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11 January 2000
Bob Merski, Sheriff
Erie County Sheriffs Office
140 West 6th Street
Erie, Pennsylvania, 16501 USA
Re: Ramifications of Senate Bill 798
Dear Sheriff Merski,
One of my subscribers has asked me to bring certain facts to your attention about the language of Senate Bill 798, which is soon to become law in Pennsylvania. It is my understanding that SB 798 amends the Controlled Substance, Drug, Device and Cosmetic Act by assigning Schedule-I status to GHB and GHB-related chemicals, excepting 1) gamma-butyrolactone (GBL) and 2) any FDA-approved GHB-containing new drug, which will be assigned Schedule-III status. Since GHB occurs naturally in many foods, and GHB-related chemicals occur naturally in most foods, there are potentially serious legal problems that might arise with the enforcement of this new law. This letter itemizes several of these problems.
My qualifications: I am the Executive Director of CERI, which operates as a think tank and information clearinghouse for nutritional, herbal and pharmaceutical treatments for cognitive conditions of all types. We have been reporting on the nutritional and medical applications of GHB for years. We publish a newsletter, Smart Life News, which is distributed to subscribers in 40 countries. I am an organic chemist by degree and have been qualified to testify in Federal Court on the chemistry of GHB. I have supervised a forensic analysis of beef which establishes that it contains appreciable GHB. I have scientific papers which document the GHB- and GHB-related chemical content of numerous foods.
The first problem that I would like to bring to your attention is that GBL (which is specifically exempted under SB 798) spontaneously hydrolyzes into GHB when it comes into contact with water. Since many GBL-containing products are historically intended (by their label directions) to be used with water (such as varnish and paint strippers, automotive- and transmission-parts cleaners, and floor-wax strippers), Pennsylvania consumers may now be committing felony crimes when they use such products in accordance with label instructions. The crime, technically, would be possession of GHB and/or manufacture of a controlled substance in an unlicensed facility.
For your information, GBL is one of the most widely used solvents in industry. It is also green because it quickly degrades on contact with water into GHB, which in turn quickly biodegrades in the ecosystem into carbon dioxide and water. Chemically, GBL is nothing but a GHB molecule which has had water chemically removed and the ends bonded together (see molecular illustrations on page 4). Basically, GBL plus H2O equals GHB (and GHB - H20 = GBL). GBL is currently the EPAs recommended solvent migration pathway away from chlorinated solvents which are toxic and damage the ozone layer. GBL is the primary ingredient in acetone-free nail-polish remover.
The financial liability that manufacturers might have to assume should their customers be prosecuted for using GBL-containing products in accordance with label instructions and in violation of controlled-substance statutes might bankrupt the Pennsylvania economy.
Section VI of the new law states that hydroxybutyric compounds and isomers of GHB are also to be Schedule I. Please be advised that alpha-hydroxybutyrate and beta-hydroxybutyrate are GHB isomers and hydroxybutyric compounds, either of which is statutorily sufficient to make them Schedule-I substances. AHB (popularly known as alpha hydroxy) and BHB (known as beta hydroxy or acetoacetate) are well advertised ingredients in premium cosmetics and skin-care products sold in Pennsylvania. Technically, possession of these AHB- and BHB-containing cosmetic products will become a felony offense. Technically, possession with intent to sell these cosmetics should earn a 30-years-to-life prison sentence. This latter crime will be committed on a daily basis by employees of supermarkets, drug stores, beauty shops, and dermatology departments of hospitals. AHB is also found in apples and apple juice.
Section VI also states that esters and ethers of GHB are also Schedule-I substances. Since some polyesters are made from GHB, and many other polyesters, polyethers, polycarbonates, polyurethanes, polyamides and polyvinylpyrrolidones are made from derivatives of GHB, these polymers technically meet the statutory chemical criteria for Schedule-I substances. The unreacted monomer content of such polymers, elastomers, plastics, resins and coatings is also technically a sufficient legal basis for their illegality. These polymers are used to make harder-than-steel automotive parts used in vehicles, polyester clothing, polycarbonate water bottles, nylon-4 rope, and hundreds of other plastic products too numerous to mention. The criminalization of such products is a legislative embarassment; the enforcement would be an economic disaster to businesses and consumers alike.
The fact that GHB is found in foods that are commonly sold in Pennsylvania supermarkets and restaurants is the biggest problem with a legal strategy of equal enforcement. Criminalization of food is unconstitutional, and a violation of common law.
I have a forensic analysis of beef which establishes that it contains GHB. Equal enforcement of the law would require 1) the arrest and prosecution of anybody eating, possessing, slaughtering or selling beef within Pennsylvania, or 2) complete non-enforcement of the law. Selective enforcement of the law against some GHB-possessing citizens and not other GHB-possessing or GHB-selling citizens is technically illegal and a violation of those citizens Constitutional rights. Knowledgeable enforcement of the law in an arbitrarily selective manner could be civilly actionable. You might want to have your legal advisors consider this potential liability before engaging in any future enforcement actions involving GHB or GHB-related crimes.
In California we have an analog-drug law which specifies that analogs of controlled substances are equally controlled. The legal criteria for an analog is either 1) structural similarity to a controlled substance, or 2) pharmacological similarity to the controlled substance. Most states have similar laws. Even though butyrolactone is specifically not included in Pennsylvanias new GHB scheduling law, it is a close structural analog of GHB and it produces a strikingly similar pharmacological effect as GHB, either criteria of which is sufficient to give it Schedule I status under Californias analog-drug statutes. There are dozens of industrial and nutritional chemicals which have structural similarity to GHB. Regardless of the fact that most of these chemicals produce no similar pharmacological effect as GHB, they are as technically illegal as GHB on the basis of their structural similarities. Needless to say, the California law is not being enforced.
The molecular illustration on page 3 demonstrates the precursor, isomer and analog status of a series of chemicals and nutrients related to GHB. Please feel free to have it examined by an independent expert in biochemistry to establish its authenticity. Please feel free to call if you have any questions.
Steven Wm. Fowkes