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 Sing ...

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. ...

s. The law's broad reach has been used to successfully prosecute possession of chemicals openly sold as dietary supplements and naturally contained in foods (e.g., the possession of

phenethylamine Phenethylamine (PEA) is an organic compound, natural monoamine alkaloid, and trace amine, which acts as a central nervous system stimulant in humans. In the brain, phenethylamine regulates monoamine neurotransmission by binding to trace ami ...

, a compound found in chocolate, has been successfully prosecuted based on its "substantial similarity" to the controlled substance

methamphetamine Methamphetamine (contracted from ) is a potent central nervous system (CNS) stimulant that is mainly used as a recreational drug use, recreational or Performance-enhancing substance, performance-enhancing drug and less commonly as a secon ...

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

Neil Gorsuch Neil McGill Gorsuch ( ; born August 29, 1967) is an American jurist who serves as an Associate Justice of the Supreme Court of the United States, associate justice of the Supreme Court of the United States. He was Neil Gorsuch Supreme Court ...

on the basis of

Vagueness doctrine In American constitutional law, a statute may be void for vagueness and unenforceable if it is too vague for the average citizen to understand what acts or duties are required or restricted. This is because constitutionally permissible activity m ...

Definition

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

chemical structure A chemical structure of a molecule is a spatial arrangement of its atoms and their chemical bonds. Its determination includes a chemist's specifying the molecular geometry and, when feasible and necessary, the electronic structure of the target m ...

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 known as central nervous system stimulants, or psychostimulants, or colloquially as uppers) are a class of drugs that increase alertness. They are used for various purposes, such as enhancing attention, motivation, cognition, ...

depressant Depressants, also known as central nervous system depressants, or colloquially known as "downers", are drugs that lower neurotransmission levels, decrease the electrical activity of brain cells, or reduce arousal or stimulation in various ...

, or hallucinogenic effect on the

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

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 Dimethyltryptamine (DMT), also known as ''N'',''N''-dimethyltryptamine (''N'',''N''-DMT), is a Psychedelic drug, serotonergic hallucinogen and Investigational New Drug, investigational drug of the substituted tryptamine, tryptamine family tha ...

(DMT) and diethyltryptamine (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 organic compounds that contain carbon-nitrogen bonds. Amines are formed when one or more hydrogen atoms in ammonia are replaced by alkyl or aryl groups. The nitrogen atom in an amine possesses a lone pair of elec ...

while DMT and DET are

tertiary amine In chemistry, amines (, ) are organic compounds that contain carbon-nitrogen bonds. Amines are formed when one or more hydrogen atoms in ammonia are replaced by alkyl or aryl groups. The nitrogen atom in an amine possesses a lone pair of elec ...

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." 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 not

binding precedent Precedent is a judicial decision that serves as an authority for courts when deciding subsequent identical or similar cases. Fundamental to common law legal systems, precedent operates under the principle of ''stare decisis'' ("to stand by thin ...

''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-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 (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, more importantly, (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 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

External links

Section 813. Treatment of Controlled Substance Analogues
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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 illicit Illegal drug trade, drug trafficking a ...

Section 802. Definitions
{{Webarchive, url=https://web.archive.org/web/20130504115615/http://www.deadiversion.usdoj.gov/21cfr/21usc/802.htm , date=4 May 2013 .

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

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