Bulletproofing the Spice Ban

Article by Sophia Voravong :: Journal and Courier

State Sen. Ron Alting figured it wouldn't be long before someone found a loophole in an Indiana law he sponsored that banned possession and sales of spice, K2 and other synthetic blends marketed as incense that mimic marijuana's high when smoked.

But the Lafayette Republican didn't expect that word would come just days after the legislation took effect on July 1, 2011.

"We thought we were going to at least cover our bases, hopefully for another year, so that we could continue researching and finding ways to take it completely off the shelves," Alting said. "But we were wrong."

Now it's back to the drawing board.

Alting said he has spent the past three months working with an attorney -- and sought input from Tippecanoe County Prosecutor Pat Harrington -- to draft a new bill he hopes will make the previous legislation bulletproof. He plans to introduce it when the Indiana General Assembly convenes in January.

The measure also comes as local law enforcement and anti-drug advocates worry that altered, and therefore legal, versions of spice are being sold in Lafayette-area stores. The Drug-Free Coalition of Tippecanoe County will discuss the accessibility of spice and bath salts -- another suspected designer drug used for its non-advertised purpose -- during its monthly meeting on Wednesday.

"We actually have heard of some different places and are trying to pinpoint exactly who is selling it," said Kate Kerrigan, program coordinator at the Drug-Free Coalition. "We're trying to pinpoint where it's being sold ... so that we can take action."

Both Alting and Kerrigan said they believe continued availability of spice poses a significant health risk to the community.

Investigators do know of one place in Tippecanoe County where spice was sold after the law took effect: Discount Tobacco at 2316 Teal Road in Lafayette.

Manager Tammy Brandt told the Journal & Courier last week that she is aware of the allegations but was advised not to comment.

A message left for the attorney representing Discount Tobacco, Stephen Donham of Indianapolis, was not returned.
Lafayette police began investigating Discount Tobacco in September, after officials were contacted about a local resident who used something purchased from there and had reactions that matched what investigators had seen with spice, according to city attorney Ed Chosnek.

Police Chief Don Roush then asked the Street Crimes Unit to check out the store.

Officer Mike Barthelemy, a member of the Street Crimes Unit, went to Discount Tobacco on Sept. 14. The store had a glass display near the register that showcased different brands of spice, he said.

"We basically took all of it and warned them about it," Barthelemy said. "We were told that they continued to sell it, so we went back on Oct. 10 using an undercover officer, with help from the Drug-Free Coalition. It was hidden behind the counter."

The first time, officers seized 472 packets of spice with a retail value of $15,619.28, he said. About $3,000 worth was seized in October.

Discount Tobacco also was cited for violating a city ordinance that prohibits spice from being sold.

"One of the issues is, the packages are so generic that all they have to do is change the name of them, print off a cheap label and call it something else," Barthelemy said. "Most of the packages don't even have the ingredients on them."

Samples from the various packages have been sent to an Indiana State Police laboratory for testing, Harrington said. Those results are not yet back.

Chosnek said Donham, the attorney for Discount Tobacco, sent a letter stating that Discount Tobacco had its product tested and that the chemical makeup did not include ingredients banned under Indiana law or Lafayette's ordinance.

But the letter did not include a report detailing those findings, Chosnek said.

"Right now, all we know is that it had the same effect as on people who smoked spice," he said. "What we're hoping is that businesses choose to be a good citizen in the community -- that they wouldn't sell a product even if it didn't contain the banned ingredients because of the danger to the public.

"Our concern is that they not sell a product that essentially is the same but might be slightly labeled different."

He said without test results it's too early to say if Lafayette will amend its ordinance to expand what's considered spice.

Harrington also is waiting for those test results to determine whether any criminal charges will be filed. He plans to provide the list of ingredients from the seized spice to Alting, so that Indiana can beef up the current legislation.

"This is a mind-altering drug," Harrington said. "To call it synthetic marijuana is wrong -- it's closer to the effects of PCP. It can cause paranoia, seizures."

The comparison of spice to marijuana is because they affect the same receptors in the brain.

Since proposing the legislation earlier this year, Alting said he has received numerous calls from parents and spouses of spice users. They've urged him to help make spice illegal and not readily accessible.

"I've heard from parents who cashed in their 401(k)'s to put their children in detox centers," Alting said. "This has financially broken families and destroyed the family core. This is some really, really bad stuff out there.

"This is not your marijuana joint for elation. This is hallucination."

His proposed, improved bill will cover both spice and bath salts.

West Lafayette police Chief Jason Dombkowski said he recently asked detectives to check out locations that sold spice before the ordinance took effect. They found no spice currently being sold, he said.

Tippecanoe County Sheriff Tracy Brown said only one gas station carried spice before the county's ordinance took effect. Deputies have not seen it sold since, he said, but that doesn't mean it's not being used.

"My sense is, just talking with people, is that spice is still very popular. It's still being used," Brown said. "Us banning it from being sold at retail locations doesn't eliminate the possibility that private individuals are buying it over the Internet."