4952255 Consumer and Regulatory Affairs, Department of - Notice - Emergency Rulemaking on Synthetic Drugs

DEPARTMENT OF CONSUMER AND REGULATORY AFFAIRS

 

NOTICE OF EMERGENCY RULEMAKING

 

The Director of the Department of Consumer and Regulatory Affairs (Director), pursuant to authority set forth in the Second Omnibus Regulatory Reform Amendment Act of 1998, effective April 20, 1999, as amended (D.C. Law 12-261; D.C. Official Code § 47-2851.20 (2012 Repl.)), hereby gives notice of the adoption, on an emergency basis, of the following amendments to Chapter 9 (Prohibition on the Sale of Synthetic Drugs), Title 17 (Business, Occupations, and Professions) of the District of Columbia Municipal Regulations (DCMR).  

 

The rulemaking provides enforcement penalties for businesses engaged in the sale, possession, or manufacture of synthetic drugs.  The penalties would include business license suspensions and business license revocations.

 

This emergency rulemaking is necessary to bring enforcement regulations in line with Section 301 of the District of Columbia’s Omnibus Criminal Code Amendments Act of 2012, effective June 19, 2013 (D.C. Law 19-320; 60 DCR 3390 (March 15, 2013)), which added synthetic drugs, such as synthetic marijuana and “bath salts”, to the District of Columbia’s schedule of controlled substances. This rulemaking supports various Federal Drug Enforcement Administration and Department of Justice regulations that make it illegal to buy, sell, or possess Schedule I controlled substances such as K2/Spice, synthetic drugs, or their equivalents because these substances pose an imminent hazard to public health, safety and welfare.

 

This emergency rulemaking was adopted June 5, 2014, and became effective on that date. The emergency rulemaking shall remain in effect for up to one hundred and twenty (120) days, until October 3, 2014, unless earlier superseded by publication of a Notice of Final Rulemaking in the D.C. Register. The Director also gives notice of intent to take final rulemaking action to adopt these rules in not less than thirty (30) days after the date of publication of this notice in the D.C. Register.

 

Chapter 9 (Prohibition on the Sale of Synthetic Drugs) of Title 17 (Business, Occupations, and Professions) of the DCMR is amended as follows:

 

Section 901, EXEMPTIONS, is amended to read as follows:

 

901                  EXEMPTIONS

 

901.1               The products prohibited for sale under this chapter shall not apply to:

 

(a)                Any herbal or plant material containing synthetic chemicals or chemical compounds which:

 

(1)               Require a prescription;

 

(2)               Are approved by the Food and Drug Administration;

 

(3)               Are dispensed in accordance with District and federal law; and/or

 

(4)               Are subject to the jurisdiction of a federal entity.

 

(b)        Any material containing synthetic chemicals or chemical compounds which:

 

(1)               Require a prescription;

 

(2)               Are approved by the Food and Drug Administration; and/or

 

(3)        Are dispensed in accordance with District and federal law.

 

901.2               A business subject to § 900.1 that believes any of its products should not be subject to prohibition shall submit a request for an exemption on a form provided by the Department of Consumer and Regulatory Affairs (DCRA).

 

901.3               In its request for exemption, the business shall provide a basis for the exemption, including a description of the product(s) and an affirmation by the business licensee that, to the best of the business licensee’s knowledge, the product(s) are not used by consumers to achieve a high, euphoria, relaxation, mood enhancement, hallucinogenic effect or other mind or body-altering effect.

 

901.4               If an exemption request is granted, DCRA:

 

(a)                May conduct on-site inspections of the business; and

 

(b)               Shall require the business licensee to maintain purchase and sales records for any products that have been issued an exemption, which the licensee shall provide upon request by any official from DCRA, the D.C. Metropolitan Police Department, or the D.C. Department of Health.

 

901.5               If DCRA denies an exemption request, the business licensee may submit to the DCRA Director or designee a request for reconsideration. The DCRA Director or designee shall have fifteen business (15) days to issue a written determination on the request for reconsideration.

 

901.6               In determining whether to issue an exemption under this section, DCRA may seek recommendations from the D.C. Metropolitan Police Department, the D.C. Department of Health, or other government agencies having expertise with synthetic drugs.

 

Section 903, PROOF OF INTENT, is amended to read as follows:

 

903                  PROOF OF INTENT

 

903.1               Any reasonable evidence may be utilized to demonstrate that a product’s marketed and/or intended use causes it to fit the definition of a synthetic drug including, but not limited to, any of the following evidentiary factors:

 

(a)                The product is not suitable for its marketed use (such as a crystalline or powder product being marketed as “glass cleaner”);

 

(b)               The individual or business providing, distributing, displaying or selling the product does not typically provide, distribute, or sell products that are used for that product’s marketed use (such as liquor stores, smoke shops, or gas/convenience stores selling “plant food”);

 

(c)                The product contains a warning label that is not typically present on products that are used for that product’s marketed use including, but not limited to, “Not for human consumption”, “ Not for purchase by minors”, “Must be 18 years or older to purchase”, “100% legal blend”, or similar statements;

 

(d)               The product is significantly more expensive than products that are used for that product’s marketed use.  For example, 0.5 grams of a substance marketed as “glass cleaner” costing $50.00, 1 gram of potpourri costing $10.00, or 0.5 grams of incense costing $15.00;

 

(e)                The product resembles an illicit street drug (such as cocaine, methamphetamine, marijuana, or schedule 1 narcotic); or

 

(f)                The business licensee or any employee has been warned by DCRA or has received a criminal incident report, arrest report or equivalent from any law enforcement agency that the product or a similarly labeled product contains a synthetic drug.

 

Section 904, REVOCATION OF BUSINESS LICENSE, is amended to read as follows:

 

904                  REVOCATION OF BUSINESS LICENSE

 

904.1               Any business licensee violating this chapter may receive a Notice of Infraction.

 

904.2               DCRA may issue a notice of intent to suspend or revoke the licensee’s basic business license for violating this chapter.

 

904.3               Following an adjudication that is adverse to the business licensee, DCRA shall suspend or revoke the basic business license.  In adjudicated cases where a notice of intent to revoke was issued, the basic business license shall be revoked pursuant to D.C. Official Code § 47-2844(a-1)(1), and the licensee shall be ineligible to apply for a new basic business license for a substantially similar business for two (2) years.