[Adopted ATM 4-3-2017, Art. 11, approved 6-14-2017]
A.
Purpose and intent. It has been determined that certain businesses
and/or individuals on Cape Cod and the Islands 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 Falmouth.
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.[1] There is currently no legitimate purpose for such synthetic
chemicals contained therein.
[1]
Editor's Note: See MGL c. 94C, § 1 et seq.
B.
Prohibited activities.
(1)
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 Falmouth which contains any quantity
of synthetic marijuana or synthetic marijuana analogue.
(2)
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."
C.
Exceptions.
(1)
It is not an offense under this article if the person was acting
at the direction of the Falmouth 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.
(2)
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.
D.
PERSON
SYNTHETIC MARIJUANA
SYNTHETIC MARIJUANA ANALOGUE
Definitions. 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 licensed or unlicensed business, including
clerk, manager, or owner of the business.
(i) Any substance as defined by 21 U.S.C. § 812(d),
excluding "marijuana" as such term is defined in MGL c. 94C, § 1,
21 U.S.C. § 812(d) notwithstanding; or (ii) 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 (iii) vegetable
material that has been chemically treated and is possessed, sold,
or, purchased that is commonly used for consumption by humans with
the intent that it will, despite any labeling to the contrary, 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 are 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.
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.
E.
Violations and penalties.
(1)
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.
(2)
In addition to any penalty provided in the above Subsection E(1), 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 Falmouth Police Department, or its officers, and may be destroyed by such law enforcement officials in a method consistent with law.
F.
Severability. 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.
