Before 2011, few in this country had heard about “bath salts”—a synthetic drug which mimics amphetamine-like stimulants.


In 2009, the U.S. Drug Enforcement Administration estimated that more than 20 million Americans used an illicit drug at least once a month. Millions of these “recreational users” have discovered “designer drugs,” like bath salts and K2 as a way to skirt the “controlled substances” laws at the state and federal level.


But the problem with these synthetic drugs is that you never know what chemicals their manufacturers have used to make them, especially those manufactured in China. These drugs have become notorious for their harmful, and sometimes bizarre, side effects.


These drugs first captured the attention of law enforcement in the 1980s and the terms “Design Drug” and “Legal Highs” were popularized in the media, leading to greater use and experimentation. Many unsuspecting designer drug users, however, did not realize the kind of contaminants that were in these drugs, like MPTP, a neurotoxin that can produce permanent symptoms of Parkinson’s disease and even death.


In November 1986, Congress passed the Controlled Substance Analogue Enforcement Act. The purpose of the law was to allow the Government to prosecute “underground chemists who make changes to an existing illegal chemical to produce a designer drug not specifically listed as illegal. That’s why the law has often been referred to as the “Designer Drug Law.” The law saw little wide-spread use until the recent epidemic of designer drug distribution.


In 2010, the Poison Control Centers received only 304 calls about bath salts. The following year, however, the number had escalated to 3,470 calls. By that time poisoning had overtook motor vehicle accidents as the leading cause of injury or death in the U.S.


Designer drug production had become a multi-billion dollar industry with bath salts and synthetic marijuana being marketed as “legal” drugs. But on July 16, 2012, President Barak Obama made possession of bath salts, synthetic marijuana and a host of other designer drugs illegal under the Analogue Act, effective October 1, 2012.


This brings us to the federal criminal case of Stephen Dominick McFadden who, in 2011, was selling bath salts to Lois McDaniel, the owner of a video store in Charlottesville, Virginia. McFadden marketed the drugs as “Alpha,” “No Speed, “Speed,” “Up,” and “The New Up.” The U.S. Supreme Court on June 18, 2015 said that McFadden “often sold these products with labels borrowing language from the Analogue Act, asserting that the contents are ‘not for human consumption’ or stating that a particular product ‘does not contain any of the following compounds or analogues of the following compounds’ and listing controlled substances.” McFadden sold the bath salts for $15 per gram to McDaniel who then resold them for $30 to $70 per gram.


The Government began investigating the distribution system and ultimately convinced McDaniel to make five “controlled buys” from McFadden. The Government intercepted the drugs intended for McDaniel, and a “chemical analysis identified the powders [he distributed]as containing, among other substances, 3, 4-Methylenedioxypyrovalerone, also known as MDPV; 3, 4-Methylenedioxy-N-methyleathinone, also known as Methylone or MDMC; and 4-Methyl-N-ethyleathinone, also known as 4-Mec. When ingested, each of these substances is capable of producing effects on the central nervous system similar to those that controlled substances (such as cocaine, methamphetamine, and methcathinone) produce.”


A federal grand jury indicted McFadden on eight counts of distributing controlled substance analogues and one count of conspiracy. The trial of this case produced sharp disagreements between the defense and the Government. The defense argued that McFadden did not know the substances he was distributing were controlled substances prohibited by the Analogues Act. The defense requested an instruction from the court to the jury that the Government was required to prove that McFadden “knew, had a strong suspicion, or deliberately avoided knowledge that the substances were controlled substance analogues.”


The Government, on the other hand, sought an instruction that “the defendant knowingly and intentionally distributed a mixture or substance … [t]hat … was a controlled substance analogue … with the intent that it be consumed by humans.”


McFadden’s instruction request was more demanding: it specifically asked the court to inform the jury that the Government had to prove he “knew that the substances that he was distributing possessed the characteristics of controlled substance analogues,” including their chemical composition and the effect they had on the central nervous system.


As the Supreme Court noted, the district court compromised, instructing the jury that the Analogue Act required that “the defendant knowingly and intentionally distributed a mixture or substance that has” substantially similar effects on the nervous system as a controlled substance and that “the defendant intended for the substance to be consumed by humans.”


Armed with the instruction, the jury convicted McFadden on all counts. He appealed to the Fourth Circuit, arguing that the district court erred in its instruction to the jury. Bound by its own precedent, the Fourth Circuit last year rejected McFadden’s argument, concluding that the “intent element [in the Analogue Act] requires [only] that the government prove that the defendant meant for the substance at issue to be consumed by humans.”


In a significant departure from the appeals court, a nearly unanimous Supreme Court vacated the Fourth Circuit’s judgment, rejecting the argument of both McFadden and the Government but nonetheless finding that the mental-state requirement of the Controlled Substances Act [Sec. 841(a)(1), Title 21 of the U.S. Code] requires the Government to prove the defendant knew he was dealing a controlled substance prohibited by the Analogue Act (Section 813, Title 21]. The Court reasoned the Government must prove that a defendant knew the substance he was distributing was a “controlled substance,” even when the substance is an analogue.


ScotusBlog analyzed the Court decision this way: “More specifically, the Court addressed ‘analogue’ drugs, statutorily defined as substances that are ‘substantially similar,’ in chemical structure as well as effect on humans, to other ‘controlled substances’ banned from distribution under federal law. If a substance meets the federal ‘analogue’ definition, then anyone who ‘knowingly’ possesses it with the intent to distribute it is guilty of a federal offense, just the same as if the substance were specifically listed on the federal statutory list.


That is, not all mind-altering substances can be precisely listed in a statute. The federal Analogue Act, a statute providing a generalizable definition, is necessary because chemists will always stay one step ahead of the specific substances listed on the federal narcotics schedule.


“[The] decision will likely resonate with ‘twenty-somethings,’ who today may use analogue substances like ‘spice’ or ‘bath salts’ for intoxicating highs, rather than the old-fashioned drugs with which aging-baby boomers may be familiar. Indeed, in a reportedly light-hearted moment yesterday morning, Justice Thomas paused after saying that his opinion for the Court addressed ‘bath salts,’ and was heard to remark that this was ‘a sentence which I completely do not understand.’ Aging baby-boomers may well understand nicknames like ‘speed,’ ‘coke,’ ‘crack,’ ‘dope’ and ‘weed.’ But bath salts and spice? Ah, the Supreme Court – constantly on the leading edge.”


Well put,