§ 3383 — Imitation controlled substances

§ 3383. Imitation controlled substances. 1. For purposes of this\nsection, the following terms shall have the following meanings:\n a. "Manufacture" means the production, preparation, compounding,\ntableting, processing, encapsulating, packaging, repackaging, labeling\nor relabeling of an imitation controlled substance.\n b. "Markings" means a simulated trademark, trade name, imprinting or\nother mark, or likeness thereof, of the manufacturer, distributor or\ndispenser of a controlled substance or a simulated code number or symbol\nor likeness thereof identifying a controlled substance or combination of\nsuch substances.\n c. "Imitation controlled substance" means a substance, other than a\ndrug for which a prescription is required pursuant to article one\nhundred thirty-seven of the education law, that is not a controlled\nsubstance, which by dosage unit appearance, including color, shape and\nsize and by a representation is represented to be a controlled\nsubstance, as defined in the penal law. Evidence of representations that\nthe substance is a controlled substance may include but is not limited\nto oral or written representations by the manufacturer or seller, as the\ncase may be, about the substance with regard to:\n (i) its price, nature, use or effect as a controlled substance; or\n (ii) its packaging in a manner normally used for illicit controlled\nsubstances; or\n (iii) markings on the substance.\n 2. It shall be unlawful for any person to manufacture, sell or possess\nwith the intent to sell, an imitation controlled substance.\n 3. It shall be unlawful for any person to possess or use any punch,\ndie, plate, stone or any other equipment in order to print, imprint, or\nreproduce the trademark, trade name or other identifying mark, imprint\nor device of another or any likeness of any of the foregoing upon any\nsubstance or container or labeling thereof with intent to manufacture an\nimitation controlled substance.\n 4. No liability shall be imposed by virtue of this section on any\nperson licensed pursuant to article one hundred thirty-one of the\neducation law or licensed under this article who manufactures,\ndistributed, sells, prescribes, dispenses or possesses an imitation\ncontrolled substance for use as a placebo or for use in clinical\nresearch conducted pursuant to the federal food, drug and cosmetic act.\n 5. Nothing in this section shall apply to a noncontrolled substance\nthat was initially introduced into commerce prior to the initial\nintroduction into commerce of the controlled substance which it is\nalleged to imitate.\n 6. In any prosecution under this section it shall be necessary to\nprove that the imitation controlled substance was represented to be a\ncontrolled substance; however, it shall not be a defense to a\nprosecution under this section that the accused believed the imitation\ncontrolled substance to be a controlled substance.\n 7. A violation of subdivision two or three of this section shall be a\nclass A misdemeanor. A violation of subdivision two or three of this\nsection by a person previously convicted of a violation of this section\nwithin the preceding five years shall be a class E felony.\n 8. If any provision or part of this section or application thereof is\nheld invalid, the invalidity shall not affect other provisions, parts or\napplications of this section which can be given effect without the\ninvalid provisions or application, and to this end the provisions of\nthis section are severable.\n