DEPARTMENT OF CONSUMER AND REGULATORY AFFAIRS

NOTICE OF EMERGENCY RULEMAKING
The Director of the Department of Consumer and Regulatory Affairs (Director), pursuant to
authority set forth in the Second Omnibus Regulatory Reform Amendment Act of 1!, effecti"e
April #$, 1, as amended (D%C% &a' 1#(#)1* D%C% Official Code + ,-(#!.1%#$ (#$1# Repl%)),
hereby gi"es notice of the adoption, on an emergency basis, of the follo'ing amendments to
Chapter (/rohibition on the Sale of Synthetic Drugs), Title 1- (0usiness, Occupations, and
/rofessions) of the District of Columbia 1unicipal Regulations (DC1R)%
The rulema2ing pro"ides enforcement penalties for businesses engaged in the sale, possession, or
manufacture of synthetic drugs% The penalties 'ould include business license suspensions and
business license re"ocations%
This emergency rulema2ing is necessary to bring enforcement regulations in line 'ith Section
3$1 of the District of Columbia4s Omnibus Criminal Code Amendments Act of #$1#, effecti"e
5une 1, #$13 (D%C% &a' 1(3#$* )$ DCR 33$ (1arch 1., #$13)), 'hich added synthetic
drugs, such as synthetic mari6uana and 7bath salts8, to the District of Columbia4s schedule of
controlled substances% This rulema2ing supports "arious 9ederal Drug :nforcement
Administration and Department of 5ustice regulations that ma2e it illegal to buy, sell, or possess
Schedule ; controlled substances such as <#=Spice, synthetic drugs, or their e>ui"alents because
these substances pose an imminent ha?ard to public health, safety and 'elfare%
This emergency rulema2ing 'as adopted 5une ., #$1,, and became effecti"e on that date% The
emergency rulema2ing shall remain in effect for up to one hundred and t'enty (1#$) days, until
October 3, #$1,, unless earlier superseded by publication of a @otice of 9inal Rulema2ing in the
D.C. Register% The Director also gi"es notice of intent to ta2e final rulema2ing action to adopt
these rules in not less than thirty (3$) days after the date of publication of this notice in the D.C.
Register%
Chapter 9 (Prohibition on the Sae o! S"ntheti# Dr$%&' o! Tite () (*$&ine&&+ O##$pation&+
an, Pro!e&&ion&' o! the DCMR i& a-en,e, a& !oo.&/
Se#tion 90(+ E1EMPTIONS+ i& a-en,e, to rea, a& !oo.&/
90( E1EMPTIONS
$1%1 The products prohibited for sale under this chapter shall not apply toA
(a) Any herbal or plant material containing synthetic chemicals or chemical
compounds 'hichA
(1) Re>uire a prescription*
(#) Are appro"ed by the 9ood and Drug Administration*
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(3) Are dispensed in accordance 'ith District and federal la'* and=or
(,) Are sub6ect to the 6urisdiction of a federal entity%
(b) Any material containing synthetic chemicals or chemical compounds
'hichA
(1) Re>uire a prescription*
(#) Are appro"ed by the 9ood and Drug Administration* and=or
(3) Are dispensed in accordance 'ith District and federal la'%
$1%# A business sub6ect to + $$%1 that belie"es any of its products should not be
sub6ect to prohibition shall submit a re>uest for an eBemption on a form pro"ided
by the Department of Consumer and Regulatory Affairs (DCRA)%
$1%3 ;n its re>uest for eBemption, the business shall pro"ide a basis for the eBemption,
including a description of the product(s) and an affirmation by the business
licensee that, to the best of the business licensee4s 2no'ledge, the product(s) are
not used by consumers to achie"e a high, euphoria, relaBation, mood
enhancement, hallucinogenic effect or other mind or body(altering effect%
$1%, ;f an eBemption re>uest is granted, DCRAA
(a) 1ay conduct on(site inspections of the business* and
(b) Shall re>uire the business licensee to maintain purchase and sales records
for any products that ha"e been issued an eBemption, 'hich the licensee
shall pro"ide upon re>uest by any official from DCRA, the D%C%
1etropolitan /olice Department, or the D%C% Department of Cealth%
$1%. ;f DCRA denies an eBemption re>uest, the business licensee may submit to the
DCRA Director or designee a re>uest for reconsideration% The DCRA Director or
designee shall ha"e fifteen business (1.) days to issue a 'ritten determination on
the re>uest for reconsideration%
$1%) ;n determining 'hether to issue an eBemption under this section, DCRA may see2
recommendations from the D%C% 1etropolitan /olice Department, the D%C%
Department of Cealth, or other go"ernment agencies ha"ing eBpertise 'ith
synthetic drugs%
Se#tion 902+ PROOF OF INTENT+ i& a-en,e, to rea, a& !oo.&/
902 PROOF OF INTENT
#
$3%1 Any reasonable e"idence may be utili?ed to demonstrate that a product4s
mar2eted and=or intended use causes it to fit the definition of a synthetic drug
including, but not limited to, any of the follo'ing e"identiary factorsA
(a) The product is not suitable for its mar2eted use (such as a crystalline or
po'der product being mar2eted as 7glass cleaner8)*
(b) The indi"idual or business pro"iding, distributing, displaying or selling the
product does not typically pro"ide, distribute, or sell products that are used
for that product4s mar2eted use (such as li>uor stores, smo2e shops, or
gas=con"enience stores selling 7plant food8)*
(c) The product contains a 'arning label that is not typically present on
products that are used for that product4s mar2eted use including, but not
limited to, 7@ot for human consumption8, 7 @ot for purchase by minors8,
71ust be 1! years or older to purchase8, 71$$D legal blend8, or similar
statements*
(d) The product is significantly more eBpensi"e than products that are used for
that product4s mar2eted use% 9or eBample, $%. grams of a substance
mar2eted as 7glass cleaner8 costing E.$%$$, 1 gram of potpourri costing
E1$%$$, or $%. grams of incense costing E1.%$$*
(e) The product resembles an illicit street drug (such as cocaine,
methamphetamine, mari6uana, or schedule 1 narcotic)* or
(f) The business licensee or any employee has been 'arned by DCRA or has
recei"ed a criminal incident report, arrest report or e>ui"alent from any
la' enforcement agency that the product or a similarly labeled product
contains a synthetic drug%
Se#tion 903+ RE4OCATION OF *USINESS LICENSE+ i& a-en,e, to rea, a& !oo.&/
903 RE4OCATION OF *USINESS LICENSE
$,%1 Any business licensee "iolating this chapter may recei"e a @otice of ;nfraction%
$,%# DCRA may issue a notice of intent to suspend or re"o2e the licensee4s basic
business license for "iolating this chapter%
$,%3 9ollo'ing an ad6udication that is ad"erse to the business licensee, DCRA shall
suspend or re"o2e the basic business license% ;n ad6udicated cases 'here a notice
of intent to re"o2e 'as issued, the basic business license shall be re"o2ed
pursuant to D%C% Official Code + ,-(#!,,(a(1)(1), and the licensee shall be
ineligible to apply for a ne' basic business license for a substantially similar
business for t'o (#) years%
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