Flashback to the federal analog act of 1986: Mixing rules and standards in the cauldron

University of Pennsylvania Law Review

Volumn 156, Issue 4, 2008, Pages 1077-1115

  Kau, Gregory ^a  

^a UNIVERSITY OF PENNSYLVANIA LAW SCHOOL   (United States)

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EID: 44849144496     PISSN: 00419907     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (164)

1. For a more detailed description of the incident, see Claudia Wallis, Surprising Clue to Parkinson's, TIME, Apr. 8, 1985, at 61, 61-62.
2. Id. at 61.
3. Id.
4. Id.
5. See Halle L. Weingarten, 1-Methyl-4-Phenyl-1,2,3,6- Tetrahydropyridine (MPIT): One Designer Drug and Serendipity, 33 J. FORENSIC SCI. 588, 588-59 (1988).
6. Id.
7. See Anthony Trevor et al., Pharmacology and Toxicology of MPTP: A Neurotoxic By-Product of Illicit Designs Drug Chemistry, in COCAINE, MARIJUANA, DESIGNER DRUGS: CHEMISTRY, PHARMACOLOGY, AND BEHAVIOR 187, 188 (Kinfe K. Redda et al. eds., 1989) ("MPTP represents a side product formed through inadequate control of temperature and/or acidity . . . .").
8. See Weingarten, supra note 5, at 590-92 (describing the isolation of MPTP and its neurodegenerative effects on dopamine-producing neurons); see also Neal Castagnoli, Jr. & Kay P. Castagnoli, Metabolic Bioactivation Reactions Potentially Related to Drug Toxicities, in 173 NIDA RESEARCH MONOGRAPH 85, 91-94 (Rao S. Rapaka et al. eds., 1997), available at http://www.nida.nih.gov/pdf/Monographs/ Monograph173/085-105_Castagnoli.pdf (discsusing the biochemistry of MPTP's effects).
9. Weingarten, supra at note 5, at 588. Some five hundred people may have ultimately ingested the toxin-laced narcotic. Shari Roan, Designer Drug Roulette, S. FLA. SUN-SENTINEL, NOV. 7, 1985, at 1.E.
10. See Walter Borges, Designer Drug Sales Questioned, DALLAS MORNING NEWS, Nov. 20, 1985, at 31A (describing a citizen movement to "counter the sales of legal designer drugs" near a local high school);
11. Daniel L. Lungren, Letter, The Rapid Spread of Synthetic Narcotics, L.A. TIMES, Oct. 5, 1985, at A2 (outlining Congressman Lungren's response to "[t]he rapid spread of the problem of synthetic narcotics");
12. Bill Romano, Shootings Laid to "Drug Explosion," SAN JOSE MERCURY NEWS, Nov. 23, 1985 (describing an "explosion of PCP, LSD and designer drugs" in San Jose).
13. See Lester Grinspoon & James B. Bakalar, A Drug Bill's Bad Side Effects, N.Y. TIMES, Apr. 28, 1986, at A25 (citing numerous deaths and injuries from heroin analogs as the impetus for the then-proposed Federal Analog Act);
14. Philip Shenon, U.S. To Back Penalties for New Drug Threat, N.Y. TIMES, July 11, 1985, at A13 (quoting Attorney General Edwin Meese, who announced the new federal legislation and called synthetics a "dangerous phenomenon in the illicit drug market").
15. Controlled Substance Analogue Enforcement Act of 1986, Pub. L. No. 99-570, § 1203, 100 Stat. 3207, 3213-14.
16. See United States v. Turcotte, 405 F.3d 515, 518 (7th Cir. 2005) (calling the Federal Analog Act "Congress's attempt to adapt the nation's controlled substances laws to the dizzying pace of innovations in drug technology"); United States v. Forbes, 806 F. Supp. 232, 238 (D. Colo. 1992) ("Congress declared that the purpose of the statute is to attack underground chemists who tinker with the molecules of controlled substances to create new drugs that are not yet illegal.").
17. Nick Ravo, "Designer Drugs" Head for Florida, Chiles Fears, MIAMI HERALD, Aug. 8, 1985, at 3PB.
18. According to Alexander Shulgin, the number of known psychedelics will rise exponentially over the next century. See Drake Bennett, Dr. Ecstasy, N.Y. TIMES MAG., Jan. 30, 2005, available at http://www.nytimes.com/2005/01/30/magazine/30ECSTASY.html ("At the beginning of the 20th century, there were only two psychedelic compounds known to Western science: cannabis and mescaline. A little over 50 years later - with LSD, psilocybin, psilocin, 3,4,5-trimethoxyamphetamine (TMA), several compounds based on dimethyltryptamine (DMT) and various other isomers - the number was up to almost 20. By 2000, there were well over 200. So you see, the growth is exponential . . . . [By 2050] we may have well over [2000]." (internal quotation marks omitted) (quoting Shulgin)). Since the vast majority of these drugs will most likely be permutations of existing drugs, see infra Part LB (explaining the rarity of new structures and the method of discovering new drugs by permutation), the Federal Analog Act could potentially prohibit thousands of drugs under its broad reach.
19. See id. ("[T]here's obviously been a significant shift at the regulatory agencies and the Institutional Review Boards. There are studies being approved that wouldn't have been approved 10 years ago. And there are studies being proposed that wouldn't have been proposed 10 years ago" (internal quotation marks omitted) (quoting Mark A.R. Kleiman, director of the Drug Policy Analysis Program at UCLA)); Roxanne Khamsi, Magic Mushrooms Really Cause "Spiritual" Experiences, NEWSCIENTIST, July 11, 2006, http://www.newscientist.com/ article.ns?id=dn9522 (describing how psilocybin - the hallucinogenic component in "magic mushrooms" - is beginning to spark interest in medical circles after being "ignored" by the scientific community for about forty years);
20. Christopher Newton, FDA OKs Clinical Testing of Ecstasy, WASHINGTON-POST.COM, Nov. 6, 2001, http://www.washingtonpost. com/wp-srv/aponline/20011106/aponline215233_000.htm (remarking that recent approval by the Food and Drug Administration to test MDMA, commonly known as "Ecstasy," on human subjects "marks a shift for the agency, which has virtually banned the drug from researchers for more than a decade").
21. See Khamsi, supra note 16 (reporting the results of a recent study conducted at Johns Hopkins University School of Medicine, which found that more than a third of the volunteers in a double-blind psilocybin study described their encounter with the hallucinogen as "the single most spiritually significant experience in their lifetimes"). The Act defines a "controlled substance analogue" as a substance, (i) the chemical structure of which is substantially similar to the chemical structure of a controlled substance in schedule I or II; (ii) which has 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; 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.
22. U.S.C. § 802(32) (A) (2000). While § 802(32) (A)(ii), the "effect" prong of the Federal Analog Act, is also an interesting topic, it does not implicate the same concerns as the first prong and is beyond the scope of this Comment.
23. See United States v. Forbes, 806 F. Supp. 232, 235 (D. Colo. 1992) (describing the legislative history of the Federal Analog Act).
24. 21 U.S.C. § 802(32)(A).
25. See supra note 18 (explaining and providing the text of the Federal Analog Act's definition of "controlled substance analog").
26. See U.S. DEA, Drug Scheduling, http://www.dea.gov/pubs/scheduling. html (last visited Feb. 15, 2008) (providing a list of drugs in Schedules I through V).
27. U.S. DEA, DRUG ENFORCEMENT ADMINISTRATION: A TRADITION OF EXCELLENCE 1973-2003, at 13 (2003), available at http://www.dea.gov/pubs/history/history_part1.pdf (quoting President Richard Nixon's 1973 declaration).
28. Id.
29. See id. at 9 ("[The Controlled Substances Act of 1970], along with its implementing regulations, established a single system of control for both narcotic and psychotropic drugs for the first time in U.S. history.").
30. See id. at 13-14 (describing the founding of the DEA and its raison d'être).
31. See generally id. at 3-42 (describing the DEA's global operations in the early 1970s).
32. See Donald A. Cooper, DEA, Future Synthetic Drugs of Abuse, http://designer-drug.com/synth/index.html (last visited Feb. 15, 2008) ("[S]everal fentanyl derivatives have such high potencies that the quantities required to be synthesized are trivial. For instance, carfentanil is approximately 400 times as potent as heroin and has an extremely favorable therapeutic index. Hence, an easy week's work for two chemists could provide 10 kilograms of carfentanil which would be equivalent to 40 metric tons of pure heroin." (citations omitted)).
33. See id. ("The Drug Enforcement Administration (DEA) has noted that the designer drug terminology tends to cast a somewhat glamorous aura onto the concept, and as a result, the DEA feels that it would be wise to refer to these compounds in some other manner and suggests the use of the term Controlled Substance Analogs.").
34. See Robert Seidenberg, Letter to the Editor, Dangers of Prescribing Mind-Bending Drugs, N.Y. TIMES, May 9, 1986, at A34 ("[D] rugs dispensed in the office and those on the 'street' have very much in common.").
35. See ALBERT HOFMANN, LSD: MY PROBLEM CHILD 12 (1980) ("In 1938, I produced the twenty-fifth substance in tins series of lysergic acid derivatives: lysergic acid diethylamide, abbreviated LSD-25 (Lysergsäure- diäthylamid) for laboratory use.")).
36. Id. at 31; see also Paul Anacker & Edward J. Imwinkelried, The Confusing World of the Controlled Substance Analogue (CSA) Criminal Defense, 42 CRIM. L. BULL. 744, 744 (2006) (describing chemists' efforts "to slightly modify the chemical structure of prohibited substances to create a new substance that technically differs from the controlled substance").
37. Although Hofmann ultimately produced hundreds of lysergic acid analogs, he found that LSD-25 was still by far the most potent compound. See HOFMANN, supra note 31, at 32-33 (describing the search that yielded compounds such as LA-111 and LAE-32, which were psychoactive but considerably weaker than LSD-25).
38. Bennett, supra note 15.
39. See Roland W. Freudenmann et al., The Origin of MDMA (Ecstasy) Revisited: The True Story Reconstructed from the Original Documents, 101 ADDICTION 1241, 1242-45 (2006) (explaining the history of Merck's discovery of MDMA as part of a project to evade patents on a clotting agent).
40. See CONG. BUDGET OFFICE, RESEARCH AND DEVELOPMENT IN THE PHARMACEUTICAL INDUSTRY 2 (2006), available at http://www.cbo.gov/ftpdocs/76xx/doc7615/10-02- DrugR-D.pdf ("A recent, widely circulated estimate put the average cost of developing an innovative new drug at more than $800 million, including expenditures on failed projects and the value of forgone alternative investments.").
41. Cooper, supra note 28.
42. See Trevor et al., supra note 7, at 188 (discussing how the two "entrepreneurs" copied the chemical blueprints for producing MPPP out of a university library); Carl Wilkinson, The Next Big High?, OBSERVER, Apr. 21, 2002, available at http://observer.guardian. co.uk/drugs/story/0,11908,686710,00.html ("[I]t is felt by many pharmacologists that the creation of new substances from scratch has become far less likely simply through the exhaustion of possibilities. What is more likely is for a previously discovered substance, created through bona fide medical research, to be uncovered in an obscure academic journal and recreated in an underground lab . . . ."). Shulgin observed that [t]he raw material for such technologic predictions is available in the scientific literature. In every issue of the journals in the fields of pharmacology, medicinal chemistry, the botanical sciences, and biochemistry, articles appear that advertise the isolation, synthesis, or evaluation of materials which have some pharmacologic action. Any article describing a new family of compounds ("Potential Centrally Active Stimulants Evaluated in Experimental Animals," for example) will encourage an unknown number of synthetic repetitions by underground researchers and manufacturers (with immediate pharmacologic evaluation in man).
43. Alexander T. Shulgin, Drugs of Abuse in the Future, 8 CLINICAL TOXICOLOGY 405, 406 (1975).
44. The process of researching a synthetic path to a target chemical is remarkably similar to doing legal research with Westlaw or LexisNexis. A curious chemist need only access an online science database, draw a diagram of his target chemical structure, gather a number of citations to chemical journals, and explore the proven synthetic methods blazed by previous chemists. Compounds that emerged as problematic "designer drugs" were not only reported in research journals, but also often came with explicit synthesis instructions.
45. See infra notes 69-70 and accompanying text (providing an informal survey of DEA Microgram Bulletins throughout the last five years). Between 2003 and 2007, nearly all reported "new designer drugs" were actually discovered a number of years earlier by academic and pharmaceutical researchers. The only exceptions were certain exotic plants with hallucinogenic properties, such as Salvia divinorum, and Mitragyna speciosa, which would not have fallen under the Federal Analog Act because of the wholly unique chemical structures of their psychoactive components. A survey of the case law stretching back to the enactment of the Federal Analog Act suggests that truly novel designer drugs have not appeared in at least two decades. See infra notes 98-106 (listing the analog cases and the chemicals that have appeared in them).
46. See U.S. DEP'T OF JUSTICE, DEA, DRUGS OF ABUSE 2-3 (2005 ed.), available at http://www.usdoj.gov/dea/pubs/abuse/doa-p.pdf (describing the procedural requirements for formally prohibiting a chemical as a controlled substance).
47. See 21 U.S.C. § 812(b) (2000) (setting out the criteria and procedures for placing a drug on a controlled substances schedule).
48. See id. (providing the various factors considered in scheduling a suspected controlled substance); Amanda Kay, The Agony of Ecstasy: Reconsidering the Punitive Approach to United States Drug Policy, 29 FORDHAM URB. L.J. 2133, 2163-66 (2002) (outlining the four-year period from the time that the DEA published a notification of its intention to control MDMA to when MDMA was actually placed on the schedule);
49. Brian Rubens, Common Law Versus Regulatory Fraud: Parsing the Intent Requirement of the Felony Penalty Provision of the Food, Drug, and Cosmetic Act, 72 U. CHI. L. REV. 1501, 1501 (2005) (describing the scheduling process as "long and involved").
50. Many countries follow a pure rules approach. See generally Agence française de sécurité sanitaire des produits de santé, Réglementation, http://afssaps.sante.fr/htm/10/pharma/ pharma8.htm (last visited Feb. 15, 2008) (France); Betäubungsmittelgesetz (BtMG), http://www.eve-rave.net/abfahrer/rechtsp?text=1 (last visited Feb. 15, 2008) (Germany);
51. Wet van 13 juli 2002 tot wijziging van de Opiumwet, Stb. 2002, 520, translation at http://www.cannabisbureau.nl/pdf/Opiumwet_EN_29nov2004.pdf (Netherlands); Erowid.org, Thailand Law, http://www.erowid.org/psychoactives/ law/countries/law_thailand.shtml (last visited Feb. 15, 2008) (Thailand).
52. See, e.g., ARK. CODE ANN. § 5-64-414(a)(1) (2005); CAL. HEALTH & SAFETY CODE § 11401(b) (West 2007); Controlled Substances Act 1984 § 4(2), available at http://www.austlii.edu.au/au/legis/sa/consol_act/ csa1984242/s4.html; Controlled Drugs and Substances Act 1996 S.C., Ch. 19 (Canada) (defining an analog broadly as "a substance that, in relation to a controlled substance, has a substantially similar chemical structure" irrespective of the pharmacological properties of the substance in question); Wilkinson, supra note 38 (noting that the United Kingdom has no analog statute but a blanket prohibition on "hallucinogens").
53. See United States v. Turcotte, 405 F.3d 515, 522-23 (7th Cir. 2005).
54. Under the Federal Analog Act and many other state analog statutes, a controlled substance analog must have both a "substantially similar" structure and a "substantially similar" pharmacological effect. See COLO. REV. STAT. § 12-22-303(7.5)(a) (2007); D.C. CODE ANN. § 48-902.14(b) (LexisNexis 2004); GUAM CODE ANN. tit. 9, § 67.100(5)(i) (2007); IND. CODE ANN. 35-48-1-9.3(a) (West 2004);
55. KAN. STAT. ANN. § 65-4101(bb)(1) (2001) (mirroring the Federal Analog Act in Kansas);
56. LA. REV. STAT. ANN. § 40:961(8) (2001);
57. MICH. COMP. LAWS ANN. § 333.7104(3) (West 1999).
58. Technically, neither model implies any intrinsic breadth of coverage. It is possible, for instance, for a rules-based model to list a vast number of prohibited substances that cut through a wider swath than a standards-based model, and vice versa. In practice, however, the number of potentially banned analogs far exceeds the number of explicitly scheduled chemicals in every jurisdiction.
59. The majority of cases find a conjunctive reading between 21 U.S.C. § 802(32)(A)(i) and 21 U.S.C. § 802(32)(A)(ii). See Turcotte, 405 F.3d at 518 ("The majority of these courts base their rulings largely on the absurd results that might obtain under a disjunctive reading, noting that alcohol and caffeine could be criminalized as controlled substance analogues based solely on the fact that, in concentrated form, they might have depressant or stimulant effects similar to illegal drugs."); see also United States v. Hodge, 321 F.3d 429, 432-39 (3d Cir. 2003) (analyzing the statute and overturning a conviction based on a trial court's finding that a mixture of "wax-and-flour" qualified as a controlled substance analog of crack cocaine); United States v. Forbes, 806 F. Supp. 232, 234-36 (D. Colo. 1992) (reading the structural prong and the effect prong conjunctively).
60. See Mohsen Imanshahidi & Hossein Hosseinzadeh, The Pharmacological Effects of Salvia Species on the Central Nervous System, 20 PHYTOTHERAPY RES., 427, 431 (2006).
61. Under Illinois law, an analog is a substance which is intended for human consumption, other than a controlled substance, that has a chemical structure substantially similar to that of a controlled substance in Schedule I or II, or that was specifically designed to produce an effect substantially similar to that of a controlled substance in Schedule I or II. Examples of chemical classes in which controlled substance analogs are found include, but are not limited to, the following: phenethylamines, N-substituted piperidines, morphinans, ecgonines, quinazolinones, substituted indoles, and arylcycloalkylamines. ILL. COMP. STAT. ANN. 570/401 (West 2007);
62. see also FLA. STAT. ANN. § 893.02(2) (West 2000) (defining an analog under Florida law to be "a structural derivative of a parent compound that is a controlled substance").
63. Illinois treats the analog as equivalent to its predecessor: "a controlled substance analog shall be treated in the same manner as the controlled substance to which it is substantially similar." ILL. COMP. STAT. ANN. 570/401.
64. See Louis Kaplow, Rules Versus Standards: An Economic Analysis, 42 DUKE L.J. 557, 560 (1992) ("[T]he only distinction between rules and standards is the extent to which efforts to give content to the law are undertaken before or after individuals act").
65. See infra note 88 (discussing the chemical structure of MDBU in depth).
66. Russell B. Korobkin, Behavior Analysis and Legal Form: Rules vs. Standards Revisited, 79 OR. L. REV. 23, 33 (2000) ("[R]ules will be relatively cheaper . . . in areas of law where identical disputes arise frequently. . . . In high-frequency disputes, standards are relatively less efficient because adjudicators must match the same facts to legal consequences over and over, effectively reinventing the wheel every time." (footnote omitted)).
67. See id. at 48 ("When the law is determined on a case-by-case basis after disputes arise rather than prospectively, adjudicators' evaluations about what an individual should have done are likely to be tainted by information about the results of the individual's actions.").
68. See United States v. Roberts, 363 F.3d 118, 124 n.3 (2d Cir. 2004) ("It is perhaps unfortunate that Congress did not opt to list known controlled substance analogues itself, and then to delegate to an appropriate designee . . . the authority to expand that list as necessary, but rather left the determination of what qualifies as a controlled substance analogue to the courts and to informal legislative or administrative commentary."); United States v. Lusk, No. A05-052, 2005 WL 2704988, at *2 (D. Alaska Oct. 5, 2005) ("Congress did not choose to list known controlled substance analogue [sic] themselves. Rather, it left the determination of what qualifies as a controlled substance analogue to legislative or administrative commentary (and to the courts).").
69. See Kaplow, supra note 52, at 608 ("Legislatures may be better equipped to draw upon technical expertise than courts.").
70. The saga of medical marijuana provides interesting insights into the practical difficulties encountered with challenging Schedule I status, although this topic is beyond the scope of this Comment.
71. See supra text accompanying note 43 (recounting the long regulatory litigation surrounding doctors' efforts to stop the DEA from officially listing MDMA as a Schedule I drug).
72. See Evers v. Dwyer, 358 U.S. 202, 203 (1958) ("[T]he question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." (internal quotation marks omitted) (quoting Md. Cas. Co. v. Pac. Coal & Oil Co., 320 U.S. 270, 273 (1941))). But see N.H. Hemp Council, Inc. v. Marshall, 203 F.3d 1, 4-5 (1st Cir. 2000) (noting that while "federal courts are disinclined to provide either injunctive or declaratory relief to foreclose federal criminal prosecutions in the absence of a reasonably clear and specific threat of prosecution," the DEA's conduct in promulgating agency rules classifying medical marijuana as a controlled substance and threatening prosecution of medical marijuana provided a sufficient threat of federal prosecution).
73. 9-(trans)-Tetrahydracannabinol] in Sesame Oil and Encapsulated in Soft Gelatin Caplets From Schedule II to Schedule III, 64 Fed. Reg. 35,928, 35,928-30 (July 2, 1999) (codified at 21 C.F.R. pts. 1308, 1312) (exemplifying a rare instance of the DEA moving Marinol, a synthetic marijuana substitute, from Schedule II to Schedule III, possibly motivated by Gonzales v. Raich, 545 U.S. 1 (2005), which was pending in the Supreme Court at that time).
74. United States v. Forbes, 806 F. Supp. 232, 234-36 (D. Colo. 1992).
75. Cass R. Sunstein, Problems with Rules, 83 CAL. L. REV. 953, 995 (1995).
76. See Kaplow, supra note 52, at 605 ("Because individuals tend to be less well informed concerning standards, they may bear more risk under standards . . . .").
77. See FRANK L. SAPIENZA, DEA, CONTROLLED SUBSTANCE ANALOGUES (1996), available at http://www.erowid.org/psychoactives/law/law_fed_dea_analog_introl.pdf (attributing the decrease in analogue production and distribution in the United States in part to the Federal Analog Act).
78. See supra Part I.B (discussing the close relationship between clandestine chemists and legitimate pharmaceutical and academic researchers).
79. See Shulgin, supra note 38, at 405-07 (cautioning that an attempt to predict drug abuse trends may indirectly provide black market entrepreneurs with "an itemization of potentially interesting avenues of financially profitable drug exploration," but also noting that "very few who are deeply invested in the preparation of illicit drugs will learn much that they do not already know or that could easily be learned from the scientific literature"). Shulgin also noted that [e]ven more disturbing, and less easily anticipated, are the novel pharmaceutic agents that may spring forth from the imagination and wit of the illicit manufacturer himself. He does not advertise the substances of his inventions, nor does he warn others of his failures. The scientific community discovers these sallies sometimes years after their success or failure . . . . Id. at 406-07. That prediction does not appear to have come to fruition.
80. See id. at 406 ("[T]echnological extrapolation [may be] valid when considering certain pharmacologic families of drugs, such as the opiates, the amphetamines, the barbiturates, and the hallucinogens."). Clandestine chemists have proved to be resourceful in the past in adapting to diversion control, but research and development typically requires specialized experience in both theoretical chemistry and laboratory technique, coupled with sophisticated, well-equipped laboratories and expensive reagents. Consider, for example, that the illicit synthesis of LSD - a notoriously fragile molecule requiring expertise to manufacture even on a small scale - fell by ninety-five percent after the DEA arrested two of the only underground chemists capable of producing it. See Ryan Grim, Who's Got the Acid?: These Days, Almost Nobody, SLATE, Apr. 1, 2004, http://www.slate.com/id/2098109/ (exploring the reasons for the drastic decline in LSD usage);
81. see also Seth Rosenfeld, William Pickard's Long, Strange Trip: Suspected LSD Trail Leads from the Bay Area's Psychedelics Era to a Missile Silo in Kansas, S.F. CHRON., June 10, 2001, at A1 (describing the unusual and tragic life trajectory of William Leonard Pickard, a Harvard- and Stanford-educated chemist who single-handedly produced the vast majority of the LSD consumed in the United States for both financial and ideological reasons, and funneled the profits back into legitimate research on psychoactive drugs at UCLA).
82. The DEA publishes the Microgram Bulletin, a publication that lists Intelligence Alerts about drug seizures and trends. See generally U.S. DEA, Microgram Bulletins, http://www.dea.gov/programs/forensicsci/microgram/ bulletins_index.html (last visited Feb. 15, 2008) (indexing past issues). Recent issues have issued alerts for drugs like 2C-I, MDDMA, TMA, DOC, DOB, and DOI - each of which was discovered over fifteen years ago by Alexander Shulgin. See, e.g., 2C-I Capsules in Miami Beach, Florida, 39 MICROGRAM BULL. 3, 3-4 (2006), available at http://www.dea.gov/programs/ forensicsci/microgram/mg0106/mg0106.pdf;
83. Ecstasy Combination Tablets (Containing MDMA, Methamphetamine and MDDMA) in Miami, Florida, 39 MICROGRAM BULL. 148, 148-49 (2006), available at http://www.dea.gov/programs/forensicsci/microgram/ mg1206/mg1206.pdf;
84. Large Fentanyl/MDA/TMA Laboratory in Azuza, California - Possibly the "OC-80" Tablet Source, 39 MICROGRAM BULL. 45, 45-47 (2006), available at http://www.dea.gov/programs/forensicsci/ microgram/mg0406/mg0406.pdf;
85. LSD Blotter Acid Mimics (Containing 2,5-Dimethoxy-4-Chloroamphetamine (DOC)) in Boca Raton, Florida, 39 MICROGRAM BULL. 72, 72 (2006), available at http://www.dea.gov/programs/forensicsci/microgram/ mg0606/mg0606.pdf;
86. LSD Blotter Acid Mimics (Contain ing 4-Bromo-2,5-Dimethoxyamphetamine (DOB)) in Ames, Iowa, 39 MICROGRAM BULL. 145, 145 (2006), available at http://www.dea.gov/programs/forensicsci/microgram/mg1206/ mg1206.pdf;
87. LSD Blotter Acid Mimics (Containing 4-Iodo-2,5-Dimethoxyamphetamine (DOI)) in Orlando and Winter Springs, Florida, 39 MICROGRAM BULL. 55, 55 (2006), available at http://www.dea.gov/programs/ forensicsci/microgram/mg0506/mg0506.pdf. Other alerts have been published for a large number of known psychoactive drugs, including 2,5-dimethoxy-4- ethylphenethylamine (2C-E), 4-chloro-2,5-dimethoxyphenethylamine (2C-C), 4-methylaminorex, 5-methoxy-alphamethyltryptamine (5-MeO-AMT), 5-MeO-MiPT, N,N-dipropyltryptamine (DPT), 2C-T-21, 2,5-dimethoxy-4- ethylthiophenethyl-amine (2C-T-2), 4-bromo-2,5-dimethoxyphenethylamine (2C-B), 4-methoxymethamphetamine, 5-methoxy-N,N-dimethyltryptamine (5-MeO-DMT), N-methylpyrrolidone (NMP), phenylpropylmethylamine, and scopolamine.
88. See generally 2005 Subject Index, 38 MICROGRAM BULL. 188, 188 (2005), available at http://www.dea.gov/programs/ forensicsci/microgram/mg1205/05dec-mb.pdf (listing issues that contained alerts for the first six of these compounds);
89. 2004 Subject Index, 37 MICROGRAM BULL. 218, 218, 222 (2004), available at http://www.dea.gov/programs/forensicsci/microgram/ mg1204/mgl204.pdf (listing issues that contained alerts for the last eight of these compounds).
90. It is entirely possible that designer drugs - even before the last five years - would have come as no surprise, especially given that nearly all of the 1980s- and 1990s-era Federal Analog Act cases litigated previously known compounds. However, since the DEA Microgram Bulletins published before 2003 are classified and beyond the reach of a Freedom of Information Act (FOIA) request, there is no way to know if the DEA considered any pre-2003 designer drugs to be completely novel.
91. Consider, for example, that the N-terminal alkylation of MDMA decreases its psychoactive value, to the point where the addition of two carbon atoms makes MDMA completely inactive. See ALEXANDER SHULGIN & ANNE SHULGIN, PIHKAL: A CHEMICAL LOVE STORY 721 (2006) (discussing the pharmacological impact of modifying the phenylethylamine backbone).
92. See HOFMANN, supra note 31, at 31 (explaining that the discovery of a novel backbone would be both rare and fortunate).
93. See Anacker & Imwinkelried, supra note 32, at 13 (noting that "[i]t seems evident that upon viewing these diagrams [of GHB and GBL], most laypersons would say these diagrams do not appear 'substantially similar'" despite legal precedent to the contrary).
94. Consider, for example, that "Research Companies" operating on the Internet openly sold psychoactive phenylethylamines and tryptamines under the theory that these chemicals did not fall under the Federal Analog Act. See Press Release, DEA, DEA Announces Arrests of Website Operators Selling Illegal Designer Drugs (July 22, 2004), available at http://www.dea.gov/pubs/pressrel/pr072204.html ("The formulation of analogues is like a drug dealer's magic trick meant to fool law enforcement. They didn't fool us . . . .").
95. See Korobkin, supra note 54, at 46 (suggesting that since individuals are inclined to interpret provisions in a manner that benefits them most, uncertainty is more likely to capture individuals who unknowingly violate the law rather than overdeterring individuals)
96. See Press Release, DEA, supra note 74.
97. See David McCandless, Bad Trip for Online Drug Peddlers, WIRED MAG., July 6, 2005, available at http://www.wired.com/medtech/health/news/2005/07/68049?currentPage=all ("Thanks to their novelty, most research chemicals are not specifically listed as controlled substances under U.S. drug laws. Many site operators and customers believed, erroneously, that this made the drugs legal, or at least left them in a gray area that would protect them from prosecution.").
98. See Korobkin, supra note 54, at 46 ("The self-serving bias is less problematic in a rules regime where there is, by definition, litde or no ex ante ambiguity about legal boundaries.").
99. See infra Part II.B.3 (discussing why the Federal Analog Act's definition of "controlled substance analog" is vague).
100. See supra Part I.B (discussing the pharmaceutical search for molecular variations that might uncover promising potential drugs).
101. See Robert F. Kushner & Hazel Manzano, Obesity Pharmacology: Past, Present, and Future, 18 CURRENT OPINION GASTROENTEROLOGY 213, 213 (2002) (describing fenfluramine as an appetite suppressant).
102. See SAEID RAOFI & SUSAN M. SCHAPPERT, U.S. DEP'T OF HEALTH & HUMAN SERVS., MEDICATION THERAPY IN AMBULATORY MEDICAL CARE: UNITED STATES, 2003-04, 6-7 (2006) (describing the use of Albuterol, a bronchodilator, in emergency health care).
103. See Linda P. Dwoskin et al., Review of the Pharmacology and Clinical Profile of Bupropion, an Antidepressant and Tobacco Use Cessation Agent, 12 CNS DRUG REVS. 178, 192-93 (2006) (describing the promising use of the antidepressant Bupropion to stop nicotine addiction).
104. See supra note 16 (discussing these new studies).
105. Some of the most remarkable developments in psychoactive drugs emerged when pharmacologists and chemists bioassayed the drug themselves. See, e.g., HOFMANN, supra note 31, at 14-20 (describing his initial discovery of LSD as a combination of intuition and serendipity, and the resulting distribution of the new compound to other chemists in the lab to prove its astonishing potency and unique psychedelic effects); SHULGIN & SHULGIN, supra note 71, at 736-37 (describing the author's rediscovery of MDMA and his self-bioassay as the pivotal experiment that alerted him to the phenomenal entheogenic properties of the drug). Although the era of this laissez-faire attitude toward pharmaceutical development seems to have faded, it is possible that an especially daring pharmacologist or chemist could
106. See generally Clayton L. Smith, Note, The Controlled Substance Analogue Enforcement Act of 1986: The Compromising of Criminalization, 16 AM. J. CRIM. L. 107, 128-33 (1988) (analyzing the Federal Analog Act and concluding that it does not present a viable void-for-vagueness constitutional challenge).
107. See Kaplow, supra note 52, at 608 ("[E]ven when rules will be less accurate in providing results that are appropriate to actual circumstances - which they often will not be - they will tend to provide clearer notice than standards to individuals at the time they decide how to act." (footnote omitted)).
108. MDBU probably induces only very weak, if any, psychoactive activity. See SHULGIN & SHULGIN, supra note 71, at 721 ("Straight chain homologues on the nitrogen atom of MDA longer than two carbons are probably not active. . . . All mouse assays that compared this homologous series showed a consistent decrease in action (anesthetic potency and motor activity) as the alkyl chain on the nitrogen atoms was lengthened.").
109. Legality concerns over criminal statutes have typically arisen in the context of loitering. See, e.g., City of Chicago v. Morales, 527 U.S. 41 (1999) (plurality opinion) (striking down a municipal statute that defined "loiter[ing]" as "remain[ing] in any one place with no apparent purpose" as unconstitutionally vague under the due process clause); Kolender v. Lawson, 461 U.S. 352 (1983) (holding California's loitering statute unconstitutional and providing the landmark two-prong test for penal statutes to pass due process muster).
110. See Korobkin, supra note 54, at 54-55 ("As long as a body of law is viewed as embodying a community's norms, law can be used to signal a particular community norm.").
111. Technically, this standard would not be a pure standard, but a rule-standard hybrid. See Kaplow, supra note 52, at 560-62 (drawing a distinction between a pure standard, which has no reference point, and a rule-standard hybrid, which has reference points).
112. See generally DEA, Drug Scheduling, http://www.dea.gov/pubs/ scheduling.pdf (last visited Feb. 15, 2008) ("This document is a general reference and not a comprehensive list. This list describes the basic or parent chemical and does not describe the salts, isomers and salts of isomers, esters, ethers and derivatives which may also be controlled substances."). This does not even describe an analog but instead serves as a basic extension of the core Controlled Substances Act. The distinction between a "derivative" and an "analog" makes the situation even more complicated. See ALEXANDER T. SHULGIN, CONTROLLED SUBSTANCES: A CHEMICAL AND LEGAL GUIDE TO FEDERAL DRUG LAWS 9 (2d ed. 1992) (describing the imprecision of federal drug scheduling).
113. At least one court has commented, somewhat counterintuitively, on the due process concerns of defining a chemical structure too specifically. See One Thousand Four Hundred Sixty-Two Dollars in U.S. Currency and One 1982 Buick v. State, 774 S.W.2d 17, 21 (Tex. App. 1989) (holding that an ordinary person would not be able to discern structural similarity from molecular weights, and therefore that such weights are unnecessary to give "a person of ordinary intelligence fair notice of the substances which are to be treated as controlled substances"); see also infra notes 124-125 and accompanying text (arguing that standards may provide better notice than rules in certain cases).
114. See Anacker & Imwinkelried, supra note 32, at 768-70 (noting that litigation under the Federal Analog Act presents Daubert problems because the standard of "substantially similar" is a matter of opinion, not fact).
115. See id. at 759-62 (discussing the wide variation in methods used to produce expert testimony on whether a chemical is "substantially similar" in structure to another).
116. See Korobkin, supra note 54, at 29 ("Just as a pure rule can become standard-like through unpredictable exceptions, a pure standard can become rule-like through the judicial reliance on precedent.").
117. See Kaplow, supra note 52, at 610 ("[T]he difficulty of learning about laws promulgated by legislatures may differ from those promulgated by courts . . . because of the manner in which legislative enactments and judicial opinions are written, published, and indexed.").
118. See United States v. Forbes, 806 F. Supp. 232, 233 (D. Colo. 1992) (taking note of internal dissent among the U.S. Prosecutor's office on whether alphaethyltryptamine (AET) has a chemical structure that is substantially similar to dimethyltryptamine (DMT) or diethyltryptamine (DET) and quoting a DEA memorandum as conceding that "there is a great diversity of opinion whether [AET] is controlled as an analogue under the 1986 Act").
119. See United States v. Roberts, 363 F.3d 118, 124 (2d Cir. 2004) (recognizing that the Federal Analog Act leaves the determination of whether a chemical qualifies as a controlled substance analog to the courts and "as a result, in the absence of prior court decisions the statutory and regulatory pronouncements provide no real notice").
120. See, e.g., United States v. Brown, 415 F.3d 1257, 1271 (11th Cir. 2005); United States v. Turcotte, 405 F.3d 515, 529 (7th Cir. 2005); United States v. Ansaldi, 372 F.3d 118, 123 (2d Cir. 2004); United States v. Fisher, 289 F.3d 1329, 1335-36 (11th Cir. 2002) (citing Placement of Gamma-Butyrolactone in List I of the Controlled Substances Act (21 U.S.C. § 802(34)), 65 Fed. Reg. 21,645-47 (Apr. 24, 2000) (codified at 21 C.F.R. § 1310.02) and Hillory J. Farias and Samantha Reid Date-Rape Drug Prohibition Act of 2000, Pub. L. No. 106-172, § 2(4), 5(a), 114 Stat. 7, 7, 10).
121. See, e.g., United States v. Carlson, 87 F.3d 440, 445-46 (11th Cir. 1996); United States v. Raymer, 941 F.2d 1031, 1046 (10th Cir. 1991); United States v. Desurra, 865 F.2d 651, 653 (5th Cir. 1989) (relying on the legislative history of the Federal Analog Act).
122. See, e.g., United States v. Granberry, 916 F.2d 1008, 1009 (5th Cir. 1990).
123. See, e.g., Hooper v. United States, No. 99-1287, 2000 WL 658037, at *1 (6th Cir. May 8, 2000) (methcathinone and cathinone); United States v. Colberg, No. 94-2173, 1995 WL 641303, at *3 n.1 (6th Cir. Oct. 31, 1995) (methcathinone and methamphetamine); United States v. Pavlik, No. 93-2494, 1995 WL 59227, at *1 (6th Cir. Feb. 13, 1995) (same); United States v. Hofstatter, 8 F.3d 316, 320 (6th Cir. 1993) (methylcathinone and methamphetamine).
124. See, e.g., United States v. Nunez, 57 F. App'x 776, 776 (9th Cir. 2003) (asserting that phenylethylamine is an analog, although the court does not specify its parent chemical); McKinney v. United States, No. 99-1814, 2000 WL 1010581, at *2 (8th Cir. July 24, 2000) (aminorex and 4-methylaminorex).
125. See United States v. Ono, 918 F.2d 1462, 1467 (9th Cir. 1990).
126. See, e.g., United States v. Linder, 200 F. App'x 186, 187 (4th Cir. 2006) (per curiam); United States v. Klecker, 348 F.3d 69, 73 (4th Cir. 2003).
127. Klecker, 348 F.3d at 73.
128. See SAPIENZA, supra note 65 ("[M]ost, if not all, of the substances described in 'PIHKAL' [sic] could meet the definition of controlled substance analogue."). PiHKAL is a book authored by Alexander Shulgin and Ann Shulgin that describes a compilation of 179 permutations of the phenylethylamine backbone. SHULGIN & SHULGIN, supra note 71. Of these permutations, only fourteen are currently listed as scheduled drugs by the DEA. See Erowid.org, PiHKAL: Legal Status, http://www.erowid.org/library/books_online/pihkal/pihkal_law.shtml (last modified Nov. 7, 2006) (listing the fourteen phenylethylamine variations present both in PiHKAL and on the DEA's schedule).
129. While the Federal Analog Act also requires "representation" or "intent" as to a substantially similar pharmacological effect, this raises the interesting scenario of a person synthesizing or distributing a chemical that is substantially similar in structure to MDMA - perhaps to fool the testing device of a purchaser - and advertising the chemical's pharmacological properties as "similar to MDMA," despite the fact that the chemical may have no pharmacological effect whatsoever.
130. See supra text accompanying note 94 (discussing the problems with expert witnesses in Federal Analog Act litigation).
131. The sole possible exception appears to be AET before it was scheduled. In Forbes, a district court struck down the application of the Federal Analog Act to AET, but this was not because AET was not an analog. See United States v. Forbes, 806 F. Supp. 232 (D. Colo. 1992). Rather, the district court found that even though AET might be a potential analog, there was enough disagreement among experts to strike the application of the Federal Analog Act because of vague due process concerns. Id. at 236-39. It appears that although Forbes's central holding is still good law, if the case were decided today, AET would almost certainly be found to be an analog.
132. At least one court has implied that as long as the core of the chemical is intact and identical to a core in a listed chemical, and the remaining elements are "substantially similar," a substance qualifies as an analog. See Klecker, 348 F.3d at 73 ("'Foxy' and DET share the same core arrangement of atoms, known as tryptamine. Tryptamine is the core element of a number of hallucinogenic drugs. . . . The Court finds that the substitutions to Foxy and DET, while not identical, are substantially similar. The tryptamine core is intact and therefore identical in the two compounds, and the remaining elements are substantially similar." (internal quotation marks omitted) (quoting United States v. Klecker, 228 F. Supp. 2d 720, 728 (E.D. Va. 2002))). This is an extremely broad rule, since the "core" of the chemical will generally remain intact even after heavy substitution has obliterated any pharmacological activity that the original molecule possessed. For example, this rule effectively covers all tryptamines - including serotonin, which is a major neurotransmitter naturally produced by the body. However, serotonin is completely inactive when ingested.
133. In United States v. Roberts, the government argued that a two-atom difference, standing alone, would be enough to establish substantial similarity in chemical structure. 363 F.3d 118, 124 (2d Cir. 2004). The Second Circuit rejected that theory, noting that "[i]n another case, it might well be that a one- or two-atom difference in a molecule made such a radical difference in the substance's relevant characteristics that any similarity in two-dimensional charts would not be 'substantial' enough to satisfy the definition of 'controlled substance analogue.'" Id. The circuit court nevertheless reversed the district court's dismissal of the indictments: Where there is only a two-atom difference between the relatively complex molecules of a suspect substance and of a controlled substance and where, upon ingestion, the suspect substance is metabolized into the controlled substance, we believe that the chemical structure of the suspect substance is manifestly "substantially similar to the chemical structure of [the] controlled substance [analog]." Id. at 125 (first alteration in original).
134. See People v. Rudakowski, No. D040822, 2003 WL 21490044, at *3 (Cal. Ct. App. June 30, 2003) (upholding a convinction when the prosecution's expert witness testified that MDMA was "substantially similar" to the controlled methamphetamine and the defendant did not call his own expert witness); People v. Kim, No. B145073, 2002 WL 864505, at *6 (Cal. Ct. App. May 7, 2002) ("[T]hat MDMA or Ecstasy is an analog of MDA was an objective fact the defense did not and, no doubt, could not contest."); People v. Silver, 281 Cal. Rptr. 354, 355-56 (Cal. Ct. App. 1991) (upholding a lower court's decision that MDMA is an analog of methamphetamine in a classic batde of the experts, despite defense expert testimony that "only 50 percent of the molecules were the same or similar; that it was impossible to create a molecule of MDMA from a molecule of methamphetamine"); People v. Frantz, 114 P.3d 34, 40 (Colo. Ct. App. 2004) (upholding a trial court's determination that the unlisted precursor pseudoephedrine was "substantially similar" to ephedrine); Mohamed v. State, 843 N.E.2d 553, 556 (Ind. Ct. App. 2006) (accepting the trial court's factual determination that cathinone's chemical structure is substantially similar to that of the controlled drug methcathinone); State v. Cathcart, 589 A.2d 193, 195 (N.J. Super. Ct. App. Div. 1991) (upholding a trial court's determination that L-cocaine is substantially similar to its prohibited isomer D-cocaine); Porter v. State, 806 S.W.2d 316, 321-22 (Tex. App. 1991) (upholding a trial court's finding that N-Hydroxy-3,4-methylenedioxyamphetamine (N-Hydroxy MDA) is substantially similar to MDA); Robinson v. State, 783 S.W.2d 648, 653-54 (Tex. App. 1990) (upholding a trial court's determination that 3,4-methylenedioxymethamphetamine (MDEA or "Eve") is an analogue of both controlled drugs MDMA and MDA); One Thousand Four Hundred Sixty-Two Dollars in U.S. Currency and One 1982 Buick v. State, 774 S.W.2d 17, 21 (Tex. App. 1989) (defining "substantially similar" to be equivalent to the Oxford English Dictionary's definition of "analog" as "an organic compound with a molecular structure closely similar to another (typically differing in one atom or group)" and rejecting the use of molecular properties like valence, atomic weights, mirror images and absolute or relative atomic weights because of due process concerns).
135. See, e.g., 21 U.S.C § 844(a) (2000) (requiring mat the accused person knowingly or intentionally possess a controlled substance).
136. See United States v. Turcotte, 405 F.3d 515, 528 (7th Cir. 2005) ("One could represent to others (earnestly or not) that a substance has physiological effects similar to a controlled substance despite being totally ignorant of its actual chemical properties.") .
137. See id. at 527 (providing a "provisional remedy" for the paradox by imposing a scienter requirement on the Federal Analog Act but also allowing a permissive inference that the defendant satisfies the scienter requirement for the first prong if the defendant satisfies the second prong of the Federal Analog Act).
138. See supra note 49 and accompanying text (discussing the debate over the conjunctive and disjunctive interpretations of the Federal Analog Act).
139. See, e.g., United States v. Desurra, 865 F.2d 651, 653 (5th Cir. 1989) (upholding a conviction under the Controlled Substances Act because there is no requirement that the defendant know that the substance in her possession qualifies as a controlled substance analog).
140. See supra Part II (discussing the characteristics of rules versus those of standards in the context of controlled substance analog legislation).
141. See Korobkin, supra note 54, at 30 ("The legal forms of rules and standards, then, are better understood as spanning a spectrum rather than as being dichotomous variables."); see also id. at 29 fig. (providing a diagram describing the spectrum between rules and standards).
142. See generally Colin S. Diver, The Optimal Precision of Administrative Rules, 93 YALE L.J. 65, 67 (1983) (contrasting the objectives for rulemaking, which are transparency, accessibility, and congruence).
143. Technically, isomers and different enantiomers may be variations on a molecule, but they still fall within the purview of the Controlled Substances Act. See 21 U.S.C. § 812(c) sched. I (2000) (prohibiting "isomers, esters, ethers, salts, and salts of isomers, esters, and ethers").
144. For example, consider the United Kingdom's extraordinarily complex controlled substance legislation. See, e.g., The Misuse of Drugs Regulations 2001, S.I. 2001/3998 sched. 1 (U.K.), available at http://www.opsi.gov.uk/si/si2001/uksi_20013998_en.pdf.
145. This is discussed further in Part III.C, infra.
146. See Anacker & Imwinkelried, supra note 32, at 749-50 ("[D]efense critics point out that some prosecution witnesses have frankly conceded that their conclusion [about substantial similarity] is 'a "gut level thing" . . . based on intuition . . . .'" (quoting United States v. Brown, 415 F.3d 1257, 1267 (11th Cir. 2005))).
147. For example, if two highly unrelated chemicals like salvinorin A and THC were regarded as "substantially similar" in structure under a particular standard, it would be exceedingly difficult to extract information as to why the chemicals were "substantially similar." Are they "substantially similar" because they both contain cyclical ether groups? Or is it because they both contain hydroxyl groups? Or perhaps because they both contain three signature aromatic rings? Would we infer that the large number of carboxylate groups in salvinorin A do not impact the analysis? The speculation could go on and on. The problem is that salvinorin A and THC are structurally different in so many ways that this standard would be largely meaningless for any future determination.
148. See SAPIENZA, supra note 65 ("[One approach involves] chemical structural parameters for different classes of substances subject to abuse and control. All substances which fell within these parameters would be considered controlled. Defining these parameters was rather difficult for the many classes of controlled substances. Additionally, this method would impose regulatory controls on thousands of substances and could negatively impact legitimate drug development."). However, history has shown that these problems arise even under the DEA-endorsed incarnation of the Federal Analog Act. See supra Part II.B.3 (discussing the broad and vague interpretations of "substantially similar" structure that appellate courts have upheld).
149. See note 124, supra, for an example of the United Kingdom's extremely convoluted analog statute using a purely rules-based, ex ante model.
150. By recognizing that "substantially similar" is essentially a proxy for policy decisions, instead of a fact-based inquiry, Congress could adjust the definition accordingly. The proposed definition assumes that a chemical is "substantially similar" to chemicals with substituted groups on the same backbone, and dissimilar to chemicals with second-degree substitutions - an assumption that appears to be compatible with the case law reviewed in notes 100-106, supra. However, Congress could also further expand or contract the scope of the case law as needed by either eliminating or strengthening the recursion, and by providing guidelines delineating which functional groups would fall within the definition.
151. See Smith, supra note 86, at 122.
152. Id. at 120-21 (describing Representative Lundgren's opposition to the proposed exemption).
153. See Korobkin, supra note 54, at 29 ("[A] pure rule can become standard-like through unpredictable exceptions . . . .").
154. See EUROPEAN MONITORING CTR. FOR DRUGS AND DRUG ADDICTION, LEGAL RESPONSES TO NEW SYNTHETIC DRUGS: 2000-2004, at 6 tbl.1 (2004), available at http://eldd.emcdda.europa.eu/ attachements.cfm/att_9942_EN_New%20Synthetic%20Drugs%20report.pdf (describing Denmark's unusually fast official scheduling system as being capable of permanently prohibiting a new drug within ten days). Most other European countries schedule drugs for permanent prohibition within one to two months. See id. Emergency scheduling is similarly speedy, usually taking place within two months. See id. Compare this to the United States' slower response: it took four years to permanently prohibit MDMA, and a full month to complete the emergency scheduling procedure. See Kay, supra note 43, at 2163-66.
155. A pure standards-based approach like the Federal Analog Act also suffers from this problem, to an even greater degree. One possible remedy might be to provide a less onerous mechanism for challenging the permanent scheduling of drugs, or to loosen the reins around medical research on scheduled drugs (this is unlikely to happen, however, because in the United States a Schedule I drug is by definition one that has no medical use).
156. See Kaplow, supra note 52, at 610 ("Precedents could be established in a more rule-like fashion than is usually done.").
157. See supra Part I.B (discussing the link between legitimate pharmaceutical research and black market "designer drugs").
158. See Shulgin, supra note 38, at 406 (suggesting that illicit chemists use this method to draw upon research to acquire targets for synthesis).
159. As Kaplow describes it, [G]overnment action outside the formal lawmaking processes can provide important guidance for future behavior. For example, the government's undertaking and publishing the results of comprehensive studies of the hazards posed by various chemicals may have a substantial effect on their use even if the results are not embodied in a regulation or formally binding in a negligence suit or other legal proceeding. If a regulatory agency undertook such an investigation, individuals might expect the agency to act on the results in setting its enforcement priorities and in adjudicating even if no rule was promulgated declaring the result to be binding. Kaplow, supra note 52, at 615 (footnote omitted).
160. See, e.g., Walter R. Rodriguez & Russell A. Allred, Synthesis of trans-4-Methylaminorex from Norephedrine and Potassium Cyanate, 3 MICROGRAM J. 154, 155-56 (2005), available at http://www.dea.gov/programs/forensicsci/microgram/journal071203/mj071203.pdf (noting that the DEA believes that irens-4-methylaminorex is a potential analog of cis-4-methylaminorex under the Federal Analog Act, and that "it is virtually certain that Federal prosecution of trans-4-methylaminorex as a controlled substance analogue would be successful"). It is curious that this opinion is buried within an obscure DEA in-house technical publication instead of being easily accessible on the DEA's frontpage. In a recent case, a chemical engineer was convicted of synthesizing and distributing trans-4-methylaminorex by a novel synthetic method that he developed himself.
161. Methylaminorex/MDMA/Methamphetamine Laboratory in Fort Lauderdale, 38 MICROGRAM BULL. 31 (2005), available at http://www.usdoj.gov/dea/programs/forensicsci/microgram/mg0205/mg0205.pdf. If the defendant in that case had been aware that the DEA regarded trans-4-methylaminorex as a controlled substance analog, perhaps he would have been deterred from his conduct.
162. See, e.g., United States v. Turcotte, 405 F.3d 515, 528-29 (7th Cir. 2005) (finding on appeal that the lack of a jury instruction concerning the defendant's scienter as to whether a chemical was a controlled substance analog would ordinarily constitute reversible error but for "DEA regulations [that] also specify that 'GBL and 1,4-butanediol are structurally and pharmacologically similar to GHB and are often substituted for GHB. Under certain circumstances they may satisfy the definition of a controlled substance analogue.'" (quoting Placement of Gamma-Butyrolactone in List I of the Controlled Substances Act (21 U.S.C. § 802(34)), 65 Fed. Reg. 21,645 (Apr. 24, 2000) (codified at 21 C.F.R. § 1310.02)).
163. See U.S. Dep't of Justice, Diversion Control Program, Salvia Divinorum, ska. Maria Pastora, Salvia (Salvinorin A, Divinorin A) (last visited Feb. 15, 2008) (search http://www.archive.org/ for http://www.deadiversion. usdoj.gov/drugs_concern/salvia_d/summary.htm, select result from Nov. 18, 2001) (describing salvinorin A's legal status as possibly subject to control under the Federal Analog Act "because of its functional pharmacological similarities to other CI hallucinogens like THC").
164. Cf. SHULGIN, supra note 92, at 256-58 (breaking down all of the scheduled drugs into categories based on their fundamental chemical structure). Salvorin A, the psychoactive component in Salvia divinorum, does not belong to any of the classical backbones. Cf. Imanshahidi & Hosseinzadeh, supra note 50, at 428.