The Federal Analogue Act,, is a section of the United StatesControlled Substances Act passed in 1986 which allowed any chemical "substantially similar" to a controlled substance listed in Schedule I or II to be treated as if it were listed in Schedule I, but only if intended for human consumption. These similar substances are often called designer drugs.
Definition
Except as provided in subparagraph, the term controlled substance analogue means a substance -
* the chemical structure of which is substantially similar to the chemical structure of a controlled substance in schedule I or II;
* with respect to a particular person, which such person represents or intends to have a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II.
The designation of gamma butyrolactone or any other chemical as a listed chemical pursuant to paragraph or does not preclude a finding pursuant to subparagraph of this paragraph that the chemical is a controlled substance analogue.
* with respect to a particular person any substance, if an exemption is in effect for investigational use, for that person, under section 355 of this title to the extent conduct with respect to such substance is pursuant to such exemption; or
* any substance to the extent not intended for human consumption before such an exemption takes effect with respect to that substance.
Case law
''United States v. Forbes''
United States v. Forbes, 806 F. Supp. 232, a Colorado district court case, considered the question of whether the drug alphaethyltryptamine was a controlled substance analogue in the United States. The controlled drugs to which it was alleged that AET was substantially similar were the tryptamine analogues dimethyltryptamine and diethyltryptamine.
AET DMT DET In this case, the court ruled that AET was not substantially similar to DMT or DET, on the grounds that AET is a primary amine while DMT and DET are tertiary amines, AET cannot be synthesized from either DMT or DET, and the hallucinogenic or stimulant effects of AET are not substantially similar to the effects of DMT or DET. Furthermore, the court ruled that the definition of controlled substance analogue given in the Federal Analogue Act was unconstitutionally vague, in that “Because the definition of 'analogue' as applied here provides neither fair warning nor effective safeguards against arbitrary enforcement, it is void for vagueness.” The common law principle that the people should have the right to know what the law is, means that the wording of laws should be sufficiently clear and precise that it is possible to give a definitive answer as to whether a particular course of action is legal or illegal. However, despite this ruling the Federal Analogue Act was not revised, and instead AET was specifically scheduled to avoid any future discrepancies. As a district court decision, this case is no binding precedent.
''United States v. Washam''
United States v. Washam 312 F.3d 926, 930 was an appellate decision for the eighth judicial circuit in which it was considered whether the drug 1,4-butanediol was a controlled substance analogue in the United States. The controlled drug which it was alleged 1,4-B was substantially similar to was gamma-hydroxybutyrate.
1,4-B GHB In this case the court ruled that 1,4-B was substantially similar to GHB, on the grounds that “1,4-Butanediol and GHB are both linear compounds containing four carbons and that there is only one difference between the substances on one side of their molecules”, and that 1,4-B is metabolized into GHB by the body and so produces substantially similar physiological effects. It was raised in defense that 1,4-B and GHB contain different functional groups, and that the food additivemonosodium glutamate also metabolizes into GHB in the body, but these were not held to be grounds to consider 1,4-B not substantially similar to GHB. It was also raised in the case of Washam that the Federal Analogue Act was unconstitutionally vague, but in this case the court rejected this argument on the grounds that the defendant's actions in concealing her activities and lying to DEA agents showed that she knew her actions were illegal, and furthermore that “…a person of common intelligence has sufficient notice under the statute that 1,4-Butanediol is a controlled substance analogue.” The court in Washam construed the Analogue Act to require parts A and either A or A, and concluded the Act was constitutionally permissible upon this construction. As a result of Washam, the Federal Analogue Act has been upheld and can be considered valid at the present time.
