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Synthetic Drug Law Faces Scrutiny in Supreme Court

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A man convicted on synthetic drug charges has appealed his case all the way to the U.S. Supreme Court. Now, the Controlled Substances Analogue Enforcement Act of 1986 faces serious scrutiny.

McFadden v. United States involves a man who is facing imprisonment for dealing designer drugs under a law that he claims is so complex, only chemists understand it. Designer or “synthetic” drugs started to become a concern in the 1980s. While designed to mimic the effects of regular controlled substances, many of these synthetic drugs are not categorized as illegal controlled substances.

To combat the almost unlimited types of synthetic drugs, the Analogue Act was passed which makes it illegal to manufacture or distribute any substance that has a similar chemical structure to a “stimulant, depressant, or hallucinogen.” Per the Analogue Act, the DEA even has a secret list of drugs they do not disclose to the public, but a designer drug doesn’t even have to be on that list to be punishable under this law.

The defendant in this case manufactured and sold a type of synthetic drug known as “bath salts.” He was charged and convicted, but appealed on the basis that the law was too vague – how could he reasonably know he was doing something illegal if there is no public analogue list? The appeals court denied his petition, saying that under this act, all that is needed is proof that the defendant intended his product to be consumed and thereby mimic the effect of a “stimulant, depressant, or hallucinogen.”

The Analogue Act was passed to combat the ever-growing list of synthetic drugs – the Department of Justice was finding that by the time they had added the most recent known designer drugs to the list, more new drugs had already been created that were not on the list, and therefore not illegal to manufacture, possess, and sell.

Even courts are confused. With the Analogue Act’s “substantially similar” clause, expert chemists and scientists have to give testimony to show the connection between a synthetic drug and its controlled substance counterpart, but sometimes scientists can’t even agree on this. Currently, the Analogue Act's fate lies in the hands of our highest court.