Control of new substances; findings of fact; “controlled substance analog” defined.

(1)(a) New substances are being created which are not controlled under the provisions of this chapter but which have a potential for abuse similar to or greater than that for substances controlled under this chapter. These new substances are called “controlled substance analogs,” and can be designed to produce a desired pharmacological effect and to evade the controlling statutory provisions. Controlled substance analogs are being manufactured, distributed, possessed, and used as substitutes for controlled substances.

(b) The hazards attributable to the traffic in and use of controlled substance analogs are increased because their unregulated manufacture produces variations in purity and concentration.

(c) Many such new substances are untested, and it cannot be immediately determined whether they have useful medical or chemical purposes.

(d) The uncontrolled importation, manufacture, distribution, possession, or use of controlled substance analogs has a substantial and detrimental impact on the health and safety of the people of Florida.

(e) Controlled substance analogs can be created more rapidly than they can be identified and controlled by action of the Legislature. There is a need for a speedy determination of their proper classification under this chapter. It is therefore necessary to identify and classify new substances that have a potential for abuse, so that they can be controlled in the same manner as other substances currently controlled under this chapter.

(2)(a) As used in this section, “controlled substance analog” means a substance which, due to its chemical structure and potential for abuse, meets the following criteria:

1. Is substantially similar to that of a controlled substance listed in Schedule I or Schedule II of s. 893.03; and

2. Has a stimulant, depressant, or hallucinogenic effect on the central nervous system or is represented or intended to have a stimulant, depressant, or hallucinogenic effect on the central nervous system substantially similar to or greater than that of a controlled substance listed in Schedule I or Schedule II of s. 893.03.

(b) “Controlled substance analog” does not include:

1. A controlled substance;

2. Any substance for which there is an approved new drug application;

3. Any compound, mixture, or preparation which contains any controlled substance which is not for administration to a human being or animal, and which is packaged in such form or concentration, or with adulterants or denaturants, so that as packaged it does not present any significant potential for abuse; or

4. Any substance to which an investigational exemption applies under s. 505 of the Food, Drug, and Cosmetic Act, 21 U.S.C. 355, but only to the extent that conduct with respect to the substance is pursuant to such exemption.

(3) As used in this section, the term “substantially similar,” as the term applies to the chemical structure of a substance, means that the chemical structure of the substance compared to the structure of a controlled substance has a single difference in the structural formula that substitutes one atom or functional group for another, including, but not limited to, one halogen for another halogen, one hydrogen for a halogen or vice versa, an alkyl group added or deleted as a side chain to or from a molecule, or an alkyl group added or deleted from a side chain of a molecule.

(4) The following factors shall be relevant to a finding that a substance is a controlled substance analog within the purview of this section:

(a) Its actual or relative potential for abuse.

(b) Scientific evidence of its pharmacological effect, if known.

(c) The state of current scientific knowledge regarding the substance.

(d) Its history and current pattern of abuse.

(e) The scope, duration, and significance of abuse.

(f) What, if any, risk there is to the public health.

(g) Its psychic or physiological dependence liability.

(h) Its diversion from legitimate channels, and clandestine importation, manufacture, or distribution.

(i) Whether the substance is an immediate precursor of a substance already controlled under this chapter.

(j) Comparisons to the accepted methods of marketing, distribution, and sales of the substance and that which the substance is purported to be, including, but not limited to:

1. The difference in price at which the substance is sold and the price at which the substance it is purported to be or advertised as is normally sold;

2. The difference in how the substance is imported, manufactured, or distributed compared to how the substance it is purported to be or advertised as is normally imported, manufactured, or distributed;

3. The difference in the appearance of the substance in overall finished dosage form compared to the substance it is purported to be or advertised as normally appears in overall finished dosage form; and

4. The difference in how the substance is labeled for sale, packaged for sale, or the method of sale, including, but not limited to, the placement of the substance in an area commonly viewable to the public for purchase consideration compared to how the substance it is purported to be or advertised as is normally labeled for sale, packaged for sale, or sold to the public.

(5) A controlled substance analog shall, for purposes of drug abuse prevention and control, be treated as the highest scheduled controlled substance of which it is a controlled substance analog in s. 893.03.

(6) In construing this section, due consideration and great weight should be given to interpretations of the United States Attorney General and the federal courts relating to s. 201 of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. s. 811, as amended and in effect on April 1, 1985. New substances controlled under this section shall not be treated in a manner inconsistent with the rules of the United States Attorney General and the decisions of the federal courts interpreting the provisions of s. 201 of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. s. 811, as amended and in effect on April 1, 1985.

(7) The treatment of a new substance as a controlled substance pursuant to this section shall not affect prosecution or punishment for any crime previously committed with respect to that substance.