It is a crime in California to:
- manufacture or sell an imitation controlled substance (“bunk” drug), or
- substitute an imitation controlled substance after offering to sell the real thing.
California bunk drug laws apply to both pharmaceuticals and illegal (street) drugs.1
Which law you are charged under depends on what, precisely, you do.
We are a firm whose lawyers include former prosecutors and cops. We have a great deal of experience in California cases involving both real and imitation drugs.
To help you understand California's laws on imitation controlled substances, our criminal defense attorneys discuss the following, below:
You may also find helpful information in our article on Sale or Transportation of a Controlled Substance.
1. California Health and Safety Code 109575 – “bunk” drugs
Under California Health and Safety Code 109575 HS, it is unlawful to:
- manufacture, distribute, or possesses with intent to distribute,
- an imitation controlled substance.2
Violation of Health and Safety Code 109575 is a California misdemeanor. It carries a punishment of:
- up to six months in county jail, and/or
- a fine of up to $1,000.3
2. California Health and Safety Code 11355 – sale of a substitute fake drug
California Health and Safety Code 11355 HS makes it illegal to:
- arrange or offer to sell, give or transport a controlled substance, and
- then deliver, or arrange to deliver, an imitation drug instead.4
It doesn't matter whether you intended from the outset to deliver a fake, or you only decided to deliver a fake after you had concluded a deal. Either way, you are treated as if you had actually arranged for the sale of the real thing.5
This is because Health and Safety Code 11355 exists not to punish a fraud against the victim, but to punish:
- the intent to traffic in illegal drugs, and/or
- the possible harm to the victim (either from the actual substance sold, or because it can cause the victim to increase the dosage when (s)he later does the real drug).6
Violation of Health and Safety Code 11355 is a California wobbler offense. That means it can be punished as either a misdemeanor or a felony in the prosecutor's discretion.
If charged as a misdemeanor, it carries a punishment of:
- one year in county jail.7
If charged as a California felony, the penalty is:
- 16 months, or two or three years in county jail.8
3. What is an imitation controlled substance?
California Health and Safety Code 11355 defines an imitation controlled substance as any liquid, substance or material other than the controlled substance you offered to sell.
For purposes of Health and Safety code 109575, however, the definition is more specific. Under HS 109575, an “imitation controlled substance” is:
- a product specifically designed or manufactured,
- to resemble the physical appearance of a controlled substance, and
- which a reasonable person of ordinary knowledge could not distinguish from a controlled substance by outward appearances,
- a product that is not a controlled substance,
- but which, by your representations and its appearance, including:
- size, or
- would lead a reasonable person to believe,
- that if (s)he ingested it,
- it would have a stimulant or depressant effect,
- similar to or the same as,
- a controlled substance.9
In simple words, an imitation controlled substance is generally a convincing fake that someone might buy in order to get high.
4. Difference between an “imitation controlled substance” and a “synthetic controlled substance”
An “imitation controlled substance” is a counterfeit drug. It is intended to be mistaken -- at least visually -- for the real thing.
A “synthetic” controlled substance, on the other hand, is made to be chemically similar to a drug such as marijuana, cocaine, or LSD. It might or might not look like its “real” equivalent.
Examples of synthetic controlled substances include:
- synthetic cannabis products, such as “Spice” (California Health and Safety Code 11357.5)10, and
- synthetic stimulants, such as “Bath Salts” (California Health and Safety Code 11375.5).11
Synthetic drugs were originally produced because there were no laws preventing their sale. They were marketed as legal alternatives to illegal drugs. No attempt at deception was made.
Synthetic drugs are now illegal under both federal and California law. (See our article on Sale of synthetic (“designer”) drugs -- California Health and Safety Code 11357.5 and 11375.5).
But they are still cheap to produce. They have developed their own market. However, unless the seller is trying to pass them off another controlled substance, they are not imitation drugs.
Conversely, an imitation controlled substance is not necessarily a synthetic drug. In fact, it is often a “placebo” or other substance -- such as caffeine -- intended to have little or no harmful effect.12
If, however, you sell a synthetic drug and represent it as another one, you could be guilty of selling both a synthetic and an imitation controlled substance.
Example: Eric arranges to sell Jerry an 8-ball (3 ½ grams) of methamphetamine. But when it comes time to deliver it, he decides to give Jerry some bath salts instead. Eric is arrested and charged with:
- selling an imitation controlled substance (HS 109575),
- offering to sell a controlled substance and delivering an imitation one (HS 11355), AND
- selling synthetic stimulants (HS 11375.5).13
5. Defenses to imitation controlled substance charges
Legal defenses to California charges involving imitation drugs include (but are not limited to):
- You didn't do it
- You didn't know it was an imitation drug
- The substance was for your personal use
- What you were making or selling wasn't intended to fool anyone
- The other person knew it was an imitation
- What you offered to sell was not a controlled substance
- The substance was found during a violation of California search
- The police violated California entrapment laws
6. Federal law on counterfeit drugs
The federal Controlled Substances Act (“CSA”), 21 U.S. Code 841, prohibits trafficking in counterfeit substances.14
The counterfeit substance provisions of the CSA are primarily used to prevent the large-scale manufacture and sale of fake pharmaceuticals.15
Trafficking of counterfeit drugs is a serious federal felony. Depending on the substance and the quantity produced, penalties can include:
- a fine of between $100,000 and $10,000,000, and/or
- anywhere from one year to life in federal prison.16
Call us for help...
For more information about California drug laws, or to discuss your case confidentially with one of our criminal defense attorneys, please don't hesitate to contact us at Shouse Law Group. Our California criminal law offices are located in and around Los Angeles, Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
Additionally, our Las Vegas Nevada criminal defense attorneys represent clients accused of violating Nevada imitation drug laws. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.
1 California Health and Safety Code 11007 HS. "Controlled substance," unless otherwise specified, means a drug, substance, or immediate precursor which is listed in any schedule in Section 11054, 11055, 11056, 11057, or 11058.
See also California Health and Safety Code 11014. "Drug" means (a) substances recognized as drugs in the official United States Pharmacopoeia, official Homeopathic Pharmacopoeia of the United States, or official National Formulary, or any supplement to any of them; (b) substances intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or animals; (c) substances (other than food) intended to affect the structure or any function of the body of man or animals; and (d) substances intended for use as a component of any article specified in subdivision (a), (b), or (c) of this section. It does not include devices or their components, parts, or accessories.
2 California Health and Safety Code 109575 HS: Any person who knowingly manufactures, distributes, or possesses with intent to distribute, an imitation controlled substance is guilty of a misdemeanor and shall, if convicted, be subject to imprisonment for not more than six months in the county jail or a fine of not more than one thousand dollars ($1,000), or both the imprisonment and fine.
4 California Health and Safety Code 11355 HS: Every person who agrees, consents, or in any manner offers to unlawfully sell, furnish, transport, administer, or give (1) any controlled substance specified in subdivision (b) [opiates], (c) [opiate derivatives], or (e) [depressants], or paragraph (1) of subdivision (f) of Section 11054 [cocaine base], specified in paragraph (13) [marijuana], (14) [mescaline], (15) [peyote], or (20) [THC] of subdivision (d) of Section 11054, or specified in subdivision (b) [opium] or (c) [opiates] of Section 11055, or specified in subdivision (h) [hallucinogens] of Section 11056, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug to any person, or who offers, arranges, or negotiates to have any such controlled substance unlawfully sold, delivered, transported, furnished, administered, or given to any person and who then sells, delivers, furnishes, transports, administers, or gives, or offers, arranges, or negotiates to have sold, delivered, transported, furnished, administered, or given to any person any other liquid, substance, or material in lieu of any such controlled substance shall be punished by imprisonment in the county jail for not more than one year, or pursuant to subdivision (h) of Section 1170 of the Penal Code.
5 People v. Hill (1992) 6 Cal.App.4th 33, 8 Cal.Rptr.2d 123.
6 Same (“The Uniform Controlled Substances Act penalizes in-lieu sales, not because they involve fraud against the buyer, but because they promote drug trafficking and its attendant dangers. [citations]. The Imitation Controlled Substances Act has a similar purpose. It discourages the use and proliferation of counterfeit drugs which can themselves be dangerous, have become part of the drug trafficking culture, encourage and contribute to drug abuse and profiteering, and expose users to overdoses on the drugs which they imitate.
See also California Penal Code 1170(h)(1) PC.
9 California Health and Safety Code 109550 HS. "Imitation controlled substance" means (a) a product specifically designed or manufactured to resemble the physical appearance of a controlled substance, that a reasonable person of ordinary knowledge would not be able to distinguish the imitation from the controlled substance by outward appearances, or (b) a product, not a controlled substance, that, by representations made and by dosage unit appearance, including color, shape, size, or markings, would lead a reasonable person to believe that, if ingested, the product would have a stimulant or depressant effect similar to or the same as that of one or more of the controlled substances included in Schedules I through V, inclusive, of the Uniform Controlled Substances Act, pursuant to Chapter 2 (commencing with Section 11053) of Division 10.
10 California Health and Safety Code 11357.5(a) HS: Every person who sells, dispenses, distributes, furnishes, administers, or gives, or offers to sell, dispense, distribute, furnish, administer, or give, or possesses for sale any synthetic cannabinoid compound, or any synthetic cannabinoid derivative, to any person, is guilty of a misdemeanor punishable by imprisonment in a county jail not exceeding six months, or by a fine not exceeding one thousand dollars ($1,000), or by both that fine and imprisonment.
11 California Health and Safety Code 11375.5(a) HS: Every person who sells, dispenses, distributes, furnishes, administers, or gives, or offers to sell, dispense, distribute, furnish, administer, or give, any synthetic stimulant compound specified in subdivision (b), or any synthetic stimulant derivative, to any person, or who possesses that compound or derivative for sale, is guilty of a misdemeanor punishable by imprisonment in a county jail not exceeding six months, or by a fine not exceeding one thousand dollars ($1,000), or by both that fine and imprisonment.
12 See, e.g., The Health Sciences Institute, Placebo pills: More than just sugar.
13 See People v. Hill, endnote 5, for a discussion of why HS 109575 is usually not a lesser included offense of HS 11355.
14 21 U.S. Code 841 (a): Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally— …(2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance.
15 See 21 U.S. Code 802 (7): The term "counterfeit substance" means a controlled substance which, or the container or labeling of which, without authorization, bears the trademark, trade name, or other identifying mark, imprint, number, or device, or any likeness thereof, of a manufacturer, distributor, or dispenser other than the person or persons who in fact manufactured, distributed, or dispensed such substance and which thereby falsely purports or is represented to be the product of, or to have been distributed by, such other manufacturer, distributor, or dispenser.
16 21 U.S. Code 841(b).