The Federal Analogue Act, , is a section of the United States

Controlled Substances Act The Controlled Substances Act (CSA) is the statute establishing federal government of the United States, federal drug policy of the United States, U.S. drug policy under which the manufacture, importation, possession, use, and distribution of ...

passed in 1986 which allows any chemical "substantially similar" to a

controlled substance A controlled substance is generally a drug or chemical whose manufacture, possession and use is regulated by a government, such as illicitly used drugs or prescription medications that are designated by law. Some treaties, notably the Single C ...

listed in Schedule I or II to be treated as if it were listed in Schedule I, but only if intended for human consumption. These similar substances are often called

designer drug A designer drug is a structural or functional analog of a controlled substance that has been designed to mimic the pharmacological effects of the original drug, while avoiding classification as illegal and/or detection in standard drug tests. Des ...

s. The law's constitutionality has been questioned by now Supreme Court Justice

Neil Gorsuch Neil McGill Gorsuch ( ; born August 29, 1967) is an American lawyer and judge who serves as an associate justice of the Supreme Court of the United States. He was nominated by President Donald Trump on January 31, 2017, and has served since ...

; its broad reach has been used to successfully prosecute possession of chemicals openly sold as dietary supplements and naturally contained in foods such as chocolate.

Definition

(32) *(A) Except as provided in subparagraph (C), the term ''controlled substance analogue'' means a substance - **(i) the

chemical structure A chemical structure determination includes a chemist's specifying the molecular geometry and, when feasible and necessary, the electronic structure of the target molecule or other solid. Molecular geometry refers to the spatial arrangement of at ...

of which is substantially similar to the chemical structure of a controlled substance in schedule I or II; **(ii) which has a

stimulant Stimulants (also often referred to as psychostimulants or colloquially as uppers) is an overarching term that covers many drugs including those that increase activity of the central nervous system and the body, drugs that are pleasurable and inv ...

depressant A depressant, or central depressant, is a drug that lowers neurotransmission levels, which is to depress or reduce arousal or stimulation, in various areas of the brain. Depressants are also colloquially referred to as downers as they lower the ...

, or

hallucinogenic Hallucinogens are a large, diverse class of psychoactive drugs that can produce altered states of consciousness characterized by major alterations in thought, mood, and perception as well as other changes. Most hallucinogens can be categorize ...

effect on the

central nervous system The central nervous system (CNS) is the part of the nervous system consisting primarily of the brain and spinal cord. The CNS is so named because the brain integrates the received information and coordinates and influences the activity of all par ...

that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II; or **(iii) with respect to a particular person, which such person represents or intends to have a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II. *(B) The designation of gamma butyrolactone or any other chemical as a listed chemical pursuant to paragraph (34) or (35) does not preclude a finding pursuant to subparagraph (A) of this paragraph that the chemical is a controlled substance analogue. *(C) Such term does not include - **(i) a controlled substance; **(ii) any substance for which there is an approved new drug application; **(iii) with respect to a particular person any substance, if an exemption is in effect for investigational use, for that person, under section 355 of this title to the extent conduct with respect to such substance is pursuant to such exemption; or **(iv) any substance to the extent not intended for human consumption before such an exemption takes effect with respect to that substance.

Case law

''United States v. Forbes''

''United States v. Forbes'', 806 F. Supp. 232 (D. Colo. 1992), a Colorado district court case, considered the question of whether the drug alphaethyltryptamine (AET) was a controlled substance analogue in the United States. The controlled drugs to which it was alleged that AET was substantially similar were the tryptamine analogues

dimethyltryptamine ''N'',''N''-Dimethyltryptamine (DMT or ''N'',''N''-DMT, SPL026) is a substituted tryptamine that occurs in many plants and animals, including human beings, and which is both a derivative and a structural analog of tryptamine. It is used as a ...

(DMT) and

diethyltryptamine DET, also known under its chemical name ''N'',''N''-diethyltryptamine and as T-9, is a psychedelic drug closely related to DMT and 4-HO-DET. However, despite its structural similarity to DMT, its activity is induced by an oral dose of around ...

(DET). AET DMT DET In this case, the court ruled that AET was not substantially similar to DMT or DET, on the grounds that (i) AET is a

primary amine In chemistry, amines (, ) are compounds and functional groups that contain a basic nitrogen atom with a lone pair. Amines are formally derivatives of ammonia (), wherein one or more hydrogen atoms have been replaced by a substituent such a ...

while DMT and DET are

tertiary amine In chemistry, amines (, ) are compounds and functional groups that contain a basic nitrogen atom with a lone pair. Amines are formally derivatives of ammonia (), wherein one or more hydrogen atoms have been replaced by a substituent such a ...

s, (ii) AET cannot be synthesized from either DMT or DET, and (iii) the hallucinogenic or stimulant effects of AET are not substantially similar to the effects of DMT or DET. Furthermore, the court ruled that the definition of controlled substance analogue given in the Federal Analogue Act was unconstitutionally vague, in that "Because the definition of 'analogue' as applied here provides neither fair warning nor effective safeguards against arbitrary enforcement, it is

void for vagueness In American constitutional law, a statute is void for vagueness and unenforceable if it is too vague for the average citizen to understand, and a constitutionally-protected interest cannot tolerate permissible activity to be chilled within the ra ...

." The common law principle that the people should have the right to know what the law is, means that the wording of laws should be sufficiently clear and precise that it is possible to give a definitive answer as to whether a particular course of action is legal or illegal. However, despite this ruling the Federal Analogue Act was not revised, and instead AET was specifically scheduled to avoid any future discrepancies. As a district court decision, this case is no

binding precedent A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great va ...

''United States v. Washam''

''United States v. Washam'' (2002) 312 F.3d 926, 930 was an appellate decision for the eighth judicial circuit in which it was considered whether the drug

1,4-butanediol 1,4-Butanediol, colloquially known as BD or BDO, is a primary alcohol, and an organic compound, with the formula HOCH2CH2CH2CH2OH. It is a colorless viscous liquid. It is one of four stable isomers of butanediol. Synthesis In industrial sy ...

(1,4-B) was a controlled substance analogue in the United States. The controlled drug which it was alleged 1,4-B was substantially similar to was

gamma-hydroxybutyrate ''gamma''-Hydroxybutyric acid (or γ-hydroxybutyric acid (GHB), also known as 4-hydroxybutanoic acid) is a naturally occurring neurotransmitter and a depressant drug. It is a precursor to GABA, glutamate, and glycine in certain brain areas. ...

(GHB).

1,4-B GHB In this case the court ruled that 1,4-B was substantially similar to GHB, on the grounds that (i) "1,4-Butanediol and GHB are both linear compounds containing four carbons and that there is only one difference between the substances on one side of their molecules", and (ii) that 1,4-B is metabolized into GHB by the body and so produces substantially similar physiological effects. It was raised in defense that 1,4-B and GHB contain different functional groups. but these were not held to be grounds to consider 1,4-B not substantially similar to GHB. It was also raised in the case of ''Washam'' that the Federal Analogue Act was unconstitutionally vague, but in this case the court rejected this argument on the grounds that the defendant's actions in concealing her activities and lying to DEA agents showed that she knew her actions were illegal, and furthermore that "…a person of common intelligence has sufficient notice under the statute that 1,4-Butanediol is a controlled substance analogue." The court in ''Washam'' construed the Analogue Act to require parts A(i) and either A(ii) or A(iii), and concluded the Act was constitutionally permissible upon this construction. As a result of ''Washam'', the Federal Analogue Act has been upheld (at least for the states and territories comprising the eighth judicial circuit) and can be considered valid at the present time. However, a jury in Federal District Court in Chicago in a different case found 1,4-butanediol not to be an analog of GHB under federal law, and the

Seventh Circuit Court of Appeals The United States Court of Appeals for the Seventh Circuit (in case citations, 7th Cir.) is the U.S. federal court with appellate jurisdiction over the courts in the following districts: * Central District of Illinois * Northern District of ...

upheld that verdict and so 1,4-butanediol is currently not a controlled substance analogue.United States v. Turcotte, 405 F.3d 515 (7th Cir. 2005) "With specific regard to 1,4 Butanediol, the jury has returned a special verdict which states that 1,4-Butanediol is not a Schedule I Narcotic Drug Controlled Substance analogue, because 1,4-Butanediol's chemical structure is not significantly similar to the chemical structure of GHB.

References

{{reflist

External links

Section 813. Treatment of Controlled Substance Analogues

Drug Enforcement Administration The Drug Enforcement Administration (DEA; ) is a Federal law enforcement in the United States, United States federal law enforcement agency under the U.S. Department of Justice tasked with combating drug trafficking and distribution within th ...

Section 802. Definitions

Appendix A - Controlled Substance Analogue Enforcement Act of 1986 - P.L. 99-570. Subtitle E, Title I.
on

Erowid Erowid, also called Erowid Center, is a non-profit educational organization that provides information about psychoactive plants and chemicals. Erowid documents legal and illegal substances, including their intended and adverse effects. Informat ...