Here's the short answer: Synthetic weed isn't illegal. Some of the chemicals that can be used to make it are illegal.
The longer answer is the reason Boca Raton lawyer Thomas Wright III fields 15 to 20 cold calls per day from people who find him online, asking him whether their herbal incense or the chemical they're producing is legal.
After the arrest of two West Palm Beach head shop workers last week and a PSA from the sheriff's office warning businesses about selling synthetic pot, Wright wants to make it clear that herbal incense itself is not illegal.
On March 1, five chemicals were added to Schedule I of the Controlled Substances Act: JWH-018, JWH-073, JWH-200, CP-47497, and cannabicyclohexanol.
That's led to the impression -- and what Wright calls a "scare tactic" by authorities -- that synthetic weed is illegal. Only if the false weed has the above-mentioned chemicals in it.
Since most people aren't chemists, how do you know when you buy a package of "spice" if it has one of the banned chemicals?
Chances are, you don't.
Many times, the shops selling the stuff and the brands packaging it don't know either.
Wright says a lot of the chemicals are imported from overseas, and many people are under the impression that what they're buying is OK when it's really not. The chemicals used are not indicated on the packaging, and even if they were, there's no way to tell whether it's accurate.
"People are not particularly educated on this," he says. "I don't think the people who are selling this know what it is."
It's the same with the public. Synthetic marijuana has been demonized by many people as of late, which Wright says is a "big game of fear."
There are no empirical data available regarding the potential dangers of the chemicals in synthetic marijuana, unlike bath salts, which is the speedy synthetic mixture that was also recently banned. That leads to the regulation of things that aren't backed up by science, Wright says.
"We're protecting the public based on political aspirations and fear," he says.
Now, it's a battle over how law enforcement handles the illegal chemicals.
Much of the recently produced chemicals for herbal incense products are legal -- although it's possible someone could be prosecuted under the Federal Analog Act. That calls for any substance that's "substantially similar" to a banned substance to be treated just as if it were illegal.
Of course, there's a caveat to that. It doesn't apply to drugs that are "not intended for human consumption." If you've ever seen a package of herbal incense, it likely says just that -- it's not intended for human consumption -- right on the label.
For example, the psychedelic drug 2C-B is a banned substance. Many of the 26 other similar substances in the 2C family, which aren't explicitly illegal, can be purchased on the internet by anyone as a research drug.
The same goes with synthetic versions of DMT, which is widely considered to be the most intense psychedelic drug out there. You can grab one of the synthetic kinds, like 5-MeO-DALT, on the web.
That leads us to an example of the you don't know what the hell you're buying phenomenon.
In May, some friends in Oklahoma decided to pitch in and buy some 2C-E for their party that they bought online as a research drug.
Instead, they received a drug called Bromo-DragonFLY, another psychedelic drug similar to LSD, although it was labeled as 2C-E.
The dosages between the two drugs are radically different, which led to two people dying and the rest of them tripping their asses off. The man who bought the drug faces a murder charge, even though all the people involved consented to the purchase and use.
That's the more serious end of the spectrum with drugs you can't readily identify, which relates to this herbal incense fiasco.
Wright says you could put three piles of herbal incense on a table and let all the cops from Miami-Dade to Palm Beach try to identify what's illegal and what's not.
That means the cops would have to chemically test the substance -- which one outlet does for police departments for around $2,000 per test, and the results take a week to get back.
In the case in West Palm Beach just last week, the Palm Beach County Sheriff's Office says it spent three months investigating and buying false weed from the Hidden Treasure Smoke Shop before arresting the owner and an employee on felony drug charges.
In other cases, someone could be arrested and have their potentially legal substance seized by police while they've been booked into jail.
Wright says there are three ways authorities can deal with the problem: keep throwing people in jail, change the method to combat herbal incense, or -- what he says is most likely -- carefully crafted legislation.
Legislators could speed through a shoddy law just to use as a deterrent, although it could easily be shot down in court if it inadvertently bans things that are legal.
They'd either have to ban research chemicals for the purpose of intoxication, ban a ton of chemicals, or get creative in some other way, Wright says.
Until then, that herbal incense you just bought is legal... maybe.
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