Not for Human Consumption: How Inept Legislative Policy Proliferates the Synthetic Drug Problem
Note | 103 KY. L. J. ONLINE 3 | Feb. 22, 2015
Todd J. Weatherholt[1]
The "war on drugs"[2] is facing a new opponent, one that is sophisticated and dynamic, but unfortunately whose dangers go widely undocumented.[3] As if there were not enough problems with other classes of drugs for authorities, a new "underappreciated" category - synthetic drugs - has gained tremendous momentum within the last few years in the United States and around the world.[4] These substances, although widely eradicated in neighborhood gas stations and head shops, remain easily obtainable over the internet.[5] The industry, which targets drug-naïve teenagers and young adults through the combination of shiny packaging with familiar cartoon characters and vibrant names such as Ivory Wave, Spice, and Cloud Nine, generates an estimated $5 billion dollars annually.[6] Unfortunately, the synthetic drug enigma facing our nation is not merely the result of these products’ accessibility, but likewise due to their easily manipulative characteristics, which help manufacturers circumvent existing laws.[7] As authorities identify specific chemical components to outlaw, rudimentary chemists simply modify existing drug compositions slightly to escape the law.[8]This note focuses on the two-tier problem of controlling synthetic drugs, from the existing loophole in the federal drug policy, to the difficulty of prosecuting synthetic drug offenders. Synthetic drugs pose an increasingly severe threat in need of an updated 21st century drug policy, instead of a continued reliance on deficient existing laws based on regulating opium, heroin, and cocaine from plants.[9] Part I of this Note discusses two common types of synthetic drugs and the current overall drug policy landscape in the United States. Part II focuses on the rise in popularity of these substances and their potentially disastrous effects on users. Part III, utilizing a recent federal court case and textual uncertainties of the statute, identifies the difficulties surrounding prosecuting manufacturers of synthetic drugs under the existing drug policy. Lastly, Part IV advocates for two promising bills and provides additional modifications that will further assist in improving the synthetic drug problem facing our nation.
I. Background: the Composition, Existing Policy, and Recent Trends of Synthetic Drugs
A. Categories of Synthetic Drugs
In terms of regulation, synthetic drugs fall into two prohibited categories: Cannabinoids and Cathinoes.[10] Although different in effects and chemical formations, problems with these synthetic drugs are similar; therefore, after an initial discussion of each, these categories are synthesized for purposes of this Note. The first category, Synthetic Cannabinoids, initially detected in the U.S. in 2008,[11] are chemicals that mimic the effects of delta-9-tetrahydrocannabinol (THC), the primary psychoactive active ingredient in marijuana.[12] The popularity of these substances was fueled by not only their desired effects, but also the mistaken assumption that they were "legal,"[13] yet the composition of these drugs may be anywhere from two to more than 500 times stronger than regular THC.[14] The second category, Synthetic Cathinoes, commonly referred to as "bath salts" have also risen in popularity in American culture and are dangerous for consumers of the drugs, as well as the authorities regulating their use.[15] Most of these stimulants contain the chemical compounds MDPV (3, 4-methylenedioxypyrovalerone), mephedrone (4-methylmethcathinone), or methylone (3, 4-methylenedioxymethcathinone),[16] which mimic the effects of cocaine, LSD, and methamphetamine.[17] Both synthetic substances can have severe adverse effects, including panic attacks, agitation, tachycardia, elevated blood pressure, anxiety, pallor, numbness and tingling, vomiting, hallucinations, and even death.[18] At least in part, both categories of "designer drugs" remain obtainable in today’s global marketplace.[19] These substances mimic the effects of perceived "harder drugs," yet their effects go widely undocumented due to their manipulative characteristics.[20] For example, the pharmacology, toxicology, and safety knowledge of the compounds used to form synthetic marijuana are practically unknown.[21] Recent studies suggest that components of bath salts are even more addictive than methamphetamine.[22]
B. Existing Drug Policy
1. Scheduling of Drugs-- Under the Controlled Substance Act of 1970 (CSA), drugs and certain chemicals that are considered to be controlled substances are divided into categories of scheduling.[23] In order to determine the placement of a controlled substance, a number of factors are considered including: its actual or relative potential for abuse, pharmacological effects, history and current pattern for abuse, risks to the public health, dependence issues, and whether it is an immediate precursor of a substance already controlled.[24] The CSA recognizes five schedules, with Schedule I being the most restrictive.[25] Considered the most dangerous class of drugs, a controlled substance placed into Schedule I has no acceptable medical usage and possesses a high potential for abuse and dependence.[26] Examples of Schedule I substances are LSD, Heroin, and Ecstasy.[27] On the other hand, a Schedule V substance has a lower potential for abuse.[28] Once scheduled, it is illegal "to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance."[29] However, as authorities soon discovered, slightly modifying a substance, even by a couple of molecules, theoretically circumvents the scheduling process altogether because it creates a new substance with different properties and effects.[30]2. Federal Analogue Act-- In 1986, Congress enacted the Controlled Substance Analogue Enforcement Act ("Analogue Act")[31] in response to drug manufacturer’s ability to produce and distribute designer drugs.[32] This Act amended part of the CSA which failed to account for minor alterations to the molecular structure of controlled substances – by outlawing their analogues.[33] However, by incorporating imprecise and overly broad standards, this law created confusion for prosecutors and presented many unnecessary challenges.[34] Unfortunately, as cases and textual discussion will show, this law has presented interpretive and evidentiary problems causing divisions throughout the courts. Revisions to this Act are necessary to enable prosecutors to successfully put procedures in place that combat the proliferating synthetic drug problem.3. Synthetic Drug Abuse Prevention Act-- Due to newfound synthetic drug popularity and ineffective solutions, President Barack Obama signed the Synthetic Drug Abuse Prevention Act (SDAPA) into law on July 9, 2013, as part of the Food and Drug Administration Safety and Innovation Act.[35] Although this law permanently placed twenty-six types of synthetic drugs into Schedule I of the CSA, expanded the timeframe of temporary scheduling, and, in theory, banned substances containing "any quantity of cannabimimetic agents,"[36] it was far too narrow to have any meaningful impact. Like other inept drug policies, this law anticipates that all substances will be "cannabimimetic agents" of scheduled substances. However, this presumption is erroneous due to the rapid evolution of synthetic drugs. As it stands now, synthetic drug production is a never-ending game of cat and mouse – where manufacturers make, and purchasers consume, substances that mimic the effects of a Schedule I or II drug, lawmakers ban the specific substance, and manufacturers slightly modify its chemical structure in order to circumvent the law.[37] In essence, the SDAPA and other similarly worded statutes banning specific chemical substances are, and will always be, one-step behind the chemists who create these menacing substances, until the necessary changes in policy and legislation occur.
II. The Menace of Synthetic Drugs
Synthetic drugs have exploded onto the scene in recent years, with new chemically altered forms arriving practically on a daily basis.[38] According to the American Association of Poison Control Centers, in the last four years alone over 27,500 cases of human exposure to forms of synthetic drugs have been reported.[39] These substances are extremely tempting for those who want to try marijuana or other banned substances, but are afraid of the related legal consequences.[40] Yet, as these next few stories illustrate, synthetic drugs are anything but safe, and their effects can lead to dangerous situations, including death. Even in states that have enacted tough legislative policies on synthetic drugs, manufacturers are still reaching their targeted audiences. In Florida, where a severe crackdown on synthetic drugs has occurred,[41] one story in particular exhibits the potentially severe side effects of bath salts. One night, Mr. Dubois and his friends snorted bath salts in an effort to experience a legal "trip".[42] However, their decision went terribly wrong – ending in a fatality and an eight-year prison sentence. When police showed up to Mr. Dubois’ house, they saw one "young man in the front yard reaching for objects in the air that weren't there, grunting, convulsing, and seemed to be in a zombie state of mind," while another person was found wrapped up so tightly in a cord that she could not move and was convulsing.[43] This situation is one of many that law enforcement agents have encountered over the past few years in response to incidents involving synthetic drugs. Two other separate, yet extreme examples display that any number of absurd events are possible after using synthetic drugs. In each case, the individual is believed to have ingested a type of synthetic substance and then exhibited zombie-like actions: one man ate his forty-pound dog[44] and another chewed the face off of a homeless man.[45] While these tales of terror seem to make daily headlines, the fact remains that existing drug policies impede efforts to prosecute synthetic drug manufacturers, allowing their products to remain available.
III. Textual and Case Analysis Highlighting the Difficulties of Prosecuting Under the Analogue Act
A. Analogue Act Textual Uncertainties
The Analogue Act was intended to fix the problems associated with the rule-based CSA, but, instead, has become an obstacle for prosecutors. Typically, drug convictions are procured through lab reports that show the purported substance is scheduled.[46] But, as recent years have shown, simply altering one molecule of a controlled substance moves it out of the dominion of the CSA and into the purview of the analogue statute.[47] The Analogue Act at first blush seems to provide a reliable solution for the manipulation of controlled substances through the implementation of standard-based methods defining a controlled substances analogue as:
(i) the chemical structure of which is substantially similar to the chemical structure of a controlled substance in schedule I or II;
(ii) which has a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II; or
(iii) with respect to a particular person, which such person represents or intends to have a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II.[48]
But, as the Court of Appeals for the Seventh Circuit stated in United States v. Turcotte, "the devil is in the details — the relevant detail here being the single word ‘or’ between clauses (ii) and (iii) of the definition," allowing for a disjunctive or conjunctive reading of the statute.[49] Under the disjunctive approach, "a substance that satisfies any one" of the clauses "qualifies as a controlled substances analogue."[50] Alternately, in the conjunctive approach, clause I is required, while either clause II or clause III must also be present.[51] Although this language of the statute seems ambiguous, a majority of courts have adopted the conjunctive approach, reasoning that ridiculous results might arise under the disjunctive approach.[52] If the disjunctive versus conjunctive reading was the only uncertainty of the statute, it would seem salvageable, but other imprecisions and broad terminology show the inherit flaws of the Analogue Act. The definition of a controlled substance analogue states in clause I that the substance’s chemical structure must be "substantially similar" to that of a controlled substance,[53] begging the question, what does "substantially similar" actually mean? Courts have wrestled with how much similarity must be present; some requiring either a "core arrangement of atoms,"[54] similar pharmacological effects on the central nervous system,[55] or looking at the overall chain of the structure.[56] This discrepancy in how courts approach what constitutes "substantially similar", along with the inexcusable continued reliance on the phrase "not for human consumption" from § 813,[57] displays the problems associated with the text of the statute that must be corrected.
B. Prosecutorial Impediments Involved During Analogue Cases
In addition to textual imperfections, prosecutors can also have a difficult time establishing expert testimony in analogue cases. In the recent case United States v. Nasir, the defendant was charged with possession with intent to distribute synthetic marijuana containing the chemical AM 2201, an alleged analogue of JWH-018, a scheduled substance.[58] The prosecution offered expert testimony from Dr. Michelle Walker, a DEA pharmacologist, who assessed several studies to conclude "AM 2201 was substantially similar pharmacologically and in physiological effect to JWH-018."[59] The defense attacked her conclusion using their own expert testimony which stated that the comparisons between AM 2201 and JWH-018 had not been properly peer-reviewed and were conducted on rodents, not humans.[60] The court, noting its gatekeeping authority, stated that it was the jury’s responsibility to determine the weight of this evidence, and that the court merely determined the admissibility of the evidence.[61] The court concluded that the expert’s findings were admissible, stating that "[p]ublication in a peer-reviewed journal is not required,"[62] and criticisms of the reliance on studies performed on rodents were not sufficient to warrant the exclusion of Dr. Walker’s testimony.[63] Other courts have not been so receptive to offered expert testimony on the issue,[64] partly due to the limited scientific knowledge available to establish concrete evidence of analogues, as well as the textual imprecisions of the statute, which leaves prosecutors fighting a losing battle.
IV. Bringing Drug Policy Into the 21st century
A. Proposed Bills and Lingering Problems
This past year, two proposed bills, the Synthetic Abuse and Labeling of Toxic Substances Act of 2013 (SALTS Act)[65] and Protecting Our Youth from Dangerous Synthetic Drugs Act of 2013,[66] took progressive steps towards controlling the synthetic drug problem facing our nation. These bills examine the overly broad and imprecise language of the CSA, striking and adding portions of the existing law, in essence closing the loophole for synthetic drug manufacturers. However, these two bills are analogous to merely warning shots against the synthetic drug industry and further reform is necessary. In its definition section, the CSA specifically states that a controlled substance analogue of a scheduled drug does not include any substances that are "not intended for human consumption."[67] As expected, synthetic drugs intentionally are mislabeled with a warning that they are not for human consumption, sidestepping the law, even though all parties involved know the intended purpose of these products is for human consumption. The proposed SALTS Act amends this portion, making it clear that evidence of a product not being marketed, advertised, or labeled for human consumption, by itself, is not sufficient to establish that the substance was not intended for human consumption.[68] Additionally, the bill mentions several factors that should be considered in determining whether an analogue was intended for human consumption.[69] The SALTS Act’s sister bill, the Protecting Our Youth from Dangerous Synthetic Drugs Act of 2013, likewise would re-work portions of the CSA.[70] This bill proposes creating a Controlled Substance Analogue Committee (CSAC) comprised of a panel of scientists headed by the Administrator of the DEA, including experts from multiple health and drug agencies,[71] bearing the responsibility to compile and maintain a list of all emerging synthetic drugs and designate substances as analogues.[72] This bill also implores the U.S. Sentencing Commission to review current federal sentencing guidelines and to amend them appropriately by providing adequate penalties for offenses related to controlled substance analogues.[73] Utilizing appropriate care and foresight, these remedial bills provide an important step in the fight against synthetic drugs, yet further efforts are needed to tackle other glaring issues of existing drug policy. Even if conclusive evidence is produced that a synthetic drug was intended for human consumption, a prosecutor still must prove that the chemical and pharmacological characteristics of the analogue are "substantially similar" to that of a controlled substance.[74] If prosecutors can only bring cases on substances that the CSAC has already identified as "substantially similar" to a scheduled substance, this will severely limit their ability to bring cases on unknown or untested substances. A clear and concise definition of what exactly "substantially similar" means is vital, considering the interpretational vagueness of the CSA, not only for prosecutors’ sake, but also for jurors who are expected to understand cases involving complex synthetic drugs without sufficient guidance from the law. Courts have struggled to determine what exactly "substantially similar" means, having applied different definitions across jurisdictions.[75] Additionally, as one expert stated in Brown, "the definition of ‘similar chemical structure’ depends on the judgment of a chemist," and if "six chemists were asked . . . then six different answers may be offered."[76] In dealing with this peculiar term, the court in Washam offered an important point, stating that:
The term "substantially similar," as used in the statute, does not mean "exactly the same." There obviously will be differences in chemical structures between an "analogue" chemical and a schedule I or II chemical. If two chemicals' structures are exactly the same, the chemical in question would no longer be an "analogue," but, instead, it would be the same chemical as the listed chemical. Thus, some level of difference is acceptable between an analogue's chemical structure and a proscribed chemical's structure.[77]
The specific meaning of the definition appears unanswered by the courts, with at least one court believing that "’substantially similar’ is flexible enough to change with the circumstances."[78] However, the most promising and best-suited definition looks not at the visual assessment of chemical structures – such as with a chain or assortment of atoms - but, rather, at the actual effects of the substance on the central nervous system.[79] As the court in Fisher described, to ingest a substance considered an analogue would have a detrimental and visible effect on the central nervous system and "[p]eople of ordinary intelligence would easily be able to determine" if such a substance met "the definition of a controlled substance analogue."[80] This definition makes sense considering manufacturers want to reproduce the effects of desired scheduled substances without facing the legal consequences. Prosecutors of synthetic drug cases, not to mention jurors, need a concise definition of "substantially similar." They should look no further than a substance’s effects on the central nervous system instead of a substance’s atomic structure, which explains little on how substances are related. These recommendations would not single-handedly remove every hurdle prosecutors face in synthetic drug cases because expert testimony is often limited by the amount of scientific literature available on the composition of a synthetic drug. It is therefore imperative that lax standards for expert testimony be allowed due to the highly sensitive and dynamic characteristics associated with these cases. In Daubert, the United States Supreme Court gave a non-exhaustive list of factors a judge may consider in determining the reliability of an expert witness’ testimony that includes, but is not limited to:
(1) whether the theory or technique in question can be and has been tested;
(2) whether the theory or technique has been subjected to peer review and publication;
(3) in the case of a particular scientific technique, ... the known or potential rate of error;
(4) the existence and maintenance of standards controlling its operation; and
(5) whether the theory or technique has attracted widespread acceptance within a relevant scientific community.[81]
Given the flexibility of the Daubert test and the inability to conduct studies on the effects on humans of these chemical substances, courts should move to establish precedence that in synthetic drug cases, expert witnesses should be given the benefit of the doubt when reviewing non-conflicting, yet limited supporting material, in order to allow the experts to make generalized findings due to time restraints, cost associated with, and availability of testing procedures.
Conclusion
Synthetic drugs are a complex topic that legislators must respond to in a comprehensive way. Ultimately, as with any category of narcotics, authorities cannot completely eradicate the use of synthetic drugs; however, minimizing their impact is attainable with appropriate policy modifications. An updated twenty-first century drug policy is necessary, which must define the terms and provisions of the CSA more precisely to enable prosecutors to bring these types of cases more easily. Existing drug law is flawed and continuing down this same path will almost certainly allow manufacturers to continue to circumvent the law through molecular modifications.
[1] J.D. May 2015, University of Kentucky College of Law.[2] President Richard Nixon originally coined this term during June of 1971, increasing the size and presence of federal drug control agencies. A Brief History of the Drug War, Drug Policy Alliance, http://www.drugpolicy.org/new-solutions-drug-policy/brief-history-drug-war (last visited March 3, 2014).[3] See generally Lisa N. Sacco & Kristin Finklea, Cong. Research Serv., R42066, Synthetic Drugs: Overview and Issues for Congress 1 (Sept. 16, 2013), available at http://fas.org/sgp/crs/misc/R42066.pdf (explaining the recent trend to document dangers stemming from drug use especially in younger populations).[4] Synthetic Drugs (a.k.a. K2, Spice, Bath Salts, etc.), Office of Nat’l Drug Control Pol’y, http://www.whitehouse.gov/ondcp/ondcp-fact-sheets/synthetic-drugs-k2-spice-bath-salts (last visited March 3, 2014) [hereinafter Synthetic Drugs].[5] Stephen Stock & David Paredes, The Law has Trouble Keeping Up with Synthetic Drugs, NBC Bay Area (Feb. 15, 2014, 10:33 PM), http://www.nbcbayarea.com/investigations/The-Law-Cant-Keep-Up-with-Synthetic-Drugs-244805391.html; Synthetic Drugs: Myths, Facts, and Strategies: A Symposium, Substance Abuse Treatment and Mental Health Services Integration Taskforce 9-10 (Feb. 19, 2013), http://cjcc.dc.gov/sites/default/files/dc/sites/cjcc/page_content/attachments/SD-MFS%20Symposium%20Materials_Part1.pdf [hereinafter Symposium].[6] See Spice, Salvia, and Bath Salts, Nat’l Inst. on Drug Abuse, http://teens.drugabuse.gov/facts-drugs/spice-salvia-and-bath-salts (last visited March 3, 2014); See also Ben Paynter, The Big Business of Synthetic Highs, Bloomberg Bus. Week (June 16, 2011), http://www.businessweek.com/magazine/content/11_26/b4234058348635.htm (noting that the sale of "incense" generates close to $5 billion annually as based on self-reported statistics from members of the North American Herbal Incense Trade Association).[7] See, e.g., Sacco & Finklea, supra note 3, at 1.[8] Id. [9] Howard B. Owens, From China White to Bath Salts, Designer Drugs Ongoing Public Safety Challenge, Batavian (July 24, 2012, 9:59 AM), http://thebatavian.com/howard-owens/china-white-bath-salts-designer-drugs-ongoing-public-safety-challenge/32950.[10] Synthetic Drug Threats, Nat'l Conference of State Legislatures, http://www.ncsl.org/research/civil-and-criminal-justice/synthetic-drug-threats.aspx (last updated Nov. 28, 2012).[11] Synthetic Drugs, supra note 4.[12] Sacco & Finklea, supra note 3, at 5.[13] See Stock & Paredes, supra note 5.[14] Paynter, supra note 6.[15] See Melanie Haiken, ‘Bath Salts’ A Deadly New Drug with a Deceptively Innocent Name, Forbes (June 4, 2012, 4:13 PM), http://www.forbes.com/sites/melaniehaiken/2012/06/04/bath-salts-a-deadly-new-drug-with-a-deceptively-innocent-name/ (discussing the danger bath salts pose and highlighting stories of individual’s psychotic episodes after ingesting the substance).[16] Id.; Drugs of Abuse, U.S. Dept. of Justice. , Drug Enforcement Admin. 74 (2011), available at http://www.justice.gov/dea/pr/multimedia-library/publications/drug_of_abuse.pdf. [hereinafter Drugs of Abuse]; Haiken, supra note 15. .[17] Drugs of Abuse, supra note 16, at 75.[18] DrugFacts: Spice (Synthetic Marijuana), Nat’l Inst. of Drug Abuse, http://www.drugabuse.gov/publications/drugfacts/spice-synthetic-marijuana (last modified Dec. 2012); Drugs of Abuse, supra note 16, at 75; Use of Synthetic Cannabinoid Products by Teens and Young Adults Increasing, U.S. Dept. of Justice Nat’l Drug Intelligence Ctr. (May 18, 2010), http://www.justice.gov/archive/ndic/pubs41/41193/sw0006p.pdf[19] See Nicolas Christin, Traveling the Silk Road: A Measurement Analysis of a Large Anonymous Online Marketplace 2 (Carnegie Mellon INI/Cylab, Working Paper, 2012), available at http://www.andrew.cmu.edu/user/nicolasc/publications/TR-CMU-CyLab-12-018.pdf (noting that sites such as Black Market Reloaded, the Armory, and the General Store are online marketplaces for synthetic drugs).[20] See Dangerous Synthetic Drugs: Testimony Before the Caucus on Int’l Narcotics Control, U.S. Senate, 113th Cong. 1 (2013) (statement by Dr. Nora D. Volkow, Director National Institute on Drug Abuse), available at http://www.drugcaucus.senate.gov/hearing-9-25-13/AMV075-NIH%20synthetic%20testimony%20gl%20gjd%20final.pdf.[21] See Liana Fattore & Walter Fratta, Beyond THC: The New Generation of Cannabinoid Designer Drugs, 5 Frontiers in Behavioral Neuroscience 3, 5 (Sept. 2011), available at http://www.frontiersin.org/behavioral_neuroscience/10.3389/fnbeh.2011.00060/full.[22] Ruth Brown, Bath Salts: More Addictive than Meth, Newser (July 14, 2013, 5:05 PM), http://www.newser.com/story/170924/bath-salts-more-addictive-than-meth.html.[23] Controlled Substance Act, 21 U.S.C. § 812(a) (2012). See also Controlled Substance Schedules, U.S. Dept. of Justice Drug Enforcement Admin., Office of Diversion Control, http://www.deadiversion.usdoj.gov/schedules/#list (last visited Mar. 7, 2014) (identifying a list of currently scheduled drugs).[24] 21 U.S.C. § 811(c) (2012).[25] See id. § 812(b). See also Drug Scheduling, U.S. Drug Enforcement Admin., http://www.justice.gov/dea/druginfo/ds.shtml (last visited Mar. 7, 2014) [hereinafter Drug Scheduling].[26] Drug Scheduling, supra note 25.[27] Id.[28] Id.[29] 21 U.S.C. § 841(a)(1) (2012). See also 21 U.S.C. § 811(h) (2012) (noting that the Attorney General may temporary schedule substances as a Schedule I if is "necessary to avoid an imminent hazard to the public safety").[30] Andreas Digens, A Young Chemist Explains How Legal Highs Work, Vice Canada (Oct. 6, 2014), http://www.vice.com/en_ca/read/research-drugs-and-the-grey-market.[31]Controlled Substance Analogue Enforcement Act of 1986, Pub. L. No. 99-570, §§1201-1204, 100 Stat. 3207, 3207-13 to 3207-14 (codified as amended in scattered sections of §21 U.S.C.).[32] See e.g., United States v. Nasir, No. 5:12–CR–102—JMH, 2013 WL 5373619, at *1 (E.D. Ky. Sept. 25, 2013) (citing United States v. Washam, 312 F.3d 926, 933 (8th Cir. 2002)).[33] Controlled Substance Analogue Act, §1202, 100 Stat. at 3207-13. .[34] See, e.g., Dangerous Synthetic Drugs: Caucus on Int’l Narcotics Control U.S. Senate, 113th Cong. 2–4 (2013) (statement by Timothy J. Heaphy, U.S. Attorney for the Western District of Virginia), available at http://www.drugcaucus.senate.gov/hearing-9-25-13/Heaphy_Dangerous%20Synthetic%20Drugs%20Testimony%20(SCINC).pdf[35] Synthetic Drug Abuse Prevention Act of 2012, Pub. L. No. 112-44, §§ 1152-1153, 126 Stat. 1130, 1130–32 (2012) (to be codified at 21 U.S.C. § 811-12).[36] Id. at § 1152(d)(1).[37] See Stock & Paredes, supra note 5 ("[I]t takes a chemist in Asia only a couple of week to change a molecule and get new synthetic drugs on our streets, starting the entire cycle, all over again.").[38] See Symposium, supra note 5, at 43, 48, 53 (noting that since Jan. 31, 2013, law enforcement agents have identified over 150 synthetic compounds – while in nearly two-thirds of all states, including Kentucky, there have been over 400 reports of Synthetic Cathinones and Cannabinoids compounds). See also Stock & Paredes, supra note 5 (according to the DEA five new synthetic drug compounds are introduced into the U.S. markets every month).[39] See Bath Salts Data, Am. Ass’n of Poison Control Centers 1 (Nov. 30, 2013), available at https://aapcc.s3.amazonaws.com/files/library/Bath_Salts_Web_Data_through_Nov2013.pdf; Synthetic Marijuana Data, Am. Ass’n of Poison Control Centers 1 (Nov. 30, 2013), available at https://aapcc.s3.amazonaws.com/files/library/Synthetic_Marijuana_Web_Data_through_11.2013.pdf.[40] In a recent Gallup poll, 58% of Americans supported the legalization of marijuana. See Art Swift, For First Time, Americans Favor Legalizing Marijuana, Gallup (Oct. 22, 2013), http://www.gallup.com/poll/165539/first-time-americans-favor-legalizing-marijuana.aspx; see also Stock & Paredes, supra note 5 (according to the DEA’s Bruce Goldberg "[k]ids are playing Russian roulette with their lives by ingesting things they are not aware of how dangerous they are.").[41] See Susannah Bryan, Florida Synthetic Drug Ban Mostly Successful, Experts Say, Huffington Post (Aug. 5, 2013, 2:50 AM), http://www.huffingtonpost.com/2013/08/05/synthetic-drugs-florida_n_3705519.html.[42] Amy Pavuk, Man Sentenced to Prison for Drugs After Several Overdosed on Bath Salts, Orlando Sentinel (Feb. 19, 2014), http://articles.orlandosentinel.com/2014-02-19/news/os-bath-salts-death-drugs-in-house-sentence-20140219_1_bath-salts-synthetic-drugs-krystopher-sansone.[43] Id. [44] Michael Daniel Accused of Killing, Eating Dog on K-2-Fueled Rampage, Huffington Post (June 26, 2012, 1:18 PM), http://www.huffingtonpost.com/2012/06/26/michael-daniel-eating-dog_n_1627786.html.[45] Seni Tienabeso, Face-Eating Attack Possibly Prompted by 'Bath Salts,' Authorities Suspect, ABC News (May 29, 2012), http://abcnews.go.com/US/face-eating-attack-possibly-linked-bath-salts-miami/story?id=16451452. But see Rudy Eugene: No Bath Salts, Only Marijuana Found in Face-Eater Toxicology Tests, Huffington Post (June 27, 2012, 4:47 PM), http://www.huffingtonpost.com/2012/06/27/rudy-eugene-face-marijuana-medical-examiner-results_n_1632253.html (noting that within the limits of current technology by both laboratories, marijuana was the only drug identified in the body of the attacker). This presents an interesting point which previously has not been discussed that "[a]lthough tests exist to detect synthetic drugs, they are costly and are not widely available. As with legislation, changes to the composition of synthetic drugs are currently outpacing advances in detection." Symposium, supra note 5, at 11.[46] See Nat’l Forensic Sci. Tech. Ctr., A Simplified Guide to Drug Chemistry, available at http://www.crime-scene-investigator.net/SimplifiedGuideDrugChemistry.pdf[47] See 21 U.S.C. § 813 (2012); see also 21 U.S.C. § 842 (2012).[48] U.S.C. § 802(32)(A) (2012).[49] United States v. Turcotte, 405 F.3d 515, 521 (7th Cir. 2005).[50] Id. at 521.[51] Id. [52] See Turcotte, 405 F.3d at 522–23; see also United States v. Hodge, 321 F.3d 429, 436 (3d Cir. 2003) (analyzing the plain meaning and legislative history of § 802(32)(A)); United States v. Klecker, 348 F.3d 69, 71 (4th Cir. 2003) (adopting the conjunctive approach); United States v. Washam, 312 F.3d 926, 930 n.2 (8th Cir. 2002) (same); United States v. McKinney, 79 F.3d 105, 107–08 (8th Cir. 1996) (discussing the conjunctive approach), vacated on other grounds, 520 U.S. 1226 (1997); United States v. Brown, 279 F. Supp. 2d 1238, 1240 (S.D. Ala. 2003) (adopting the conjunctive reading of statute); United States v. Vickery, 199 F. Supp. 2d 1363, 1371 (N.D. Ga. 2002) (same); United States v. Clifford, 197 F. Supp. 2d 516, 522 (E.D. Va. 2002) (same); United States v. Forbes, 806 F. Supp. 232, 235-36 (D. Colo. 1992) (reviewing the Act's legislative history and asserting that the conjunctive approach is required in order to prevent absurd results); but see United States v. Fedida, 942 F. Supp. 2d 1270, 1275-76 (M.D. Fla. 2013) (concluding that the statute is ambiguous, but applying the rule of leniency requires the court to read the definition in the conjunctive).[53] 21 U.S.C. § 802(32)(A)(i) (2012).[54] Kleckler, 348 F.3d at 73.[55] United States v. Fisher, 289 F.3d 1329, 1338–39 (11th Cir. 2002).[56] Fedida, 942 F. Supp. 2d at 1277-79.[57] 21 U.S.C. § 813 (1988).[58] United States v. Nasir, No. 5:12-CR-102-JMH, 2013 WL 5373619, at *1 (E.D. Ky. Sept. 25, 2013).[59] Id.[60] Id. at *2.[61] Id. at *3.[62]Id. In performing this function, the court focuses only on the "principles and methodology, not on the conclusions that they generate." (quoting United States v. Daubert, 509 U.S. 579, 595 (1993)).[63] Id.[64]See e.g., United States v. Fedida, 942 F. Supp. 2d 1270, 1281 (stating that it was "not inclined to permit an expert to testify to a jury where the basis of his opinions rests only on broad scientific principles" supported by minimum scientific literature, not subjected to peer review, and potential error rate unknown).[65] Synthetic Abuse and Labeling of Toxic Substances Act of 2013, S. 1322, 113th Cong. (2013) [hereinafter SALTS Act].[66] Protecting Our Youth from Dangerous Synthetic Drugs Act of 2013, S. 1323, 113th Cong. (2013).[67] 21 U.S.C. § 802(32)(C)(iv) (2012).[68] SALTS Act, S. 1322 § 2.[69] Id.[70] S. 1323 § 2(a)(1).[71] Id. § 2(a)(2).[72] Id.[73] Id. § 4.[74] 21 U.S.C. § 802(32(A)(i) (2012).[75] See supra notes 54–56 and accompanying text.[76] United States v. Brown, 279 F. Supp. 2d 1238, 1245 (S.D. Ala. 2003).[77] United States v. Washam, 312 F.3d 926, 930-31 (8th Cir. 2002).[78] Brown, 279 F Supp. 2d. at 1243.[79] United States v. Fisher, 289 F.3d 1329, 1338–39 (11th Cir. 2002) (emphasis added).[80] Id.[81] Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592–94 (1993).