Since 1986, a law called the Federal Analogue Act has given prosecutors a tool to deal with so-called “designer drugs,” which crop up occasionally as a road around prohibited drugs. Take an existing structure, tweak it a little bit, and put it on the legal market as “bath salts” or “synthetic pot” and let word of mouth do the marketing work.
The little-known law to fight this practice was written poorly, and as a result has been interpreted very broadly by American law enforcement. However, a Supreme Court decision last week, McFadden vs. US, narrowed the scope of the Federal Analogue Act, and closed off one of the worst facets of law enforcement’s interpretation.
So, where did this law come from? Ironically, it was sparked not by a new drug discovery, but by an impurity. Back in the early 80s, amateur chemists commonly synthesized an opioid drug called MPPP — similar to morphine, and discovered back in the 40s. However, due to the reaction pathway and shoddy lab technique, they sometimes contaminated the product with something called MPTP. This chemical turned out to cause very serious brain damage, and induced Parkinson’s disease-like symptoms in several MPPP users. (In a double irony, MPTP was used in animal trials to develop what is now the standard Parkinson’s treatment.)
At any rate, after the usual moral panic, Congress passed a law banning drug analogues. They defined an analogue this way:
(1) The substance has a “chemical structure” which is “substantially similar” to an already-controlled substance.
(2) It is intended for human consumption.
(3) It has an effect that is “substantially similar to or greater than” an already-controlled substance or is represented as such.
This raises several difficulties….