A new generation of synthetic drugs is presenting novel legal problems; “The bad guys know what we do and they just tweak another molecule. They’re changing faster than we can write our names.”

August 14, 2013, 7:52 p.m. ET

‘Bath Salts’ Pose a Hurdle for Prosecutors

Chemical Tweaks Can Keep Synthetic Drugs From Being Linked to Banned Substances

DEVLIN BARRETT

A new generation of synthetic drugs is presenting novel legal problems, according to law-enforcement agents and prosecutors, who say the shifting chemistry behind the products makes it difficult to win convictions. The synthetic drugs are typically sold in retail shops in small packages labeled “bath salts,” which investigators say is a ploy to hide their true purpose. When smoked, snorted or injected, they can cause a range of reactions, from increased energy and euphoria similar to cocaine or ecstasy, to hallucinations, similar to LSD. Users who have had bad reactions report feeling extreme paranoia, or the sensation that their skin is burning, leading them to tear off their clothes.The drugs jumped in popularity in 2011, the year the American Association of Poison Control Centers said 6,138 calls were made reporting abuse of the synthetics, up from 302 calls the year before. In 2012, the number of calls dropped to 2,657.

The Drug Enforcement Administration last year launched a nationwide sweep to charge sellers and distributors of the products. But to get a conviction in such cases, in addition to proving a defendant sold drugs, prosecutors have to prove the drug was substantially similar to a specifically banned substance. Because synthetic drugs are created from chemicals in a lab, with nearly endless possible variations, tweaks to chemistry are all that is needed to keep them from automatically being considered analogues—chemical compounds that are banned by the Controlled Substances Act because they are similar to prohibited drugs.

“There’s no way that the DEA can keep up with the sophisticated chemists around the world who are making this stuff,” said Timothy Heaphy, U.S. attorney for the Western District of Virginia, whose office won a bath-salts conviction earlier this year—just the second such prosecution.

Added Joe Platania, one of the prosecutors at that trial: “The bad guys know what we do and they just tweak another molecule. They’re changing faster than we can write our names.”

Local DEA offices also have issued letters warning convenience stores and “head shops” to stop selling bath salts, which typically cost $20 to $50 a packet. Many store managers claim ignorance when confronted with the actual uses of the product, according to investigators. If they don’t stop selling the product, investigators usually launch a criminal investigation.

In the case prosecuted by Mr. Heaphy’s office, the government sought to convict a New York City man accused of supplying synthetic drugs to a store in Charlottesville, Va.

The federal district judge required a jury to first find that three substances the defendant was accused of selling—3,4-methylenedioxymethcathinone, also known as MDMC, 3,4-methylenedioxypyrovalerone, also known as MPDV, and 4-methyl-ethylcathinone, also known as 4-MEC—have “an actual, intended, or claimed stimulant, depressant, or hallucinogenic effect…that is substantially similar” to a drug listed in two sections of the Controlled Substances Act.

Second, the jury had to conclude that the chemical structure was “substantially similar” to a controlled substance listed in federal law.

The courtroom quickly turned into a science classroom, prosecutors said. “We went to law school for a reason—because we don’t do math and science,” said prosecutor Ron Huber. “For this trial, we had to learn chemistry, and pharmacy, and then present it to a jury. That was very difficult, just a totally different animal than a street drug case.”

In a routine cocaine prosecution, decisions about the composition of the drug are made at a laboratory, and those findings are almost never challenged in front of a judge and jury.

Between the extra preparation and expert witnesses in such a trial, lawyers involved in the prosecution estimate it took at least twice as much time and money as a comparable street-drug case.

The defendant, Stephen McFadden, was convicted and sentenced to more than two years in prison, after jurors rejected his defense that he sold the items for use in incense and potpourri burners. Prosecutors in Arizona used a similar approach to win another conviction in an analogue case this year, but it still will take time for federal precedents to build up.

Mr. McFadden’s lawyer, Lloyd Snook, called the federal analogue statute “a stupid law.”

“We have this bizarre situation where the government has this list they’re not going to tell you about until after you’ve been arrested. I think it’s a really, really serious problem,” he said.

Mr. Snook argued the U.S. should emulate Britain’s law on synthetics and ban the three key precursor components that are common in such compounds, rather than ask juries to decide whether chemical compounds are substantially similar.