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Updated: Tuesday, 17 Jul 2012, 11:12 PM EDT
Published : Tuesday, 17 Jul 2012, 11:12 PM EDT
INDIANAPOLIS (WISH) - It's happening again. Dangerous chemical compounds, commonly known as spice and bath salts, are back on local store shelves, despite being banned not once, but twice by state law.
And once again, police and prosecutors say there’s nothing they can do to stop some of them from being legally sold.
Last November, I-Team 8 first uncovered how the makers of the synthetic chemicals were tweaking the chemical compounds in the drugs to keep them legal . Now, frustrated lawmakers, prosecutors and police find themselves back at square one.
It all began last week in Lawrence.
THE TIP OF A NEW ICEBERG
Just before 11 a.m. July 9, a Lawrence Police Department officer pulled over a car as it was heading down Post Road. Inside, officers said, they found a teen driver who appeared to be under the influence of narcotics.
They asked him what he was on, and where he had purchased it.
“He had stated that he had purchased ‘spice’ from one of our stores here in Lawrence in the 4700 block of Post Road,” said Lawrence Police Capt. Curtis Bigsby.
A few hours later, Lawrence police made their move, raiding the Smoke Shop store and confiscating 402 packets with product labels like “Sunshine Daydream,” “Sunshine Nightmare,” and “Cloud 10” (a nod to previous - now outlawed - versions of spice that were sometimes labeled “Cloud 9”).
Most of the packets were also labeled "herbal incense” and said “not for human consumption.”
And even as officers loaded up their boxes, police said, new customers were heading inside.
“There was people in line, waiting to buy more,” Bigsby said.
It had all the makings of a good bust.
But five days later the bust went bust.
Marion County Crime Lab tests showed the chemicals inside the packets were not on the state's "banned" list. Now, Lawrence Police said, they have no choice but to give them back to the store.
“It's very frustrating,” Bigsby said. “But hopefully we can get some more laws put into place to where we can combat this issue so we can stop them from selling this type of product.”
They were laws some thought were already on the books.
A SIMPLE CHEMICAL CHANGE
During our investigation last November , I-Team 8's hidden cameras showed central Indiana retailers skirting a 2011 law that banned spice and bath salts simply by tweaking the chemicals inside.
Our findings led to a new law in March that banned more than 60 additional chemical compounds . Any new ones that surfaced, lawmakers promised, would be covered too, thanks to a landmark provision that allowed the state's Pharmacy Board to make "emergency rules," similar to the federal government’s “emergency scheduling” provisions used by the Drug Enforcement Agency.
"We have that stopgap, and it’s called the Pharmacy Board,” state Sen. Jim Merritt, R-Indianapolis, said shortly after the new law was signed in March. “When we aren't in session, they can be on the look out along with AIT and other labs and [Indiana] State Police. We now have a watchdog.”
With their newly seized stash, frustrated Lawrence narcotics officers hoped that watchdog could be the answer to keeping those 402 packets from returning to store shelves.
Instead they found a dead end.
“There might not be anything we can do about it right now because the retailer says, ‘I’m going to sell it. It’s legal,’” Merritt said Monday.
Banning a new chemical compound through the Pharmacy Board isn’t as easy as snapping ones’ fingers, Merritt said.
“There are stipulations in the law that it has to be illegal in other states, or there has to be some sort of combination of why this is against the law somewhere else. If a federal law or another state outlaws the component that is found in one of the drugs in the state of Indiana, then the Pharmacy Board can write an emergency rule outlawing it in Indiana. And the reason why is that the committees and the legislature itself didn't want you outlawing Pledge or something that could be huffed from an air conditioning unit. They wanted to make sure that [a] drug is harmful. Thus, they put the tethers on it,” Merritt said.
A PROBLEM IN LAWRENCE
That’s a problem for Lawrence Police’s bust on Post Road, because so far initial tests at Marion County's Crime Lab show the compounds are not already illegal anywhere else.
According to police reports, the shop's owner, Christopher Tiplick, 21, told detectives he had independent lab reports he said proved the packets were legal.
“He promised to email those to our detectives,” Bigsby said. “In this particular case, that has not happened.”
I-Team 8 worked to track down Tiplick to see what will happen to the packets next, but our attempts to call him on his cell phone and speak with him at his home and his company’s distribution center Tuesday were unsuccessful.
An employee at the Lawrence store wouldn’t speak with I-Team 8 on camera but said when the products are returned by police, she believes they will put them back out on the shelves.
[the law], as best we can,” she said.
That’s left some calling for the laws to be changed once again.
“We will have a bill this next session to catch up, if you will,” Merritt said. “But we need to find a different avenue. We can't just go into session every once a year and put more compounds on the list to make them illegal. We need to find a way where we go to the intent. One thing we probably need to do is fund the Pharmacy Board so they can do their own testing. We're going to need state law to bless, if you will, whatever the Pharmacy Board does, and to put it into the code, rather than just the rules.”
Rep. Milo Smith, R-Columbus, who co-authored the new bill with Merritt, agreed, saying the time has come to think outside the box.
“We’re looking for the unconventional ways to get these off store shelves, going after [retailers] for things like their websites or false advertising or even tax evasion,” Smith said. “And we are having some impact. We’re seeing incidents of [overdoses] way down, and the potency appears to be dropping. We’ve even had stories of people returning the new batches of the drugs, asking for their money back when they don’t get high.”
SEARCHING FOR NEW SOLUTIONS
The search for solutions may move away from the Statehouse for the time being, and head to a courthouse instead.
Indiana Attorney General Greg Zoeller met in a roundtable discussion with state lawmakers and Illinois Attorney General Lisa Madigan last week to discuss ways to eradicate synthetic drugs from both states.
“I think they've found that the statute they passed last year that talked about the type of ingredients - the molecular structure - is probably going to be difficult to enforce and difficult to prosecute. So we heard from the prosecutors and law enforcement that it's very difficult to follow that same type of pattern that other states have tried,” Zoeller said.
He plans to hit retailers where it could hurt most: their wallets.
“A lot of these so-called bath salts and [spice] are sold in retail companies that have licenses. So, unlike the criminal case where you have to prove they knowingly and intentionally sold an illegal product, on the civil side, we may be pretty aggressive going after people who have to make sure they're not selling a dangerous product to the population. We've sent out some warnings, and we're going to do more than that. There are civil actions that can go against the retailers who are selling a dangerous product. And I think they have to be careful. It's not the same burden of proof,” Zoeller said.
It’s a solution that’s already made a difference in Illinois, Zoeller said. And it’s one his office plans to pursue immediately.
“You have to prove that you're not selling a dangerous product. I don't care what the chemical composition is,” Zoeller said.
Then, pausing, he continued with added determination.
“You can expect that out of my office very soon,” he said. “If it's a hazard to the public, you shouldn't be selling it. Period.”