Massachusetts Outlaws “Designer Drugs”

Massachusetts recently followed the lead of several states – and of the federal government – in proscribing the manufacture, possession or distribution of designer drugs.

Generally speaking, a designer drug is a structural and functional analog of a controlled substance that has been designed to mimic the effects of the original banned drug, while at the same time avoiding being classified as illegal.  Historically, designer drugs have included synthetic opioids, hallucinogens (e.g., “ecstacy”), or anabolic steroids.  More recently, they have included substances such as JWH-018 and similar cannabis-like compounds (often known as “spice”), and the infamous “bath salts,” which are not in fact bath salts, but have a similar appearance.

The change is the result of the budget bill for 2014-2015 (Acts of 2014 Chapter 165), which amended the Massachusetts Controlled Substances Act (G.L. 94C) so as to include not only “controlled substances” but also “controlled substance analogues.”  A controlled substance analogue is what is meant by “designer drug”: a substance that is similar in structure and effect to an existing controlled substance.

To be a controlled substance analogue, a drug must have a chemical structure that is substantially similar to the chemical structure of a controlled substance, and also either have a substantially similar effect on the user, or be sold or intended to have a substantially similar effect to a controlled substance.

The federal government, which has long criminalized designer drugs pursuant to the Controlled Substance Analogue Enforcement Act of 1986, has experimented with several different methods in addressing the issue of whether a drug is substantially similar to a controlled substance.  Methods include the “core arrangement of atoms” method, the “structure and effect” method, and the “visual inspection” method.  A detailed discussion of the various strengths and shortcomings of these scientific methods is beyond the scope of this law blog.

It remains to be seen how prosecutors in Massachusetts will go about proving that a chemical substance is substantially similar to a controlled substance, and it would seem that chemistry experts will be testifying in court quite a bit over the next several years.  Moreover, defendants without significant financial resources will be at a disadvantage as compared to the prosecution with its nearly limitless resources, when it comes to hiring dueling expert witnesses.

As far as proving that a drug has a substantially similar effect to a controlled substance, it remains to be seen what type of evidence the prosecutors will offer.  To be certain, studies on effects will have been conducted in some instances, and in others there will be scientific evidence showing that all substances of a certain type have a similar effect on humans, but in other cases, there may be a need for percipient witness testimony as to subjective experience.

While it would not necessarily be strange to have a witness testify in court that “he told me [the drug] would feel a lot like heroin,” and thereby satisfy the “sold or intended to have a substantially similar effect” prong of the statute, it would certainly be unusual to have a jury relying on witness testimony that “when I snorted [the drug], it reminded me a lot of how cocaine feels.”

The changes to G.L. c. 94C are new, so time will tell how the law will be enforced going forward.  I myself have not yet seen or heard of anyone charged with possession, distribution or manufacture of designer drugs.  The full text of the new definition of “controlled substance analogue” can be found in General Laws Chapter 94C, section 1 “definitions” at https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXV/Chapter94C/Section1
Attorney Kevin D. Quinlan, Uxbridge, Massachusetts

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