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SB 461 defines “abusable synthetic substances” as anything that mimics controlled substances. This bill creates new offenses that if anyone produces, distributes, sells, or offers these newly defined substances they can be charged with a Class C misdemeanor for a first offense and a Class A misdemeanor for a subsequent offense. The bill would also create civil financial penalties for violators. This bill would allow an affirmative defense for substances that were lawfully produced, distributed, sold, or offered. However merely having the packaging labeled with “Not for Human Consumption" is specifically prohibited as a defense.
This is a narrowly worded bill that is designed to give law enforcement a tool to go after producers and distributors of substances that are specifically created as alternatives to already illegal substances. Producers of these substances skirt the law on a technicality by creating a substance that, while being largely the same in effect as banned controlled substances, are nearly impossible to prosecute because they have not yet been specifically added to the list of controlled substances.
SB 461 is carefully written to create a law that is broad enough to cover any new substances that are created to mimic illegal drugs so that the legislature doesn't have to continually add specific new substances to the controlled substances list as producers find new ways to get out in front of the law. At the same time the bill author has clearly gone to great lengths to make the proposed law narrow enough to avoid putting innocent people in legal jeopardy by using a dragnet approach.
Still, this legislation could be greatly improved by adding language to the effect that in order to secure a conviction the prosecutor would have to demonstrate that the defendant was knowingly selling illegal substances. Adding this language would make it far less likely that an innocent person would ever be wrongfully prosecuted or convicted under this law. This would preserve the integrity of the law and the due process rights of Texans. With the adoption of such an amendment we would highly recommend that legislators vote in favor of SB 461.