Academic journal article The Yale Law Journal

Tailoring Regimes for a Designer Drug: Developing Civil Liability for Retailers of Synthetic Marijuana

Academic journal article The Yale Law Journal

Tailoring Regimes for a Designer Drug: Developing Civil Liability for Retailers of Synthetic Marijuana

Article excerpt


Over the past two years, homeless shelters in cities across America found themselves in crisis as residents have overdosed, sometimes en masse, on a drug known as "synthetic marijuana." (1) The drug's effects are devastating, discriminating, and bizarre--sending users to the emergency room for seizures, heart attacks, and kidney failure; showing ruthless concentration among homeless populations; and creating "zombie-like" effects in users. (2) Concerned public health officials, however, learned quicldy that the drug--also popular with another vulnerable and cash-strapped population, teenagers (3)--would prove surprisingly difficult to contain. (4) As a synthetic or "designer" drug, synthetic marijuana can be produced from any of hundreds of synthetic cannabinoids; when law enforcement catches wind of a particular strand, manufacturers quickly adjust their formulas. (5)

Retailers also market synthetic marijuana inconsistently; there are over four hundred commercial varieties of synthetic cannabinoids, (6) which are known by almost seven hundred street names. (7) As recently as 2016, synthetic marijuana could be purchased in small packets off the shelves of gas stations and convenience stores. (8) Often cheekily labeled as "potpourri" or "incense," so that it can be sold openly alongside drug paraphernalia, and bearing a disclaimer that its contents are not for human consumption, the packets feature colorful, whimsical packaging, often alluding to natural marijuana.

Many of the challenges of regulating synthetic marijuana arise from legal complexities defining its nature. The drug takes its name from the chemical similarity between synthetic cannabinoids and THC, the active ingredient in natural marijuana, (9) but produces stronger and less predictable effects than its natural counterpart. (10) One study found that a batch of synthetic marijuana could be eighty-five times more potent--or capable of producing effects at a particular dosage--than natural marijuana; (11) a study in the Centers for Disease Control and Prevention's Morbidity and Mortality Weekly Report suggests that the potency may be up to one hundred times greater. (12) In order to evade law enforcement, manufacturers frequently alter the chemical compound sprayed over the dried plant matter that makes up the drug; as a result of this haphazard production method, two packages with identical labels can contain drugs with substantially different potencies. (13) Consumers are thus unable to make predictions about the contents of the substance they are ingesting. This unpredictability, combined with the drug's potency, (14) makes each user "unwittingly a guinea pig in an uncontrolled laboratory test." (15)

That variable chemical composition creates a wide range of reactions. Synthetic marijuana has powerful psychoactive effects; some, such as altered perception, are recreational, while others are more insidious, including violent behavior and suicidal ideation. (16) Physically, the drug can cause uncontrollable vomiting, hemorrhaging, seizures, heart attacks, and organ failure. (17) Despite these risks, the drug remains popular because of its accessibility (18) and low price relative to natural marijuana. (19)

While law enforcement officers have begun to crack down on sales at mainstream retail establishments (such as gas stations), the drug remains widely available online and in stores selling drug paraphernalia. Because it can be produced from a wide range of synthetic compounds, manufacturers can alter its chemical basis to evade criminal (20) or civil liability. (21) In the ensuing game of legal "whack-a-mole," (22) the rapid introduction of new compounds makes regulation of synthetic marijuana entirely reactive to creative manufacturers. (23) These swift and frequent changes--coupled with variations in the product's packaging and labeling--have made it difficult for legislators and law enforcement to determine whether a particular substance can be treated as synthetic marijuana when its labeling and chemical composition do not offer clear identifying markers. …

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