Calling the Designer Drug ‘Hotline’—Is This Stuff Legal or Not?

The following is an excerpt from America’s Secret Drug War, Bloomberg Law’s investigation into the world of “analogue” drugs and the troublesome law—questioned even by one of the DEA’s own—used to prosecute dealers. If you didn’t catch the whole story the first time around, it’s not too late to add to your summer reading list. In the meantime, find out what happened when our reporter asked the DEA: “Is This Stuff Legal or Not?”

Some sellers of synthetic drugs say they’ve done their best to comply with the law, and that they would have stopped selling them if the Drug Enforcement Administration told them to, before they were charged.

It turns out, all you have to do is call. A reporter called for this investigative story. But that’s not to say it was easy, or that sellers with something to lose might still hesitate to basically call the cops on themselves.

Las Vegas prosecutors in the case against Charles Burton Ritchie and Benjamin Galecki—the film producers-turned-convicted synthetic drug kingpins—said in court papers that the DEA “informs anyone who calls or inquires about a substance” as to its potential analogue status, and that “one only needs to go on DEA’s website for that contact information.”

The DEA’s office of public affairs wouldn’t confirm whether that’s true—it wouldn’t answer any of Bloomberg Law’s repeated inquiries for this story. A spokesperson for the Nevada U.S. Attorney’s Office sent Bloomberg Law a link to the front page of the DEA’s diversion control website, which doesn’t specify a phone number or any of the information that the government’s motion said is available to the public.

So a reporter poked around the website and called the number listed next to “DRUG & CHEMICAL EVALUATION SECTION,” and asked if this was the number to call to find out if the DEA considers a particular substance to be an analogue. It was.

The reporter was told to make any request via email, and that the DEA required a physical address for its formal reply. Giving an address doesn’t matter to a news organization, not being drug sellers, but perhaps dealers operating in a gray area of the law might hesitate to put themselves on the map in this way.

The reporter asked whether the DEA thinks a synthetic cannabinoid called “APP-CHMINACA” is an analogue. The reporter chose that substance because it’s featured in a pending appeal trying to take down the analogue law on vagueness grounds in a New York federal appeals court.

It’s a substance that clients of the defense lawyer Jim Felman—a.k.a. “Mr. Analogue”—were charged with distributing; like Ritchie and Galecki, they too face decades in prison and say they were trying to live within the law. In his brief to the U.S. Court of Appeals for the Second Circuit, Felman argues that, if a client walked into a lawyer’s office asking if that substance is illegal, the lawyer wouldn’t be able to say. Even the judges who’ll decide the appeal wouldn’t be able to say, Felman boldly asserted in the brief.

In an interview, Felman said the analogue law “is so vague that literally no one can know whether things are illegal or not.” It’s a “secret law,” he said.

But Bloomberg Law got an answer to Felman’s question—straight from the DEA.

The reporter provided Bloomberg Law’s physical address in Arlington, Va., for DEA’s formal reply. A few weeks later, the DEA sent a letter saying that, in its view, the substance is an analogue.

“You may wish to handle this substance as a controlled substance,” the letter said.

What About a List?

Through litigation in another analogue case, Felman got the government to turn over prior lists of what substances the DEA considered to be analogues at the time. Among the questions that DEA’s office of public affairs wouldn’t answer for this story is whether the DEA maintains a current list of what it thinks are analogues, and, if so, whether the public can view it.

“Why not just put the list on their website?” Felman asked.

During the analogue call to DEA, the reporter asked if there’s some type of analogue list the public can view. The DEA representative didn’t answer directly, noting various factors go into analogue determinations, including the substance’s pharmacological effect. That’s true.

But a list could help, some say.

“If I’m out there in the marketplace manufacturing one of these substances, and I know it’s not listed, and I’m unclear as to whether it will be treated as an analogue, if I’m acting in perfect good-faith, I would love to know if DEA is at least contemplating treating this as an analogue,” said Ed Imwinkelried, professor emeritus at UC Davis School of Law. He co-authored one of the few scholarly articles on analogues. “I mean, that’s a favor to the people who really want to live within the law.”

Defendants say they would’ve abided had DEA published an analogue list before prosecuting them for substances they say they thought were legal.

“Of course we would have stopped if we had even suspected they were considering treating XLR-11 as an analogue. There is no doubt about that whatsoever,” Ritchie told Bloomberg Law from federal prison in Talladega, Ala., before they bused him and Galecki to Nevada for trial.

Asked if she would have stopped if warned, Amy Herrig, who was acquitted of analogue charges in Texas stemming from an investigation into her chain of head shops called the Gas Pipe, told Bloomberg Law: “Absolutely.”

“We went to extraordinary effort to act within the law the way we understood it,” she said in an interview after her trial.

“When these different chemicals, these synthetic cannabinoids were being scheduled, banned, we would get rid of them,” she said. “We threw away hundreds of thousands of dollars of product,” she said, “into the millions retail value.”

The government, on the other hand, argues that a public list would be misleading.

“If we go public with this list, unfortunately, the list is not inclusive,” a DEA chemist testified on the subject. “We can in no way maintain an all-inclusive list of these analogues because they appear faster than we can write our names and we just don’t have the manpower to devote ourselves full time to this issue.”