Synthetic marijuana: Head shops' lawyer says DEA overreached

Sellers of the "herbal incense" say the feds are overstepping their bounds.
Sellers of the "herbal incense" say the feds are overstepping their bounds.

The lawyer for four Minnesota head shops suing the Drug Enforcement Agency over its plans to ban synthetic marijuana says it's the DEA that's jumping the gun, not his clients.

The four stores -- the Hideaway in Dinkytown, the Last Place on Earth in Duluth, Down in the Valley in the western suburbs, and Disc and Tape in St. Cloud -- had sued the DEA last month over the agency's plan to ban five of the most commonly used synthetic compounds in fake pot products like K2 and Spice.

Yesterday the DEA filed papers in federal court arguing that four Minnesota head shops were "jumping the gun" because the ban hasn't gone into effect yet.

Marc Kurzman, who is representing the head shops, says if that argument held, his clients would have to wait until they were already in jail to challenge the ruling.

"They're the ones jumping the gun, Marc Kurzman told City Pages today. "They're trying to make it a felony to sell these substances, but they have no evidence that they're dangerous, other than a collection of random press reports."

Justice Department lawyers representing the DEA in the case declined to comment.

The same day that the DEA argued that it's plans can't be challenged by businesses selling synthetic pot, it also denied being accountable to congress. When the agency first announced that it plans to ban the compounds, it said the decision-making process would comply with two laws: the Regulatory Flexibility Act, which protects small businesses from precipitous changes in regulations; and the Congressional Review Act, which gives congress oversight over agency decisions.

Yesterday a notice in the Federal Register announced that the reference to those laws was included "due to an administrative error," and that neither law applies.

"There's no case law to support that," Kurzman says, "but it's typical of how they've been conducting this whole business."

Calls to the DEA today were referred to a voice message stressing that the DEA has not yet made a final ruling on the the five synthetic cannabinoids, and directing people to the DEA Diversion Control website to learn when the ruling has been finalized.

The next hearing in the case is scheduled for January 28 in Federal District Court in Minneapolis.

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