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Suit Over Fake Pot Ban Gets the Boot From Judge

(CN) - A Minnesota federal judge dismissed a lawsuit filed by four retailers that feared a new law banning fake pot would send their businesses up in smoke.

On Nov. 24, the Drug Enforcement Administration announced that it may temporarily classify five types of fake marijuana as Schedule I drugs under the Controlled Substances Act.

Synthetic marijuana products are used to lace herbal incense products such as K2 and Spice, which produce THC-like psychoactive effects when smoked.

"Based on law enforcement encounters, these five substances are typically found laced on plant material," DEA chemist Terrence Boos explained in an affidavit to the District Court. "The plant material is packaged in small pouches or packets, and is being sold over the Internet, in tobacco and smoke shops, drug paraphernalia shops, gas stations, and convenience stores as herbal incense products, giving customers of all ages direct access to these five substances."

The affidavit continues: "Health warnings have been issued by numerous state and local public health departments and poison control centers describing the adverse health effects associated with these synthetic cannabinoids and their related products, including agitation, anxiety, nausea, vomiting, tachycardia (fast, racing heartbeat), elevated blood pressure, tremor, seizures, hallucinations, paranoid behavior, and non-responsiveness."

Four Minnesota shops that sell the products - Last Place on Earth, Down in the Valley, Disc & Tape, and Hideaway - demanded an injunction and declaratory judgment in a complaint filed on Dec. 21.

They claimed their business would suffer irreparable harm from the DEA's notice, which they also said denied due process, was unconstitutionally vague and violated the separation of powers.

Operators for each of the four stores say that synthetic marijuana products account for more than half of their sales.,

"Within the past year, the incenses that appear to be prohibited by the ordinance have accounted for more than 70 percent of the store's total sales," Hideaway owner Wael Sakallah wrote in his affidavit to the court. "If my business were to suffer an immediate 70 percent loss in sales, it could not survive; I would be forced to close the business within weeks."

The DEA will not decide whether to temporarily place the five substances on the schedule until at least Feb. 1, 2011. In a memorandum to the court, the DEA pointed out that since it had not yet added the five types of synthetic marijuana to the schedule, the plaintiffs "jumped the gun" and for now they "are free to continue business as usual."

U.S. District Judge Patrick Schiltz agreed, dismissing the store operators' case against the DEA without prejudice on Jan. 21 in a one-page order.


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