substantially similar to GHB.

It was also raised in the case of Washam that the Federal Analogue Act was unconstitutionally vague, but in this case the court rejected this argument on the grounds that the defendant's actions in concealing her activities and lying to DEA agents showed that she knew her actions were illegal, and furthermore that "…a person of common intelligence has sufficient notice under the statute that 1,4-Butanediol is a controlled substance analogue." The court in Washam construed the Analogue Act to require parts A(i) and either A(ii) or A(iii), and concluded the Act was constitutionally permissible upon this construction.

As a result of Washam, the Federal Analogue Act has been upheld (at least for the states and territories comprising the eighth judicial circuit) and can be considered valid at the present time.

However, a jury in Federal District Court in Chicago in a different case found 1,4-butanediol not to be an analog of GHB under federal law, and the Seventh Circuit Court of Appeals upheld that verdict and so 1,4-butanediol is currently not a controlled substance analogue. [5]

See also

Related Research Articles

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<i>gamma</i>-Hydroxybutyric acid Chemical compound

gamma-Hydroxybutyric acid is a naturally occurring neurotransmitter and a depressant drug. It is a precursor to GABA, glutamate, and glycine in certain brain areas. It acts on the GHB receptor and is a weak agonist at the GABAB receptor. GHB has been used in the medical setting as a general anesthetic and as treatment for cataplexy, narcolepsy, and alcoholism. The substance is also used illicitly for various reasons, including as a performance-enhancing drug, date rape drug, and as a recreational drug.

<span class="mw-page-title-main">Dipropyltryptamine</span> Chemical compound

N,N-Dipropyltryptamine (DPT) is a psychedelic entheogen belonging to the tryptamine family. Use as a designer drug has been documented by law enforcement officials since as early as 1968. However, potential therapeutic use was not investigated until the 1970s. It is found either as a crystalline hydrochloride salt or as an oily or crystalline base. It has not been found to occur endogenously. It is a close structural homologue of dimethyltryptamine and diethyltryptamine.

Colloquially known as "downers", depressants or central depressants are drugs that lower neurotransmission levels, or depress or reduce arousal or stimulation in various areas of the brain. Depressants do not change the mood or mental state of others. Stimulants, or "uppers", increase mental or physical function, hence the opposite drug class from depressants are stimulants, not antidepressants.

<span class="mw-page-title-main">1,4-Butanediol</span> One of four stable isomers of butanediol

1,4-Butanediol, also called Butane-1,4-diol, is a primary alcohol and an organic compound with the formula HOCH2CH2CH2CH2OH. It is a colorless viscous liquid first synthesized in 1890 via acidic hydrolysis of N,N'-dinitro-1,4-butanediamine by Dutch chemist Pieter Johannes Dekkers, who called it "tetramethylene glycol".

α-Ethyltryptamine Chemical compound

α-Ethyltryptamine, also known as etryptamine, is a psychedelic, stimulant, and entactogenic drug of the tryptamine class. It was originally developed and marketed as an antidepressant under the brand name Monase by Upjohn in the 1960s.

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<span class="mw-page-title-main">Diethyltryptamine</span> Chemical compound

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gamma-Butyrolactone Chemical compound

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<i>O</i>-Acetylpsilocin Chemical compound

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<span class="mw-page-title-main">Federal drug policy of the United States</span> Nationwide framework regarding the abuse of drugs in the United States

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<span class="mw-page-title-main">4-AcO-MET</span> Chemical compound

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<span class="mw-page-title-main">Ethylpropyltryptamine</span> Chemical compound

Ethylpropyltryptamine is a rarely encountered psychedelic substance from the tryptamine class, which makes it structurally related to DMT, MET, DET, and DPT.

<span class="mw-page-title-main">4-HO-EPT</span> Chemical compound

4-HO-EPT (4-hydroxy-N-ethyl-N-propyltryptamine) is a rarely encountered chemical compound of the tryptamine class, which is structurally related to psilocin (4-HO-DMT).

References

  1. "citing United States v. McKinney, 79 F.3d 105 (8th Cir. 1996)".
  2. Fels, Andrew, Voiding the Federal Analogue Act (February 12, 2021). Nebraska Law Review, Vol. 100, No. 3, 2022, Available at SSRN: https://ssrn.com/abstract=3736304 or http://dx.doi.org/10.2139/ssrn.3736304
  3. "US Federal Analogue Act Found to Require Structural Similarity". erowid. Retrieved 17 May 2013.
  4. "UNITED STATES v. WASHAM". findlaw. Retrieved 17 May 2013.
  5. United States v. Turcotte, 405 F.3d 515 (7th Cir. 2005) "With specific regard to 1,4 Butanediol, the jury has returned a special verdict which states that 1,4-Butanediol is not a Schedule I Narcotic Drug Controlled Substance analogue, because 1,4-Butanediol's chemical structure is not significantly similar to the chemical structure of GHB.