Session of 2023
HOUSE BILL No. 2328
By Committee on Corrections and Juvenile Justice
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AN ACT concerning crimes, punishment and criminal procedure; relating
to controlled substances definitions; excluding materials used to detect
the presence of fentanyl, ketamine or gamma hydroxybutyric acid from
the definition of drug paraphernalia; amending K.S.A. 2022 Supp. 21-
5701 and repealing the existing section; also repealing K.S.A. 2022
Supp. 21-5701b.
Be it enacted by the Legislature of the State of Kansas:
Section 1. K.S.A. 2022 Supp. 21-5701 is hereby amended to read as
follows: 21-5701. As used in K.S.A. 2022 Supp. 21-5701 through 21-
5717, and amendments thereto:
(a) "Controlled substance" means any drug, substance or immediate
precursor included in any of the schedules designated in K.S.A. 65-4105,
65-4107, 65-4109, 65-4111 and 65-4113, and amendments thereto.
(b) (1) "Controlled substance analog" means a substance that is
intended for human consumption, and at least one of the following:
(A) The chemical structure of the substance is substantially similar to
the chemical structure of a controlled substance listed in or added to the
schedules designated in K.S.A. 65-4105 or 65-4107, and amendments
thereto;
(B) the substance has a stimulant, depressant or hallucinogenic effect
on the central nervous system substantially similar to the stimulant,
depressant or hallucinogenic effect on the central nervous system of a
controlled substance included in the schedules designated in K.S.A. 65-
4105 or 65-4107, and amendments thereto; or
(C) with respect to a particular individual, such individual represents
or intends the substance to have a stimulant, depressant or hallucinogenic
effect on the central nervous system substantially similar to the stimulant,
depressant or hallucinogenic effect on the central nervous system of a
controlled substance included in the schedules designated in K.S.A. 65-
4105 or 65-4107, and amendments thereto.
(2) "Controlled substance analog" does not include:
(A) A controlled substance;
(B) a substance for which there is an approved new drug application;
or
(C) a substance with respect to which an exemption is in effect for
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investigational use by a particular person under section 505 of the federal
food, drug, and cosmetic act, 21 U.S.C. § 355, to the extent conduct with
respect to the substance is permitted by the exemption.
(c) "Cultivate" means the planting or promotion of growth of five or
more plants that contain or can produce controlled substances.
(d) "Distribute" means the actual, constructive or attempted transfer
from one person to another of some item whether or not there is an agency
relationship. "Distribute" includes, but is not limited to, sale, offer for sale
or any act that causes some item to be transferred from one person to
another. "Distribute" does not include acts of administering, dispensing or
prescribing a controlled substance as authorized by the pharmacy act of the
state of Kansas, the uniform controlled substances act or otherwise
authorized by law.
(e) (1) "Drug" means:
(A) Substances recognized as drugs in the official United States
pharmacopeia, official homeopathic pharmacopoeia of the United States or
official national formulary or any supplement to any of them;
(B) substances intended for use in the diagnosis, cure, mitigation,
treatment or prevention of disease in humans or animals;
(C) substances, other than food, intended to affect the structure or any
function of the body of humans or animals; and
(D) substances intended for use as a component of any article
specified in subparagraph (A), (B) or (C).
(2) "Drug" does not include devices or their components, parts or
accessories.
(f) "Drug paraphernalia" means all equipment and materials of any
kind that are used, or primarily intended or designed for use in planting,
propagating, cultivating, growing, harvesting, manufacturing,
compounding, converting, producing, processing, preparing, testing,
analyzing, packaging, repackaging, storing, containing, concealing,
injecting, ingesting, inhaling or otherwise introducing into the human body
a controlled substance and in violation of this act.
(1) "Drug paraphernalia" shall include includes, but is not limited to:
(1)(A) Kits used or intended for use in planting, propagating,
cultivating, growing or harvesting any species of plant that is a controlled
substance or from which a controlled substance can be derived;
(2)(B) kits used or intended for use in manufacturing, compounding,
converting, producing, processing or preparing controlled substances;
(3)(C) isomerization devices used or intended for use in increasing
the potency of any species of plant that is a controlled substance;
(4)(D) testing equipment used or intended for use in identifying or in
analyzing the strength, effectiveness or purity of controlled substances;
(5)(E) scales and balances used or intended for use in weighing or
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measuring controlled substances;
(6)(F) diluents and adulterants, including, but not limited to, quinine
hydrochloride, mannitol, mannite, dextrose and lactose that are used or
intended for use in cutting controlled substances;
(7)(G) separation gins and sifters used or intended for use in
removing twigs and seeds from or otherwise cleaning or refining
marijuana;
(8)(H) blenders, bowls, containers, spoons and mixing devices used
or intended for use in compounding controlled substances;
(9)(I) capsules, balloons, envelopes, bags and other containers used
or intended for use in packaging small quantities of controlled substances;
(10)(J) containers and other objects used or intended for use in
storing or concealing controlled substances;
(11)(K) hypodermic syringes, needles and other objects used or
intended for use in parenterally injecting controlled substances into the
human body; or
(12)(L) objects used or primarily intended or designed for use in
ingesting, inhaling or otherwise introducing marijuana, cocaine, hashish,
hashish oil, phencyclidine (PCP), methamphetamine or amphetamine into
the human body, such as:
(A)(i) Metal, wooden, acrylic, glass, stone, plastic or ceramic pipes
with or without screens, permanent screens, hashish heads or punctured
metal bowls;
(B)(ii) water pipes, bongs or smoking pipes designed to draw smoke
through water or another cooling device;
(C)(iii) carburetion pipes, glass or other heat resistant heat-resistant
tubes or any other device used, intended to be used or designed to be used
to cause vaporization of a controlled substance for inhalation;
(D)(iv) smoking and carburetion masks;
(E)(v) roach clips, objects used to hold burning material, such as a
marijuana cigarette, that has become too small or too short to be held in
the hand;
(F)(vi) miniature cocaine spoons and cocaine vials;
(G)(vii) chamber smoking pipes;
(H)(viii) carburetor smoking pipes;
(I)(ix) electric smoking pipes;
(J)(x) air-driven smoking pipes;
(K)(xi) chillums;
(L)(xii) bongs;
(M)(xiii) ice pipes or chillers;
(N)(xiv) any smoking pipe manufactured to disguise its intended
purpose;
(O)(xv) wired cigarette papers; or
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(P)(xvi) cocaine freebase kits.
(2) "Drug paraphernalia" shall does not include:
(A) Any products, chemicals or materials described in K.S.A. 2022
Supp. 21-5709(a), and amendments thereto; or
(B) any materials used or intended for use to test a substance for the
presence of fentanyl, a fentanyl analog, ketamine or gamma
hydroxybutyric acid.
(g) "Immediate precursor" means a substance that the state board of
pharmacy has found to be and by rules and regulations designates as being
the principal compound commonly used or produced primarily for use and
that is an immediate chemical intermediary used or likely to be used in the
manufacture of a controlled substance, the control of which is necessary to
prevent, curtail or limit manufacture.
(h) "Isomer" means all enantiomers and diastereomers.
(i) "Manufacture" means the production, preparation, propagation,
compounding, conversion or processing of a controlled substance either
directly or indirectly or by extraction from substances of natural origin or
independently by means of chemical synthesis or by a combination of
extraction and chemical synthesis. "Manufacture" does not include:
(1) The preparation or compounding of a controlled substance by an
individual for the individual's own lawful use or the preparation,
compounding, packaging or labeling of a controlled substance:
(A) By a practitioner or the practitioner's agent pursuant to a lawful
order of a practitioner as an incident to the practitioner's administering or
dispensing of a controlled substance in the course of the practitioner's
professional practice; or
(B) by a practitioner or by the practitioner's authorized agent under
such practitioner's supervision for the purpose of or as an incident to
research, teaching or chemical analysis or by a pharmacist or medical care
facility as an incident to dispensing of a controlled substance; or
(2) the addition of diluents or adulterants, including, but not limited
to, quinine hydrochloride, mannitol, mannite, dextrose or lactose that are
intended for use in cutting a controlled substance.
(j) "Marijuana" means all parts of all varieties of the plant Cannabis
whether growing or not, the seeds thereof, the resin extracted from any
part of the plant and every compound, manufacture, salt, derivative,
mixture or preparation of the plant, its seeds or resin. "Marijuana" does not
include:
(1) The mature stalks of the plant, fiber produced from the stalks, oil
or cake made from the seeds of the plant, any other compound,
manufacture, salt, derivative, mixture or preparation of the mature stalks,
except the resin extracted therefrom, fiber, oil or cake or the sterilized seed
of the plant that is incapable of germination;
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(2) any substance listed in schedules II through V of the uniform
controlled substances act;
(3) drug products approved by the United States food and drug
administration as of the effective date of this act;
(4) cannabidiol (other trade name: 2-[(3-methyl-6-(1-methylethenyl)-
2-cyclohexen-1-yl]-5-pentyl-1,3-benzenediol); or
(5) industrial hemp as defined in K.S.A. 2-3901, and amendments
thereto, when cultivated, produced, possessed or used for activities
authorized by the commercial industrial hemp act.
(k) "Minor" means a person under 18 years of age.
(l) "Narcotic drug" means any of the following whether produced
directly or indirectly by extraction from substances of vegetable origin or
independently by means of chemical synthesis or by a combination of
extraction and chemical synthesis:
(1) Opium and opiate and any salt, compound, derivative or
preparation of opium or opiate;
(2) any salt, compound, isomer, derivative or preparation thereof that
is chemically equivalent or identical with any of the substances referred to
in paragraph (1) but not including the isoquinoline alkaloids of opium;
(3) opium poppy and poppy straw;
(4) coca leaves and any salt, compound, derivative or preparation of
coca leaves and any salt, compound, isomer, derivative or preparation
thereof that is chemically equivalent or identical with any of these
substances, but not including decocainized coca leaves or extractions of
coca leaves that do not contain cocaine or ecgonine.
(m) "Opiate" means any substance having an addiction-forming or
addiction-sustaining liability similar to morphine or being capable of
conversion into a drug having addiction-forming or addiction-sustaining
liability. "Opiate" does not include, unless specifically designated as
controlled under K.S.A. 65-4102, and amendments thereto, the
dextrorotatory isomer of 3-methoxy-n-methylmorphinan and its salts
(dextromethorphan). "Opiate" does include its racemic and levorotatory
forms.
(n) "Opium poppy" means the plant of the species Papaver
somniferum l. except its seeds.
(o) "Person" means an individual, corporation, government or
governmental subdivision or agency, business trust, estate, trust,
partnership, association or any other legal entity.
(p) "Poppy straw" means all parts, except the seeds, of the opium
poppy, after mowing.
(q) "Possession" means having joint or exclusive control over an item
with knowledge of and intent to have such control or knowingly keeping
some item in a place where the person has some measure of access and
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right of control.
(r) "School property" means property upon which is located a
structure used by a unified school district or an accredited nonpublic
school for student instruction or attendance or extracurricular activities of
pupils enrolled in kindergarten or any of the grades one through 12. This
definition shall not be construed as requiring that school be in session or
that classes are actually being held at the time of the offense or that
children must be present within the structure or on the property during the
time of any alleged criminal act. If the structure or property meets the
above definition, the actual use of that structure or property at the time
alleged shall not be a defense to the crime charged or the sentence
imposed.
(s)(r) "Simulated controlled substance" means any product that
identifies itself by a common name or slang term associated with a
controlled substance and that indicates on its label or accompanying
promotional material that the product simulates the effect of a controlled
substance.
Sec. 2. K.S.A. 2022 Supp. 21-5701 and 21-5701b are hereby
repealed.
Sec. 3. This act shall take effect and be in force from and after its
publication in the statute book.
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