Agency cites label laws in targeting sellers
GALLATIN — A convenience store here is the target of a new tactic the federal government is using to rein in a crop of powerful — and legal — substances that affect users like cocaine and Ecstasy that are sending young people to emergency rooms across the country.
Gas stations and convenience stores in Tennessee and across the nation have been selling substances loosely marketed as “incense,” “bath salts” or “plant food” that police say buyers are using to achieve a high. The substances have stymied police and lawmakers the past two years because few states have outlawed the active ingredients.
A search warrant filed by U.S. Food and Drug Administration agents in U.S. District Court suggests law enforcement is getting creative, targeting at least one longtime store owner under laws designed to ensure that drugs are properly labeled.
“We’ve seen a rather large impact in Gallatin at least with people having adverse reactions to misusing this product,” said Gallatin Detective Chris Vines. “We can’t really go toward the users. But you cut the sellers off. That takes the users out of play.”
In April, Gallatin police, along with the FDA, raided Julio’s Rite Way Market, seizing packages marked as incense. The search warrant focuses on the seller, saying a clerk sold the product to someone he knew was going to smoke it, despite labels on the package that say “not for human consumption.”
No charges have been filed in the case.
Sam Qoud, owner of Rite Way, said he was being unfairly targeted and that nearly every gas station and convenience store in the area carried similar products. The products also are easily found in Nashville and Rutherford County.
“The stuff is legal. Why me?” Qoud said. “I’ve been here 20 years and never had a problem.”
His attorney, Jim Todd, said he has several clients facing similar possible charges and that the cases raise troubling implications for business owners. He said police have been seizing merchandise before determining the substances are illegal.
“My biggest complaint is people are facing legal charges and products are being seized based on assumptions and not based on legal conclusions,” he said. “That is, in my opinion, depriving my clients of their due process rights and their ability to make a living.”
Cloud Nine and Red Monkey
Vines said the FDA investigations have moved beyond Sumner County, but he declined to say what other jurisdictions were involved.
“It’s still ongoing,” he said. “There’s still pending search warrants at other locations.”
The FDA, which is looking to take the case federally, declined to comment on the investigations or say how widespread their efforts would be.
“I can’t tell you about any possible enforcement actions,” said FDA spokeswoman Siobhan DeLancey. “But mislabeling is a violation of the Federal Food, Drug, and Cosmetic Act.”
The investigation began in January. Vines said Gallatin police noticed a rash of emergency room visits linked to people smoking the incense or bath salts products and wanted to tamp down on sales.
“We’ve had people within a few weeks of being in full renal failure,” he said.
According to the search warrant, police had a confidential informant buy “incense” products such as Cloud Nine and Red Monkey from Rite Way, all the while letting the clerk know he intended to smoke the products. A clerk there even suggested rolling papers or cigarillos to help smoke it, the warrant said.
Vines said the department talked with several federal law enforcement agencies before the FDA decided to lead the push to take the case federal.
Similar action in Kansas
Tennessee agriculture regulators took a similar tack as the FDA against a product called Molly’s Plant Food, which they say was used solely to get high. Officials got the product yanked from shelves permanently because the plant food was not properly registered or labeled as a fertilizer.
But the FDA actions could lead to criminal charges, not just civil penalties. There are few accounts of similar actions being taken across the U.S. Local police agents raided two Kansas stores selling a synthetic marijuana product in February, leading to at least one arrest. A similar search warrant spelled out more investigations in recent weeks in the Baltimore area.
Jun. 18, 2011
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