On February 4, 2010, Jon Sloan was arrested for products sold through his company, Bouncing Bear Botanicals, which was raided by the Food and Drug Administration (FDA) and the Kansas Bureau of Investigation, in cooperation with local law enforcement.1 By the end of the day, $700,000 worth of merchandise, property, and bank account funds were confiscated, and a $906,000 bond was set. Sloan is facing seventy-five years in prison on eight charges related to manufacturing, cultivation, and distribution of various Schedule I substances, as well as possession of drug paraphernalia (plastic jugs and filters "used or intended for unlawful use to manufacture, cultivate, plant, propagate, harvest, test, analyze, or distribute a controlled substance...").1 A curious note about the original indicment is that it lists "Diethyltryptamine" under Count V as the controlled substance contained in the plants found at Bouncing Bear.

Two recent arrests in Kansas of vendors selling non-scheduled psychoactive products have thrown a spotlight on the question of what substances can be sold legally, and which government agencies might have a say in such decisions. These arrests are tied to the marketing of herbs laced with synthetic cannabinoid receptor-agonists that has been happening worldwide for the last few years. The outcome from these cases could have important implications for those dealing in ethnobotanical products.

On February 4, 2010, Jon Sloan was arrested on charges related to a number of products sold through his company, Bouncing Bear Botanicals, which was raided by the Food and Drug Administration (FDA) and the Kansas Bureau of Investigation, in cooperation with local law enforcement.1 By the end of the day, $700,000 worth of merchandise, property, and bank account funds were confiscated, and a $906,000 bond was set. Sloan is facing seventy-five years in prison on eight charges related to manufacturing, cultivation, and distribution of various Schedule I substances, as well as possession of drug paraphernalia (plastic jugs and filters "used or intended for unlawful use to manufacture, cultivate, plant, propagate, harvest, test, analyze, or distribute a controlled substance...").1

Interestingly, the "prohibited Schedule I substances" seized included Bufo alvarius toads. Sloan previously had run-ins with government agencies that confiscated his toads for a year, ultimately returning them with no charges filed after determining that there was nothing illegal about his selling the animals.2 The Bouncing Bear Botanicals web site also sold the herbal incense blends K2 Standard, Citrón, and Blonde, which are smoked by some people as a cannabis replacement.3

On the same day, a warrant was served on Natalie McAnulla, owner of the Kansas-based store The Sacred Journey. McAnulla was out of town at the time the store was raided. Officers seized Mimosa and Trichocereus, as well as all of the K2 herbal incense blends her store had been selling, along with the store's paper and computer files. A prosecutor has yet to determine what, if any, charges will be filed against McAnulla. As with Sloan, McAnulla's assets have been frozen and the state is trying to tax her 2.7 million dollars for the quantity of Mimosa and Trichocereus that she had on hand.4

While none of the charges filed against Bouncing Bear Botanicals were related to K2, it has been speculated that the law enforcement actions against them were triggered by their high volume of sales of this product. Earlier this year, on January 11, 2010, Kansas senators V. Schmidt, D. Schmidt, and Petersen proposed Bill No. 348 amending K.S.A. 2009 Supp. 65-4105, with the goal of naming 1-Pentyl-3-(1-naphthoyl)indole (aka JWH-018) and 1-Butyl-3-(1-naphthoyl)indole (aka JWH-073) as Controlled Substances.5 The K2 products sold by both Kansas stores reportedly contain both of these synthetic cannabinoid receptor agonists, and could be considered spin-offs of the Spice phenomenon reported in the June 2009 issue of Erowid Extracts.6

Although Kansas does have laws against "controlled substance analogs", the Kansas definition of such analogs mirrors the federal definition.7 In Kansas:

"Controlled substance analog" means a substance that is intended for human consumption, and:

(A) The chemical structure of which is substantially similar to the chemical structure of a controlled substance listed in or added to the schedules designated in K.S.A. 65-4105 or 65-4107, and amendments thereto;

(B) which has a stimulant, depressant or hallucinogenic effect on the central nervous system substantially similar to the stimulant, depressant or hallucinogenic effect on the central nervous system of a controlled substance included in the schedules designated in K.S.A. 65-4105 or 65-4107, and amendments thereto; or

(C) with respect to a particular individual, which the individual represents or intends to have a stimulant, depressant or hallucinogenic effect on the central nervous system substantially similar to the stimulant, depressant or hallucinogenic effect on the central nervous system of a controlled substance included in the schedules designated in K.S.A. 65-4105 or 65-4107, and amendments thereto.8

On the federal level, court opinion has interpreted The Analogue Act as being "two pronged"9,10,11; practically speaking (using the Kansas state law above as a template), this means that at least "A" and "B" or "A" and "C" above have to be true in order for the substance to be considered controlled as an analog. However, states may interpret their own analog laws differently than the federal courts have. Although we don't know of any cases where the issue of these unscheduled cannabinoid receptor agonists have been ruled to be analogs under federal or any state laws, none of the chemists we asked considered JWH-018 or JWH-073 "substantially similar" in chemical structure to the named, controlled cannabinoids.12 Indeed, one molecular pharmacologist remarked:

"I am absolutely convinced that the amino-alkylindole compounds (i.e., the Huffman JWH series) are very chemically distinct from delta-9 THC. But don't take my word for it. Take the decision of the U.S. Patent Office. Patents have been issued for the whole JWH series (and for that matter, all of the Pfizer CP compounds), which means that a U.S. government agency has affirmed that the series is indeed substantially different from all previous chemical matter.

"What usually carries the day is any difference in the central ring structure of the compounds being compared. The JWH compounds are hugely different in terms of ring structure, to the degree that no person, of whatever chemical expertise, could have predicted a priori that they would fit into the same receptor space as THC. It is almost as great a difference as between the peptide endorphins and the morphinans, although both are proven able to activate the morphine receptor."13

One might presume that advisors to Kansas state senators realize that in the case of K2, prosecution based on the controlled substance analog law is likely to fail--hence their move to specifically name the chemicals as "Controlled Substances", defined in Kansas as "any drug, substance or immediate precursor included in any of the schedules designated in K.S.A. 65-4105, 65-4107, 65-4109, 65-4111 and 65-4113, and amendments thereto."

Although the manufacturer of the original Spice blends purposefully did not sell its enhanced herbal incenses in the United States, once the cat was out of the bag, knock-offs began to appear stateside. As of March 2010, K2 could even be bought through Amazon.com.

K2 and other Spice knock-offs retail at around the same price as medical marijuana; however, these products are insanely cheap to manufacture, and purchase doesn't require a doctor's recommendation. Assorted JWH- chemicals are inexpensively cranked out in China, and offered online at wholesale prices; 100 grams of JWH-18 can be had for approximately $1,365. The dose range for this compound has been reported at 0.5-3 mg,14,15 which means that--at wholesale prices--one is looking at a per-dose cost of about seven-tenths of a cent (on the low end) to four cents (on the high end). In an e-mail to Erowid, one retailer from a headshop in the United States remarked that selling K2 caused that store to go "from making a grand a day on a good day to ten grand average a day", and noted that the increase in business allowed them to employ ten people.16 If one finds this vendor's "$10,000 a day" sales figure hard to swallow, it is worth making a comparison to the much more tightly restricted market for medical marijuana in California. Los Angeles alone has over 700 cannabis clubs,17 many of which are open seven days a week with a steady stream of customers. Even if the Spice-spinoffs are overpriced, there is a pent-up demand for cannabis-like products.

Despite there being no law compelling such an approach, The Sacred Journey's store policy was to only sell K2 to customers 18-and-over, requiring ID be shown before a sale was made. According to McAnulla, both her and Sloan were vocal in their opposition to the pending legislation that would make K2 illegal in Kansas. McAnulla and others have suggested that their political involvement related to the K2 legislation, as well as their K2 sales, are what inspired state law enforcement and the FDA to come visiting.

Since the early 1990s, an increasing number of online vendors have offered numerous nonscheduled psychoactive plants and "research chemicals". A number of the plants these vendors have sold naturally produce scheduled substances, but the plants themselves are not scheduled. In some cases the research chemicals sold could potentially be considered controlled substance analogs.

For the most part in this arena, when busts have occurred, it has been the federal government leading the charge. In 2001 Mark Niemoeller,2 owner of JLF: Poisonous Non-consumables, was arrested and indicted on eight federal counts of violating the Food, Drug, and Cosmetic Act, and five counts of violating the Controlled Substances Act.18 In 2003, Operation Pipe Dreams and Operation Headhunter shut down a number of paraphernalia vendors,19 including actor-comedian Tommy Chong. In 2004, the Drug Enforcement Administration's Operation Web Tryp resulted in the arrest of ten people involved with vending "research chemicals" that the government felt should be considered controlled substance analogs.20

The real-world effect of such widely publicized federal busts has been to scare folks out of business. In 2004, following the attack on paraphernalia vendors, there was even a point when High Times presumably lost so much advertising revenue--after pipe and grow-light vendors shut their doors--that the magazine claimed its focus would only be on "marijuana as a metaphor" for other freedom-related issues, and the new editor was said to have remarked that "no magazine [he publishes] will ever feature marijuana on its cover."21

In the United States, the question of how legal it is to buy, sell, or possess some product or another will depend on which enforcement arm one is dealing with: federal or state. The area can get muddy, and there are unresolved conflicts between federal and state law. Although Lophophora williamsii (peyote) and mescaline are both federally listed in Schedule I, the feds have exempted the "nondrug" use of peyote in bona fide religious ceremonies of the Native American Church (NAC). At the state level, laws may be either more relaxed or stricter than they are at the federal level, depending on the state. In Wisconsin, both peyote and mescaline are legal for use within NAC ceremonies. In Colorado, Minnesota, Nevada, and New Mexico, peyotists must be members of a bona fide peyote-using religion (but not specifically the NAC). In Arizona and Oregon, peyote use is exempt from prosecution based on religious sincerity; it is not required that one belong to any specific church. Texas, on the other hand, exceeds the federal regulations by requiring that a peyotist both belong specifically to the NAC and also be of at least 25% Native American decent, making freedom of religion a racial affair in that state.22 Freedom for the religious use of ayahuasca has been debated in the courts in recent years, with exemptions being allowed for members of the União do Vegetal23 and the Santo Daime.24 Despite the overwhelming evidence that numerous psychoactive plants have been integral to the spiritual beliefs of humanity for thousands of years, federal and state courts responding to freedom-of-religion defenses have, historically, been extremely reluctant to allow such exemptions.

With a few exceptions, the question of whether or not a plant is illegal to buy, sell, or possess in the United States (on both the federal and state levels) has traditionally been determined on a case-by-case basis, with the plant, sometimes specific plant part(s), and chemicals contained within the plant being scheduled by name (or at least referred to via a phrase like "and every compound, manufacture, salts, derivative, mixture, or preparation of such plant, its seeds or extracts").25 One can clearly see that according to federal law, the opium poppy, poppy straw, and concentrate of poppy straw are all Schedule II controlled substances. Poppy seeds are not mentioned in the law, therefore they are not illegal. Yet even with a clear law like that, poppy straw is still widely sold as an ornamental accessory in the United States, both by brick and mortar shops and by online vendors, and poppies pepper the homesteads of many gardeners who may have no interest in the chemistry of these beautiful flowers, nor any idea that they are breaking the law.

The primary departure from this approach of specifically naming a plant and specific plant parts is with psilocybin and psilocin, chemicals that are naturally produced in around a hundred different species of mushroom. These mushrooms have largely been considered in the eyes of both federal and state law to be "containers" of the specifically scheduled active chemicals that they produce, with a couple of exceptions. A 1978 Florida Supreme Court case ruled that wild-picked mushrooms could not be considered "containers" of psilocybin (and since the mushrooms are not mentioned by name in Florida law, they are presumptively legal to possess in that state), and a 2005 case in New Mexico decided that cultivating psilocybin-containing mushrooms does not constitute "manufacturing" of a controlled substance. Containing no psilocybin or psilocin, mushroom spores for mushrooms that can produce scheduled chemicals are not considered illegal by the federal government, nor by any state laws except for those of California, Georgia, and Idaho.26

Other than the psilocybin/psilocin mushroom oddity, it is uncommon--either in the law, or by normal thinking--to consider a plant or animal to be a "container" of a scheduled compound. If this sort of thinking were generally accepted, then everyone could be arrested for "containing" assorted scheduled neurochemicals (codeine, DMT, GHB, morphine) that humans automatically produce regardless of whether or not they intend to "manufacture" them.27,28

In California, charges brought in 1987 against the owner of Nightbloomers for selling live cuttings of the mescaline-containing cactus Trichocereus pachanoi were ultimately dropped.29 For the most part, if the plant itself is not specifically scheduled, the law has defended those who grow ornamental specimens of plants that may naturally contain scheduled compounds. In fact, in Louisiana, where a huge laundry list of plants that contain psychoactive chemicals have been scheduled, they carved out an exception for all of these plants if they are grown for ornamental purposes; such an exception is also included in Tennessee law.30 With ornamental cultivation, there is no clear intent of consumption; with unscheduled plants, ornamental cultivation is much less likely to attract the interest of law enforcement. Indeed, the reason that Nightbloomers drew attention to themselves in the first place was because they provided information related to the traditional sacramental use of Trichocereus cacti along with the plants that they sold, and they advertised in counterculture venues. Buyers/sellers/possessors of seeds that contain psychoactive chemicals are also likely to avoid prosecution, since seeds are a logical first step for many ornamental gardeners.

It gets trickier when one considers natural products sold as cut/sifted/powdered herb--dried Mimosa tenuiflora root-bark, for example. Most ordinary people would not consider shredded or powdered root-bark to be "ornamental". Yet it also seems likely that most people would not consider a natural product, minimally processed in this manner, to be a "mixture" or even a "preparation" that contained DMT. Simple dried-and-powdered root-bark cannot be smoked, injected, or consumed in any way to get high. In order for one to obtain a psychoactive effect from this root-bark, some manner of extraction needs to take place.

Although it likely has little direct bearing on cases in the United States, the question of what changes a legal plant into a controlled drug was addressed by a British judge during a 2007 case that dealt with this exact topic. When presented with the information that dried and chipped Trichocereus cacti was unlikely to be useful (in that state) to get high from--that is, that some further means of processing was required in order to extract a consumable drug from the plant--the judge ruled that dried/chipped Trichocereus cacti could not be considered a mixture or preparation containing mescaline.31

According to the federal Controlled Substances Act, "The term 'manufacture' means the production, preparation, propagation, compounding, or processing of any drug or other substance, either directly or indirectly or by extraction from substances of natural origin, or independently by means of chemical synthesis..."

Few people will consider whole or minimally processed dried/cut herbs to be a "drug", by any normal sort of the definition, particularly in cases where further processing or extraction is required in order to produce something that is actually consumable and effective. That further processing or extraction, then, would be the point where a criminal activity has taken place (i.e. "manufacture"). But even in that case, it isn't so simple. The stem-bark of Mimosa tenuiflora, which also contains DMT, is used traditionally as a treatment for burns.32 A brew of stem-bark made into a burn treatment seems unlikely to be considered illicit, despite it being a mixture or preparation containing DMT. That same brew, intended for swallowing with the idea of altering one's consciousness, would be another matter.

Intent has not been ignored by the Controlled Substances Act. Within the federal definition of a "controlled substance analogue", the third prong states: "with respect to a particular person, which such person represents or intends to have a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II"33 [Emphasis added]. Intent is frequently taken into account by judges ruling in drug-related cases. Intent is also a consideration when dealing with the FDA.

The FDA is a strange beast. When the federal government seeks to make some chemical or plant illegal, there is a specific process that usually (but not always) happens, which involves publishing notice of the proposed scheduling and allowing time for public comment before a final ruling is made. With the FDA, all that is required is that they explain how they have decided things will work from now on within the pages of the Federal Register. Mark Niemoeller, mentioned earlier, lost his case against the FDA.

An April 3, 2000 notice in the Federal Register stated that from that point on, the FDA would act against the producers of "various products that are being manufactured, marketed, or distributed as alternatives to illicit street drugs." The FDA characterized such products as unapproved and/or misbranded drugs that violate the Food and Cosmetic Act. This is despite the fact that often the very same ingredients at the same (or larger) amounts could be used in a product that was entirely legal, as long as it was not marketed as a replacement for an illegal drug. In recent years, the manufacturer of an energy drink called "Cocaine" fell victim to the FDA on this count, and they had to do some fancy dancing to stay in business. (The irony of the fact that the world's most popular soda is named after the two psychoactive ingredients it contains--one of which is illegal--was apparently lost on the FDA; but maybe they drink Pepsi.) If the DEA can't find fault with a product's non-scheduled, non-analog ingredients, then at least the FDA can target the method of marketing. Spice products and most Spice knock-offs have been promoted as herbal incenses, which may make it more difficult for the FDA to shut down vendors of these products. Nevertheless, the FDA's involvement in the two busts in Kansas could indicate that they intend to bring unapproved and/or misbranded drug charges against the vendors at some point, and the context within which a product is advertised and sold could hold more sway with judges than the product's packaging.

Perhaps the FDA will ignore K2 and attempt to prosecute the vendors in Kansas for other ethnobotanicals they feel were being sold as alternatives to illegal drugs; or perhaps all of the charges will be done at the state level, and the FDA will just bow out. Erowid will continue to follow further developments in these two important cases. •

In 2013, I read a long article about Todd Gordon Skinner, Krystal Cole, and the LSD silo bust that mentioned that Krystal Cole had testified against Bouncing Bear's Clark Sloan. "In 2011, Cole acted as the primary government witness against one of the advertisers on her website, Clark Sloan, an individual who was allegedly selling illegal substances. He was indicted with twenty drug-related counts." In a January, 2011 indictment of Clark Sloan, Krytsal Cole is mentioned: "[...] solicited and paid Krystal Cole $500 in cash in both 2008 and 2009 for her to advrtise for BBB on her website and produce "how to" videos intended to increase BBB sales of controlled substances[...]". (Complaint against Clark Sloan, Jan 5 2011)

In 2014, it is curious that Bouncing Bear is still in business after the charges, fines, and arrests.