In the quickly evolving war on synthetic drugs, Indiana has moved from defense to offense by passing ever-broader laws to combat a shape-shifting enemy operating in legal gray zone.
Its newest weapon, a “lookalike” drug law, is unlike anything that other states have tried and may become a model law for the nation, according to national drug-law experts.
But first it has to withstand a legal challenge in court.
At issue is Senate Enrolled Act 536, known as the synthetic drug lookalike law, signed by Indiana Gov. Mike Pence in early May and put into effect immediately under an emergency provision in the bill.
It makes it illegal to possess or sell products that look like the chemically enhanced substances banned under previous laws targeting products sold legally as incense or bath salts but that mimicked the effects of marijuana and cocaine when smoked or ingested.
“It’s a pioneering effort to get these dangerous substances off of store shelves,” said Heather Gray, the research attorney for the National Alliance of Model State Drug Laws. “It could be a model for other states.”
It’s also the third synthetic-drug law in three years in Indiana, prompted by reports beginning in 2009 of poisonings, psychotic episodes, and deaths among mostly teenage users.
The two previous laws specifically outlawed the man-made chemicals in products like K-2 and Spice, which had become popular alternatives to illegal street drugs. And they gave police and prosecutors the power to crack down on retail outlets selling those items, by threatening to arrest the owners and shut down their businesses.
Indiana Attorney General Greg Zoeller said those laws made a dent: Across the state, hundreds of gas stations and convenience stores that are part of national chains pulled those products, and others like them, from their shelves.
“We didn’t get rid of it entirely. But we made it illegal and got it away from the candy bars and the cigarettes,” Zoeller said. “We wanted kids to know this is dangerous stuff.”
But it wasn’t enough. Indiana, like every other state caught off-guard by the swift emergence of synthetic drugs, couldn’t keep pace with what Zoeller calls the “greedy drug makers” who stay one step ahead of the law.
That’s because of the nature of synthetic drugs and the endless variety of lab-created chemicals that go into their making. As states raced to outlaw the chemicals, suppliers quickly responded by tweaking their formulas to create new and legal substances that produce similar mind-altering effects.
State Sen. Jim Merritt, who’s led the legislative battle against synthetic drugs, worked with Zoeller and the state’s police and prosecutors to come up with a solution – one that “throws a blanket around this to stop it,” said David Powell, head of the Indiana Prosecuting Attorneys Council.
“We didn’t want to encourage these intoxicating synthetics to come in under a different name every time we outlaw one,” Powell said. “It’s a silly game that everyone was playing and we’re all tired of it.”
The result was legislation that goes far beyond the past laws that identify synthetic drugs based on their chemical makeup.
Instead, it creates a broader definition of synthetic drugs based on appearance. It gives police and prosecutors significant authority to label a product a “look-alike” drug if it visually resembles a product that contains a banned substance – even if it doesn’t. Merchants selling those lookalike products can face drug trafficking charges and civil actions to seize their inventory and assets.
At the bill signing with Pence, Merritt said the law was a desperately needed approach to keeping dangerous substances out the hands of the drug makers’ targeted audience: teenagers.
“Today’s ban breaks new ground on this issue,” Merritt said. “I hope it will serve as a blueprint to other states in the fight against these poisons in our community.”
But first, a federal judge has to decide whether the law will stand.
In late May, after police in several Indiana communities used the new law to raid convenience stores selling lookalike products, a lawsuit challenging the new law was filed in the U.S. District Court in Indianapolis.
It was brought by four businesses that sell or make aromatherapy products, including herbal incense and air fresheners, that look a lot like the banned products laced with synthetic drugs.
The lawsuit, filed against every county prosecutor and the State of Indiana, argues the new lookalike law gives the state far-reaching power to arbitrarily confiscate legal products from legitimate businesses.
Indianapolis attorney Mark Rutherford, who filed the suit, said the new law is so vague that its impossible to ascertain what is legal or illegal when it comes to aromatherapy and incense products. Under the law, Rutherfold said, police and prosecutors could decide that almost anything, from potpourri to talcum powder, are synthetic drug lookalikes.
Rutherford said his clients are harmed by “the bad apples” in their industry who intentionally thumb their nose at the law. “We’re happy when the bad guys are prosecuted,” he said.
But he said the lookalike law is based on a false premise that all products that look like the ones laced with synthetic drugs are all drug-laced.
“It is like calling all blondes stupid, therefore anything that looks like a blond is stupid,” Rutherford said. “Law enforcement thinks (my) plaintiffs look like blondes, thus they are stupid. It is a despicable practice.”
Indiana University McKinney School of Law professor Joel Schumm isn’t surprised the law is being challenged. He described its as “very different than the hundreds of other crimes” spelled out in the Indiana criminal code.
“Most people can look at a law and know what conduct applies. They can read a law and know what they have to avoid to keep from breaking that law,” Schumm said. But under the lookalike law, he said, “it’s not clear what’s criminal or what’s not.”
Zoeller and Merritt are convinced the court will let it stand, giving the state some leeway to protect the public by closing what they call a “loophole” in the existing synthetic drug laws.
“In a way, I’m glad that someone is challenging the law,” Merritt said. “I think the court will rule our way, and if it does, that’ll have a ripple effect around the nation.”
Maureen Hayden covers the Statehouse for the CNHI newspapers in Indiana. She can be reached at firstname.lastname@example.org