If you are accustomed to going to the gas station for a quick snack or a Coke, you may have seen substances called “Scooby-Doo,” “Mr. Miyagi,” or “Spice” for sale by the register. Despite the cartoonish names, these substances are drugs. These may not be the drugs you’re familiar with. They are synthetic drugs, created in laboratories, and are designed to mimic the effects of existing illegal drugs, such as marijuana or cocaine. These drugs may be illegal under state law. Furthermore, in summer 2012, the Federal Government announced the results of its own Operation Log Jam, which targeted synthetics such as Spice and Bath Salts (which you may recall have been wrongly blamed for cannibalism).

However, drugs are big business, and just a few months after the Feds announced their Log Jam results news reports surfaced about a synthetic called “N-Bomb.” I know what you’re thinking, and no, that’s not really why it’s called N-Bomb. The drug’s chemical name is 2C-I-NBOMe, or 25INBOMe (get it now?), and it was discovered in 2003. Derived from mescaline, the drug has a similar effect to LSD. You can easily order the product online. So far, the drug has been blamed for deaths at a Louisiana music festival and in Texas, though some people do seem to be enjoying the drug.

Unlike LSD and mescaline, 2C-I-NBOMe is not a scheduled substance under the Controlled Substances Act. However, as incorrectly suggested by some news sources and other sources, this does not necessarily mean that the drug is legal. The Federal Government could move against N-Bomb dealers under the Controlled Substance Analogue Enforcement Act (CSAEA), which specifies that to the extent a drug is intended for human consumption it may be treated as a scheduled, illegal substance for the purpose of prosecution if it is substantially similar in chemical structure to a controlled substance, and it is either substantially similar in effect to a controlled substance or the person in question represents it to have a similar effect.

The law as applied greatly favors the Federal Government. There’s no scientific standard for substantial similarity in structure, and courts have been willing to rely upon comparisons between molecules based on molecular stick diagrams (like the photo in this post). These charts don’t show the size and shape of the molecule, nor do they even show all the atoms present in the molecule, but they are admissible. In the case of 2C-I-NBOMe, N-Bomb’s derivation from mescaline does at least suggest that a jury might find substantial similarity in structure. Furthermore, the mens rea under the CSAEA may be unfavorable to defendants. In the Fifth Circuit, the defendant only need know that he possesses the substance; he need not know that the substance is an analogue. Only the Seventh Circuit requires that the defendant have knowledge that the substance is a controlled substance analogue (see this case for a summary of the law).

Though the above may seem unfair to criminal defendants, Federal courts have almost always gone to great lengths to reject challenges to the CSAEA as vague as applied to different chemicals. The unstated, underlying rationale behind these decisions may not be based in the law but more on a feeling that “Drugs are bad, mmkay?The lesson in all this is that you should probably not deal in or synthesize 2C-I-NBOMe under the misinformed opinion that it is legal. The CSAEA as applied doesn’t give you much protection. Until the CSAEA is amended, you’re a drug dealer, not a chemist, as far as the Federal Government is concerned.

Cal Albritton

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