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Regular Session, 2012 ENROLLED
SENATE BILL NO. 61
BY SENATORS MILLS AND THOMPSON AND REPRESENTATI VES ADAMS,
BARROW, BROSSETT, BROWN, HENRY BURNS, CARMODY,
CHAMPAGNE, CHANEY, CONNICK, HAVARD, HAZEL, HENRY,
HENSGENS, HODGES, HOFFMANN, HOWARD, HUVAL, GI ROD
JACKSON, KLECKLEY, LEGER, LIGI, LOPINTO, LORUSSO, JAY
MORRIS, NORTON, POPE, PYLANT, SCHEXNAYDER,
SCHRODER, SIMON, ST. GERMAIN, TALBOT, THIERRY AND
WILLMOTT
AN ACT1
To enact R.S. 40:996.1 through 996.7, 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
to exempt the Louisiana Pesticide Law; and to provide for related matters.6
Be it enacted by the Legislature of Louisiana:7
Section 1. R.S. 40:996.1 through 996.7 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
as well as increased incidents of individuals consuming substances which mimic18
the effects of amphetamines and cocaine and which are marketed as bath salts,19
fertilizer, and insect repellent.20
D. These substances, which have been sold throughout Louisiana in21
retail establishments, have produced symptoms such as high blood pressure,22
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severe hallucinations, anxiety, vomiting, seizures, delusions, and suicidal1
thoughts.2
E. The chemical compositions of these substances make them relatively3
easy to alter by chemists resulting in the rapid production of new substances4
which circumvent statutes outlawing the production, manufacture, possession,5
and distribution of controlled dangerous substances having similar abuse6
potential and pharmacological effects.7
F. These substances have not been approved by the United States Food8
and Drug Administration as being safe for human consumption, are not subject9
to any quality control measures in their preparation, and do not have10
established dosages, making them extremely dangerous and potentially lethal.11
G. These substances have a high potential for abuse and no acceptable12
medical use in treatment in the United States. There is a lack of accepted safety13
for use of the substances under medical supervision making these substances14
highly addictive and potentially lethal.15
H. Article II, Section 1 of the Louisiana Constitution provides that the16
powers of government are divided into a legislative, executive, and judicial17
branch. Article II, Section 2 of the Louisiana Constitution provides that not one18
of these branches shall exercise power belonging to either of the other branches.19
I. The Louisiana Legislature recognizes that the Louisiana Supreme20
Court, in State v. All Pro Paint & Body Shop, Inc., 639 So. 2d 707 (La. 1994),21
outlined a three-prong test to evaluate the constitutionality of a statutory22
delegation of legislative authority. The test provided that a statute delegating23
authority to an administrative agency is constitutionally valid if the enabling24
statute contains a clear expression of legislative policy, prescribes sufficient25
standards to guide the agency in the execution of that policy, and has adequate26
procedural safeguards to protect against abuse of discretion by that agency.27
J. The Louisiana Legislature has a compelling interest in protecting the28
health, safety, and welfare of its citizens against the detrimental and deadly29
effects of these substances.30 SB NO. 61 ENROLLED
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K. The options for the legislature to address the imminent hazard to the1
health, safety, and welfare for the people of the state of Louisiana are limited by2
the provisions of Article III, Section 2 of the Louisiana Constitution, which3
mandates an annual legislative session and provides mechanisms for the4
convening of an extraordinary or emergency session.5
L. The Louisiana Legislature seeks to provide for a limited delegation6
of legislative authority within the parameters which have been defined by the7
Louisiana Supreme Court for the express purpose of protecting the health,8
safety, and welfare of the citizens of the state from imminent harm.9
M. Louisiana law authorizes the secretary of the Department of Health10
and Hospitals to add a substance to the schedules of controlled dangerous11
substances based upon certain criteria. The provisions of R.S. 40:996.1 through12
996.6 are intended to provide additional options for the secretary of the13
Department of Health and Hospitals to address imminent hazards to the public14
health, safety, and welfare caused by dangerous substances.15
§996.2. Definitions16
For the purposes of R.S. 40:996.1 through 996.7, the following terms17
shall have the following meanings:18
(1) "Dangerous substance" means a substance which is not otherwise19
listed as a controlled dangerous substance and has been determined to be an20
imminent hazard to the public health, safety, and welfare by the secretary using21
the criteria and standards prescribed in R.S. 40:996.3.22
(2) "Dangerous substance stop order" is a rule adopted by the Louisiana23
Department of Health and Hospitals pursuant to the provisions of R.S. 40:996.324
and 996.4, declaring that a substance is a dangerous substance which shall not25
be sold, distributed, manufactured, or dispensed.26
§996.3. Declaration of a dangerous substance of the Louisiana Department of27
Health and Hospitals28
A. The secretary may by rule declare that a substance is a dangerous29
substance. In making a finding that a substance is a dangerous substance, the30 SB NO. 61 ENROLLED
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secretary shall consider the following factors with respect to each substance:1
(1) Its actual or relative potential for abuse.2
(2) Scientific evidence of its pharmacological effect, if known.3
(3) State of current scientific knowledge regarding the substance.4
(4) Its history and current pattern of abuse.5
(5) Its scope, duration, and level of abuse.6
(6) The level of risk to public health.7
(7) The likelihood of psychic or physiological dependence.8
(8) Whether the substance is an immediate precursor of a substance9
already controlled by the Uniform Controlled Substances Law.10
(9) Whether the substance is an analogue of a substance already11
controlled by the Uniform Controlled Dangerous Substances Law.12
(10) Whether there have been any reported fatalities associated with the13
substance.14
(11) Whether there have been any cases involving the substance15
reported to the state poison center.16
(12) Any other factors or considerations deemed relevant by the17
secretary.18
B. Prior to the adoption of a rule declaring that a substance is a19
dangerous substance, the secretary shall make all of the following findings and20
determinations:21
(1) The substance has a high potential for abuse.22
(2) The substance has no current medical use in treatment in the United23
States.24
(3) There is a lack of accepted safety for use of the substance under25
medical supervision.26
(4) There is an imminent hazard to the health, safety, and welfare of the27
citizens of Louisiana requiring the substance to be declared a dangerous28
substance and the issuance of a dangerous substance stop order as authorized29
by the provisions of this Section.30 SB NO. 61 ENROLLED
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C. If the secretary has considered the factors provided for in Subsection1
A of the Section and has made the determinations required by the provisions of2
Subsection B of this Section, a rule pursuant to the provisions of R.S. 40:996.53
may be adopted declaring the substance a dangerous substance.4
D. If the secretary determines that a substance shall be classified as a5
dangerous substance the rule shall also include a dangerous substance stop6
order prohibiting the sale, distribution, manufacture, or dispensing of the7
dangerous substance.8
§996.4. Dangerous substance stop order; effects; seizure of dangerous9
substances; duration of order; validity10
A. A dangerous substance stop order issued by the secretary pursuant11
to the provisions of R.S. 40:996.3, shall remain in effect upon adoption of the12
rule and shall extend through the sixtieth day after final adjournment of the13
succeeding legislative session. Upon the sixtieth day after final adjournment of14
the succeeding regular legislative session, the dangerous substance stop order15
shall be null, void, and of no effect.16
B. Upon the adoption of the rule declaring a substance a dangerous17
substance and the issuance of the dangerous substance stop order, any law18
enforcement officer may seize any products containing the dangerous substance19
that are in plain view.20
C. Whenever a law enforcement officer, or an agent of the Department21
of Health and Hospitals, has probable cause to believe that any dangerous22
substance is located within the territorial jurisdiction of such officer, the officer23
may make application pursuant to Louisiana Code of Criminal Procedure24
Article 162 to a court of competent jurisdiction for a search warrant. The25
warrant shall be executed pursuant to the provisions of Louisiana Code of26
Criminal Procedure Articles 163, 164, and 165. In lieu of a return on the27
warrant, the executing officer shall attach to the search warrant a copy of the28
receipt required to be provided to the person from whom any such property is29
seized pursuant to this Section.30 SB NO. 61 ENROLLED
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D. Any product containing any quantity of the dangerous substance1
shall be deemed contraband drugs, which are subject to forfeiture pursuant to2
the provisions of Article I, Section (4)(D) of the Louisiana Constitution.3
E. The law enforcement officer seizing any dangerous substance4
pursuant to Subsections B or C of this Section shall appraise the value of the5
property seized according to his best judgment at its usual and ordinary retail6
price and shall deliver to the person found in possession thereof, if any, a receipt7
showing the fact of seizure, the date of the seizure, the name of the person from8
whom the property is seized, the location of the seizure, the description of the9
property seized, and the appraised value of such property.10
F. Property seized under this Section shall not be subject to11
sequestration or attachment but is deemed to be in the custody of the law12
enforcement agency making the seizure, subject only to the order of the court.13
The seized property shall be immediately returned to the owner upon expiration14
of the dangerous substance stop order unless the legislature has enacted a15
provision to designate the dangerous substance as a controlled dangerous16
substance. In the event the legislature provides for the dangerous substance to17
be designated as a controlled dangerous substance, the property seized shall be18
considered contraband and destroyed immediately by the seizing law19
enforcement agency unless the seizing law enforcement agency determines that20
the property will be needed as evidence in a civil or criminal proceeding. If the21
property is needed as evidence, the law enforcement agency shall place the22
seized property in a secure facility designated for the holding of evidence,23
pending further orders of the court.24
G. The validity of a rule declaring a substance to be a dangerous25
substance and issuing a dangerous substance stop order may be determined in26
an action for declaratory judgment in the Nineteenth Judicial District Court.27
The Department of Health and Hospitals shall be made a party to the action.28
An action for a declaratory judgment under this Subsection may be brought29
only by a person to whom such rule is applicable or who would be adversely30 SB NO. 61 ENROLLED
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affected by such rule and only on the grounds that the rule does not meet the1
criteria for adoption of a dangerous substance stop order as provided for in R.S.2
40:996.3. The court shall declare the rule invalid if it finds that there is not3
sufficient evidence for the adoption of the dangerous substance stop order.4
Notwithstanding any other provision of law to the contrary, the dangerous5
substance stop order shall remain in effect until such declaratory judgment is6
rendered or until it expires as provided for in this Section. The provisions of7
R.S. 49:963 shall not apply to any action brought pursuant to this Subsection.8
The provisions of this Subsection are in addition to R.S. 49:963 and shall not9
limit any action pursuant to R.S. 49:963.10
§996.5. Rulemaking; special provisions; procedural safeguards11
A. Notwithstanding any other provision of law to the contrary, if the12
secretary believes that there is an imminent hazard to the public health, safety,13
and welfare and the adoption of a rule declaring a substance a dangerous14
substance and the issuance of a dangerous substance stop order is necessary, a15
rule may be adopted pursuant to the provisions of this Section.16
B. The secretary shall publish a notice of intention to adopt a rule17
declaring a substance to be a dangerous substance and to issue a dangerous18
substance stop order regarding the sale, distribution, manufacture, or19
dispensing of the dangerous substance, in the official state journal at least twice20
within a fifteen day period prior to the adoption of the rule.21
C. The notice shall provide for all of the following:22
(1) An explanation of the basis and rationale for the intended action, a23
summary of the information, and data supporting the intended action.24
(2) The time, the location, and the manner in which interested persons25
may present their views thereon.26
(3) A statement that the intended action complies with the provisions of27
R.S. 40:996.1 through 996.7.28
(4) The text of the proposed rule.29
D. The secretary shall afford all interested persons reasonable30 SB NO. 61 ENROLLED
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opportunity to submit data, views, comments, or arguments, orally or in1
writing. The opportunity for oral presentation or argument shall be granted if2
requested within five days after the initial publication of the notice as provided3
for in this Section.4
E. The rule shall provide for all of the following:5
(1) A recitation of the determinations and findings required by the6
provisions of R.S. 40:996.3(B) and the reasons for those determinations and7
findings.8
(2) A specific list of the substances declared to be dangerous substances.9
(3) A dangerous substance stop order prohibiting the sale, distribution,10
manufacture, or dispensing of the dangerous substance.11
F.(1) The secretary shall transmit and deliver within seven days after the12
initial publication of the notice in the official journal of the state as provided for13
in Subsection B of this Section, a copy of any proposed rules to the speaker of14
the House of Representatives, the president of the Senate, the chairman of the15
House of Representatives Committee on Health and Welfare and the chairman16
of the Senate Committee on Heath and Welfare for review. The chairmen of17
such committees shall review the proposed rules to determine whether to18
conduct legislative oversight hearings.19
(2) Legislative oversight shall be in accordance with the provisions of20
R.S. 49:968, except as provided in this Section.21
(3) Any legislative oversight committee hearing approving or finding22
unacceptable any proposed rules shall be held within fourteen days of receipt23
of the proposed rules by the presiding officers of each house of the legislature24
and any action by the governor to disapprove the action of the committee shall25
be taken within four days of receipt of the report of the committee by the26
governor.27
G. The rule shall become effective thirty days following the initial28
publication in the official state journal unless an oversight hearing is conducted29
and the rule is found unacceptable by the oversight committee and the governor30 SB NO. 61 ENROLLED
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does not disapprove of the action taken by the oversight committee. The rule1
shall remain in effect through the sixtieth day after final adjournment of the2
succeeding regular legislative session.3
H. Except as specifically provided for in this Section, the rule shall be4
adopted pursuant to the provisions of the Administrative Procedure Act.5
§996.6. Violations6
A. It is unlawful for any person to sell, distribute, manufacture, or7
dispense a dangerous substance following the adoption of a dangerous substance8
stop order.9
B. Whoever violates the provisions of this Section shall be fined not10
more than five hundred dollars, or may be imprisoned for not more than two11
years in the parish jail, or both.12
C. Each day of continued violation shall constitute a separate offense.13
§996.7. Pesticide law not affected14
The provisions of R.S. 40:996.1 et seq., shall not be construed to apply15
to any substance regulated by the provisions of the Louisiana Pesticide Law.16
PRESIDENT OF THE SENATE
SPEAKER OF THE HOUSE OF REPRESENTATIVES
GOVERNOR OF THE STATE OF LOUISIANA
APPROVED: