5041980 Consumer and Regulatory Affairs, Department of - Notice of Second Emergency and Proposed Rulemaking on Synthetic Drugs
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DEPARTMENT OF CONSUMER AND REGULATORY AFFAIRS
NOTICE OF SECOND EMERGENCY AND PROPOSED RULEMAKING
The Director of the Department of Consumer and Regulatory Affairs (Director), pursuant to authority set forth in D.C. Official Code § 47-2851.20 (2012 Repl.), Section 104 of the Department of Consumer and Regulatory Affairs Civil Infractions Act of 1985, effective October 5, 1985 (D.C. Law 6-42; D.C. Official Code §2-1801.04 (2012 Repl.)), and Mayor’s Order 99-68, dated April 28,1999, hereby gives notice of the adoption, on an emergency basis, of the following amendment to Chapter 33 (Department of Consumer and Regulatory Affairs (DCRA) Infractions) of Title 16 (Consumers, Commercial Practices, and Civil Infractions), and to add a new Chapter 9 (Prohibition on Sale of Synthetic Drugs) to Title 17 (Business, Occupations, and Professions), of the District of Columbia Municipal Regulations (DCMR).
This emergency rulemaking is necessary to the immediate preservation of the public welfare 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.
The emergency 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 Notice of Second Emergency and Proposed Rulemaking supersedes the Notice of Emergency and Proposed Rulemaking published on April 25, 2014 at 61 DCR 4210, and Notice of Emergency Rulemaking published on June 20, 2014 at 61 DCR 6233. This Notice of Second Emergency and Proposed Rulemaking combines the previous two rulemakings into a single document by incorporating the Notice of Emergency Rulemaking into the Notice of Emergency and Proposed Rulemaking, but otherwise makes no substantive or technical changes. This Notice will provide the public an opportunity to comment on the revised, proposed rules.
The emergency rulemaking shall remain in effect for up to one hundred and twenty (120) days after adoption or until December 4, 2014, unless earlier superseded by publication of a Notice of Final Rulemaking in the D.C. Register. Pursuant to D.C. Official Code § 2-1801.04(a)(1), the Director shall submit the proposed changes to Title 16 of the DCMR to the Council of the District of Columbia.
The Director also gives notice of intent to take final rulemaking action to adopt these rules in not less than forty-five (45) days after the date of publication of this notice in the D.C. Register.
A new Chapter 9 (Prohibition on Sale of Synthetic Drugs) is added to Title 17 (Business, Occupations, and Professions) of the DCMR to read as follows:
CHAPTER 9 PROHIBITION ON SALE OF SYNTHETIC DRUGS
900 SALE OF SYNTHETIC DRUGS PROHIBITED
900.1 No person doing business in the District of Columbia that has or is required to have a Basic Business License issued under D.C. Official Code § 47-2851.01 et seq.(2012 Repl. & 2013 Supp.) shall sell, offer for sale, allow the sale of, display for sale, possess, market, trade, barter, give, devise, or otherwise make or attempt to make available:
(a) Synthetic Drugs;
(b) Products packaged as common non-consumable products, which contain warning notices or age restrictions not typically found on products marketed for that purpose. For example, potpourri, incense, or bath salt packages that bear a warning label, including, but not limited to: “Not for purchase by minors”, “Manufacturer and retailer are not responsible for misuse of this product”, “Not for human consumption”, “Must be 18 years or older to purchase”, or equivalent language;
(c) Products containing notices on the packaging not typically found on products marketed for that purpose. For example, potpourri or shoe oil containing notices such as “Legal in 50 states”, “100% legal blend”, or language affirming conformance with specific state or federal statutes or regulations. Such notices may also include, but are not limited to, “does not contain any chemical compounds prohibited by law”, “contains no prohibited chemicals”, “product is in accordance with State and Federal laws”, “legal herbal substance”, “100% chemical free”, “100% synthetic free”, or equivalent language;
(d) Products whose package labeling suggests the user will achieve a high, euphoria, relaxation, mood enhancement, or a hallucinogenic effect, or that the product has other mind or body-altering effects on the consumer; or
(e) Products that have been enhanced with a synthetic chemical or synthetic chemical compound that has no legitimate relation to the advertised use of the product, but mimics the effects of a controlled substance when the product, or the smoke from the burned product, is introduced into the human body and/or the product is topically applied to the human body.
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.
902 ENFORCEMENT
902.1 A credentialed DCRA investigator or inspector may, during regular business hours, enter and inspect the premises to determine whether the business is in compliance with this chapter.
902.2 Nothing in this chapter shall be construed as restricting the D.C. Metropolitan Police Department or the D.C. Department of Health from entering the premises of any business licensee, during regular business hours, and requiring the business to:
(a) Produce their business license for inspection; and
(b) Provide any additional information that is requested.
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.
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.
999 DEFINITIONS
999.1 When used in this chapter, the following terms and phrases shall have the meanings ascribed:
Synthetic Drug – Any product possessed, provided, distributed, sold, and/or marketed with the intent that it be used as a recreational drug, such that its consumption or ingestion is intended to produce effects on the central nervous system or brain function to change perception, mood, consciousness, cognition and/or behavior in ways that are similar to the effects of marijuana, cocaine, amphetamines or Schedule 1 narcotics. Additionally, any chemically synthesized product (including products that contain both a chemically synthesized ingredient and herbal or plant material) possessed, provided, distributed, sold and/or marketed with the intent that the product produce effects substantially similar to the effects created by compounds banned by District or Federal synthetic drug laws or by the U.S. Drug Enforcement Administration pursuant to its authority under the Controlled Substances Act.
Title 16 (Consumers, Commercial Practices, & Civil Infractions), Chapter 33 (Department of Consumer and Regulatory Affairs (DCRA) Infractions), Section 3301 (Business and Professional Licensing Administration Infractions) of the DCMR is amended as follows:
Subsection 3301.1is amended by adding a new subparagraph (mm) to read as follows:
(mm) D.C. Official Code § 48-902.04 (schedule I synthetic drugs)
(nn) D.C Official Code § 48-902.08 (schedule III synthetic drugs)
A new Subsection 3301.5 is added to read as follows:
3301.5 Violation of any of the following provisions shall be a Class 1 infraction:
(a) D.C. Official Code § 48-902.04 (sell, offer for sale, allow the sale of, display for sale, possess, market, trade, barter, give, devise or otherwise make or attempt to make available synthetic drugs from schedule I).
(b) D.C. Official Code § 48-902.08 (sell, offer for sale, allow the sale of, display for sale, possess, market, trade, barter, give, devise or otherwise make or attempt to make available synthetic drugs from schedule III).
All persons desiring to comment on these emergency and final regulations should submit comments in writing to Matt Orlins, Legislative and Public Affairs Officer, Department of Consumer and Regulatory Affairs, 1100 4th Street, S.W., 5th Floor, Washington, D.C. 20024, or by e-mail to matt.orlins@dc.gov, not later than forty-five (45) days after publication of this notice in the D.C. Register. Copies of the proposed rules can be obtained from the address listed above. A copy fee of one dollar ($1) will be charged for each copy of the proposed rulemaking requested. Free copies are available on the DCRA website at dcra.dc.gov by going to the “About DCRA” tab, clicking “News Room”, and clicking on “Rulemaking.”
