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Federal Lawsuit Filed to Block Indiana's Look-Alike Drug Laws May 28th, 2013

INDIANAPOLIS, IN – Today, a federal lawsuit was filed, on behalf of four Hoosier businesses, in an effort to repeal Indiana’s recently enacted “look-alike” drug laws. The look-alike clause, added this month to the criminal code in a series of laws aimed at combatting synthetic drugs, gives police and prosecutors unbridle authority to label a product a “look-alike” drug simply because it visually resembles a product that contained a banned substance.

Indiana Senate Enrolled Act 536, Synthetic Drugs, was authored by Republican Sen. Jim Merritt and was signed into law by Republican Gov. Mike Pence on May 7th. The law added, among other things, specific bans on compounds labeled synthetic drugs and methods of adding new compounds to the synthetic drug list. It also gives law enforcement the authority to label any product a “look-alike” drug if the agency “reasonably” believes that the product resembles another product that contained banned substance. The merchant can have their inventory and assets seized and face drug trafficking charges even if they can prove their products do not contain any banned compounds our substances.

The plaintiffs, B&B Distributions, Bohemian Groove LLC, MELX2 Enterprises INC, and IDK Anything LLC, believe the statute to be vague and unconstitutional. They also fear that this statute will be used to unfairly target and harass their employees and customers at their legitimate business establishments.

The National Association of Aromatherapy Product Producers and Vendors (NAAPPV) shares the concerns of the plaintiffs. In the fifteen days since this law was enacted, we have seen merchants targeted solely under the look-alike statue. These merchants have had their inventories and cash on hand confiscated from their stores, even though they were able to prove that their products contained no banned substances. They have even reported that both the business owners and employees have been threatened with arrest and prosecution if they refuse to cooperate. Several merchants have said that they are receiving letters attempting to intimidate them into signing a “Synthetic Drug Community Protection Agreement”.

In a legal notice sent out to merchants across the state it was stated that “RELIANCE ON PACKAGING REPRESENTATIONS, SUPPLIER REPRESENTATIONS, AND LAB REPORTS SHALL BE DONE AT YOUR OWN RISK.” The State has made the case that, under this new law, there is no method for any producer or merchant to verify that their products are compliant with the law.

According to the National Survey on Drug Use and Health, Inhalant abuse, commonly referred to as “huffing”, is the 3rd most prolific type of substance abuse by teenagers and is an escalating problem. If this statute was used to target gold spray paint, a popular product for inhalant abuse, overnight and without any additional legislative action any merchant selling or artist using any color or form of paint could be subject to arrest. The scary part is that the merchant would have no way of knowing or verifying that that specific paint was now illegal until a law enforcement agency makes that determination on their own and then arrests them for dealing or possessing a “look-alike” substance.

The National Association of Aromatherapy Product Producers and Vendors urges the court to strike down this vague law and calls on legislators to work with aromatherapy industry leaders in the creation of clear and concrete guidelines and standards for the manufacture and sale of these legitimate products.

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The National Association of Aromatherapy Product Producers and Vendors is a trade association made up of industry leaders and advocates. Our mission is to create a national standard of best practices in an effort to educate the public on the legitimate and intended uses of Aromatherapy products and to minimize their unlawful misuse.

Accompanying Documents

History of Indiana SB 536

Action List: Senate Bill 0536

Synthetic drugs. Permits the attorney general to issue a civil investigative demand to obtain immediate access to records relating to the sale of synthetic drugs. Provides that the department of state revenue may revoke a retail merchant certificate if the holder commits certain violations relating to synthetic drugs. Provides that a person may be intoxicated if the person consumes any substance resulting in impairment, with certain exceptions. Permits the board of pharmacy, on its own initiative or upon formal request from the state police department, the federal Drug Enforcement Administration, or a poison control center, to adopt an emergency rule declaring certain substances to be synthetic drugs. Permits the attorney general to bring an action to abate a nuisance created in connection with the sale of synthetic drugs. Authorizes the seizure of certain property used in connection with dealing in synthetic drugs. Defines additional substances as synthetic drugs, and makes the sale or possession of a synthetic drug lookalike substance a criminal offense. Adds dealing in synthetic drugs to the list of racketeering offenses. Makes conforming amendments.

2013 First Regular Session

Authors:  Alting, Merritt, Jr., Head, Steele, Zakas, Young, Randolph, Miller, Holdman, Wyss, Walker

Date Chamber Action
01/14/2013 S Authored by Senator Merritt
01/14/2013 S First reading: referred to Committee on Corrections & Criminal Law
01/22/2013 S Senator Alting added as second author
01/22/2013 S Senator Head added as coauthor
01/24/2013 S Senator Steele added as coauthor
01/28/2013 S Senator Zakas added as coauthor
01/29/2013 S Senators M. Young and Randolph added as coauthors
01/31/2013 S Committee report: amend do pass, adopted
02/05/2013 S Senator Pat Miller added as coauthor
02/18/2013 S Second reading: amended, ordered engrossed
02/18/2013 S Amendment 3 (M. Young), prevailed; voice vote
02/19/2013 S Third reading: passed; Roll Call 162: yeas 47 and nays 2
02/19/2013 S Referred to the House
02/19/2013 S House sponsor: Rep. M. Smith
02/19/2013 S Senators Holdman and Wyss added as coauthors
02/26/2013 H First reading: referred to Committee on Courts and Criminal Code
03/14/2013 H Representative Bacon added as cosponsor
03/18/2013 H Committee report: amend do pass, adopted
03/25/2013 H Second reading: amended, ordered engrossed
03/25/2013 H Amendment 1 (M. Smith), prevailed; voice vote
03/25/2013 H Representatives Austin and Davisson added as cosponsors
03/26/2013 H Third reading: passed; Roll Call 354: yeas 95, nays 0
03/26/2013 H Returned to the Senate with amendments
03/27/2013 S Motion to concur in House amendments filed
03/28/2013 S Senate concurred in House amendments; Roll Call 336: yeas 48, nays 1
03/28/2013 S Senator Walker added as coauthor
04/03/2013 H Signed by the Speaker
04/03/2013 S Signed by the President Pro Tempore
04/05/2013 S Signed by the President of the Senate
05/07/2013 S Signed by the Governor
05/13/2013 H Public Law 196