AUSTIN (KXAN) – Small, square, packets are set up neatly on a display rack at one local smoke shop. The packaging is colorful and boasts herbal scents and aromas. Even though they come with different names, all of them are marketed much the same way.
“You put it in a warming dish and you let the smell fill the room,” said the clerk behind the counter.
He then points out one in particular.
“This is going to be the stronger-smelling herbal incense.”
The packages. The marketing. Even the name “herbal incense.”
All of it sounds very familiar to Greg Thrash, resident agent in charge at the Drug Enforcement Administration.
“Most of them are marketed as incense,” Thrash said before shaking his head. “Believe me, it has nothing to do with incense.”
On many of those colorful packages, it will say “herbal incense.” It also will most likely say “Not for human consumption.”
Such labels would seem to make it clear how the product is meant to be used. But that is where the deception of designer drugs begins according to Thrash.
“All of them have the statement ‘not for human consumption.’ All of them.”
Despite the warnings on the packages, Thrash said the people producing the product know the “herbal incense” will be smoked as a synthetic marijuana. Profits can be had and the warnings are a way to get around the law.
“By marketing it as ‘not for human consumption,’ they are trying to get around a criteria in the analogue drug statute,” said Thrash.
The fuzzy wording does not end there.
During “Project Synergy” in June 2013, a DEA and police sting of head shops and dealers selling K2 and Kush, some packages printed statements indicating the drug was “DEA compliant.”
“They are deceiving the public,” said Thrash.
But the “DEA compliant” claim is a misleading caveat stemming from a law that is written to the advantage of the drug-designer.
K2 and Kush are not legal. Both were banned in the state of Texas in 2011.
But with a simple tweak of the molecular compound, the illegal drug and its effects can become legal again.
“If they add a little carbon group here or a carbon group there, then it is no longer illegal,” said Dr. John Bedolla with Seton Medical Center. Bedolla has treated patients suffering from the ill effects of designer drugs labeled as synthetic marijuana.
That label itself is another attempt to deceive, according to Bedolla.
“It is an advertising ploy,” said Bedolla. “They sell you this junk by saying it is like marijuana.” He said synthetic drugs can actually carry strength equal to hundreds of hits of marijuana.
But unlike actual marijuana, some of the synthetic drugs are legal thanks to the way the law dictates banned substances.
“There is always a lag between when someone invents a new substance and when you are able to make it illegal,” said Bedolla. That lag time is a window of opportunity for drug-designers to make a profit by marketing a “legal high.” Because a new drug may not be on the banned list, it leads to half-truth claims such as “DEA compliant.”
“If they were going to label it honestly, it would say ‘Not yet illegal,’” said Bedolla.
SKIRTING THE LAW
Earlier this month, Austin-Travis County Emergency Management Services treated 45 people for overdoses connected to designer drugs.
While investigating, hundreds of colorful packages were seized. The overdoses are traced to a particular product called “The Walking Dead.”
But because “The Walking Dead” had not yet been tested for an illegal substance and other products were not yet on the list of banned products, the entire episode ended with zero arrests.
Such is the battle law enforcement faces with designer drugs.
As long as drug-designers can make their product legal by only slightly altering the molecular compound, it may prove difficult to outlaw and prosecute dangerous drugs and their designers.
During the 2013 legislative session, Senate Bill 263 aimed to outlaw analogue drugs which could be shown to have a similar molecular make-up and similar pharmacological effects as currently banned designer drugs. The bill passed through the senate, but never made it to the house floor for a vote.
Bedolla warns anyone who walks into a smoke shop or head shop to be leery of items marketed herbal products or “legal highs.”
“Head shops are knowingly distributing a dangerous, potentially deadly product,” said Bedolla, who also acknowledged they are also doing it within the law. “Unfortunately, until it is illegal, it can be sold and it can be marketed.”