Fort Wayne is one of several Indiana jurisdictions considering a ban on the synthetic marijuana know variously as K2, Spice and Mr. Smiley, and pressure is building for Indiana to join the eight other states that have banned it. But South Bend Prosecutor Michael Dvorak says the substance fits the description of an "analog drug" and is therefore already illegal under state law:
We do not need to wait for a legislative fix in Indianapolis," Dvorak said during a news conference in May.
Instead, officers from the county's multi-department drug unit took letters to retailers asking them to stop the sale of synthetic marijuana, while samples of Mr. Smiley were sent to the state police drug lab.
Those lab tests came back negative: Mr. Smiley was not technically an illegal substance. But Dvorak said he believed the incense could meet the definition of an "analog substance," meaning it was still illegal.
If he's right, a lot of people are wasting a lot of time on solving a problem that already has a solution. There is both a Federal Analog Act (from 1986) and a state provision on "controlled substance" analogs, added to the Indiana Code in 2003, if I'm reading it right. The federal law allows a substance to be treated the same as a Schedule I or Schedule II drug if it has a "substantially similar" chemical structure as the banned drug AND EITHER has effects similar to the banned substance OR someone represents it as having similar effects. The state law offers the same definition of a drug analog.
Dvorak says a couple of successful prosecutions, the vendors will be quick to stop selling. Sounds reasonable to me.