On June 8, 2017, Senators Chuck Grassley (R-Iowa) and Dianne Feinstein (D-California) revealed a proposed bill they had drafted together, clumsily named the “Stop the Importation and Trafficking of Synthetic Analogues Act of 2017” or Senate Bill 1327, or SITSA Act. The purpose of the bill was purportedly to “amend the Controlled Substances Act to clarify how controlled substance analogues (substances which are not contained in the existing Schedules of controlled substances—drugs—but are chemically similar to drugs, such as designer drugs or synthetic drugs) are to be regulated and for other purposes.” “And for other purposes” is right—SITSA would, despite its seemingly nonthreatening description, add an entirely new, and totally unnecessary, schedule of controlled substances to the federal Controlled Substances Act. It proposed a new schedule, and, as a consequence, more drug offenses that you could now be federally charged with.
To be clear, new substances are frequently added to the federal Controlled Substances Act. This is nothing new. However, the idea of creating a whole new schedule group for substances is an altogether different matter. This would make the Controlled Substances Act the same confusing mess of groups or “schedules” of controlled substances that the Texas Health and Safety Code presently is, which contains Penalty Group (PG) 1, PG 1-A, PG 2, PG 2-A, PG 3, PG 4. Currently, there are five schedules of controlled substances (drugs) under the federal Controlled Substances Act: Schedule I, II, III, IV, and V. Senate Bill 1327 propose to abandon the Roman numeral scheme, and add a sixth group, called, simply, “A.” Schedule “A” would address newly created analogues of existing controlled substances—synthetic fentanyl (e.g. 4-fluroisobutyryl fentanyl, ocfentanil, acryl fentanyl, etc.)
The problem is not so much the idea (make analogues of existing controlled substances illegal to possess), as the execution in the form of this particular bill. Fentanyl is already a scheduled controlled substance; why synthetic fentanyl requires its own category, versus simply adding the language concerning analogues of fentanyl to the section of the Controlled Substances Act that addresses fentanyl, is unclear. Consider that we already have, and have had since 1986, a Federal Analogue Act (21 U.S.C. 813) that covers “designer drugs” and analogues of controlled substances. What is the point of Grassley’s and Feinstein’s proposed bill then?
What’s more, the bill is poorly written, so as to be essentially meaningless at points. Consider that, per the bill, Schedule A would include a “drug or substance that has a chemical structure substantially similar to the chemical structure in of a controlled substance in Schedules I, II, III, IV, or V, and an actual or predicted stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than [the same effect as substance in Schedules I through V.” So, a substance that is chemically similar to a scheduled drug, and that has a similar effect as a scheduled drug would belong in the new schedule A. Fair enough.
But, the bill continues that “a predicted stimulant, depressant, or hallucinogenic effect on the central nervous system may be based on…the chemical structure” of the substance. So, in reality, the substance only need be substantially similar in terms of chemical structure to a scheduled controlled substance to become unlawful under Schedule A: the bill tells us the substance must have a similar chemical structure, and similar effect, but that the effect can be inferred or predicted based on the chemical structure.
The bill goes on to suggest that the predicted effect can also be determined by the potential for abuse of the substance; or shadiness (“clandestine importation” or “diversion from legitimate channels,” etc.) of how the substance is made, bought, or sold; or based on whether the substance is addictive or not. But remember, the second requirement—“and an actual or predicted stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than [the same effect as substance in Schedules I through V”—is garbage that would only “shrink” the burden of proof for the Government in Schedule A cases. This leaves us with the reality that a substance that “has a chemical structure substantially similar to the chemical structure in of a controlled substance in Schedules I, II, III, IV, or V” would now be illegal to possess under Grassley’s and Feinstein’s bill. Totally unnecessary and poorly drafted.