§ 39-17-454 — Controlled substance analogues

(a) (1) As used in this section, "controlled substance analogue" means a capsule, pill, powder, product or other substance, however constituted, that has the stimulant, depressant or hallucinogenic effect on the central nervous system of a controlled substance; and (A) Has a chemical structure which is a derivative or structural analogue of the chemical structure of a controlled substance; provided, that as used in this subdivision (a)(1), "analogue" means the structure of the tested item differs in no more than two (2) atoms, one (1) functional group, or one (1) double bond, from the structure of a controlled substance; or (B) Is prohibited by § 39-17-452 . (2) "Controlled substance analogue" does not include: (A) A controlled substance; (B) Any substance for which there is an approved use or new drug application by the federal food and drug administration; (C) Any compound, mixture, or preparation that contains any controlled substance that is not for administration to a human being or animal, and that is packaged in such form or concentration, or with adulterants or denaturants, so that as packaged it does not present any significant potential for abuse; or (D) Any substance to which an investigational exemption applies under § 505 of the Food, Drug and Cosmetic Act ( 21 U.S.C. § 355 ), but only to the extent that conduct with respect to the substance is pursuant to such exemption. (b) (1) In determining whether a substance is a controlled substance analogue, the following factors shall be considered, along with any other relevant factors: (A) The difference between the price at which the substance is sold and the price at which the substance it is purported to be or advertised as is normally sold; (B) Its diversion from legitimate channels, and its clandestine importation, manufacture, or distribution; (C) The defendant's prior convictions, if any, for a violation of any state or federal statute prohibiting controlled substances or controlled substance analogues; and (D) Comparisons with accepted methods of marketing a legitimate nonprescription drug for medicinal purposes rather than for the purpose of drug abuse or any similar nonmedical use, including: (i) The packaging of the substance and its appearance in overall finished dosage form; (ii) Oral or written statements or representations concerning the substance; (iii) The methods by which the substance is distributed; and (iv) The manner in which the substance is sold to the public. (2) In determining whether a substance is a controlled substance analogue, the following scientific or pharmacological factors may be considered, along with any other relevant factors: (A) Its actual or relative potential for abuse; (B) Scientific evidence of its pharmacological effect, if known; (C) The state of current scientific knowledge regarding the substance; (D) The history of the substance and its current pattern of abuse; (E) The scope, duration and significance of abuse; (F) What, if any, risk there is to the public health; (G) Its psychic or physiological dependence liability; and (H) Whether the substance is an immediate precursor of a substance already controlled under this chapter. (c) It is an offense to knowingly manufacture, deliver, dispense or sell a controlled substance analogue or to possess a controlled substance analogue with the intent to manufacture, deliver, dispense or sell such substance. (d) It is an offense to knowingly possess or casually exchange a small amount of a controlled substance analogue not in excess of one (1) gram. (e) It may be inferred from the amount of controlled substance analogue possessed by an offender, along with other relevant facts surrounding the arrest, that the controlled substance analogue was possessed with the purpose of selling or otherwise dispensing in violation of subsection (c). It may be inferred from circumstances indicating a casual exchange among individuals of a controlled substance analogue that the controlled substance analogue so exchanged was possessed not with the purpose of selling or otherwise dispensing in violation of subsection (c). The inferences shall be transmitted to the jury by the trial judge's charge, and the jury will consider the inferences along with the nature of the substance possessed when affixing the penalty. (f) (1) It is an offense for a person to represent, orally or in writing, advertise, infer or intend that a controlled substance analogue has the stimulant, depressant or hallucinogenic effect on the central nervous system of a controlled substance; and (A) Has a chemical structure which is a derivative or structural analogue of the chemical structure of a controlled substance; provided, that as used in this subdivision (f)(1), "analogue" means the structure of the tested item differs in no more than two (2) atoms, one (1) functional group, or one (1) double bond, from the structure of a controlled substance; or (B) Is prohibited by § 39-17-452 . (2) It is not a defense to prosecution under this subsection (f) that the controlled substance analogue: (A) Is not a derivative of a controlled substance; (B) Does not have a chemical structure which is a derivative or analogue, as defined in subdivision (f)(1)(A), of the chemical structure of a controlled substance; (C) Does not have a stimulant, depressant, hallucinogenic effect on the central nervous system substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance; or (D) Is not listed in § 39-17-452 . (g) (1) A first violation of subsection (c) is a Class D felony. (2) A second or subsequent violation of subsection (c) is a Class C felony. (3) If the violation of subsection (c) involved the delivery, dispensing or sale of a controlled substance analogue to a minor, the person shall be punished one (1) classification higher than the punishment provided by this subsection (g) for delivering, dispensing or selling to an adult. (4) A violation of subsection (d) or (f) is a Class A misdemeanor. (h) (1) Nothing in this section shall preclude a violation of § 39-17-453 , involving an imitation controlled substance, or § 39-17-452 from being prosecuted and punished as a violation of this section if the substance in question meets the definition of an analogue controlled substance under subsection (a). (2) Nothing in this section shall preclude a violation of this section involving a controlled substance analogue from being prosecuted and punished under § 39-17-452 or § 39-17-453 if the controlled substance analogue in question also meets the definitions found in such sections. (3) If the chemical analysis of a controlled substance analogue determines that it also contains a hazardous substance as defined by § 68-131-102 , nothing in this section shall preclude a violation of this section from also being prosecuted and punished under title 68, chapter 131, part 1. (i) Any disability, disqualification, forfeiture, suspension, revocation, prohibition, tax or other adverse consequence provided by law that may result from a conviction for an offense involving a controlled substance shall also apply if the conviction involves a controlled substance analogue in violation of subsection (c). (j) The building and premises of any business in or upon which a violation of subsection (c) or (f) is committed by an employee, agent or owner of such business is declared to be a public nuisance and shall be subject to abatement as provided in title 29, chapter 3.

Legislative History

Amended by 2013 Tenn. Acts, ch. 161,s 2, eff. 7/1/2013. Acts 2012, ch. 848, § 96.