Tailoring Regimes for a Designer Drug: Developing Civil Liability for Retailers of Synthetic Marijuana.

Author:House, Sophia
 
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INTRODUCTION

Over the past two years, homeless shelters in cities across America found themselves in crisis as residents have overdosed, sometimes en masse, on a drug known as "synthetic marijuana." (1) The drug's effects are devastating, discriminating, and bizarre--sending users to the emergency room for seizures, heart attacks, and kidney failure; showing ruthless concentration among homeless populations; and creating "zombie-like" effects in users. (2) Concerned public health officials, however, learned quicldy that the drug--also popular with another vulnerable and cash-strapped population, teenagers (3)--would prove surprisingly difficult to contain. (4) As a synthetic or "designer" drug, synthetic marijuana can be produced from any of hundreds of synthetic cannabinoids; when law enforcement catches wind of a particular strand, manufacturers quickly adjust their formulas. (5)

Retailers also market synthetic marijuana inconsistently; there are over four hundred commercial varieties of synthetic cannabinoids, (6) which are known by almost seven hundred street names. (7) As recently as 2016, synthetic marijuana could be purchased in small packets off the shelves of gas stations and convenience stores. (8) Often cheekily labeled as "potpourri" or "incense," so that it can be sold openly alongside drug paraphernalia, and bearing a disclaimer that its contents are not for human consumption, the packets feature colorful, whimsical packaging, often alluding to natural marijuana.

Many of the challenges of regulating synthetic marijuana arise from legal complexities defining its nature. The drug takes its name from the chemical similarity between synthetic cannabinoids and THC, the active ingredient in natural marijuana, (9) but produces stronger and less predictable effects than its natural counterpart. (10) One study found that a batch of synthetic marijuana could be eighty-five times more potent--or capable of producing effects at a particular dosage--than natural marijuana; (11) a study in the Centers for Disease Control and Prevention's Morbidity and Mortality Weekly Report suggests that the potency may be up to one hundred times greater. (12) In order to evade law enforcement, manufacturers frequently alter the chemical compound sprayed over the dried plant matter that makes up the drug; as a result of this haphazard production method, two packages with identical labels can contain drugs with substantially different potencies. (13) Consumers are thus unable to make predictions about the contents of the substance they are ingesting. This unpredictability, combined with the drug's potency, (14) makes each user "unwittingly a guinea pig in an uncontrolled laboratory test." (15)

That variable chemical composition creates a wide range of reactions. Synthetic marijuana has powerful psychoactive effects; some, such as altered perception, are recreational, while others are more insidious, including violent behavior and suicidal ideation. (16) Physically, the drug can cause uncontrollable vomiting, hemorrhaging, seizures, heart attacks, and organ failure. (17) Despite these risks, the drug remains popular because of its accessibility (18) and low price relative to natural marijuana. (19)

While law enforcement officers have begun to crack down on sales at mainstream retail establishments (such as gas stations), the drug remains widely available online and in stores selling drug paraphernalia. Because it can be produced from a wide range of synthetic compounds, manufacturers can alter its chemical basis to evade criminal (20) or civil liability. (21) In the ensuing game of legal "whack-a-mole," (22) the rapid introduction of new compounds makes regulation of synthetic marijuana entirely reactive to creative manufacturers. (23) These swift and frequent changes--coupled with variations in the product's packaging and labeling--have made it difficult for legislators and law enforcement to determine whether a particular substance can be treated as synthetic marijuana when its labeling and chemical composition do not offer clear identifying markers.

This Comment suggests a two-pronged approach for addressing this public health crisis. First, legislative reform is needed to combat this new challenge in a comprehensive manner. Because local governments are uniquely well positioned to identify these actors and respond to the needs of their communities, (24) this Comment suggests that legislative reforms be developed to enable city and county attorneys to bring public tort actions, such as public nuisance and unfair competition claims, (25) against synthetic marijuana retailers. Comprehensive legislative reform will allow local governments and other stakeholders to use tort law's flexible regulatory potential to curb the spread of synthetic marijuana's harmful effects through some of the country's most vulnerable populations. Until those laws are passed, though, this Comment suggests that private plaintiffs can leverage tort law to bring novel claims against synthetic marijuana retailers.

Civil liability offers several advantages relative to criminal law regimes in this arena. It avoids perpetuating the racialized criminalization of drug use (26) and collateral civil consequences (27) of the war on drugs. Regulators, meanwhile, can benefit from lower evidentiary standards and mens rea requirements, (28) as well as the availability of injunctive relief and civil penalties. (29) This Comment also argues that tort strategies can make use of the "representational" approach to identifying synthetic marijuana, which looks holistically at the effects of a product's packaging, marketing, or manner of sale, rather than relying on strictly chemical definitions of the drug. Expanding regulation beyond a chemical understanding of synthetic marijuana makes it easier to target retailers who engage in deceptive sales and marketing practices and make synthetic cannabinoids easily accessible to vulnerable populations.

Part I identifies the conceptual frameworks through which courts, legislatures, and law enforcement officials have approached synthetic marijuana: a "chemical" approach, a "household products" approach, and a "representational" approach. Part II calls for greater involvement by local government actors in developing and enforcing tort liability regimes targeting retailers who sell synthetic marijuana. Because instituting such a regime would require substantial time and resources, Part II also suggests an alternative short-term recourse for private plaintiffs under the tort doctrine of "manifestly unreasonable design" (30) (MUD). (31)

  1. THREE CONCEPTUAL APPROACHES TO SYNTHETIC MARIJUANA

    Efforts to regulate synthetic marijuana are generally based on one of three conceptual frames: a "chemical approach" focused on the drug's underlying chemical basis; a "household products" approach that takes marketing claims about the product at face value and regulates sales through labeling laws; and a "representational" approach that looks holistically at the conceptual import of a product's packaging, marketing, or manner of sale. Traditional drug regulation relies on the notion that drugs can predictably be identified by their chemical composition. Synthetic marijuana is different, however, and regulatory efforts have lagged insofar as they have failed to move away from a strictly chemical approach. The household products approach offers one alternative, but has not been widely adopted and may not force manufacturers or retailers to fully internalize the drug's social costs. The representational approach is ultimately the most promising because of its flexibility and compatibility with tort liability regimes. This Comment, therefore, recommends that litigants base their tort claims on this more flexible and nuanced understanding.

    1. The Chemical Approach

      The chemical approach identifies a substance as synthetic marijuana if it contains prohibited chemical compounds. Identification via the presence of prohibited compounds has been the dominant lens through which regulation has been attempted. Federal statutes embody the chemical approach--twenty-six synthetic drugs were initially listed as Schedule I controlled substances under the 2012 Synthetic Drug Abuse Prevention Act, (32) and additional compounds have been added. (33) In addition, all fifty states (34) and more than two hundred cities (35) have used the chemical approach to ban synthetic cannabinoids either by prohibiting specific compounds or by incorporating the federal schedules.

      The chief advantage of the chemical approach is clarity for both enforcers and regulated parties: laboratory tests can confirm that the drug in question is a controlled substance, and, once procured, such evidence is easy to present in court to establish a defendant's unlawful conduct. Outlawing the sale or distribution of a particular chemical compound provides clear notice of prohibited conduct to sellers and manufacturers. But despite the clear boundaries this approach offers, it has largely proven inadequate to contain synthetic marijuana for several reasons. (36) First, the process of identifying and banning strands of synthetic marijuana compound-by-compound has struggled to keep pace with manufacturers who are able to rapidly alter synthetic marijuana's design. (37) In order to be prohibited under the chemical approach, legislators must single out a chemical. The Federal Analogue Act (38) expands the class of prohibited substances to "analogues" that have "substantially similar" chemical structures to controlled substances and are used or sold to produce pharmacological effects. (39) While the Act expands the class of substances that may be targeted under the chemical approach, analogues offer less regulatory flexibility than it might seem. Because the government must establish both chemical similarity and the intent to distribute products for human consumption, analogues are substantially...

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