VOLUME 43, ISSUE 16
ISSUE DATE: AUGUST 15, 2011
LAW AND PUBLIC SAFETY
DIVISION OF CONSUMER AFFAIRS
CONTROLLED DANGEROUS SUBSTANCES
Proposed Amendment: N.J.A.C. 13:45H-10.1
Schedules of Controlled Dangerous Substances
Authorized By: Thomas R. Calcagni, Director, Division of Consumer Affairs.
Authority: N.J.S.A. 24:21-3.a. and 24:21-5.a.
Calendar Reference: See Summary below for explanation of exception to calendar requirement.
Proposal Number: PRN 2011-176.
Submit comments by October 14, 2011 to:
Thomas R. Calcagni, Director
Division of Consumer Affairs
124 Halsey Street
P.O. Box 45027
Newark, New Jersey 07101
The agency proposal follows:
The Director of the Division of Consumer Affairs, pursuant to his authority under N.J.S.A. 24:21-31.b.(3)(a) of the New Jersey Controlled Dangerous Substances Act (the Act), is proposing to amend the controlled dangerous substances schedules set forth in N.J.A.C. 13:45H-10.1 to permanently place the following six chemicals in the list of Schedule I substances in New Jersey: 4-methylmethcathinone (Mephedrone, 4-MMC); 3,4-methylene dioxypyrovalerone (MDPV); 3,4-Methylenedioxymethcathinone (Methylone, MDMC); 4-Methoxymethcathinone (Methedrone, bk-PMMA, PMMC); 3-Fluoromethcathinone (3-FMC); and 4-Fluoromethcathinone (Flephedrone, 4-FMC).
On April 27, 2011, the Director, pursuant to his authority under the Act, issued an order to temporarily place the six chemicals in Schedule I. The six chemicals are synthetic stimulants that have been marketed and sold as so-called "bath salts" in New Jersey and throughout the United States. Despite carrying a "not for human consumption" label, these products are produced for the sole purpose of simulating the effects of amphetamine, cocaine or other illicit drugs when ingested, injected, inhaled or smoked. So-called "bath salts" drugs are reported to be highly addictive, and use of these products has been reported to produce significant, negative effects on the central nervous system and cardiovascular system, including increased blood pressure and heart rate, as well as negative psychological side effects, such as agitation, hallucinations, extreme paranoia, delusions and suicidal thoughts. These substances have no known medical use in the United States and are not used to produce or manufacture any legitimate product sold in the United States.
Placing the six chemicals in Schedule I makes the possession, sale and distribution of products containing these substances unlawful. Specifically, under N.J.S.A. 2C:35-5, a person who manufactures, distributes, dispenses or possesses with the intent to manufacture, distribute or dispense, a Schedule I substance is guilty of a third degree crime, punishable by three to five years in prison, and a penalty of up to $ 25,000. Under N.J.S.A. 2C:35-10, possession of a Schedule I substance is a crime of the third degree, punishable by three to five years in prison and a penalty of up to $ 35,000.
The Director's temporary scheduling order is set to expire on January 22, 2012. Consistent with the requirements of N.J.S.A. 24:21-31.b.(3)(a), the Director held a public hearing on July 11, 2011, to take testimony from interested parties concerning his intention to permanently place the six chemicals in Schedule I. A notice concerning the issuance of the temporary order, including the full text of the order, and announcing the public hearing, appeared in the New Jersey Register on June 6, 2011 at 43 N.J.R. 1381(b). No members of the public presented testimony at the public hearing in opposition to the proposed amendment.
In light of the high potential for abuse associated with the six chemicals, and because these substances have no accepted medical use in treatment in the United States, the Director believes the permanent placement of these substances in Schedule I is appropriate under N.J.S.A. 24:21-5.a. of the Act, and is necessary to combat the danger to the health, safety and welfare of the people of the State of New Jersey posed by the use, sale and distribution of so-called "bath salts" drugs.
The Division has provided a 60-day comment period for this notice of proposal. Therefore, this notice is excepted from the rulemaking calendar requirement pursuant to N.J.A.C. 1:30-3.3(a)5.
The Division believes that the proposed amendment will have a positive impact upon the citizens of New Jersey. Placing the six so-called "bath salts" chemicals in Schedule I under the State Controlled Dangerous Substances Act will subject these substances to the strictest level of State oversight and control, helping to decrease their availability, thereby helping to safeguard the public health, safety and welfare of New Jersey citizens.
[page=2152] Economic Impact
The Division does not believe that the proposed amendment will have any economic impact upon legitimate businesses in the State.
Federal Standards Statement
A Federal standards analysis is not required because the proposed amendment is governed by the New Jersey Controlled Dangerous Substances Act, N.J.S.A. 24:21-1 et seq., specifically N.J.S.A. 24:21-3.a. and 24:21-5.a. Although New Jersey has adopted, in N.J.A.C. 13:45H-10.1(a), the Federal controlled dangerous substances Schedules I through V codified at 21 CFR 1308.11 through 1308.15, as amended and supplemented, the Director is authorized under N.J.S.A. 24:21-3 to add, delete or reschedule substances under the New Jersey Controlled Dangerous Substances Act.
The Division does not believe that the proposed amendment will result in the creation or the loss of jobs in the State.
Agriculture Industry Impact
The Division does not believe that the proposed amendment will have any impact on the agriculture industry of the State.
Regulatory Flexibility Analysis
If New Jersey retail establishments that currently sell products containing the six so-called "bath salts" chemicals are considered "small businesses" within the meaning of the Regulatory Flexibility Act, N.J.S.A. 52:14B-16 et seq., then the following analysis applies.
The proposed amendment will impose compliance requirements upon such businesses to the extent that placing the six chemicals on the list of Schedule I substances under the New Jersey Controlled Dangerous Substances Act will make it unlawful, on a permanent basis, for businesses to sell or distribute products containing these chemicals. As noted above, the banned substances are not used to produce or manufacture legitimate products.
No additional professional services will be needed to comply with the proposed amendment. The costs of compliance with the proposed amendment are discussed in the Economic Impact above. The Division believes that the proposed amendment should be uniformly applied to all businesses in the State in order to ensure the health, safety and welfare of the general public. Therefore, no differing compliance requirements for any businesses are provided based upon the size of the business.
Smart Growth Impact
The Division does not believe that the proposed amendment will have any impact upon the achievement of smart growth or upon the implementation of the State Development and Redevelopment Plan.
Housing Affordability Impact Analysis
The proposed amendment will have an insignificant impact on affordable housing in New Jersey and there is an extreme unlikelihood that the amendment would evoke a change in the average costs associated with housing because the proposed amendment concerns the scheduling of certain chemicals as controlled dangerous substances under the New Jersey Controlled Dangerous Substances Act.
Smart Growth Development Impact Analysis
The proposed amendment will have an insignificant impact on smart growth and there is an extreme unlikelihood that the amendment would evoke a change in housing production in Planning Areas 1 or 2, or within designated centers, under the State Development and Redevelopment Plan in New Jersey because the proposed amendment concerns the scheduling of certain chemicals as controlled dangerous substances under the New Jersey Controlled Dangerous Substances Act.
Full text of the proposal follows (additions indicated in boldface thus):
13:45H-10.1 Schedules of controlled dangerous substances
(a)-(d) (No change.)
(e) In accordance with (d) above, the following substances shall be designated and controlled as Schedule I controlled dangerous substances:
1.-2. (No change.)
3. 4-methylmethcathinone (Mephedrone, 4-MMC)
4. 3,4-methylenedioxypyrovalerone (MDPV)
5. 3,4-Methylenedioxymethcathinone (Methylone, MDMC)
6. 4-Methoxymethcathinone (Methedrone, bk-PMMA, PMMC)
7. 3-Fluoromethcathinone (3-FMC)
8. 4-Fluoromethcathinone (Flephedrone, 4-FMC)