WHAT FEDERAL, STATE, AND LOCAL GOVERNMENTS ARE DOING ABOUT K2

K2 is a mixture of herbs and spices sprayed with a synthetic compound that is chemically similar to TCH, the psychoactive ingredient in marijuana.  It is oftentimes packaged and sold as incense, and is abused because it mimics the high of marijuana. 

The Texas Department of State Health Services (DSHS) reports that, since January 2010, approximately 600 calls were made to the Texas Poison Center Network related to K2 exposure.Reported adverse effects associated with use of these marijuana-like substances include chest pain, heart palpitations, agitation, drowsiness, hallucinations, nausea, vomiting, dizziness, and confusion.  Action has been taken at every level of government in response to this public health and safety hazard.

Cities were some of the first governmental actors in Texas to work to address the K2 problem.  In Texas, cities including Allen, Bryan, Cedar Park, College Station, Dallas, Jasper, Plano, Sulphur Springs, Tyler, and others have adopted regulations regarding the sale and possession of K2.

On March 1, 2011, the federal Drug Enforcement Agency (DEA) used its emergency scheduling authority and issued a final order to control five synthetic cannabinoid chemicals in so-called “fake pot” products such as K2.  The order temporarily places these chemicals in Schedule 1 of the Controlled Substances Act, which makes it illegal to manufacture, sell, or possess these products for at least one year.

The DSHS is generally required by state law to place substances on the federal Controlled Substances list into the Texas Schedules of Controlled Substances.  Thus, in response to DEA’s action, DSHS added the same five chemicals to Schedule 1 of the Texas Schedules of Controlled Substances.  The Texas ban became effective April 22, 2011.  Penalties for the manufacture, sale, or possession of K2 are set out in Chapter 481 of the Health and Safety Code (the “Texas Controlled Substances Act”).  To the extent a local ordinance works to regulate the same chemicals, it is now likely preempted by this statewide action.

In addition, several bills have been filed this legislative session calling for the prohibition of K2.  For instance, Senate Bill 331 (Shapiro) and House Bill 597 (Madden) would add certain synthetic cannabinoids to Penalty Group 2 of the Texas Controlled Substances Act. S.B. 331 has passed the Senate and has been referred to the House Committee on Criminal Jurisprudence. 


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