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Regular Session, 2012
SENATE BILL NO. 61
BY SENATOR MILLS
CONTROL DANGER SUBSTANCE. Authorizes the secretary of the Department of Health
and Hospitals to issue stop order rules on certain dangerous substances. (8/1/12)
AN ACT1
To enact R.S. 40:996.1 through 996.6, relative to dangerous substances; to authorize the2
secretary of the Department of Health and Hospitals to determine whether a3
substance is a dangerous substance; to permit the secretary to issue dangerous4
substance stop orders; to provide for rulemaking authority; to provide for penalties;5
and to provide for related matters.6
Be it enacted by the Legislature of Louisiana:7
Section 1. R.S. 40:996.1 through 996.6 are hereby enacted to read as follows:8
§996.1. Legislative findings9
A. For more than sixty years, the Louisiana Legislature enacted laws to10
protect the public from the detrimental effects of misusing substances which are11
susceptible to abuse or which lead to addiction.12
B. Act No. 634 of the 1972 Regular Session incorporated protections13
regarding controlled dangerous substances into the Louisiana Uniform14
Controlled Dangerous Substances Law.15
C. In 2009 and 2010, Louisiana began experiencing increased incidents16
of individuals consuming synthetic cannabinoids as alternatives to marijuana,17 SB NO. 61
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as well as increased incidents of individuals consuming substances which mimic1
the effects of amphetamines and cocaine and which are marketed as bath salts,2
fertilizer, and insect repellant.3
D. These substances, which have been sold throughout Louisiana in4
retail establishments, have produced symptoms such as high blood pressure,5
severe hallucinations, anxiety, vomiting, seizures, delusions, and suicidal6
thoughts.7
E. The chemical compositions of these substances make them relatively8
easy to alter by chemists resulting in the rapid production of new substances9
which circumvent statutes outlawing the production, manufacture, possession,10
and distribution of controlled dangerous substances having similar abuse11
potential and pharmacological effects.12
F. These substances have not been approved by the Federal Food and13
Drug Administration as being safe for human consumption, are not subject to14
any quality control measures in their preparation, and do not have established15
dosages, making them extremely dangerous and potentially lethal.16
G. These substances have a high potential for abuse and no acceptable17
medical use in treatment in the United States. There is a lack of accepted safety18
for use of the substances under medical supervision making these substances19
highly addictive and potentially lethal.20
H. Article II, Section 1 of the Louisiana Constitution provides that the21
powers of government are divided into a legislative, executive, and judicial22
branch. Article II, Section 2 of the Louisiana Constitution provides that not one23
of these branches shall exercise power belonging to either of the other branches.24
I. The Louisiana Legislature recognizes that the Louisiana Supreme25
Court, in State v. All Pro Paint & Body Shop, Inc., 639 So. 2d 707 (La. 1994),26
outlined a three prong test to evaluate the constitutionality of a statutory27
delegation of legislative authority. The test provided that a statute delegating28
authority to an administrative agency is constitutionally valid if the enabling29 SB NO. 61
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statute contains a clear expression of legislative policy, prescribes sufficient1
standards to guide the agency in the execution of that policy, and has adequate2
procedural safeguards to protect against abuse of discretion by that agency.3
J. The Louisiana Legislature has a compelling interest in protecting the4
health, safety, and welfare of its citizens against the detrimental and deadly5
effects of these substances.6
K. The options for the legislature to address the imminent hazard to the7
health, safety, and welfare for the people of the state of Louisiana are limited by8
the provisions of Article III, Section 2 of the Louisiana Constitution, which9
mandates an annual legislative session and provides mechanisms for the10
convening of an extraordinary or emergency session.11
L. The Louisiana Legislature seeks to provide for a limited delegation12
of legislative authority within the parameters which have been defined by the13
Louisiana Supreme Court for the express purpose of protecting the health,14
safety, and welfare of the citizens of the state from imminent harm.15
M. Louisiana law authorizes the secretary of the Department of Health16
and Hospitals to add a substance to the schedules of controlled dangerous17
substances based upon certain criteria. The provisions of R.S. 40:996.1 through18
996.6 are intended to provide additional options for the secretary of the19
Department of Health and Hospitals to address imminent hazards to the public20
health, safety, and welfare caused by dangerous substances.21
§996.2. Definitions22
For the purposes of R.S. 40:996.1 through 996.6, the following terms23
shall have the following meanings:24
(1) "Dangerous substance" means a substance which is not otherwise25
listed as a controlled dangerous substance and has been determined to be an26
imminent hazard to the public health, safety, and welfare by the secretary using27
the criteria and standards prescribed in R.S. 40:996.3.28
(2) "Dangerous substance stop order" is a rule adopted by the Louisiana29 SB NO. 61
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Department of Health and Hospitals pursuant to the provisions of R.S. 40:996.31
and 996.4, declaring that a substance is a dangerous substance which shall not2
be sold, distributed, manufactured, or dispensed.3
§996.3. Declaration of a dangerous substance of the Louisiana Department of4
Health and Hospitals5
A. The secretary may by rule declare that a substance is a dangerous6
substance. In making a finding that a substance is a dangerous substance, the7
secretary shall consider the following factors with respect to each substance:8
(1) Its actual or relative potential for abuse.9
(2) Scientific evidence of its pharmacological effect, if known.10
(3) State of current scientific knowledge regarding the substance.11
(4) Its history and current pattern of abuse.12
(5) Its scope, duration, and level of abuse.13
(6) The level of risk to public health.14
(7) The likelihood of psychic or physiological dependence.15
(8) Whether the substance is an immediate precursor of a substance16
already controlled by the Uniform Controlled Substances Law.17
(9) Whether the substance is an analogue of a substance already18
controlled by the Uniform Controlled Dangerous Substances Law.19
(10) Whether there have been any reported fatalities associated with the20
substance.21
(11) Whether there have been any cases involving the substance22
reported to the state poison center.23
(12) Any other factors or considerations deemed relevant by the24
secretary.25
B. Prior to the adoption of a rule declaring that a substance is a26
dangerous substance, the secretary shall make all of the following findings and27
determinations:28
(1) The substance has a high potential for abuse.29 SB NO. 61
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(2) The substance has no current medical use in treatment in the United1
States.2
(3) There is a lack of accepted safety for use of the substance under3
medical supervision.4
(4) There is an imminent hazard to the health, safety, and welfare of the5
citizens of Louisiana requiring the substance to be declared a dangerous6
substance and the issuance of a dangerous substance stop order as authorized7
by the provisions of this Section.8
C. If the secretary has considered the factors provided for in Subsection9
A of the Section and has made the determinations required by the provisions of10
Subsection B of this Section, a rule pursuant to the provisions of R.S. 40:996.511
may be adopted declaring the substance a dangerous substance.12
D. If the secretary determines that a substance shall be classified as a13
dangerous substance the rule shall also include a dangerous substance stop14
order prohibiting the sale, distribution, manufacture, or dispensing of the15
dangerous substance.16
§996.4. Dangerous substance stop order; effects; seizure of dangerous17
substances; duration of order; validity18
A. A dangerous substance stop order issued by the secretary pursuant19
to the provisions of R.S. 40:996.3, shall remain in effect upon adoption of the20
rule and shall extend through the sixtieth day after final adjournment of the21
succeeding legislative session. Upon the sixtieth day after final adjournment of22
the succeeding regular legislative session, the dangerous substance stop order23
shall be null, void, and of no effect.24
B. Upon the adoption of the rule declaring a substance a dangerous25
substance and the issuance of the dangerous substance stop order, any law26
enforcement officer may seize any products containing the dangerous substance27
that are in plain view.28
C. Whenever a law enforcement officer, or an agent of the Department29 SB NO. 61
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of Health and Hospitals, has probable cause to believe that any dangerous1
substance is located within the territorial jurisdiction of such officer, the officer2
may make application pursuant to Louisiana Code of Criminal Procedure3
Article 162 to a court of competent jurisdiction for a search warrant. The4
warrant shall be executed pursuant to the provisions of Louisiana Code of5
Criminal Procedure Articles 163, 164, and 165. In lieu of a return on the6
warrant, the executing officer shall attach to the search warrant a copy of the7
receipt required to be provided to the person from whom any such property is8
seized pursuant to this Section.9
D. Any product containing any quantity of the dangerous substance10
shall be deemed contraband drugs, which are subject to forfeiture pursuant to11
the provisions of Article I, Section (4)(D) of the Louisiana Constitution.12
E. The law enforcement officer seizing any dangerous substance13
pursuant to Subsections B or C of this Section shall appraise the value of the14
property seized according to his best judgment at its usual and ordinary retail15
price and shall deliver to the person found in possession thereof, if any, a receipt16
showing the fact of seizure, the date of the seizure, the name of the person from17
whom the property is seized, the location of the seizure, the description of the18
property seized, and the appraised value of such property.19
F. Property seized under this Section shall not be subject to20
sequestration or attachment but is deemed to be in the custody of the law21
enforcement agency making the seizure, subject only to the order of the court.22
The seized property shall be immediately returned to the owner upon expiration23
of the dangerous substance stop order unless the legislature has enacted a24
provision to designate the dangerous substance as a controlled dangerous25
substance. In the event the legislature provides for the dangerous substance to26
be designated as a controlled dangerous substance, the property seized shall be27
considered contraband and destroyed immediately by the seizing law28
enforcement agency unless the seizing law enforcement agency determines that29 SB NO. 61
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the property will be needed as evidence in a civil or criminal proceeding. If the1
property is needed as evidence, the law enforcement agency shall place the2
seized property in a secure facility designated for the holding of evidence,3
pending further orders of the court.4
G. The validity of a rule declaring a substance to be a dangerous5
substance and issuing a dangerous substance stop order may be determined in6
an action for declaratory judgment in the Nineteenth Judicial District Court.7
The Department of Health and Hospitals shall be made a party to the action.8
An action for a declaratory judgment under this Subsection may be brought9
only by a person to whom such rule is applicable or who would be adversely10
affected by such rule and only on the grounds that the rule does not meet the11
criteria for adoption of a dangerous substance stop order as provided for in R.S.12
40:996.3. The court shall declare the rule invalid if it finds that there is not13
sufficient evidence for the adoption of the dangerous substance stop order.14
Notwithstanding any other provision of law to the contrary, the dangerous15
substance stop order shall remain in effect until such declaratory judgment is16
rendered or until it expires as provided for in this Section. The provisions of17
R.S. 49:963 shall not apply to any action brought pursuant to this Subsection.18
The provisions of this Subsection are in addition to R.S. 49:963 and shall not19
limit any action pursuant to R.S. 49:963.20
§996.5. Rulemaking; special provisions; procedural safeguards21
A. Notwithstanding any other provision of law to the contrary, if the22
secretary believes that there is an imminent hazard to the public health, safety,23
and welfare and the adoption of a rule declaring a substance a dangerous24
substance and the issuance of a dangerous substance stop order is necessary, a25
rule may be adopted pursuant to the provisions of this Section.26
B. The secretary shall publish a notice of intention to adopt a rule27
declaring a substance to be a dangerous substance and to issue a dangerous28
substance stop order regarding the sale, distribution, manufacture, or29 SB NO. 61
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dispensing of the dangerous substance, in the official state journal at least twice1
within a fifteen day period prior to the adoption of the rule.2
C. The notice shall provide for all of the following:3
(1) An explanation of the basis and rationale for the intended action, a4
summary of the information, and data supporting the intended action.5
(2) The time, the location, and the manner in which interested persons6
may present their views thereon.7
(3) A statement that the intended action complies with the provisions of8
R.S. 40:996.1 through 996.6.9
(4) The text of the proposed rule.10
D. The secretary shall afford all interested persons reasonable11
opportunity to submit data, views, comments, or arguments, orally or in12
writing. The opportunity for oral presentation or argument shall be granted if13
requested within five days after the initial publication of the notice as provided14
for in this Section.15
E. The rule shall provide for all of the following:16
(1) A recitation of the determinations and findings required by the17
provisions of R.S. 40:996.3(B) and the reasons for those determinations and18
findings.19
(2) A specific list of the substances declared to be dangerous substances.20
(3) A dangerous substance stop order prohibiting the sale, distribution,21
manufacture, or dispensing of the dangerous substance.22
F.(1) The secretary shall transmit and deliver within seven days after the23
initial publication of the notice in the official journal of the state as provided for24
in Subsection B of this Section, a copy of any proposed rules to the speaker of25
the House of Representatives, the president of the Senate, the chairman of the26
House of Representatives Committee on Health and Welfare and the chairman27
of the Senate Committee on Heath and Welfare for review. The chairmen of28
such committees shall review the proposed rules to determine whether to29 SB NO. 61
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conduct legislative oversight hearings.1
(2) Legislative oversight shall be in accordance with the provisions of2
R.S. 49:968, except as provided in this Section.3
(3) Any legislative oversight committee hearing approving or finding4
unacceptable any proposed rules shall be held within fourteen days of receipt5
of the proposed rules by the presiding officers of each house of the legislature6
and any action by the governor to disapprove the action of the committee shall7
be taken within four days of receipt of the report of the committee by the8
governor.9
G. The rule shall become effective thirty days following the initial10
publication in the official state journal unless an oversight hearing is conducted11
and the rule is found unacceptable by the oversight committee and the governor12
does not disapprove of the action taken by the oversight committee. The rule13
shall remain in effect through the sixtieth day after final adjournment of the14
succeeding regular legislative session.15
H. Except as specifically provided for in this Section, the rule shall be16
adopted pursuant to the provisions of the Administrative Procedure Act.17
§996.6. Violations18
A. It is unlawful for any person to sell, distribute, manufacture, or19
dispense a dangerous substance following the adoption of a dangerous substance20
stop order.21
B. Whoever violates the provisions of this Section shall be fined not22
more than five hundred dollars, or may be imprisoned for not more than two23
years in the parish jail, or both.24
C. Each day of continued violation shall constitute a separate offense.25 SB NO. 61
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The original instrument and the following digest, which constitutes no part
of the legislative instrument, were prepared by Michelle Ducharme.
DIGEST
Mills (SB 61)
Present law allows the secretary of the Department of Health and Hospitals (department) to
add to the schedules of the Controlled Dangerous Substances Law under certain
circumstances.
Proposed law provides for legislative findings.
Proposed law retains present law and provides a mechanism for the secretary of the
department, by rule, to declare a substance a dangerous substance under certain
circumstances.
Proposed law defines "dangerous substance" as a substance which is not otherwise listed as
a controlled dangerous substance and has been determined to be an imminent hazard to the
public health, safety, and welfare by the secretary of the department using specified criteria
and standards.
Proposed law defines "dangerous substance stop order" as a rule adopted by the department
declaring that a substance is a dangerous substance which shall not be sold, distributed,
manufactured, or dispensed.
Proposed law requires the secretary to consider the following criteria when determining
whether to declare that a substance is a dangerous substance:
(1)Its actual or relative potential for abuse.
(2)Scientific evidence of its pharmacological effect, if known.
(3)State of current scientific knowledge regarding the substance.
(4)Its history and current pattern of abuse.
(5)Its scope, duration, and level of abuse.
(6)The level of risk to public health.
(7)The likelihood of psychic or physiological dependence.
(8)Whether the substance is an immediate precursor of a substance already controlled
by the Uniform Controlled Dangerous Substances Law.
(9)Whether the substance is an analogue of a substance already controlled by the
Uniform Controlled Dangerous Substances Law.
(10)Whether there have been any reported fatalities associated with the substance.
(11)Whether there have been any cases involving the substance reported to the state
poison center.
(12)Any other factors or considerations deemed relevant by the secretary.
Proposed law provides that prior to the adoption of a rule declaring that a substance is a
dangerous substance, the secretary shall make the following findings and determinations: SB NO. 61
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(1)The substance has a high potential for abuse.
(2)The substance has no currently accepted medical use in treatment in the United
States.
(3)There is a lack of accepted safety for use of the substance under medical supervision.
(4)There is an imminent hazard to the health, safety, and welfare of the citizens of the
state requiring the substance to be declared a dangerous substance and the issuance
of a dangerous substance stop order.
Proposed law provides that if the secretary determines that a substance must be classified
as a dangerous substance the rule shall also include a dangerous substance stop order
prohibiting the sale, distribution, manufacture, or dispensing of the dangerous substance.
Proposed law provides for the expiration of the stop order.
Proposed law provides that upon the adoption of the rule declaring a substance a dangerous
substance and the issuance of the dangerous substance stop order, any law enforcement
officer may seize any products containing the dangerous substance that are in plain view.
Proposed law provides for the application and execution of a warrant when an officer has
probable cause to believe that any dangerous substance is located within the territorial
jurisdiction of the officer.
Proposed law designates any amount of dangerous substance as contraband drugs, which are
subject to forfeiture.
Proposed law provides that if any dangerous substance is seized by a law enforcement
officer, the officer shall appraise the value of the property seized and deliver to the person
found in possession a receipt showing the fact of seizure, the date of the seizure, the name
of the person from whom the property was seized, the location of the seizure, the description
of the property seized, and the appraised value of such property.
Proposed law provides that property seized shall not be subject to sequestration or
attachment but is deemed to be in the custody of the law enforcement agency making the
seizure, subject only to the order of the court. The seized property shall be immediately
returned to the owner upon expiration of the dangerous substance stop order unless the
legislature has enacted a provision to designate the dangerous substance as a controlled
dangerous substance.
Proposed law provides for judicial action for declaratory judgment in the 19
th
Judicial
District Court to determine the validity of a rule declaring a substance to be a dangerous
substance.
Proposed law authorizes the secretary of the department to adopt a rule declaring a substance
a dangerous substance and issue a dangerous substance stop order if necessary.
Proposed law requires the department to publish a notice of intention to adopt a rule
declaring a substance to be a dangerous substance and to issue a dangerous substance stop
order regarding the sale, distribution, manufacture, or dispensing of the dangerous substance,
in the official state journal at least twice within a fifteen day period prior to the adoption of
the rule.
Proposed law provides for the content of the notice and the rule.
Proposed law requires the secretary to provide to all interested persons a reasonable
opportunity to submit data, views, comments, or arguments, orally or in writing. The SB NO. 61
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opportunity for oral presentation or argument shall be granted if requested within five days
after the initial publication of the notice.
Proposed law provides for legislative oversight and the effective dates of the rule.
Proposed law criminalizes the act of any person who sells, distributes, manufactures, or
dispenses a dangerous substance following the adoption of the dangerous substance stop
order.
Proposed law provides that if a dangerous substance stop order is violated, the person shall
be fined not more than $500, or may be imprisoned for not more than two years in the parish
jail, or both. Proposed law further provides that each day of continued violation shall
constitute a separate offense.
Effective August 1, 2012.
(Adds R.S. 40:996.1 through 996.6)