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Smoldering issue: Petition takes aim at incense ban

Opponents of a proposal to ban synthetic marijuana in Minnesota are gathering petition signatures - including at Moorhead's three head shops - in case they're needed.

Mellow Mood
Synthetic marijuana might be banned from shops like Mellow Mood in Moorhead. David Samson / The Forum

Opponents of a proposal to ban synthetic marijuana in Minnesota are gathering petition signatures - including at Moorhead's three head shops - in case they're needed.

The petition takes aim at the state Board of Pharmacy's move to classify as Schedule I controlled substances the drugs that give herbal incenses such as K2 and Spice their high-inducing qualities.

Tom Tepley, owner of Discontent in Moorhead, said he became aware of the petition through a Minneapolis store.

Discontent, Mellow Mood and Mother's Music all have the petition on hand for customers to sign.

"All we're doing is educating the public that this may happen," Tepley said.


The pharmacy board began the rule-making process July 26 by publishing a request for comment in the Minnesota State Register.

Last week, the board won approval from Gov. Tim Pawlenty's office to publish a notice of intent to adopt the rule amendments. It will likely be published Monday in the State Register, along with the rules' official language, said Cody Wiberg, the board's executive director.

That will trigger a 30-day comment period. During that time, people also may request a hearing before an administrative law judge. If 25 or more people request it, the board will schedule a hearing, which adds two to three months to the rules-adoption process, Wiberg said. There's also a post-hearing comment period.

"So, we may not be able to adopt the rules until February or March, by which time the Legislature will be in session, and they might beat us to it," he said.

The new rules would classify synthetic cannabinoids - which act on the same brain receptors as THC, the main psychoactive chemical in marijuana - as Schedule I drugs, putting them on the same list as heroin, LSD and THC.

The rules specifically identify 17 compounds, but the language is broad enough to cover variations of those drugs, Wiberg said, adding the attorney general's office vetted the language to ensure it's not unconstitutionally broad.

Wiberg said he anticipates there will be enough requests to trigger a hearing before a judge, based on the dozen petition letters his office already received. Those letters won't be considered because they arrived before the comment period began, he said.

Tepley said the letters signed at Discontent - he didn't know how many there were as of Monday - and other Minnesota stores will be sent to the board at the appropriate time.


Tepley said he believes the language in the proposed rules is too broad and "an overreaction." He and others who support keeping the herbal incense legal say that while it's susceptible to abuse like any drug, it's less harmful than tobacco and alcohol, which remain legal.

"More people misuse other products like alcohol and other things," he said. "So, I think it has more to do with freedom and having choices."

Ban proponents argue the drugs sprayed on the herbal incense haven't been tested on humans and aren't meant for human consumption - which is stated on the packaging.

Other states that have banned synthetic marijuana have had trouble enforcing the laws because of frequent modifications to the drugs, Wiberg said.

The Duluth City Council banned synthetic marijuana in August, but a legal challenge has put enforcement indefinitely on hold, the Duluth News Tribune reported this month.

North Dakota's Board of Pharmacy issued an emergency rule on Feb. 25 banning the substance, but its enforcement also was put on hold after a judge said the state didn't properly notify the public of the change. The rule was officially published Oct. 1, and enforcement resumed.

Tepley said he only carries the incense because his competitors do, and he blamed the media for boosting its popularity.

"This was a small, small thing until the media got a hold of it," he said.


What the petition letter says

Following is the body of the petition letter addressed to Minnesota Board of Pharmacy Executive Director Cody Wiberg:

"I would like to request a public hearing on the Proposed Rule Amendments Relating to the Scheduling of Controlled Substances, Minnesota Rules 6800.4210. I oppose the addition of cannabinoids. I feel that the Legislature would be better suited to decide on this issue in the next session."

To see the proposed rule amendments, go to www.phcybrd.state.mn.us/rules/CS/2010/rd3986.pdf , pages 10 and 11.

Readers can reach Forum reporter Mike Nowatzki at (701) 241-5528

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