Updated 04/15/2013 following the Federal scheduling of UR144, XLR11, and AKB48.
Let’s cut right to the chase. Is it legal to possess synthetic herbal incense?
Not anymore, no. All chems are either expressly Scheduled or considered analogs of Scheduled chemicals.
Under rare circumstances your synthetic marijuana product might contain a technically legal chemical, such as PB22 and/or its derivatives, but this is unlikely. Per random samples received from 14 US States, 80% of currently available synthetic incense products contain some amount of UR144 and/or its derivatives. Though the analogs are not Scheduled, per Federal Analog Act, they are nonetheless illegal to possess and/or distribute.
[important]What is herbal incense?[/important]
Herbal incense (or aromatic sachets, herbal potpourri, et al) is, at its most basic, a blend of herbal and other materials that, if consumed in some way, results in a mild to extreme psychoactive effect, often comparable to that of marijuana. When it debuted, herbal incense was simply a blend of herbs, usually damiana, sprayed with a chemical additive, usually JWH-018. As time passed, the herbal and chemical cocktail grew more complex, as the rising incense industry sought ways to avoid increasingly frequent and increasingly broad legislation prohibiting it.
Nowadays, herbal incense comes in two varieties:
- All natural incense. This variety is an advanced mixture of natural herbal extracts which, when imbibed, activates the natural endocannabinoid system of the user, resulting in a mild, and short lived moment of relaxation and calm. From what we’ve learned, these products are well tolerated by most and non-habit forming, but this comes at the expense of strength and duration.
- Synthetic incense. Broadly speaking, this variety of herbal incense is what sparked the ire of governments internationally. In this form, vegetable material like damiana, wild lettuce, and others are sprayed or otherwise mixed with some artificial additive. Though the herbal component will contribute moderately to the effects felt by a user, the main psychoactive ingredient is the synthetic additive, a cannabimetic agonist of CB1 and CB2 receptors. The resulting effect is immediate, sustained, and (for some) intense.
[important]Is synthetic herbal incense legal?[/important]
First, the Federal level – the law of the land.
[notice]UPDATE: UR144, XLR11, and AKB48 have all been emergency scheduled. Each is now considered a Schedule I substance, akin to heroin and marijuana.[/notice]
This is probably the most common question we hear and the most difficult to answer. Yes and no. In June of 2012, the American Federal Government passed Senate Bill 3187 (S.3187), an FDA bill which drastically retrofitted the Controlled Substances Act to include entire families of synthetic cannabimetic chemicals, so long as they fit structurally and are demonstrably CB1 agonists (as shown through controlled studies).
The S3187 illegal families are:
- 2-(3-hydroxycyclohexyl)phenol with substitution at the 5-position of the phenolic ring by alkyl or alkenyl, whether or not substituted on the cyclohexyl ring to any extent.
- 3-(1-naphthoyl)indole or 3-(1-naphthylmethane)indole by substitution at the nitrogen atom of the indole ring, whether or not further substituted on the indole ring to any extent, whether or not substituted on the naphthoyl or naphthyl ring to any extent.
- 3-(1-naphthoyl)pyrrole by substitution at the nitrogen atom of the pyrrole ring, whether or not further substituted in the pyrrole ring to any extent, whether or not substituted on the naphthoyl ring to any extent.
- 1-(1-naphthylmethylene)indene by substitution of the 3-position of the indene ring, whether or not further substituted in the indene ring to any extent, whether or not substituted on the naphthyl ring to any extent.
- 3-phenylacetylindole or 3-benzoylindole by substitution at the nitrogen atom of the indole ring, whether or not further substituted in the indole ring to any extent, whether or not substituted on the phenyl ring to any extent.
According to the bill, this renders at least CP-47, CP-497, JWH-018, AM-678, JWH-073, JWH-019, JWH-200, JWH-250, JWH-081, JWH-122, JWH-398, AM-2201, AM-694, SR-19, RCS-4, SR-18, RCS-8, JWH-023 (UPDATE: Add UR144, XLR11, and AKB48) a federal crime. If your incense products contain any of the above, they’re illegal everywhere in the United States. They are Schedule I substances, akin to marijuana itself, and in some cases with more severe penalties, though this varies by state.
Now for the State specific level.
That’s the Federal government ONLY. By its very nature, the Federal government cannot be as broad in application as individual states can. This is the law of the land, applied to all states. If the Feds overshoot, they can kill legitimate industries. It’s for the the states to tighten the restrictions as they see fit and this varies wildly.
Colorado, for instance, outright banned anything synthetic which activates any CB receptors, whether its an analog or not. As of this writing, every synthetic cannabimetic agent is illegal in Colorado.
Numerous states have enacted “general class bans” of some variety or another. These include (but are not limited to) Hawaii, Illinois, Indiana, Kansas, Kentucky, Louisiana, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, North Carolina, North Dakota, South Carolina, South Dakota, Tennessee, Texas, and Wyoming. The specific nature of each class ban is state dependent however, so you’ll need to research the details on your own. Penalties for state specific infractions vary, too; be mindful of the consequences.
To make matters worse, many states include an “analog” proviso which makes chemical inclusion a matter of professional analysis. States like Pennsylvania are mired in dispute as to whether UR-144 is an analog of JWH-018 or not. Some say yes, others say no. This hasn’t stopped law enforcement from seizing product and funds, withholding them indefinitely, then smearing your name for possession even if what you did was ostensibly legal.
Are you qualified to argue whether x is or is not an analog of y? No? Well neither is law enforcement, but they’ll just take your stuff and hold it until someone qualified raises there hand to defend you.
[important]Are modern synthetic cannabinoids, like UR144, legal?[/important]
No, UR144, XLR11, and AKB48 and all possible analogs are considered Schedule I substances.
Yes and no. Using the poster child for modern synthetics, UR-144, we’ll look at it’s legality on the Federal level first. S.3187 says that in order for the chemical to be included within the Federal law, it needs to be both from one of the listed classes and, demonstrably, a CB1 agonist. Does UR-144 meet these criteria? Is UR-144 a CB1 agonist? UR-144 has a greater positive affinity for CB2 than CB1 receptors. It does bind to CB1 receptors at least partially. If a government sponsored study were to replicate these findings, which is likely, then yes, it meets that criterion. Is UR-144 a salt, isomer, etc, of a scheduled substance? It doesn’t appear to be. Does UR-144 belong to any of the prohibited structural classes? From a layman’s perspective, no it doesn’t. Judge for yourself: (1-Pentylindol-3-yl)-(2,2,3,3-tetramethylcyclopropyl)methanone. Great, so UR-144 appears to be Federally legal. What about State bans? This is where things get very messy and our judgements aren’t worth much. In many states, Law Enforcement Officers are under the impression that ALL herbal incense is illegal. This is false, at least Federally, though it might be true for states like Colorado and New York. As has been said here many times, it often comes down to whether UR-144 is an analogue of a scheduled substance. To our knowledge there has been no court precedent criminalizing or vindicating UR-144 outright. This isn’t stopping LEO’s from arresting and/or confiscating goods. If their goal is to tie the industry up in court and empty its coffers, it seems to be doing a good job. If its goal is to make a gray-market a little more black through vagueness, it’s achieved that as well.
[important]Is all-natural herbal incense legal?[/important]
Let’s be clear about what we mean by all natural herbal incense: all natural means completely devoid of synthetic additives. It can be dripping with highly concentrated extracts, but there can’t be a drop of synthetic cannabinoids in the mix. Over the years, innumerable manufacturers have purportedly sold “all natural” incense, only for it to be loaded with (at the time) undetectable synthetic additives. Time and technology will be the determinant here, but we’re confident that at least some of the products currently available are genuinely all natural.
If it’s genuinely all natural, it is legal on the Federal level, though individual states might have banned some ingredients.
If it has an as of yet undetected cannabinoid in it, it may or may not be legal, depending on the chemical. There’s rumor circulating that some of the modern natural blends contain FAAH inhibitors which, allegedly, gives them their kick when consumed. If true, it functions in a way similar to that of the amide based blends, but has a synthetic cause. At this time we don’t know whether these additives fall within the scope of the Federal law, but we’ve never seen any State level law which prohibits them.
If it’s synthetic, but an endocannabinoid transmitter, we doubt it could be legislatively considered a CB1/2 agonist. It’s action is indirect and less effective, and safer than their direct-acting synthetic counterparts. The “safeness” is important, as it will result in less of a frenzy from the media and lawmakers once discovered.
[important] What can I do to stay safe?[/important]
Plenty, especially if you are purchasing online. Since Log Jam, the industry has buried itself partially underground. Product transparency is horrible. It was rarely the case before Log-Jam that vendors openly declared what synthetic additives were in their aromatherapy products, but the situation is more dire now. Law Enforcement is not meddling with “what-if’s” – they’re making arrests and costing under-informed people money with expensive legal fees. The laws aren’t all encompassing. If you know what IS in the product, not simply what ISN’T, you can make efforts to improve your purchasing safety.
Ask yourself: ”Do I know what IS in the product?” Most vendors will only provide “Does-Not-Contain” reports. This is not sufficient.
If yes, ask yourself “Am I confident this product is Federally legal?” Assuming you magically know what’s in the product you want to purchase, you would be wise to research it yourself.
If you don’t know what’s in this product, consider your motive. As our resident Test_Subject_Alpha is apt to point out, this stuff was meant to be legal – not kind of sort of legal – but legal to possess and enjoy. The stakes have changed. The laws have changed. The products have changed. What was once gray is now almost black and darker by the month.
If you aren’t certain, is it worth the risk? For some, yes, it is. For others, decidedly not. Old school incense was a great way to enjoy the effects of marijuana without pissing hot on a Urine Analysis. It was a way to genuinely skirt the law. Then, laws started to change and the legal burden began to increase. Lab reports became a mainstay, though generally useless – too easily doctored or prepared to exclude the real ingredient, in the case of DNC reports.
If you must have incense, but don’t want the risk, just buy aromatherapy products devoid of chemicals. Yes, they work fine – for us at least. We aren’t interested in scare-mongering, but the stakes are too high and the situation is too vague for us to offer any prescription that guarantees safety which also includes synthetic cannabimetic ingredients.
To sum it all up:
[notice]Synthetic herbal incense (Mr Nice Guy, D2E, et al) is not safe to possess or sell. We are waiting for a broadly applicable court precedent to vindicate the modern chemicals used. Until then, the ‘legal’ aspect of them is highly suspect.[/notice]
[notice]If you know that there is a chemical in your incense, but aren’t sure what, don’t buy it. You can’t possibly make an informed decision. You can’t possibly say whether it is safe or legal. If you very much trust your vendor, your risk is probably less, but safety is not guaranteed. [/notice]
Disclaimer: We aren’t lawyers. This is our opinion.