Latest fad in herbal incense is legal in Minnesota, but not in North Dakota
A middle-aged woman in a pink halter top strolled into the Moorhead store and headed straight for the herbal incense.
Flipping through the shiny plastic packets, she found one she hadn't tried before, a black bag labeled "Smoke XXXX."
After shelling out $50 for the 3-gram pouch, she climbed into her minivan and tore open the package.
Carefully, she poured the potpourri-like substance into her "Stairway to Heaven" hitter box (a small container normally used for marijuana), loaded up her cigarette-style pipe and fired it up. She took a drag, drawing the smoke deep into her lungs, and waited for the high to arrive.
The woman confessed to a Forum reporter by her side that she had "not a clue" about the name or nature of the mind-altering substance sprayed on the incense.
The packaging didn't list the drug in the ingredients, but it did warn that the incense was "not for human consumption."
"But actually, it is," she said.
Asked how she knows, she said, "Because I smoke it, and I'm still alive."
The woman spoke to The Forum on condition of anonymity, fearful she would lose her job at a local financial institution.
With the rest of the incense still in her hitter box, she drove away from the parking lot and turned toward her home in North Dakota, where the substance she'd just ingested was outlawed in February.
As she crossed the Red River into Fargo, she committed a felony.
And she's not alone.
Since May 1, Fargo police have arrested or sought charges against at least a dozen people for possessing synthetic drugs that mimic the high produced by smoking marijuana, Lt. Pat Claus said.
The chemically enhanced incense is legal in Minnesota. It's commonly known as Spice or K2 but also sells under a host of other names. Among those seized by Fargo police are Spark 10, Fire N' Ice, Karma Kind and California Dreams.
'Not a good thing'
Nowhere on the packaging does it instruct the user to smoke the incense in a pipe. But the way the product is marketed often appears to be less of a "wink, wink" and more of an emphatic nod. For instance, one website selling a brand of premium Spice offers a free pipe with an order of 2 grams for $34.99.
"They know that the manufacturer who put that stuff on there intended them to smoke it and get the hallucinogenic benefits," said Howard Anderson, executive director of the North Dakota State Board of Pharmacy.
The woman who recently purchased incense in Moorhead used to have it delivered to her Fargo home after purchasing it online. But since the Board of Pharmacy issued an emergency rule on Feb. 25, defining several chemicals that are sprayed on the incense as controlled substances and thereby making them illegal to possess or sell, the company will no longer mail it to her home.
So, she goes to Moorhead, where the incense is sold at Discontent, Mellow Mood and Mother's Music.
Moorhead police know it's being sold, but they haven't encountered it on the street or received any reports from hospitals that it's causing health problems, Lt. Brad Penas said.
Still, he'd like to see Minnesota follow the lead of North Dakota and a growing number of states racing to ban it.
"It's not a good thing for us to be having for sale over here, making it legal for somebody that's 18 years old to walk in, purchase it and turn around and walk out and sell it to a kid that's 14, and there's no repercussions for anybody," said Penas, who oversees the department's narcotics division.
Minnesota Board of Pharmacy Executive Director Cody Wiberg said his office had "not received a single call from anyone about this" until a phone call from The Forum last week.
The board just finished a major revision of its Schedule I controlled substances a couple of months ago, he said.
"Based on what I know right now, even though we have to do more research, I probably will have our board begin the rulemaking process to place these in Schedule I," he said.
Mother's Music co-owner Brady Bredell said the store carries the product because its competitors do and will continue as long as it's legal. He said he hopes North Dakota will reconsider and make possession of the substance a misdemeanor offense, at most.
"The potential is they're going to be locking up their own sons and daughters and putting them in prison for this," he said.
Every morning at the Missouri Poison Center, Director Anthony Scalzo sits down and scans through the list of calls from the day before.
In November, he noticed one call referring to a marijuana substitute. He noted a few similar calls in December and about a dozen more in January.
The callers, he said, were mostly emergency room doctors reporting patients who had smoked K2. They had become extremely agitated and anxious, with accelerated heart rates and blood pressures as high as 200/110 (for adults, 120/80 is considered healthy).
The symptoms aren't typical of someone who smokes marijuana, he said. In a few cases, K2 users reported tremors and hallucinations.
By mid-May, poison centers nationwide had logged 352 similar cases in 35 states. As of Thursday, the total stood at 545 cases in 41 states, according to the American Association of Poison Control Centers.
"It's just blossoming around the country," Scalzo said.
K2 lab tests found the incense had been sprayed with a compound called JWH-018 - a chemical originally synthesized in 1995 by a graduate student of research professor John W. Huffman at Clemson University - or the related JWH-073.
The chemicals, known as synthetic cannabinoids, act on the same brain receptors as THC, the active ingredient in marijuana.
Huffman said JWH-018 "was not designed to be a super-THC." He points out there are no valid, peer-reviewed studies of the compound's effects on humans or any data regarding its toxicity.
"It should absolutely NOT be used as a recreational drug," he wrote in a blanket response to e-mailed questions.
Scalzo said the unknowns of chemically enhanced incense are what concerns health officials.
"You don't know what you're getting. You don't know what's in there. There's no quality control," he said.
Emergency action taken
The North Dakota Board of Pharmacy raised similar concerns when it took emergency action to classify JWH-018 and six other chemicals as Schedule I controlled substances earlier this year.
North Dakota law states that the board shall place a substance under Schedule I if it has "high potential for abuse" and no accepted medical use in treatment.
North Dakota is one of three states where JWH-018 and other drugs used in incense blends are illegal, the others being Kansas and Kentucky.
Bans take effect Thursday in Alabama, Georgia and Tennessee. Lawmakers in seven other states have either approved bans that are awaiting a governor's signature or are considering bans.
North Dakota's emergency rule took effect Feb. 26, the day after the board passed it. The board adopted it as a final rule in May and is waiting for Attorney General Wayne Stenehjem's review and approval, said Anderson, the board's director. It will be introduced as legislation in 2011, he said.
For law enforcement purposes, it's already in effect.
Under state law, anyone found in possession of a controlled substance without a doctor's prescription may be charged with a Class C felony, a Class B felony if they're within 1,000 feet of a school.
However, in the case of marijuana, possession of
1 ounce or less is a misdemeanor - in other words, the law is harsher when it comes to what some consider imitation marijuana than for the real thing.
Ryan Zueger, co-owner of Big Willies in Mandan, N.D., where customers used to be able to buy Spark 20 and 10 other brands of the incense, said 50 percent or more of his sales came from the product prior to the board's action, which he criticized as overreaching and being done in an emergency meeting without public notice.
The board action was prompted in large part by two teenagers who wound up in a Bismarck emergency room after injecting stardust, a stimulant mixed with bath salts that produces a high that's been compared to cocaine or methamphetamine. (The Moorhead shops don't carry stardust.)
Zueger said his shop stopped selling stardust two days before the board outlawed its active ingredient, mephedrone, and a second stimulant.
"If people are going to get hurt, I don't really want to carry that product," he said.
But the board went a step further in also banning JWH-018 and four other drugs sprayed on incense.
"We just decided, let's schedule them all and make it illegal to possess or sell them," Anderson said.
Zueger said the board jumped the gun without evidence that the incense causes negative health effects. The incense is sold as aromatherapy, he said, and some people prefer it to prescription painkillers. One customer from Montana dropped by every two to three weeks to buy it for his son who was in a debilitating car accident, he said.
But Anderson said the lack of information on the packaging is what creates the potential for harm.
"People buy this stuff and they think, 'Well, it's for sale; must be OK.' But it isn't," he said.
Bredell, the Mother's Music co-owner, said the only reason his record store carries the incense is because customers requested it, "and we got sick of giving people the address of our competitors."
"The music business is struggling, and we're just trying to stay competitive to similar businesses," he said.
As for how customers are using the product, he said, "We sell it as incense, and I guess that's all I can say about that."
A manager at Mellow Mood who spoke to The Forum about the incense refused to give his last name for attribution. He provided the e-mail address of the store's owner, who didn't return a message seeking comment.
Staff at Discontent also declined comment and provided a phone number for the store's owner, who couldn't be reached for comment.
The Mellow Mood manager said he believes some customers from North Dakota still don't realize it's illegal there. He said he won't be surprised if the product is eventually outlawed in Minnesota, given the reaction in other states.
Legislation likely in Minn.
It's uncommon for a drug to be banned in North Dakota and not in Minnesota, but there are exceptions - although one of them is about to expire.
Salvia divinorum, a mint herb native to Mexico, and its active ingredient, salvinorin A, were banned by the North Dakota Legislature in 2007.
Minnesota lawmakers caught up last spring, approving a ban that takes effect Aug. 1.
The plant is typically chewed or smoked for its hallucinogenic effects, according to the federal Drug Enforcement Agency, which, as with JWH-018, has no authority over salvia under the Controlled Substances Act.
"It was clearly a problem, and law enforcement was very concerned about it," said state Rep. Morrie Lanning, R-Moorhead, who sponsored the House bill.
Concerns about THC-mimicking drugs were just rising to the surface as this year's legislative session ended, Lanning said.
"We will look into that, and we will pursue legislative action next session," he said.
In the meantime, he said, lawmakers will look at whether any state agency has the power to address the issue in the interim.
"When you discover a problem like this, which is obviously serious, you would hope that you'd be able to take some emergency action someplace," he said.
However, unlike its counterpart in North Dakota, Minnesota's Board of Pharmacy does not have expedited rulemaking authority when it comes to the scheduling of drugs, director Wiberg said.
"It will take a minimum of several months to promulgate the rules, and that is assuming we don't have 25 or more people requesting a rules hearing before an administrative law judge," he said.
Getting legislation passed is no easy task, either, as Lanning knows. In the past, he unsuccessfully pushed a bill to ban the sale of drug paraphernalia in the state.
"It's been more difficult to get some of those things done in Minnesota," he said.
Seven drugs banned
The North Dakota Board of Pharmacy took emergency action in February to classify seven drugs that mimic the
effects of marijuana or methamphetamine as Schedule I controlled substances, making them illegal to possess or sell.
# CP 47,497 and homologues
Source: Fargo Police Department
Readers can reach Forum reporter Mike Nowatzki at (701) 241-5528