Associated Press investigation finds synthetic marijuana in CBD sold in Florida
Jay Jenkins says he hesitated when a buddy suggested they vape CBD.
“It’ll relax you,” the friend assured.
The vapor that Jenkins inhaled didn’t relax him. After two puffs, he ended up in a coma.
That’s because what he was vaping didn’t have any CBD, the suddenly popular compound extracted from the cannabis plant that marketers say can treat a range of ailments without getting users high. Instead, the oil was spiked with a powerful street drug.
Some operators are cashing in on the CBD craze by substituting cheap and illegal synthetic marijuana for natural CBD in vapes and edibles such as gummy bears, an Associated Press investigation has found.
The practice has sent dozens of people like Jenkins to emergency rooms over the last two years. Yet people behind spiked products have operated with impunity, in part because the business has boomed so fast that regulators haven’t caught up while drug enforcement agents have higher priorities.
AP commissioned laboratory testing of the vape oil Jenkins used plus 29 other vape products sold as CBD around the country, with a focus on brands that authorities or users flagged as suspect. Ten of the 30 contained types of synthetic marijuana — drugs commonly known as K2 or spice that have no known medical benefits — while others had no CBD at all.
Among them was Green Machine, a pod compatible with Juul electronic cigarettes that reporters bought in California, Florida and Maryland. Four of those seven pods contained illegal synthetic marijuana, but which chemical varied by flavor and even location of purchase.
“It’s Russian roulette,” said James Neal-Kababick, director of Flora Research Laboratories, which tested the products.
Vaping in general has come under increased scrutiny in recent weeks because hundreds of users have developed mysterious lung illnesses, and several have died. The AP’s investigation focused on yet another set of cases, in which psychoactive chemicals are added to products presented as CBD.
The results of AP’s lab testing echo what authorities have found, according to a survey of law enforcement agencies in all 50 states. At least 128 samples out of more than 350 tested by government labs in nine states, nearly all in the South, had synthetic marijuana in products marketed as CBD. Gummy bears and other edibles accounted for 36 of the hits, while nearly all others were vape products. Mississippi authorities also found fentanyl, the powerful opioid involved in about 30,000 overdose deaths last year.
Reporters then bought brands that law enforcement testing or online discussions identified as spiked. Because testing by both authorities and AP focused on suspect products, the results are not representative of the overall market, which includes hundreds of products.
“People have started to see the market grow and there are some fly-by-night companies trying to make a quick buck,” said Marielle Weintraub, president of the U.S. Hemp Authority, an industry group that certifies CBD cosmetics and dietary supplements.
Synthetic marijuana is a concern, according to Weintraub, but she said the industry has many reputable companies. When products turn up spiked, the people or companies behind them often blame counterfeiting or contamination in the supply and distribution chain.
CBD, short for cannabidiol, is one of many chemicals found in cannabis, a plant known more commonly as marijuana. Most CBD is made from hemp, a cannabis variety cultivated for fiber or other uses. Unlike its more famous cousin THC, cannabidiol doesn’t get users high. Sales of CBD have been driven in part by unproven claims that it can reduce pain, calm anxiety, increase focus and even prevent disease.
The U.S. Food and Drug Administration has approved one CBD-based medicine for treating seizures associated with two rare and severe forms of epilepsy, but says it cannot be added to food, drinks or dietary supplements. The agency is now clarifying its regulations, but aside from warning manufacturers against making unproven health claims, it has done little to stop the sale of spiked products. That’s the job of the U.S. Drug Enforcement Administration, but its agents are focused on opioids and other narcotics.
Now there are CBD candies and beverages, lotions and creams, and even treats for pets. Suburban yoga studios, big-name pharmacies and Neiman Marcus department stores carry beauty products. Kim Kardashian West had a CBD-themed baby shower.
But it’s hard for consumers to know how much CBD they are really getting, if any at all. As with many products, federal and state regulators rarely test what’s inside — for the most part, quality control is left to manufacturers.
And there’s a financial incentive to cut corners. One website advertises synthetic marijuana for as little as $25 per pound — the same amount of natural CBD costs hundreds or even thousands of dollars.
‘YOU ONLY LIVE ONCE’
Jay Jenkins had just wrapped up his freshman year at The Citadel, a South Carolina military college, when boredom led him to try what he thought was CBD.
It was May 2018 and he said his friend bought a cartridge of blueberry flavored CBD vape oil called Yolo! — the acronym for “you only live once” — from the 7 to 11 Market, an austere, white board-and-batten building in Lexington, South Carolina.
Back in the car, Jenkins tried it first. Things “got hazy,” then terrifying.
Jenkins said the nerves in his mouth felt like they were “multiplied by 10.” Vivid images including a circle engulfed by darkness and filled with colorful triangles filled his mind. Before he drifted out of consciousness, he realized he couldn’t move.
“I thought that I actually was already dead,” Jenkins said.
His friend raced to the hospital where Jenkins suffered acute respiratory failure and drifted into a coma, his medical records show.
Jenkins came out of the coma and was released the next day. Hospital staff sealed the Yolo cartridge in a biohazard bag and handed it back.
Lab testing AP commissioned this summer found a type of synthetic marijuana that has been blamed for at least 11 deaths in Europe.
State and federal authorities never identified who made Yolo, which sickened not just Jenkins but also at least 33 people in Utah.
According to documents filed in a California court by a former company bookkeeper, a business called Mathco Health Corporation sold Yolo products to a distributor with the same address as the 7 to 11 Market where Jenkins stopped. Two other former employees told AP that Yolo was a Mathco product.
Mathco CEO Katarina Maloney said in an interview at company headquarters in Carlsbad, California, that Yolo was handled by her former business partner and she did not want to discuss it.
Maloney also said Mathco does not “engage in the manufacture, distribution or sale of any illegal products.” She said the Yolo products in Utah “were not purchased from us” and the company can’t control what happens to products once they are shipped. AP-commissioned testing of two CBD vape cartridges marketed under Maloney’s Hemp Hookahzz brand found no synthetic marijuana.
As part of an employment complaint filed in court records, the former bookkeeper said Maloney’s former business partner, Janell Thompson, was the “exclusive salesperson” of Yolo. Reached by phone and asked about Yolo, Thompson hung up.
“If you want to speak with somebody you can talk to my attorney,” Thompson later texted without providing a name or contact information.
When a reporter visited the 7 to 11 Market in May, Yolo was no longer for sale. Asked for something similar, the clerk suggested a cartridge labeled Funky Monkey and then turned to a cabinet behind the counter and offered two unlabeled vials
“These are better. These are the owner’s. This is our top seller,” she said, referring to them as 7 to 11 CBD. “These here, you can only get here.”
Testing showed that all three contained synthetic marijuana. The store owner did not respond to messages seeking comment.
WHAT’S IN ‘JUNGLE JUICE’?
The people behind spiked vapes leave few clues about who makes them or what’s inside.
Packaging doesn’t identify the companies and their brands have little online presence. Newcomers can simply design a label and outsource production to a wholesaler that deals in bulk.
The opaque system of manufacturing and distribution hampers criminal investigations and leaves victims of spiked products with little recourse.
The AP bought and tested Green Machine pods in flavors including mint, mango, blueberry and jungle juice. Four of the seven pods were spiked and only two had CBD higher than a trace level.
Mint and mango pods bought in downtown Los Angeles contained one type of synthetic marijuana. But while mint and mango pods sold by a vape shop in Maryland were not spiked, a “jungle juice” flavored pod was. It had yet a different synthetic marijuana compound — one health authorities blame for poisoning people in the U.S. and New Zealand. A blueberry flavored pod sold in Florida also was spiked.
Green Machine’s packaging says it’s made with industrial hemp, but there’s no information about who is behind it.
When a reporter returned to CBD Supply MD in a Baltimore suburb to discuss testing results, co-owner Keith Manley said he was aware of online chatter that Green Machine might be spiked. He then had an employee pull all remaining Green Machine pods from store shelves.
Through interviews and documents, AP tracked Green Machine pods that reporters bought to a warehouse in Philadelphia and then a Manhattan smoke shop and the entrepreneur behind the counter, Rajinder Singh, who said he is Green Machine’s first distributor.
Singh, who is currently on probation for a federal synthetic marijuana conviction, said he purchased Green Machine pods with cash or in exchange for merchandise such as hookah pipes from a man he knew as “Bob” who drove a van down from Massachusetts. To substantiate his account, he provided a phone number associated with a man who died in July.
Singh pleaded guilty in 2017 to federal charges he sold a smokable “potpourri” that he knew contained synthetic marijuana. He said that experience taught him a lesson and blamed counterfeit products for the synthetic marijuana detected in Green Machine.
“100 percent, what you tested is a duplicated product,” he said.
The American Association of Poison Control Centers considers CBD an “emerging hazard” due to the potential for mislabeling and contamination.
One case last year involved an 8-year-old boy from Washington who was hospitalized after taking CBD oil his parents ordered online in hopes it would help his seizures, according to a case study in the journal Clinical Toxicology published in May. Instead, synthetic marijuana sent him to the hospital with symptoms including delirium and a rapid heart rate.
Other clusters of illnesses happened in Mississippi and around military bases in North Carolina.
Labeling of many CBD products has been documented as inaccurate. A 2017 study in the Journal of the American Medical Association found 70% of CBD products were mislabeled. Researchers used an independent lab to test 84 products from 31 companies.
Fake or spiked CBD is enough of a concern that leaders of the U.S. Hemp Authority industry group developed a certification program for CBD skin and health products. Vapes are not covered.
But local and state authorities have limited ability to pursue problem products to their roots.
After several Georgia high school students passed out from vaping last year, authorities began scrutinizing local tobacco shops. One of the CBD vape brands they targeted was called Magic Puff.
The drug enforcement team in Savannah and surrounding Chatham County arrested a shop owner and two employees. But they couldn’t follow the investigation further because it appeared the products were being manufactured elsewhere, possibly overseas. The team’s assistant deputy director, Gene Harley, said they provided a report to federal drug agents who handle such cases.
Magic Puff was still on shelves at a Florida store this summer, and AP testing showed blueberry and strawberry cartridges contained synthetic marijuana. Preliminary results also suggested the presence of a toxin produced by a fungus.
Because CBD is the active ingredient in an FDA-approved drug, the FDA is responsible for regulating its sale in the U.S. But if CBD products are found to contain narcotics, the agency considers the investigation a job for the DEA, an FDA spokesman said.
The DEA says it is focused on drugs responsible for killing thousands of Americans like fentanyl and methamphetamines.
“These are going to be bigger priorities on enforcement,” DEA spokeswoman Mary Brandenberger said.
Experts such as Michelle Peace, a forensic scientist at Virginia Commonwealth University who has found synthetic marijuana in her own testing of CBD vapes, said the federal government should act quickly to protect the public.
“As long as it remains unregulated like it currently is,” Peace said, “you just give a really wide space for nefarious activity to continue.”
Contact AP’s investigative team at [email protected]
Mohr reported from Carlsbad, California; Panama City, Florida; and Jackson, Mississippi. Contributing to this report were Allen Breed in Lexington and Ninety Six, South Carolina; Juliet Linderman in New York, Philadelphia and Towson, Maryland; Reese Dunklin in Dallas; Krysta Fauria in Carlsbad and Los Angeles; Carla K. Johnson in Seattle; Justin Pritchard in Washington and Los Angeles; Rhonda Shafner in New York; Ted Warren in Grants Pass, Oregon; and Mitch Weiss in Lexington, South Carolina.
People experiencing problems with a product labeled as CBD can reach a local poison control center by calling 1-800-222-1222.
An Associated Press investigation shows a dark side to booming sales of the cannabis extract CBD. Some people are substituting cheap and dangerous street drugs for the real thing.
Possession of Synthetic Drugs / K2 / Spice
Possession of Synthetic Drugs / K2 / Spice
Buying, selling or smoking synthetic marijuana is NO LONGER LEGAL . Possession of synthetic drugs, including K2, spice, or other synthetic drugs is classified as a First Degree Misdemeanor in Florida if under 3 grams. Also, under the Florida Criminal Punishment Code Possession of synthetic drugs is classified as a Level 3 severity ranking which will get you 16 points on a score sheet as a primary offense.
Florida Statute § 893.03(1)(c) largely expanded the list of banned substances classified as Schedule I Drugs under the Florida Comprehensive Abuse Prevention and Control Act.
HB 1175 added 91 new substances to Schedule I drugs such as synthetic cannabinoids and synthetic stimulants like Methyltryptamine, Ethcathinone and Benzylpiperazine. The 91 new substances were the legislatures effort to regulate drugs which, because of their molecular makeup, could easily be altered into new chemical compounds.
Many of the synthetic drugs included under Florida Statute § 893.03(1)(c) are commonly referred to as synthetic marijuana, K2, spice, bath salts and potpourri.
What Penalties Am I Facing?
Under Florida Statute § 893.03(1)(c), if you are convicted of possession of less than 3 grams of synthetic marijuana or K2 you could be sentenced to:
- A maximum penalty of up to one (1) year in prison;
- A maximum penalty of up to one (1) year supervised probation/community control; or
- A maximum penalty of up to a $1,000 fine
- 2 Year Driver’s License suspension (if adjudicated guilty)
- Substance Abuse Evaluation/Treatment/Screening (during probation)
If you are convicted of possession of more than 3 grams of synthetic marijuana or K2 you will be facing a Third Degree Felony and could be sentenced to:
- A maximum penalty of up to five (5) years in prison;
- A maximum penalty of up to five (5) years supervised probation/community control; or
- A maximum penalty of up to a $5,000 fine
- 2 Year Driver’s License suspension (if adjudicated guilty)
- Substance Abuse Evaluation/Treatment/Screening (during probation)
- The possible forfeiture of any vehicle and/or property used in the commission of a felony (See Forfeiture Page).
In addition to the penalties above, anyone who, after either a plea or trial, is adjudicated guilty of a possession of a narcotic charge like K2 or spice possession, must be sentenced to a two (2) year mandatory driver’s license suspension. Many attorneys are unaware of Florida Statute 322.055 which mandates the drivers license suspension (meaning that even if the judge thought you were a nice guy/girl, the judge would have no discretion in not suspending your license even if he/she wanted to).
If we are able to get your charges dropped (Motions to Dismiss or Suppress), you successfully participate in the Pre-Trial Intervention program, have us negotiate a plea deal for you which would “withhold adjudication, or if you hire us to challenge your charges in a criminal trial and we win, your license will not be suspended. So it’s important you hire The Modarres Law Firm to help you navigate through the complicated maze that is the criminal justice system to get you the best outcome possible!
Actual Possession vs. Constructive Possession:
In Florida, unless law enforcement finds the xanax or illegal narcotic ON you (“actual possession”), the prosecutors have to proceed on a theory of “constructive possession.” It is important to note that in Florida, there is an important distinction between ownership of the illegal substance and possession of it. See Scruggs v. State, 785 So.2d 605, 607 (Fla. 4 th DCA 2001). Cases of constructive possession are infinitely more difficult for prosecutors to prove. Here’s why:
“Actual possession” means that the K2 or spice, or illegal narcotics were actually found in your pockets, your hands, or wallet, etc). If you borrow a pair of jeans from your friend and they just so happen to have some K2 or spice in the pockets that you’re unaware of, guess what, you’re getting charged with a Third Degree Felony facing up to 5 years in prison.
The other type of possession is “constructive possession.” Constructive possession means that the drugs were not actually found in your hands or pockets, but in an area where the person had knowledge of the drugs and had the ability to access and exercise “dominion and control” over the drugs.
In constructive possession cases, prosecutors have to prove that you had “dominion and control” over the K2 or spice or illegal narcotics, knowledge of its presence, the ability to maintain control over it, and knowledge of its illicit nature. So plainly put, you had control of the area where the drugs were found, you knew the drugs were there, you had the ability to grab the drugs, and you knew the drugs were illegal. Proving just one of these elements is not enough, the prosecutors have to prove each element of constructive possession. In the case of exclusive possession by the accused, these elements may be inferred, otherwise it must be proven by the State by affirmative evidence. Brown v. State, 428 So.2d 250 (Fla. 1983); Arant v. State, 256 So.2d 515, 516 (Fla. 1 st DCA 1972).
Constructive possession becomes a real problem for prosecutors when you run into issues where they don’t have a whole lot of evidence against you. For example, what if the State pulls you over in a car that didn’t belong to you, find some drugs in an envelope or box tucked away in a hidden place in the car, and that box or envelope just so happened to have your fingerprint on it. Slam dunk case for the prosecution right? Wrong. In Arant v. State, the defendant was charged with possession of marijuana. A search was conducted of a female companion’s home and police recovered a single fingerprint of defendant on a potato chip can, which contained a marijuana plant. The State also proved that the defendant frequently visited the home. The Court ruled, “[t]he fingerprint proves quite conclusively that appellant touched the can. It tells us nothing about when…. Obviously the trier of fact thought it probable that the print was made after the plant’s presence in the can was manifest. But guilt cannot rest on mere probabilities. It is no less probable that the print was made before the plant was put in the can or perhaps while it contained a seed not yet visible. The State’s hypothesis that the print proves possession, even if we held it consistent with guilt, is no less consistent with innocence….” Arant v. State, 256 So.2d 515 (Fla. 1 st DCA 1972); accord Tanksley v. State, 332 So.2d 76 (Fla. 2d DCA 1976).
Double Jeopardy Issues:
Everyone has usually heard of “Double Jeopardy” at some point. Well, Florida courts have found that you can’t be tried and convicted twice for the same crime, and you can’t receive multiple punishments for the same crime. Gibbs v. State, 698 So.2d 1206 (Fla. 1997). The Florida Supreme Court has also found that you can’t be convicted of both trafficking cocaine AND possession of the SAME cocaine. Gibbs v. State, 698 So.2d 1206 (Fla.1997); Trice v. State, 755 So.2d 808 (Fla. 3d DCA 2000).
Possible Defenses to Possession
4th Amendment Illegal Search and Seizure: The Modarres Law Firm will work closely with you to gather all essential facts in order to develop the best possible defense and secure the most favorable outcome in your case. Every case is different. That is why it is important to hire a law firm with experience, and with attorneys who are accessible to you instead of speaking to legal secretaries and paralegals. We’ll sit down with you and look at all the facts and circumstances surrounding your arrest including the reason for the stop (illegal tints is a law enforcement all-time favorite for traffic stops), any searches that were conducted or other actions of law enforcement to determine whether or not the investigation was conducted lawfully. If the police don’t follow the law, the Constitution demands that any evidence recovered against you illegally (“fruit of the poisonous tree”) can’t be used against you in any subsequent case. The Modarres Law Firm will make sure the police and prosecutors play by the rules!
The Modarres Law Firm is experienced in examining lawful stops, and making innovative and creative arguments within the confines of the law and case precedent to get criminal charges dismissed before the case reaches a trial phase. After careful examination, if the initial stop or subsequent search in your case appears to be suspect, The Modarres Law Firm will file a motion to suppress the evidence, or in some circumstances a motion to dismiss. These motions could be critical. Winning a Motion to Suppress under Florida’s Exclusionary Rule, or winning a Motion to Dismiss will result in preventing the prosecutors from moving forward with the case and being forced to enter a “Nolle Prosequi”, or the case being dismissed by the Judge. The Modarres Law Firm is an experienced Orlando criminal defense law firm that is experienced in both writing and arguing successful pre-trial motions.
Prove It!: The Modarres Law Firm will closely scrutinize the details of your case to reveal a lack of evidence or any other weaknesses in the case and bringing them to the attention of the prosecutors and judge. Once the prosecutors understand that they have a weak case in terms of being able to prove both knowledge and control of the illegal substance.
As you can imagine, there is a whole host of other defenses that could be raised such as identity. The State’s reliance on a single latent print as the entirety of its evidence presented to prove identity is insufficient without evidence that the fingerprint could have been made only at the time the crime was committed. Jaramillo v. State, 417 So.2d 257 (Fla. 1982); Williams v. State, 308 So.2d 595 (Fla. 1 st DCA 1975).
Whether or not the drugs were actually illegal (was it only “field tested” or sent to FDLE for additional testing to determine that it was in fact illegal drugs) could also play a significant part in your defense. Obviously if the drugs are not actually illegal narcotics, we may have the charges dropped against you entirely. Call us to talk about your case and let us determine any possible defenses you may have.
If No Defenses or Motions Are Available, There Is Still Hope:
The Modarres Law Firm, we will always try to aggressively defend against your case and fight for you as opposed to simply “pleading your case out” to unfavorable conditions. However, we also understand that in some cases, the most favorable outcome of your case may involve negotiation as opposed to raising defenses or challenging the sufficiency of evidence. In rare instances, after we’ve done all we can to investigate, discovery, and reviewing your case, we’ll negotiate with prosecutors to structure a favorable plea offer for you that will mitigate or lessen the sentence you face.
If you do not wish to exercise your constitutional right to a jury trial, we can seek the following possible outcomes for you:
- Drug Court:This program is a court-supervised treatment court for defendants who are not charged with a violent crime. Drug Court operates in conjunction with community substance abuse rehab centers, Judges, the Sheriff’s Office, the Office of the State Attorney, the Office of the Public Defender and local law enforcement agencies. A defendant typically will be entered into the Drug Court program through PTI or a condition of probation (discussed in the following paragraph) and will be eligible to have the charges dismissed upon successful completion and graduation from the program. After successful completion, all charged will be dismissed by the Judge (withhold of adjudication if entered as condition of probation). Whether the program is entered into through PTI, or as a condition of probation, you will be able to avoid a possible felony conviction on your record.
- Pre-Trial Intervention(PTI): PTI is similar to Pre-trial Diversion except it is a program run by the Judge as opposed to the State Attorney’s office. After successful completion, the judge will dismiss all charges (as opposed to pre-trial diversion or drug court, where the State Attorney “nolle prosses” / drops the charges).
- Withhold of Adjudication: Meaning that you will not be “adjudicated guilty” of the crime that you are charged with and it will not have an adverse impact on future job or school applications.
Possession cases, like most criminal cases, can be very fact-intensive and complicated. Even a slight variation of the facts could affect a number of nuances which could have a significant impact on the penalties you face. The Modarres Law Firm is experienced in defending against possession cases and will be by your side, fighting for you every step of the way. Call us at (407) 408-0494 and you will be connected directly to an experienced attorney, not a paralegal or secretary.
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