N.Y. Public Health Law § 3383: Imitation controlled substances

§ 3383. Imitation controlled substances. 1. For purposes of this

section, the following terms shall have the following meanings:

a. "Manufacture" means the production, preparation, compounding,

tableting, processing, encapsulating, packaging, repackaging, labeling

or relabeling of an imitation controlled substance.

b. "Markings" means a simulated trademark, trade name, imprinting or

other mark, or likeness thereof, of the manufacturer, distributor or

dispenser of a controlled substance or a simulated code number or symbol

or likeness thereof identifying a controlled substance or combination of

such substances.

c. "Imitation controlled substance" means a substance, other than a

drug for which a prescription is required pursuant to article one

hundred thirty-seven of the education law, that is not a controlled

substance, which by dosage unit appearance, including color, shape and

size and by a representation is represented to be a controlled

substance, as defined in the penal law. Evidence of representations that

the substance is a controlled substance may include but is not limited

to oral or written representations by the manufacturer or seller, as the

case may be, about the substance with regard to:

(i) its price, nature, use or effect as a controlled substance; or

(ii) its packaging in a manner normally used for illicit controlled

substances; or

(iii) markings on the substance.

2. It shall be unlawful for any person to manufacture, sell or possess

with the intent to sell, an imitation controlled substance.

3. It shall be unlawful for any person to possess or use any punch,

die, plate, stone or any other equipment in order to print, imprint, or

reproduce the trademark, trade name or other identifying mark, imprint

or device of another or any likeness of any of the foregoing upon any

substance or container or labeling thereof with intent to manufacture an

imitation controlled substance.

4. No liability shall be imposed by virtue of this section on any

person licensed pursuant to article one hundred thirty-one of the

education law or licensed under this article who manufactures,

distributed, sells, prescribes, dispenses or possesses an imitation

controlled substance for use as a placebo or for use in clinical

research conducted pursuant to the federal food, drug and cosmetic act.

5. Nothing in this section shall apply to a noncontrolled substance

that was initially introduced into commerce prior to the initial

introduction into commerce of the controlled substance which it is

alleged to imitate.

6. In any prosecution under this section it shall be necessary to

prove that the imitation controlled substance was represented to be a

controlled substance; however, it shall not be a defense to a

prosecution under this section that the accused believed the imitation

controlled substance to be a controlled substance.

7. A violation of subdivision two or three of this section shall be a

class A misdemeanor. A violation of subdivision two or three of this

section by a person previously convicted of a violation of this section

within the preceding five years shall be a class E felony.

8. If any provision or part of this section or application thereof is

held invalid, the invalidity shall not affect other provisions, parts or

applications of this section which can be given effect without the

invalid provisions or application, and to this end the provisions of

this section are severable.