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April 10, 2010

Defending "Spice" cases

Posted By Tim Bilecki

Given the substantial amount of new "Spice" cases we are seeing, specifically in the Pacific, we thought it would be appropriate to run a series of blogs on "Spice." Not surprisingly, commands are attempting to make what is essentially legal in the United States and in most countries - illegal for service members. We were successful in February of this year when we fought the Army policy in Okinawa, Japan which prohibited Spice and a military judge declared it an illegal order. In an attempt to circumvent that ruling, the command promulgated a subsequent order which we believe is still legally problematic. This is, and will continue to be, a complicated area of the law which we will watch closely.

Here are some of the basics:

What is Spice? Spice is a brand name for a mixture of herbs that has been sold in the United States, Japan, Europe and other parts of the world since around 2002, purportedly as incense, as well as over the Internet as an "herbal smoking blend." Even though the manufacturer officially warns against human ingestion of Spice, it is usually smoked for its cannabis-like effects, which are believed to be caused by a mixture of synthetic cannabinoid drugs. Several different "flavors" of Spice have been marketed which have been shown to contain different proportions of the synthetic cannabinoid active ingredients, and reportedly produce subtly different effects.

What are the chemical names for the substances in Spice?

The abbreviated chemical names for the substances found in Spice are:

HU-210 - A Schedule I controlled substance. Various studies show it is anywhere from 66-800 times more potent than THC. Presence is not detectable with standard Gas Chromatography/Mass Spectrometry
JWH-018 - Not currently a controlled substance. Believed to have THC-like effects
CP 47,497 - Not currently a controlled substance. 3 to 28 times more potent than THC. Used to research effects of THC
JWH-073 - Not currently a controlled substance. THC-like effects probable
HU-211 - Not currently a controlled substance. Studies tentatively show no THC-like effects. Field tests for THC will result in a negative result

Is Spice a Controlled Substance? It depends on the chemical composition. Spice that contains HU-210 (or another controlled substance) is a controlled substance. However, Spice is available that contains no controlled substances, which means the compound is not a controlled substance.

Is Spice a violation of UCMJ Article 112a? No, unless the sample contains a controlled substance, like the ingredient HU-210.

Is Spice legal? This is the million dollar question. The command could charge your client under Article 134 for possession, use, importation onto a military installation, distribution, etc. of Spice. Commands are also prohibiting use, possession, purchase, shipment or distribution of Spice with policy memoranda. If your local jurisdiction has a punitive command policy memorandum making Spice illegal, violations can be charged under Article 92.

Will Spice list HU-210 or another controlled substance as an ingredient? No.

What are common brand names of Spice? Silver Spice, Spice Gold, Spice Diamond, Yukatan Fire, PEP Spice, and Fire n’ Ice.

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