§ 62-112. Misbranded synthetic drugs prohibited.

(a)

Definitions. For purposes of this section, the following terms apply:

(1)

Drug as used in this section shall mean any substance or preparation, other than food and cosmetics, that is intended to affect the structure or any function of the body. This term specifically does not include any substance or preparation which (i) requires a prescription, (ii) is approved by the United States Food and Drug Administration, or (iii) is dispensed in accordance with Louisiana and federal law.

(2)

Misbranded drug shall mean a drug in package form:

a.

If the labeling is false or misleading in any particular.

b.

If it is dangerous to health under the conditions of use prescribed in the labeling or advertising thereof.

c.

If the label does not correctly provide the identity of the drug. A failure to provide the identity of the drug, or providing a false identity, shall both be treated as misbranding.

d.

If the label does not correctly provide the name and place of the business of the manufacturer, packer, seller, or distributor. A failure to provide the name and place of business, or providing false information regarding the same, shall both be treated as misbranding.

e.

If the label does not contain an accurate statement of the quantity of the contents in terms of ingredients, weight, measure, or numerical count, or if any such information is not prominently placed on a label in a manner so as to be easily seen and in such terms as to be readily understood by purchasers and users of the articles under customary conditions of purchase and use.

f.

If the labeling otherwise violates the State Food, Drug and Cosmetic Law, La R.S. 40:601, et seq., in any particular.

(3)

Synthetic cathinone as used in this section shall mean any substance or product, whether in crystal, powder, pill, tablet, capsule, liquid and other forms, containing a synthetic stimulant or to which a synthetic stimulant has been sprayed, applied, or otherwise added, and that can be consumed and placed into a pipe, cigarette paper, atomized, or drug paraphernalia for purposes of ingestion by smoking, inhaling, or other method, regardless of whether the substance is marketed as not for purposes of human consumption, and regardless of how the substance is labeled.

(4)

Synthetic cannabinoid as used in this section shall mean any substance in the form of a crystalline or powder product in crystalline, loose, powder, block, tablet or capsule form; or any plant material in granular, loose leaf, powder, or liquid form or used as a food additive, to which a chemical or chemical compound intended, when introduced into the human body, to mimic or simulate the effect of marijuana or tetrahydrocannabinol has been sprayed, applied, mixed or otherwise added, regardless of whether the substance is marketed as "not for human consumption," "not for smoking," or contains some other similar statement, and regardless of how the substance is labeled, including, but not limited to, insect repellant, plant food, herbs, incense, nutrient, dietary supplement or spice.

(5)

Synthetic drug as used in this section shall mean any capsule, powder, liquid, vegetative material, product, or other substance, however constituted, including, but not limited to any synthetic cannabinoid or synthetic cathinone, which, regardless of labeling to the contrary, is designed, intended, marketed, manufactured, or engineered in furtherance of impairing a normal person's faculties, and which is designed to be injected ingested, inhaled or otherwise introduced into the human body.

(6)

Proprietor as used in this section shall mean a natural person who, whether individually or as a member, shareholder, or partner of a legal person, knowingly or intentionally owns or operates a business that engages in the provision, sale or distribution of misbranded synthetic drugs on the premises as merchandise or inventory. Where a legal person is found to be in violation of any prohibition of this section, the proprietor or proprietors of such a legal person shall be deemed to be in violation of the prohibition on possession, provision, sale or distribution of misbranded drugs, as the case may be.

(b)

Possession, provision, sale, distribution and advertising misbranded synthetic drug.

(1)

It shall be unlawful for any person to knowingly or intentionally possess, provide, sell, give away, offer or advertise for sale, or display for sale, misbranded synthetic drug.

(2)

Any combination of the following factors, viewed in the totality of the circumstances, may be considered in determining whether a product is a synthetic drug under this section:

a.

Marketing. A product routinely advertised to be a substance for which it is rarely, if ever, suitable to be used for (e.g., incense, potpourri, food additive, therapeutic bath crystals, plant food, insect repellant, iPod cleaner, glass cleaner).

b.

Sales location. Products displayed and sold in businesses such as gas stations, convenience stores, smoke shops and head shops where such advertised products are not typically sold.

c.

Labels and packaging.

i.

Products marketed as common non-consumable products which contain warnings such as, but not limited to, "not for human consumption," "not for purchase by minors."

ii.

Products containing notices on the package not normally found on similar products such as, but not limited to, "does not contain any chemical compounds prohibited by state law," "contains no prohibited chemicals," "product is in accordance with state and federal laws," "does not contain any DEA banned substance," "legal herbal substance," or "100 percent compliant guaranteed."

iii.

Products whose package labeling indicates, suggests or implies that a product mimics the pharmacological effects of any controlled substance through euphoric pleasure, heightened senses, increased orgasm, relaxation, or awareness, or that the product focuses energy, energizes, improves memory, improve dreams, or provides mood alteration or enhancement.

d.

Price. The price of the advertised product is much more expensive than other products marketed in the area for the same or similar use.

e.

Misleading directions. The product contains directions for the product's use, which is not consistent for the type of product advertised (e.g., "place caplet over door to enhance mood").

f.

Similarity to illicit street drugs.

i.

Products designed to make the substance appear similar to illicit street drugs (e.g., an herbal substance dyed green to resemble marijuana).

ii.

Products advertised using brand names and packaging designed to make the product appear similar to illicit street drugs, or labeled with names that have no relation to the advertised use of the product being sold. Common brand names include, without limitation: K2, Spice, Bliss, Black Mamba, Bombay Blue, Blaze, Genie, Zohai, Yucatan Fire, Skunk, Moon Rocks, Scooby Snax, Mr. Nice Guy, Mr. Happy, XXX, and Train Wreck.

g.

Ingredients. A product which has been enhanced with a synthetic chemical or synthetic chemical compound that has no legitimate relation to the advertised use of the product which mimics the effects of a controlled substance when the product, or the smoke from the burned product, is introduced into the human body.

h.

Verbal or written representation. Verbal or written representations made at the place of sale or display regarding the purpose, methods, use or effect of the product.

(c)

Affirmative defense. It shall be an affirmative defense to prosecution of a violation of this section if the product is a food product, drug, dietary supplement, cosmetic, or other substance regulated by the Food and Drug Administration (FDA) and in compliance with that agency's requirements; is regulated by and in compliance with the labeling guidelines of the Federal Trade Commission; is regulated by and in compliance with the Federal Fair Packaging and Labeling Act; is regulated by and in compliance with the Federal Food, Drug, and Cosmetic Act; is regulated and in compliance with the Louisiana State Food, Drug, and Cosmetic Law, LSA-R.S. 40:601, et seq. That a product is not subject to regulation by the acts or agencies listed above shall not give rise to an affirmative defense to prosecution; mere "non-regulation" by these acts or agencies without a specific regulatory exemption shall not give rise to an affirmative defense.

(d)

Seizure and destruction of misbranded synthetic drugs. Misbranded synthetic drugs prohibited herein may be seized by law enforcement officers and may be destroyed in the same manner used to destroy narcotics and contraband substances, after its use for evidentiary purposes in any judicial proceeding is no longer required.

(e)

Injunctive relief. Lafayette City-Parish Consolidated Government shall have the authority to seek an injunction against any person or business violating the provisions of this section. In any action seeking an injunction, Lafayette City-Parish Consolidated Government shall be entitled to collect its enforcement expenses, including forensic costs, law enforcement costs and reasonable attorney fees and costs incurred at trial and on appeal.

(f)

Subsequent federal or state action. If the United States Congress or the Louisiana Legislature should pass or amend a law, or any department of the federal or state government with rulemaking authority should enact or amend a regulation, which would preempt the authority of Lafayette City-Parish Consolidated Government to regulate the offenses herein established, then upon the effective day of such legislation, enactment or amendment, the provisions of this article addressed by the legislation, enactment or amendment shall no longer be effective. Any violations of this article committed prior to the effective date of such legislation, enactment or amendment may be prosecuted.

(g)

Violations and penalties.

(1)

Each day of any violation of this section shall constitute a separate and distinct offense. Further, each separately packaged substance that contains a misbranded synthetic drug shall constitute a separate and distinct offense of cause of action.

(2)

Whoever violates the provisions of this section shall be fined not more than $500.00 per offense or imprisoned not more than six months, or both.

(3)

Upon a subsequent conviction, regardless of whether the second offense occurred before or after the first conviction, the offender shall be fined not more than $1,000.00 per offense or imprisoned for not more than six months, or both.

(Ord. No. O-216-2014, § 3, 11-4-14)