Caught in a drug dragnet
Two laws were passed by state legislators in 2005 and 2010 that sought to remove from the marketplace certain synthetic substances and herbs thought to have hallucinogenic properties. But the laws also inadvertently included a number of herbs that have long been used in dietary supplements, said Tami Wahl, AHPA’s special regulatory counsel. The mixup, which only recently came to AHPA’s attention, Wahl said, resulted from a well-intentioned move by state lawmakers to ban the sale of designer drug products that had appeared on the market which were not specifically addressed by the Drug Enforcement Administration or other regulatory bodies.
“At the time, products called K2 and Spice were all the rage, and the legislature felt they couldn’t keep up with all the various things that were coming on the market. The synthetic drugs were the concern at the time,” Wahl told NutraIngredients-USA.
But the crafters of the laws drew up lists of banned ingredients found in nature to include in the bills. They arrived at these extensive lists, Wahl said, by looking at the labels of the offending products.
“They looked at the packaging, and there were plants listed on label, but once you actually tested those products there were no plant materials in there,” Wahl said. “There are a few substances on these lists that do have hallucinogenic properties (such as psilocybin mushrooms) but for the most part that wasn’t the case.”
More than 50 substances on lists
The 2005 bill, named Louisiana State Act No. 159, banned the cultivation and/or possession of 39 plants or other natural substances (several named species are actually fungi) that are known or believed to have hallucinogenic properties. The use of the plants for landscaping purposes was still allowed under the bill. The 2010 law, referenced as House Bill 173, amended an earlier law that outlawed cannabis and synthetic cannabinoids to add another 12 herbs to the outlawed list.
Wahl said there was no record of enforcement actions taken against the marketing or use of dietary supplements in Louisiana based on these laws alone. As far as can be discerned, she said, a wide array of dietary supplements containing theoretically banned ingredients have been sold in the state in the intervening years.
So the action to ameliorate this situation was not a response to an urgent need, Wahl said, but was more in the realm of trying to prevent an honest legislative mistake from propagating into future legislation or being exported to other states where legislators might look to Louisiana for a precedent. Once legislators were educated on the facts of the case, Wahl said the amendment, which was signed into law on July 2, was a pretty easy sell. AHPA even received support from a sponsor of one of the original bills, she said.
AHPA’s strategy for how to deal with this situation was colored by a couple of political realties. The legislative session in Louisiana this term is unusual in that it is a ‘fiscal’ session, Wahl said. This means that most of the lawmakers' attention will be directed toward budgetary measures, with other work kept to a minimum. Add to that the fact that it is an election year in the state, and Wahl the decision was made not to try to strike individual substances from the lists but rather to craft the amendment as a broad exemption from enforcement for lawfully marketed dietary supplements that contain legal dietary ingredients that appear on the lists.
“No one wants to be seen as being ‘soft on drugs’ in an election year. It’s not a perfect solution for everyone because we still have plants unfairly included in a list of hallucinogenic substances,” she said.