SB12-116, Penalties Associated with Cathinones

SB12-116

PENALTIES ASSOCIATED WITH CATHINONES, AND, IN CONNECTION THEREWITH, ESTABLISHING   A MISDEMEANOR PENALTY FOR POSSESSION OF A CATHINONE

Sponsors: Sen. Foster / Rep. Brown

Staff Name: Lou Irwin

What the Bill Does:
Cathinone, or Benzoylethanamine, is a monoamine alkaloid found in the shrub Catha edulis (khat). It is chemically similar to amphetamine, and is the main neuroactive stimulant found in khat[1]. SB12-116  removes it from the state schedule I of controlled substances, thereby eliminating the possession of it as a felony crime, but makes possession of it and a host of synthetic and chemically related substances (collectively referred to as cathinones) class 1 misdemeanor offenses.  The bill also establishes a new class 3 felony offense for manufacture, sale, or distribution of cathinones, and creates a new civil penalty of between $10,000 and $500,000 for deceptive trade practices by a person or entity that distributes, manufactures, sells, or purchases bath salts or other products containing a cathinone.

Colorado Context:
Under current Colorado law, cathinone, but none of its synthetic analogs or derivatives, is a Schedule I controlled substance, possession of which constitutes a class 4 (for >4 grams) or class 6 (for < 6 grams) felony. No one has been prosecuted to date in Colorado for cathinone possession[2].  By removing it from the Schedule I of controlled substances, the penalty for possession is lowered to a class I misdemeanor. However, 24 chemical relatives (excluding the prescription antidepressants Buproprion, marketed under the trade name Zyban®, and Diethylproprion) are added, along with cathinone, to the list of regulated substances punishable as a class 1 misdemeanor for possession.  A new class 3 felony with a minimum mandatory prison sentence is created for distribution of any naturally occurring or synthetic cathinone.  As is the case throughout much of the world, cathinones are currently sold legally in Colorado as “bath salts” and plant fertilizers, often with the warning “not for human consumption”, even though their efficacy as either bath salts or plant nutrients is doubtful.  The presumption is that such marketing is designed to evade prosecution for the sale of what amounts to analogs of methamphetamine.

National Context:
Internationally, cathinone is a Schedule I drug under the Convention on Psychotropic Substances, and the DEA classified it as a Schedule I controlled substance around 1993.  Pharmacologically, it acts by the same mechanism, and has similar physiological effects, to amphetamine[3].  The consequence of cathinone overdoses are similar to those of amphetamine toxicity, including nausea, hypothermia, elevated heart rate and blood pressure, agitation, and – in extreme cases – psychotic and violent behavior[4].  In the United Kingdom, numerous deaths have been associated with cathinone ingestion, though causal links have not been proven in most cases.  The potencies of the cathinones are generally lower than their amphetamine congeners, and, while daily use of cathinones has been reported, the addictive potential of cathinone appears to be low[5].  Some experts warn that policies restricting the use of khat should be adopted with caution[6], lest they simply change the pattern of drug abuse and increase the spread of more dangerous drugs.  It is clear that some of the synthetic cathinones are much more powerful, and therefore more dangerous. Calls to poison centers in the U.S related to cathinone overdoses have risen substantially in the last few years, and the synthetic analogs of the drug appear to be proliferating[7].  All 50 states have enacted laws, or have legislation under consideration, to regulate the availability and sale of cathinone-containing plants and compounds.

Bill Provisions:

• Defines a “cathinone” as any natural or synthetic substance containing any amount of Benzoylethanamine or any of 24 chemical analogs
• Repeals C.R.S. 18-18-203 (2) 27 (e) (I), thereby removing cathinone from the state’s Schedule I list of controlled substances
• Makes possession of any cathinone-containing natural product or synthetic substance a class 1 misdemeanor
• Creates a new class 3 felony for distribution, manufacture, or sale of any cathinone-containing natural product or synthetic substance, with mandatory incarceration
• Deems the selling of a “bath salt” that contains any amount of a cathinone to be a deceptive trade practice punishable by a civil fine of $10,000 (or $25,000 if the seller to a minor is at least 2 years older than the minor) to $500,000.

Fiscal Impact: 
A revenue estimate of $5,000 or less per year can be expected to be collected in fines in each of the next two fiscal years from the new penalties imposed by this legislation.  While larger amounts are potentially obtainable by conviction under the deceptive trace practice section, no such conviction has ever been obtained in Colorado, so the potential revenue that could be generated from this source cannot be estimated.  On the other hand, this bill is anticipated to increase state General Fund expenditures by at least $20,706 per year, beginning in FY 2013-14, due to the mandatory incarceration provisions of the bill. By expanding the definition of a cathinone, it is anticipated that additional persons may be charged with possession- or distribution-related crimes.  Since state law requires that new laws that lead to an increase in the prison population must be covered by an appropriation to cover the increased incarceration, an appropriation over a 5 year period may be necessary.

Amendment Considerations:

1. The legislation as written includes plant products, such as khat itself, which is substantially less potent than the pure active agent or its synthetic analogs.  Thought might be given to excepting “natural cathinone-containing plant products” from the crime of possession.
2. In view of the need for an appropriation that passage of this legislation will likely trigger if its mandatory prison sentence for traffickers is imposed, the financial note might be mitigated by reducing the penalty for distribution and sale to a crime that does not carry a mandatory prison sentence.  This could be rationalized by the absence of clear and compelling evidence that cathinones carry a significant risk of dependency.
3. Because of the Section 7 Safety Clause, the law will go into effect immediately, rendering possession of substances currently legal as suddenly illegal.  Recreational users who may have khat or “bath salts” legally on hand should arguably be given fair warning through a publicity campaign, and time to dispose of their newly-illegal stores, by removing the Safety Clause prior to passage.

[2] White, K: SB12-116 State and Local Fiscal Impact, 20 Feb 2012

[3] Nencini P, Ahmed AM: Khat consumption: a pharmacological review. Drug Alcohol Depend 23:19-29 (1989)

[4] Advisory Council on the Misuse of Drugs (2010) “Consideration of the cathinones”

        http://www.erowid.org/chemicals/4_methylmethcathinone/4_methylmethcathinone_article1.pdf

[5] http://www.neurosoup.com/cathinone.htm

[6] Nencini P, Ahmed AM: Khat consumption: a pharmacological review. Drug Alcohol Depend 23:19-29 (1989)

[7] U.S. Dept. Justice, National Drug Intelligence Center Situation Report, July 2011: “Synthetic Cathinones (Bath Salts): An Emerging Domestic Threat” (http://www.justice.gov/ndic/pubs44/44571/44571p.pdf)