KRS 218A.350: Prohibited practices concerning substances that simulate controlled

substances -- Penalties.

(1) No person shall sell or transfer any substance, other than a controlled substance,

with the representation or upon creation of an impression that the sub stance which

is sold or transferred is a controlled substance.

(2) No person shall possess for sale or transfer any substance designed in any manner,

including but not limited to design of the item or its container, markings, or color,

to simulate a controlled substance.

(3) No person shall possess for sale or transfer any substance, not covered by

subsection (2) of this section which is not a controlled substance with the

representation or upon the creation of an impression that the substance held for sale

or transfer is a controlled substance.

(4) No person shall manufacture, package, repackage, advertise, or mark any substance,

which is not a controlled substance, in such a manner as to resemble a controlled

substance, for the purpose of creating the impr ession that the substance is a

controlled substance.

(5) For the purpose of determining whether this section has been violated, the court or

other authority shall include in its consideration the following:

(a) Whether the noncontrolled substance was packa ged in a manner normally

used for the illegal sale of controlled substances;

(b) Whether the sale or attempted sale included an exchange of or demand for

money or other property as consideration, and whether the amount of the

consideration was substantiall y greater than the reasonable value of the

noncontrolled substance.

(c) Whether the physical appearance of the noncontrolled substance is

substantially identical to that of a controlled substance.

(6) In any prosecution brought under this section, it is no t a defense to a violation of

this section that the defendant believed the noncontrolled substance to actually be a

controlled substance.

(7) (a) Any person who violates any of the provisions of this section shall be guilty of

a Class A misdemeanor for the first offense and a Class D felony for

subsequent offenses.

(b) In lieu of the fine amounts otherwise allowed under KRS Chapter 534, for any

offense under this subsection the court may impose a maximum fine of double

the defendant's gain from the commissi on of the offense, in which case any

fine money collected shall be divided between the same parties, in the same

ratio, and for the same purposes as established for forfeited property under

KRS 218A.420.

(c) It shall be an affirmative defense to an offense under this subsection that the

defendant committed the offense during the course of the defendant's

employment as an employee of a retail store and that the defendant did not

know and should not have known that the trafficked substance was a synthetic

drug.