[HISTORY: Adopted by the Town of Barnstable as indicated in article histories. Amendments noted where applicable.]
[Adopted 9-3-2015 by Order No. 2016-017]
It has been determined that certain businesses and/or individuals within the Town of Barnstable are possessing and selling certain substances which when ingested produce intoxicating effects similar to Tetrahydrocannabinol (THC) or marijuana. These substances, which are described herein, are often used as an alternative synthetic to marijuana and are potentially dangerous to users and society, and the long-term effects are not yet known. The effects of these substances are a health concern to the citizens of Barnstable. Not all of the substances are categorized as illegal controlled substances under state or federal law. By selling these legal substances for smoking and ingestion in the guise of incense, the manufacturers avoid the United States Food and Drug Administration process for study and approval of such prior to distribution for consumption. In addition, by marketing such incense products directed at the controlled drug subculture, the manufacturers and sellers avoid the schedule implications of the Controlled Substances Act. The Town of Barnstable Town Council recognizes there is no legitimate purpose for such synthetic chemicals contained therein.
It shall be unlawful for any person to possess, sell, barter, give, publicly display for sale; attempt to possess, sell, barter, or give; or transport any material, compound, mixture or preparation within the corporate limits of the Town of Barnstable which contains any quantity of synthetic marijuana or synthetic marijuana analogue.
This article shall apply regardless of whether the synthetic marijuana or synthetic marijuana analogue is described as tobacco, herbs, incense, spice, bath salts, plant food or any blend thereof, and, regardless of whether the substance is marketed for the purpose of being smoked or ingested, and, regardless of whether the substance is marked "not for human consumption."
It is not an offense under this article if the person was acting at the direction of the Barnstable Police Department and its officers, or federal or state law enforcement, to enforce or ensure compliance with this article prohibiting the sale of the aforementioned substances.
If the Commonwealth of Massachusetts enacts criminal penalties for the possession, sale, transportation, or delivery of any chemical substance listed in this article, then upon the effective date of such enactment, this article shall no longer be deemed effective for that substance. However, a violation of this article occurring prior to the effective date of such enactment may be prosecuted after the effective date of state enactment.
For the purpose of this article, the following words shall have the following meanings.
- An individual, corporation, limited liability company, partnership, wholesaler, retailer, and any license or unlicensed business, including clerk, manager, or owner of the business.
- SYNTHETIC MARIJUANA
- Any substance as defined by 21 U.S.C. § 812(d), excluding "marihuana" as such term is defined in MGL c. 94C, § 1, 21 U.S.C. § 812(d) notwithstanding; or any one or any combination of the following cannabinoids, or, a substance containing any one or combination of the following cannabinoids, namely JWH-018, JWH-073, CP-47, 497, JWH-200, or, cannabicyclohexanol; or vegetable material that has been chemically treated and is possessed, sold, or, purchased with the intent that it will, despite any labeling to the contrary, be consumed by humans for the purpose of voluntary intoxication, said vegetable material typically having a retail price of over $5 per ounce and contained within packaging indicating that the contents is not for human consumption, and which, if consumed, may induce an effect or effects of intoxication similar to a controlled substance or imitation controlled substance, said effect or effects to include elation, euphoria, dizziness, excitement, irrational behavior, exhilaration, paralysis, stupefaction, dulling of the senses or nervous system, or, distortion of audio, visual or mental processes.
- SYNTHETIC MARIJUANA ANALOGUE
- A substance, the chemical structure of which is substantially similar to the chemical structure of synthetic marijuana and which has a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of synthetic marijuana; or with respect to a particular person, which such person represents or intends to have a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of synthetic marijuana.
Any person found to be in violation of this article will be assessed a fine of $300. Each day a violation occurs will constitute a separate offense.
In addition to any penalty provided in the above Subsection A, if any of the aforementioned substances listed above are found in the possession of any person, the substance will be forfeited by seizure by the Barnstable Police Department, or its officers, and may be destroyed by such law enforcement officials in a method consistent with law.
If any provision of this article shall be held to be invalid by a court of competent jurisdiction, then such provision shall be considered separately and apart from the remaining provisions of this article, which shall remain in full force and effect.