Jordan Rubin on the bizarre history of the Federal Analog Act

In this interview I talk with lawyer Jordan S. Rubin about his new book Bizarro, which chronicles the work of two synthetic cannabinoid entrepreneurs who found themselves ensnared in a law so confusing the DEA's own experts can't agree on how it should be interpreted.

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Transcript

Hamilton: 0:01

Okay, this is an interview with Jordan S. Rubin, a former prosecutor for the Manhattan District Attorney's Office, who also writes for MSNBC's Deadline Legal blog, and he was a legal representative for Bloomberg. So, he did something really interesting. There have been a number of books, including P. Coll and the writings of Alexander Shulgin that go into the Federal Analog Act and its impact on drug policy but for such a insane and consequential law There has never been a text that was fully dedicated to it And so when Jordan Rubin published Bizarro, I was very excited to read it. This is It's a book entirely dedicated, not just to the Federal Analog Act, but to one specific case. A case that I was totally unfamiliar with. The story of these two spice entrepreneurs named Burton Ritchie and Ben Galecki. And they had a spice manufacturing operation, and when I say manufacturing, I mean that they were buying XLR 11 from China, dissolving it in acetone. Soaking an inert plant carrier like Damiana in the acetone XLR11 solution. This is how these synthetic cannabinoid blends were actually being made. Never tried XLR11. I did try UR144 and had a, um, interesting experience with it in China. But, uh, you know, these are, these are not exceptionally dangerous compounds, right? They're pretty par for the course in terms of synthetic cannabinoids just to put that out there. They weren't selling anything that was, uh, associated with extreme toxicity or something that was unusually dangerous. It was just another one of these K2 spice type operations. But what made the ZenSense company, which was making a blend called Bizarro as well as another called Orgasmo and another called Headhunter and another called Defcon 5. Um, but what made them a little bit different is that they were really trying to play by the rules. So much so that they were totally transparent with law enforcement and were offering tours of their manufacturing facility. They were having all of their products third party tested to ensure compliance. They wanted to be certain that what they were doing was legal and the government was totally aware of it. And did. Nothing. They sort of bided their time, then they charged them, then they fought the charges and ended up getting sentenced to 20 years in federal prison. So, it's a tragic case of people that tried to follow the rules and sell synthetic cannabinoids and ended up in the crosshairs of the DEA despite their best efforts. And I, I know that synthetic cannabinoid manufacturers are not particularly sympathetic characters to most people. These are substances that I would say virtually nobody looks at with fondness or affection. But I think they should have been allowed to sell these things. Really, I think that Cannabis should have been legal and workplace testing for cannabis in almost all instances is unnecessary and a unethical invasion of privacy. So really, the circumstances that even led to this industry existing are, um, so stupid that it's hard to even begin to decide whether or not what they did is ethical. But this book goes into tremendous detail on the ambiguity of the Federal Analog Act. that is so ambiguous that the DEA's own experts couldn't agree on whether XLR 11 is an analog of JWH 18. Because, how do you say that something is substantially similar. It's just lacking chemical specificity. It's a how many angels can dance on the head of a pin kind of question. It's just not really worth debating because there is no answer. Is a 2233 tetramethyl cyclopropane ring substantially similar to a naphthalene ring? Uh, your guess is as good as mine. I would say no. Other people might say yes. How do you define similar? They're both made of carbon and hydrogen. They're similar in that regard. They have different numbers of atoms. They do different things in many biological contexts. In other biological contexts, they might do similar things, but how similar is also debatable. This is a law that came into effect at a time of synthetic drug This is happening in the wake of the MPTP poisonings that occurred in the late 70s and early 1980s. This is at the beginning of the fear of fentanyl analogs being distributed on the street. And people are still reeling from 1970s PCP hysteria. It was an easy time to scare people. Florida Senator Lawton Childs was advocating for this. In one hearing he said that, the analog threat could present a public health disaster, in that a back alley chemist can spend 2, 000 on equipment and chemicals, and turn two weeks of time into 200 million doses of drugs, with a potential street value. Okay, so just for context, at that time in 1985, the richest man in the world was only worth 20 billion. So they are claiming that with 2, 000, a chemist could make 70 billion, more than three times the wealth of the richest man in the world. This is Dumb. This is dumb and obviously very wrong. But this is characteristic of the sort of hysteria that often motivates these laws. It was supported by many people, including the American Chemical Society, although they were clear that they thought the law should read in such a way that a substance had to be substantially similar in structure. and effect, as opposed to structure or effect. As it is written, it is structure or effect. Now, this gets even crazier. Because if something only needs to be substantially similar in effect, and substantially similar means nothing, then where do you even begin with this? I mean, is caffeine substantially similar to amphetamine? They're both central nervous system stimulants. They Both promote wakefulness and will cause insomnia and and act as appetite suppressants I mean, it's like even talking about this is dumb and going through the legal documents of this stuff is Depressingly stupid it is an embarrassment to the intellectual capabilities of the human mind, seeing all these highly educated people arguing about whether or not a chemical is substantially similar when obviously there's no way to say it's meaningless. It's lacking chemical specificity. Substantially similar is totally arbitrary and subjective. And you can see this from the very beginning, like one of the first Analog cases that is discussed in legal texts is the case of a University of Colorado, I don't know if he was a student, he was working at a lab, but there was this guy named Damon Siddhartha Forbes, so he's working at a lab at the University of Colorado, he's a nerdy chemistry interested guy, and he somehow figures out that AET is a desirable drug. This is happening late 80s, early 90s, and I actually don't know how he figured this out because I don't think there was any history of AET being distributed on the street before. Damon Forbes. So, he somehow, maybe he goes into some of the old scientific literature, some of the Upjohn literature. Who knows exactly how he found this stuff out? I would love to talk to him. I called every phone number associated with the name and can't find him. But he finds that AET is a desirable drug. And he buys some from Sigma, and this is Sigma, not Sigma Aldrich, before the merger of Sigma Aldrich. So he buys it from Sigma, it's insanely cheap, it costs something like 20 a gram, and him and his friend start selling small amounts of it to people. This is not some kind of massive multi million dollar drug operation, it's a guy who's selling a little bit of a drug on the side, and probably is doing it just because he thinks it's cool, right? Like there's just There's no evidence whatsoever that he was making enormous amounts of money from this. So an undercover cop buys a little bit of A. E. T. from Damon Forbes, or from Damon Forbes friend. But they realize that it's not a controlled substance. So then they do what happens in so many of these cases, where entrap him. And they say, oh, well, you know, you're working at this lab, and, uh. You think you could, um, get me some Phenobarbital? So Damon Forbes picks the lock in the lab at the University of Colorado where he's working, steals a small amount of Phenobarbital, and gives it to the undercover cop free of charge as a gift, just as a nice gesture, because the cop asked him for it. And they arrest him for that. After he's on probation for those charges, they bring back the A. E. T. charges, but they're now charging him under the Federal Analog Act, saying that the A. E. T. is an analog of either D. M. T. or D. E. T. Then, all sorts of experts, including Richard Glennon, start weighing in on this question. Is it an analog? Well, they both exert psychoactive effects. That could be considered substantially similar. But one is a tertiary amine, the other is a primary amine. One does this, the other does that. And It goes on and on and on, but eventually the court finds in favor of Damon Forbes. The whole story is fucking crazy. Like, it's, it's really encapsulates the futility and stupidity of the war on drugs. Like They are dedicating probably millions of dollars to the prosecution of this guy who is barely even a drug dealer. There isn't a single hospitalization associated with his distribution of A. E. T. This is not a public health emergency. And yet, they They shackle him like he's Hannibal Lecter, and they're transporting him in a private airplane across state lines because they're afraid that he's a flight risk. I mean, it's just like nutty, nutty stuff. And, and for anyone that doesn't know, I probably should have said this earlier, AET is more like MDMA qualitatively, it's um, really not a classical psychedelic, it probably can exert some sort of hallucinogenic type activity at extremely high doses, but it's not prominent and it's not really reflected in the clinical literature, nor is it reflected in the experiments I have done or anyone else I know that has tried AET has done. So in all instances, the federal analog act is stupid, but in this instance, it fails under every imaginable interpretation. It's not substantially similar in structure to DMT or DET. It's not substantially similar in effect. And he wasn't misrepresenting the compound as one of those substances. So, this was a really bad choice, but this is one of the most high profile instances of the Federal Analog Act in action. Typically, the Federal Analog Act is not even used for this reason. In the case described in the book, Bizarro, even the government's experts can't agree. And they're trying to suppress any information related to that internal disagreement, which is one of the interesting dimensions of this book. The Federal Analog Act, I think, is something that People should be aware of. It's like asset forfeiture or emergency scheduling. One of these things that you need to know about in order to understand how severely messed up our drug policy is. And through familiarizing yourself with this insanely messed up, confusing, bizarre history, you can better appreciate Why it is so important that prohibition not continue that we stop going down this road and do everything in our power To reverse it. So I recommend this book Bizarro. It's published by the University of California Press. It's a very detailed legally deep analysis of a single analog case Concerning synthetic cannabinoids and I think it will be interesting to anyone who finds the analog act interesting in general I've got a lot of great interviews coming out this month, and I hope you enjoy this interview with Jordan S. Rubin. It's well known that the cannabis plant contains a wide variety of fascinating phytochemicals. It's one of the most studied plants in the world. And so I'm always amazed when researchers discover new compounds in cannabis. What was especially amazing is that in 2019, a group of researchers in Italy found a new cannabinoid called THCP that is structurally very similar to THC, but it has a seven carbon chain instead of a five carbon chain. The extension of that chain gives THCP much greater potency. So at the CB1 receptor, which is responsible for the stoning effects of. THC, THCP binds with 33 times higher affinity, making it the strongest known phytocannabinoid. I thought that this would remain an obscure scientific curiosity, and I was amazed to find that within three years of its discovery, techniques had been developed to industrially produce THCP from hemp. I saw that Canicleer. com was selling it. I independently ordered a sample, analyzed it via NMR, and found that the material was bonafide. So, if you are interested in THCP, Delta 8 THC, HHC, or any other unusual phytocannabinoids, go to canicleer. com. All of their materials are third party tested for quality and compliance, and if you use the code HAMILTON, you will get 15 percent off any product. This is the first thing to be published that really gets into the granular details of the Analog Act and all of the weirdness surrounding that. So, yeah, thank you. It's an amazing book. I appreciate that.

Jordan Rubin: 16:01

That was the goal, so glad to hear that it's resonating in that way. So, as you said, the backdrop of it is the Analog Act, this weird 1986 law, which I'm sure we'll get all the way into. But the point of the book is to tell the story about this little known law, which the DEA has used to launch this secret war on drugs. And so it tells the Um, history and progression of that alongside a real life case that's still unfolding, which I think is a good example of how the Analog Act is used. So it kind of on a dual track tells the history of the law and then a spice case that picks up starting around the late 2000s, early 2010s, that's still on

Hamilton: 16:42

appeal today. And what is that case?

Jordan Rubin: 16:45

So the case itself is against Burton Ritchie and Ben Galecki. Uh, Burton and Ben, they were distributing spice, which I don't know if we want to talk about what spice is. I guess a lot of people listening probably at least have some idea, but it was the stuff that was popular in head shops in the late 2000s, early 2010s era around the same time as bath salts. The main ingredient was synthetic cannabinoids and that was the Substances that they ordered mostly from China and applied it to this plant material, and it was seen as kind of a weed substitute, known as fake weed, synthetic weed, spice, K2. And so Burton had a chain of head shops since the early 90s down in Pensacola, Florida, called the Psychedelic Shack, and so Burton was this really wily serial entrepreneur type of figure, and so it's not like he was always just a drug dealer, he was really just into Seemingly whatever could make money, and so he had these head shops and when Spice started to come on the scene, it was actually military personnel from down in Pensacola, because it's a military area, and Spice was really big there, because sailors could smoke it. Oh, all people in the military could smoke it and still pass drug tests. There's obviously different reasons for why people do all different kinds of drugs, including spice, but that was, I think, at least one of the reasons. I know it's at least one of the reasons that people did it is because you could smoke it and still pass a drug test that would flag for the natural cannabis. And so, Bernie starts selling this stuff in the psychedelic shack in the late 2000s, it's flying off the shelves and being this entrepreneurial person, he says, well, I could actually make a lot of money if I start. Uh, making the stuff myself and distributing it to head shops like mine. And so that's where their company, Zensence, started and they obviously got on law enforcement's radar. All leading up to 2012 was a key date in the synthetic drug enforcement scene with Operation Logjam, which took down Spice and Bath Salts dealers all across the country. And that's where they wound up getting hemmed up in. And although Not actually charged until three years after that, which is one of the squirrely aspects of the story, which I could get into more as well. Yeah,

Hamilton: 19:03

I mean that is certainly one of the weirder dimensions of this because the idea that drug enforcement was aware that this is going on and they're ostensibly hoping to treat it as if it is a major public threat. But they're also just letting it happen, and I think it speaks to the false pretenses of all of this. Like, if, if it really were so terrible, then wouldn't this be something that they had to address immediately? There's so many layers of irony in this, but I think the whole point of the Analog Act was its ambiguity. And that it could exert its power through frightening people. If nobody knew what it meant, then nobody would want to take the risk of selling something, because who knows what could happen, who wants the headache. But that same ambiguity works against law enforcement as well, because of the difficulty in prosecuting these cases. Whereas in other countries, in the UK, for example, the way that the synthetic drug industry existed was very different because things were either legal or illegal, and so things that were not explicitly controlled substances could be openly sold and were openly sold in stores in a way that historically, uh, was really not the case in the United States. So, so yeah, what was going on? Why was it difficult for them to? Prosecute this case and what, what kind of, uh, weirdness was going on.

Jordan Rubin: 20:28

Sure. So I mentioned they weren't arrested until three years later, and that might sound weird enough, but it's way weirder than that once I actually explained what happened in the wake of this raid. So. Their business was headquartered in Pensacola, but at the time of this nationwide takedown, Operation Loudjam, they had a warehouse out in Vegas, where they were actually, had relocated their manufacturing part of it, or production part of it, you could say, where they were actually making the spice, because Pensacola was this swampy environment, and business was so good that they couldn't get this stuff moving quickly enough, and they were using just in time inventory, and so all this stuff was happening very, very quickly, and they had this idea that if they could move it out to a drier climate, where the stuff could actually dry more quickly, that could speed up production. And so that's where Burton had the idea to have this Vegas facility, which is actually the one that wound up Getting raided in Log Jam. Their actual headquarters in Pensacola wasn't rated, but this warehouse was at in Vegas. And so after that happens, Burton literally calls a cop in Pensacola who was a cop who would borrow bombs from Burton's head shop in Pensacola for DARE presentations. That's how like. And we looked at the kind of out in the open he was about everything that he was doing and how really open he was with law enforcement about what he was doing. And so he calls this local cop down in Pensacola, he tells them what happened out in Vegas, says he wants to talk to the whoever the person is in charge of DEA there, and he winds up getting hooked up with him. And I've actually heard the recording of this conversation between Burton and the DEA agent Claude Cozy. It's something that I would have some difficulty believing if I had not heard it myself. Where

Hamilton: 22:18

and who was making this recording?

Jordan Rubin: 22:21

Um, I probably would just say that it's something that I have, just kind of for journalistic purposes, um, you know, that's probably one thing I would have to let speak for itself, but I do have it, and I transcribed a fair amount of it in Bizarro itself, so you can see really a good amount of the dialogue there, and so literally it's, Burton Ritchie, the guy whose drug warehouse was raided in Operation Lobjam, speaking on the phone with Claude Cosey, who is the DEA agent on duty that day down in Pensacola, and it's Burton explaining all of the steps that his business had taken, which, uh, Hamilton, you and I haven't even really gotten into yet, but just to say Really all of the compliance measures they had. For one thing, they started their business as an LLC. It's not something that your neighborhood heroin dealer would be able to do. They were paying taxes. They were lab testing at a private lab the stuff they were selling multiple times during the process. First when they actually Got the shipments in from China, and then before sending it out the door, they were lab testing it again at a private lab to make sure that it wasn't anything that was on a list of scheduled substances. Obviously you couldn't do that for the analog act because there's no way to know, and that wound up And, uh, I'm sorry to say, but I'm not going to be talking about this in this video. Cozy goes there, and I've read his DEA report on it too, and I've talked to him too. And so this isn't something that I'm getting just from the mouth of the guy who ends up being charged. And so that day, the next morning after Operation Love Jam, Cozy goes to this facility in Pensacola. He sees where they're bagging up the spice before sending it out. He sees the safes where they're storing it. He sees a wire receipt where they're getting, uh, of how they're getting the Uh, actual synthetic cannabinoids from China. Burton gives him samples of the actual spice that Cozy then takes with him. And when Burton gives it to him, he knows that it's a substance that's not a scheduled chemical at the time. I believe it was XLR 11 before that was scheduled. And he tells Cozy, I'll shut down this business right now if you tell us that we're breaking the law. But that didn't happen. Cozy took the samples. They wound up being XLR 11, as Burton said. Um, they sort of all went on their way and eventually wound up getting out of the business not too long after that, but we're nonetheless arrested three

Hamilton: 25:05

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Jordan Rubin: 26:28

a lot. I was, there was a lot of stuff that I wanted to look into kind of on all sides of this. I felt like I sort of had my hands full with this aspect of the story, which hadn't even really been told in itself. And I don't claim that it's everything that needs to be told, but I felt like sort of this aspect anyway was something that I wanted to get down and have this kind of primary document there that, you know, that other people could use to maybe build off of. But as far as As far as why this was happening when it was in terms of their particular business, I mean, I think it was as simple as it's around that time in the late 2000s, right? That are you saying, why was it the spice business that they wound up going into

Hamilton: 27:14

or, or why at this point, what, how did this even emerge? Because conceivably this could have happened at many different times in history before or after the federal analog act, many of the compounds that were being. So that had been in the scientific literature for decades, if not longer. So why did this emerge as an industry? How did, how did this even, how did this idea originate?

Jordan Rubin: 27:39

I see. Okay. So as to why. I believe it was 2008 that the compound was first known to have been seized, I think, in Germany and then also in the U. S. And this is JWH 18, one of, uh, John Huffman's compounds that he made. And this was under, you know, so called legitimate pretenses as an academic. I'm not a big chemist in Clemson because he had hundreds of these catenoids that he made. And this was sometime before 2008. It wasn't like he made them and then they started going out the door, quote unquote, illicitly the next day. So I really don't know why it was at that point that the stuff wound up coming onto the market at that time and not earlier. Um. I don't know. Uh, that I really don't know the answer to, I'd be curious to know more about that myself in terms of how the industry actually wound up developing here. I mean, that was sort of, Burton and Ben were one of the earlier people who were involved in it. There was initial supplier that Burton had where he was getting his supply for the psychedelic shack. And it was. At least partly through them that he wound up knowing how to make the stuff. And so I think it was a lot of word of mouth in terms of the U. S. producers here as far as how the industry developed and contacts and getting in touch with people through China. But as to why at that moment in history and not before that, I don't know. Yeah.

Hamilton: 29:04

I don't know. Either, but I do see it as the confluence of all these unintended consequences of prohibition all adding up to this where you have the Analog Act, you have prohibition of cannabis, you have proliferation of drug testing in the workplace, and you have draconian laws that prevent any kind of domestic clandestine chemistry, like the penalties associated with making these things in the United States become so severe. That most of the people that have the knowledge necessary to actually do the synthesis wouldn't want to take that risk because they would be facing a lifetime in prison. And then you couple that with the globalization of the chemical industry and the internet, and you have this perfect recipe where. You don't have to take the risk of synthesizing the compounds. You just order them from China, and they are made competently in laboratories that are often literal pharmaceutical labs. Like some of these, you know, these are not clandestine labs. These are labs that one day might be making synthetic cannabinoids, and the next day they might be making intermediates that are used in the synthesis of some. Pharmaceutical active ingredient for a generic drug manufacturer or Pfizer or whoever. And so you have high quality materials being sold with very low risk as long as they are remaining compliant. And for the perspective of the user, the drugs are perceived as legal and cheap. So it's kind of like this, I feel like this was the inevitable outcome of decades of bad drug policy.

Jordan Rubin: 30:45

A hundred percent. Yeah. So don't know the why, but the fact that it wound up coming onto the market, it's Almost the quintessential American product, if you think about it. It's kind of, not to trivialize it on either end, but it's kind of silly in a way. It's, that might be the best way I could put it right now. I mean, it's obviously stuff that people are making a lot of money off of. Obviously, some people had some pretty funky experiences with it, including ones that have apparently led to death. Although, I do feel that that aspect is somewhat overblown, which we could talk about as well. But it's really I mean, what kind of civilization do you have to so corrupt that you come to a point where you need to make fake weed? I mean, if people, I mean, if people want to do that, you know, I was kind of thinking about it myself. Oh, would this have never happened if cannabis had always been legal? You know, I don't know about That there's always going to be experimentation that people do right. No matter what the legal status of things are, but certainly the manner in which it came about, especially as you're saying, Hamilton, in connection with the drug testing industry. That's part of what I think it just makes it this perfect American product coupled with. All of the people who are at the forefront of selling it. People like Breton Richie, who are these kind of. Serial entrepreneurs who are not otherwise necessarily at all involved in drugs. You have all these kind of Horatio Alger type of figures who are making a ton of money in this new industry. And it was, this stuff was just raining down and it was for a fairly brief period of time. But there was a ton of money, a ton of people went to prison, a ton of people didn't. Uh, Burton and Ben were almost It's one of those ones who didn't until they were, but I do think that it really is the quintessential American drug and drug story, even if it's one that's not super well

Hamilton: 32:41

known. Yeah. And you mentioned in passing that you thought some of the health implications had been overblown. I mean, this is kind of par for the course when it comes to media treatment of any kind of drug issue. They often conflate much bigger social issues with direct pharmacological effects of a drug.

Jordan Rubin: 33:03

Yeah, we see that here too, and I'm not a chemist, a pharmacologist, or any other type of scientist like that, and I don't pretend to be one, but just as far as bringing to bear even the slightest amount of journalistic scrutiny, I think this stuff can kind of fall apart in some of the press reports that have emerged, including some that I think have really me. Yeah. It's been very impactful as far as what lawmakers wound up doing, just these, you know, zombie type of events of people roaming the street and things like that, especially when it comes to the deaths. Let me just say, I think, tell me if you disagree with this, Hamilton, but I think it's just fair to say, as an anecdotal matter, Spice really messed a lot of people up, even if it didn't kill anybody, or it at least had the potential to do that in a way that was way more volatile, and I'll put that colloquially, not scientifically, than natural cannabis. Like, it had, it was just stuff that was just seemingly more dangerous. That's just at least my anecdotal view of it, even if it wasn't gonna lead to people dying, necessarily. I don't know if you disagree with that or not, but again, that's all to say I think it's been overblown the manner in which it's been casually said, I think, by a lot of lawmakers that it's led to all of these deaths. Because one of the issues, I think, is causation. And that's the, just this kind of foundational thing in the law where there certainly have been a lot of people There have been people who have died after smoking spice, there's no question about that, but that kind of in between stuff between the smoking and then the dying, that's really where it gets important when you're attributing someone's death to a substance, right? And so I talk about a couple of cases in the book, and in both of those instances, there's no question that there are two young men that smoked spice and then died, but there are serious intervening circumstances, including One of the examples, guy wound up being tased by the police a bunch of times. And so even in the autopsy, that was seemingly attributed more to the police activity than to the spice itself. And so there's no question that it was the spice that led to it, in a sense, that it led to this erratic behavior that I doubt would have been the same had it just been natural cannabis that this person was smoking. But again, That's very different from saying Spice is causing all of these deaths. I think that that has been somewhat overstated, not that it's never happened, but in each case you really need to break it down and look at the causation of what actually led to the person dying, because I think that that kind of casual attitude. I think it was lumped in sometimes with bath salts, which made it easier, which might have had more serious incidents than spice. And so you see lawmakers kind of lumping everything together and because they wanted to ban spice, because it was a thing that people were making a lot of money off of and people were getting high and that's not something that the government likes. So you can kind of. Use this sleight of hand where it's okay. A lot of bad stuff is happening. People are dying. There's also bad salts that are out there and casual listener might not really try and unpack that and just kind of assume that this is stuff that needs to be made illegal at all

Hamilton: 36:20

costs. This podcast is also brought to you by Lucy nicotine, a company that makes nicotine pouches, nicotine gum and nicotine lozenges. I particularly enjoy the apple ice flavored nicotine pouch. It is a refreshing and well formulated. product. If you don't already use nicotine products, I recommend you don't begin their habit forming. But if you do, I think this is the finest nicotine product on the market. Thank you, Lucy. And in case this is an already obvious warning, this product contains nicotine. Nicotine is an addictive chemical. Right. I mean, I think that there's a tendency simply because it's It's easier. It's more simple to blame drugs than to acknowledge the complexity of many of these situations. You see something similar to that, like you'll see somebody being talked about as a spice zombie or a spice addict, but they won't talk about who that person was before using spice, what the circumstances of their life were, or are they somebody who is homeless, somebody who has struggled with other types of substance use disorder throughout their life? Is this just one of many problems that they've faced, but the But people don't care the same way about alcoholism or heroin addiction because it doesn't have the excitement of some kind of weird new drug trend that is something to be afraid of. And then on top of that, you have the issue that these substances are constantly changing again as a result of their continued prohibition. And so any opportunity that. The user community might have had to adequately adjust to the idiosyncrasies of these new drugs, like JWH 18, for example. If that had been the only synthetic cannabinoid that emerged, then maybe people would have learned, and they would have said, Okay, this is how you use it, and, and you only smoke this much, and you wait a little while. It's not like cannabis in these ways. It is like cannabis in these ways. But because every batch was something different, There was no way for people to prepare themselves, and because they're sold for human consumption, there's no way for people to responsibly decide what a dose is. Is it an entire, do you roll a joint of this stuff? Do you take one hit of it? What is the quantity? Nobody could answer those questions. And so it was inevitable that people would overdose without. any information about what the drug they were consuming was and what concentration it was and what the appropriate dose would be and what sort of effects they should expect. Like under those circumstances, so many drugs would be incredibly toxic. Like if you dispense psychiatric drugs that way at unknown concentrations without telling people what they were and just said, you know, go for it, it would be the same deal. Adderall would be the same as bath salts or Yeah, so I think that they were Unfairly maligned, and I say this as a very rare instance of somebody that used quite a few synthetic cannabinoids, not because I was being drug tested, not because I didn't have access to cannabis. And I knew exactly what I was consuming and the doses and familiarized myself with all the scientific literature that was available at that time. So I was also not operating under the assumption that they were safe because they were legal or anything like that. I knew as much as one could know about relatively unknown research chemicals and my experiences were positive. I, you know, used Probably at least a half dozen, if not a dozen different compounds, usually only once just to see what sorts of effects they offered. And I don't think it's a coincidence that my experiences with them were non destructive and positive. Whereas the experiences of people who had no idea what they were consuming were using them for totally different reasons were often much more dangerous and damaging.

Jordan Rubin: 40:03

And did you find that the dosage should be different from natural cannabis?

Hamilton: 40:09

Oh, absolutely. Yeah. You had some of these compounds that are far, far more potent than THC by weight. So you know, for a non tolerant user, a potent dose of THC might be five milligrams. Some of these compounds were very much active at sub milligram levels in the microgram range. And that's fine as long as you know that is the case, but that information was never made available to people. And

Jordan Rubin: 40:37

that is even assuming a consistency across the production. The fact that this was happening underground, right, meant that the kind of the, I don't want to use the wrong scientific term, but you know, not the, whether it's the potency of each batch, wouldn't necessarily be the same, right? Because it was not necessarily spread out evenly across the leaf. That is the synthetic cannabinoids. I don't know if you would put the. Scientific aspect of that differently, but maybe you know what I mean or what I'm trying to say.

Hamilton: 41:08

Yeah, I mean, it's just another layer of uncertainty, another aspect of this that makes it more dangerous than it had to be. And there actually has not been much coverage of the manufacturing process. Your book, I think, is the first instance that I can think of off the top of my head that really detailed the process of how the synthetic cannabinoids were dissolved in acetone and tossed in the leaf material. How did you learn about that or what was, uh, did you hear about how they decided the dose? I mean, I can imagine that they would have been reluctant to acknowledge if they had consumed it and decided based on their own consumption, but clearly they had to decide that some dose was appropriate. Do you have any insight into how that was done? Yeah,

Jordan Rubin: 41:55

so let me just say something broader, and that's that Burton and Ben, the two main guys in the story, I've spoken to them for many, many hours. They've been completely open with me about All of this, and this is from prison, by the way, where they know that their communications can be monitored by the authorities, and so make of that what you will, just as far as them being kind of, you know, having their story and not really caring who hears it, even if it's law enforcement, and so a lot of that came straight Thank you. from interviews with them, as far as the information that I got. And also, uh, Ryan Eaton, who was one of the guys who has tried with them in one of their three trials. He was acquitted in that trial, and he was the guy who was out in Vegas doing the actual interview. Mixing in the warehouse and so some of that information I got directly from him because he was the guy doing it That's a general answer to the question just of how I got the information. It's directly from them as far as the dosage I don't even know if they were Reluctant to say that or just that I mean these weren't scientists either. You know what I mean? It's like this was stuff that Seemingly kind of came down from the mount to them of just the the general industry and whatever kind of loose You know chamber of commerce they had within the the spice industry and I say that unofficially I think it was a word of mouth kind of process like you'll see your Father, you know, making a bench in the garage or something, and you, you know, pass that down to the next generation of how to cut the different, uh, pieces of wood or whatever it is. And so, none of these guys knew the first thing about, about science. One thing I will say as far as the effects of some of this stuff, there was evidence that was introduced in court. This isn't something that I got from them, but something that I've seen otherwise, where in at least one of the examples, and this is one of the, Bespoke products that they make because they did that in at least one instance that I talk about in the book for one of their head shop customers who ended up getting charged as well. This is a big chain called the gas pipe and this is in, in Texas where there was apparently some kind of tester who was either he was smoking the stuff or had other people who were doing it and that information was apparently making its way back to the, to the production. And so that's. Through this word of mouth sort of way, how this was happening, this was not a There were compliance measures in place, but the function of it being an underground industry is necessarily the standards didn't have to be what they otherwise would be if it was a legalized regime and people were

Hamilton: 44:41

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Jordan Rubin: 45:32

It might be, it's not. Yeah, it's not, I don't know if that was the, I don't know if I pinned them down for the specific recipe of it and they said no, that's information that I might still be able to get from them if they still have it because I don't know if this was stuff again, this was just sort of, kind of known what to do, but it was, I think at the time it was a specific process that they were using as far as how much to use, it wasn't random and that's, yeah. One thing that seemed to set their business aside from others, because I learned not about their business from other instances that were seemingly sloppier, is that there was this uneven distribution, like I mentioned before, but they apparently took it upon themselves to make sure that whatever the distribution of the synthetic cannabinoid among the leaf was even, because that could lead to these uneven batches, which is what apparently caused some of these apparent Zombie sort of instances, but no, I don't certainly offhand. I don't know whatever the dosage would be, um, but I. I'd also don't recall offhand if that was a specific question that I had asked them, but anything that I asked them, there was never anything that they didn't tell me for that

Hamilton: 46:44

reason. I don't know if you followed the K2 case in the United States as well. This was probably, uh, at least in the US, the biggest brand of the synthetic cannabinoid blends. Did you get into that at all? I

Jordan Rubin: 46:57

mean, I know the K2 brands, I don't know if you're talking about a specific prosecution

Hamilton: 47:01

or Yeah, yeah, I'm under the impression that it was a company based out of Kansas that was making it. I mean,

Jordan Rubin: 47:09

I know that Spice and K2 were initially the two brands, and that's kind of what led them to become the generic terms, but I don't know if I know the specific case that you're talking about, at least not by that name. I mean, I did A lot of the A lot of the case information that I came across because there are relatively few cases that are actually there in the legal research in terms of one that actually produced published decisions in the law, but because there's relatively few analog cases that have been brought relative to you. Quote, unquote, regular drug cases. And within those, there are only going to be so many of those that produce a written court opinion for various reasons, whether it's the charges get dropped or, you know, not every case winds up producing a legal opinion. And so I felt like I had seen pretty much every decision on an Analog Act case that's come across pretty much ever, if only because there have only been so many. So yeah, that one is not ringing a bell. I would think that I would have seen it, but I might be, I might know it, but under a different name, whether it's, you know, the specific person's name who was the one selling it or what.

Hamilton: 48:20

This is another thing that I found really interesting about your book is, like you said, there's not all that much documentation of a lot of these operations and it has the air of clandestine drug manufacturing. You know, even the government will refer to these operations as clandestine drug labs, which I, you, uh, I think put in scare quotes, which I think is a good thing to have done because. It's really not. It's something else. And to show how established they were, that they had trade shows, that they had, uh, basically like lobby groups. Can you talk a little bit about the size of the industry, how much money was circulating, um, and, and the, the broader community that were selling these substances?

Jordan Rubin: 49:10

Sure. So let me just say, I don't, I don't feel like I am able to paint the picture of the entire industry because the nature of it being clandestine or, you know, whatever the term you want to use in the sense that it couldn't be official. I'm confident that there's a lot that I still don't know about it. And so, uh, what, what I can say is what I found it through looking through Burton and Ben's case, because I think they were illustrative of this, is that there was, there was this trade group that formed early on called the Coalition for Cognitive Liberty. And like the putting clandestine and scare quotes to me, that shows there really was sort of a comedy to all of this, even though. There was a lot of very serious things that were happening, whether it's the people who went to prison, or people who wound up dying, whether directly or indirectly from this stuff, but so, there was this guy named Dan Francis, and anyone who's listening to this, I would encourage them to find the 2020 interview that he wound up, uh, doing that I talk about in the book, because it's really, it's really just incredible to me. So, uh, Dan Francis was this guy who, you He was, he was working in health care again, not somebody who was what you would think of as a drug dealer, but he saw that this spice stuff was being taken seriously by law enforcement and he thought, Oh, there's probably a lot of money to be made in that. And so he wound up essentially becoming a spice lobbyist for this group that Burton and Ben were. And they were, they were somewhat involved in called the Coalition for Cognitive Liberty, and it would charge its members a certain amount of money per month, like a quote unquote legitimate lobbying group might. And they would actually try and go to Washington to try and influence lawmakers to try and deter them from doing these schedulings around the time that Spice and Basalt were both getting really hot. And this guy, Dan Francis, actually made it onto a 2020 interview that was, you can find on wherever it is hanging out still online and he's actually trying to say selling the stuff not for human consumption is a actual serious thing that they were doing and so that shows a bit of the The ruse on both sides and it's a ruse that was a creation of the law um, the human consumption aspect of it too, I think is An interesting topic of its own that maybe we could get into a bit more. But as far as talking about the industry, looking through the Coalition for Cognitive Liberty, that was one interesting way, I think, to learn about at least a piece of it early on because these guys were very Contacting lawyers, they were talking amongst themselves about how to go about this industry and they were actually consulting with lawyers about the Analog Act. And so the thing about that is you could be the best lawyer in the world, but there's no way to really consult somebody about the Analog Act. At least not a hundred percent, because at the end of the day, it's gonna be whatever case the government. wants to bring. Obviously, you can look at two substances and say some are closer, uh, to some than others, but it just shows kind of the, the farcical nature of all of this, that you can't really abide by the law, even if you want to. Whether you want to call it skirting the law, complying with the law, that, that whole thing doesn't really matter to me. The point is, if you're trying to not go to prison, then there's no 100 percent effective way to do that, other than just not having gotten into

Hamilton: 52:45

this business at all. Right. And, and this extends not even to just the manufacturers or the users, but even within the government. I think this is another interesting dimension of the book is you, you dissect the internal dissent among experts who were being employed by the DEA, even in the DEA, people could not agree on what constituted an analog and what didn't.

Jordan Rubin: 53:13

Yeah. Again. If we hadn't gotten to that part yet, I think it's still somewhat of an unbelievable story, but that, that part of it too is its own unbelievable mini story that, again, it's worth stressing that. So you have this substantially similar standard in the Analog Act. It's an inherently vague term. Obviously, if you're charged with a crime, you're gonna complain about whatever you can to help your case, right? But We literally have chemists within the DEA who cannot agree amongst themselves about whether stuff is substantially similar to a scheduled substance or not, and so that itself gives away the game of if the DEA's top minds can't agree on this, how is somebody who's It's not in the DEA supposed to know either. And that kind of sums it all up. And so that would be bad enough if there was disagreement. It's fine for scientists to disagree, right? Where it gets really problematic, I think, is the fact that this dissenting information was not readily shared by the government with people who were prosecuted in these cases. And I think that is still an outstanding, incredibly serious aspect of this that's unresolved because there's still people who are in the DEA today that I think in the case of one chemist in particular, there's a serious question of whether he told the truth when pressed about this internal dissent on the

Hamilton: 54:45

stands. We got the rectal kratom guy right off camera right now. I mean, this is what you're telling me, I don't know, that's Boofing kratom, it's become a meme on the internet. This is a kratom tea product, it's not intended for boofing. Even if the pH of the human rectum is between 7 and 8, and the pKa of mitragynine is 8. 1, that's just not really relevant here. This is a tea consumption in hot water. That's what it's for. That's what it should be used for. If you want this tea, you can get it at top three herbs dot com. Right. And given that human consumption is required for something to be charged as an analog, how was it that the proprietors of Zen sense were not protected? How were they protected? Ultimately prosecuted for making this product because it's

Jordan Rubin: 55:40

common sense. I mean, I think the, I think that human consumption aspect of this is sort of a red herring in that I think even a lot of prosecutors were gun shy about using the analog act because of the human consumption element. Oh no. How do you prove that, um, this stuff was going to be used for human consumption? If the stuff says on the packet, not for human consumption, right? So, I was a prosecutor in a past life, and I think there's somewhat of a come on factor to this. It's, the fact of having not for human consumption on a package of what everyone, if they're telling the truth, knows to be drugs, it's proof of the opposite. And so, if you're a prosecutor Who isn't confident enough to stand up in front of a jury and be able to make that common sense arguments, then I think you're in the wrong business. And so to me, that's not something that saves the analog act. I think it just serves as a red herring because it still doesn't get around the substantial similarity question, which is the glaring issue that permeates the analog act. But I think a lot of people get tripped up on the human consumption thing on both sides of it. Both if you're selling it, Oh, it's this loophole that I have. And it's actually don't because people went to jail because of it, regardless, because juries are able to use their common sense, at least when it comes to that aspect of the law.

Hamilton: 57:07

You say that it's proof of the opposite, but how do you prove that it's proof of the opposite?

Jordan Rubin: 57:14

So, so there's two things to say about that. One is you look at any of these businesses and there's a common sense argument in the sense of the fact that they're in this industry and there is this shady air that a savvy prosecutor can paint. Even the fact that this stuff is coming from China, which is, I think was kind of a weird aspect of a lot of these prosecutions where they'll. They'll say that without really getting into what they mean about why that's problematic, whereas whether people know it or not, half the stuff we're, you know, wearing and eating is, is coming from China, right? But there is this Sort of like a red scare element to this. It's like, Oh, definitely they're using these Chinese chemicals, not these, you know, uh, patriotic American XLR 11s, you know, that that would be right. So that's all to say though. But that's, but that's real though. I think as kind of stupid and weird as that is. That's the type of thing, it's one piece of circumstantial evidence that you use to build your case of to say, just look at the end of the day, come on, these guys are drug dealers, right? And so I think that that is not a hard thing to grapple with, either as far as the drafting of the law or how it's implemented. I have no I have no real issue with that at all. If anything, I've been surprised at how many defense lawyers haven't been more aggressive in conceding that element of the crime in these prosecutions, because as a defense lawyer in general, you can gain credibility with a jury by a jury. Not seeming like you're a ridiculous person who isn't on planet Earth. And so I look a lot of these cases and say, yeah, look, people were smoking this stuff. No reasonable person can disagree with that, but that you still have this inherently vague, substantial similarity issue, which is something that the government needs to prove beyond a reasonable doubt. And you have these guys who are in the DEA who can't agree amongst themselves. And so case closed, what are we even doing here?

Hamilton: 59:22

Right, right. I see what you're saying. Yeah, I guess there is a political dimension to this of what juries know and what their biases are that also extends beyond the facts of the case. Of course, I agree with you that all these things were being consumed and that there was something ridiculous about making the claim. But, There was a feeling that this was necessary. I mean, it's not a coincidence that absolutely everybody put these not for human consumption labels on not just synthetic cannabinoids or bath salts, but on even just chemicals that were being sold in their pure form that was just part of the boilerplate with anything. And there was a feeling that this, uh, maybe it was almost a kind of like a spell to ward off evil, but there was a feeling that this conferred some kind of protection.

Jordan Rubin: 1:00:09

Oh, yeah. It was almost kind of like an urban legend that it became. And I should say this is not just because of the Analog Act, but because of the FDA in general, which regulates things that people consume. And so that's another thing that I think is important to know if you're looking at the not for human consumption and prosecutors will say, Oh, they're doing that. They act. So let me throw in another little answer to the question of something that prosecutors would do. As I say, oh, they're putting not for human consumption on this packaging, that means they know about the Analog Act. And so that actually shows that they're trying to circumvent it. That just adds to the whole Alice in Wonderland component of this, because if you're actually consulting a lawyer They're going to tell you, well, that's what you should do if you want to abide by the law, but then that's actually used to, to put you away at the end of the day. So again, it's not a super convincing or powerful argument in itself, but it's just another little piece of the puzzle that a prosecutor might use as circumstantial evidence in your broader argument of Come on, these guys are drug dealers. Yeah, the substantial similarity stuff. It's like a little complicated. I don't understand it either, but you got our scientists up there and whatever. And that's what they said. So these are drug dealers, so they're probably guilty. Right,

Hamilton: 1:01:25

right. I mean, I think the interpretations of it have been so varied that it's, you know, like one really extreme example that I'm aware of is the biggest chemical supply company in the United States, Sigma Aldrich, they. are truly selling chemicals not for human consumption. There's no euphemistic dimension for this. They're the major supplier of chemicals to universities and research labs and industry, and they have taken it upon themselves to List as controlled substances, isomers of anything that is a controlled substance, including ones that are in no way substantially similar in effect. So, once you go down that road, just having the same formula. Then you're really interfering with basic scientific research. That's another aspect of this that doesn't get talked about is, you know, like the hormone progesterone has the same formula as THC. It's a completely different structure. It has a completely different effect in the body. But if you go down that road to its end, you end up treating all sorts of substances that Uh, should not be regulated in any way as if they're controlled substances. And this has been a big problem, I think, with Signal Aldrich. I'm surprised that they went that far, given that they, of all people, should be protected in that they are a legitimate, by every imaginable dimension, chemical supply company.

Jordan Rubin: 1:02:55

Yeah, it's hard to imagine a a so called legitimate company being prosecuted under the Analog Act. I mean, the, the Analog Act is kind of proof of sort of the lie that a prosecutor is simply just standing up and applying the law because when it comes to the Analog Act, you don't even know what the law is. And so it's a glaring example of this, you know, show me the man, I'll show you the crime, which is something that permeates the whole system. But I think it's particularly true here where. Uh, it would be, it would be the most shocking analog case today if that company, and again this is me knowing not even that much about it, but just you tell me it's a quote unquote legitimate pharmaceutical company, they're not going to be prosecuted under the analog act. They're not. I mean, I, I'd be confident of that. That would be more. Surprising than any of the absurd Analog Act cases that have been brought against non-legitimate pharmaceutical company people.

Hamilton: 1:03:54

And so what was it that led to the downfall of the proprietors of Zen Sense? Ultimately, they fought

Jordan Rubin: 1:04:01

the case. Um, I think that was part of it. Um, partly bad luck, partly not rolling over for the government. So, going back to 2012, again, Burton Ritchie offered to Claude Cosey to leave the business. Cosey didn't tell them to do that. He said, I can't interfere with your right to commerce. This is something he's testified to have having said. This isn't something that's just coming from Burton's mouth. Still, they get out of the business. Parenthetically, they wind up going into this film and entertainment careers and having this whole other second life, which is its own interesting thing, even aside from the whole spice business. But, all the while, they're fighting asset forfeiture, which is something that we haven't spoken about yet, but it's another issue that permeates the whole system, and I think it's a potentially important aspect of how the case wound up ending here, because Again, they weren't charged criminally for years after Operation Logjam, but earlier than that, the government did bring an asset forfeiture action against them. And so, asset forfeiture, to simplify it, basically, if the government thinks you're involved in crime, they can essentially take your property, and you have to prove that it wasn't used in crime to get it back. It flips what you might think of as Tenants of law that we hold dear on its head, and that's true. And so, all the while, Burton and Ben were fighting the asset forfeiture case, and as a part of that, what they were trying to do is get this internal DEA dissent to be out in public as part of their case, because in order to prove that they weren't violating the Ad Hoc Act, they wanted to get out this proof that obviously there was this internal dissent within the DEA, and so if they could have brought that out. As part as their, as part of their asset forfeiture case, then the judge might look at that and say, well, okay, maybe you are entitled to have your property back, even if this isn't beyond the reasonable doubt criminal standard, then the government can't just take your stuff if the DEA can't even agree with them within itself of whether the business that they're using as a pretense to take your stuff was illegal, right? And so just as their depositions were going to go forward that could have gotten this dissent out in their case and in turn more broadly disseminated to other people who are involved in these cases, it was at that point that they were indicted in three different states. And so from the start, they're not rolling over with the forfeiture. Again, set them up to be charged criminally in multiple places. And then once they had these several criminal prosecutions to defend, something like at least nine out of 10 cases ended guilty pleas in the criminal system. From the start, they were determined to take their case to trial. So that was another rarity of this case, even putting aside the analog issue. People just usually don't go to trial just because of the severe penalties that you're facing on the back end. And so they fought the government at trial as well. And so as far as how they wound up in the predicament, that's one way to put it is that they fought the case. Maybe if they had kind of rolled over in the beginning. could have perhaps gotten away with some sort of fine, maybe some lighter jail time than what they're currently facing, where they're still sitting in prison today. But as far as how the government was successful within the trials themselves. This issue of internally, of internal DEA dissent not coming out winds up being super important because they were convicted in their first set of trials because the judge blocked them from getting this internal dissent to be able to go out before the jury. So they were convicted without the jury knowing that there was this internal DEA disagreement about the stuff that they were selling.

Hamilton: 1:07:57

Right. And there's such amazing research that goes into this book. So many internal debates that you captured. How did you find this material? How did you become interested in the story? What is your personal involvement?

Jordan Rubin: 1:08:10

Yeah, so the story itself, one of the lawyers who was involved in it essentially pitched it to me several years ago, sent me an email, said, Hey, there's this guy who's in prison. It's the secret law and people don't know how to abide by it. Sort of thing you take a look at and say, well, I don't know, that sounds a little far fetched, but anyway, I wound up taking a look into it and wound up going down several rabbit holes from which I'm not sure that I've fully emerged even today. And in terms of, what was the rest of your question?

Hamilton: 1:08:46

Yeah. How you were collecting this information, what your research process was.

Jordan Rubin: 1:08:50

Yeah. So. The interesting thing about this project for me is that there definitely is some stuff that I got that other people wouldn't have been able to get that's not floating out there, whether it's the recording or the interviews that I did with Burton and Ben or with the Dysentic DEA chemist, Arthur Barrier. When it comes to a lot of this stuff, like the internal DEA emails that I try to used to tell the story of their internal disagreements. A lot of it's sort of been hiding in plain sight. It's not easily accessible, but it's sort of semi public in that it's come out in some cases, but has never really been put into a coherent narrative. And so that's part of what I tried to do is to take this information that's technically available, but One, not easy to find the two, not easy to explain or put it into a coherent narrative once you find it and take that in connection with the firsthand interviews that I was able to do and try and use that to assemble the basic structure of

Hamilton: 1:09:51

Bizarro. And in terms of the history of the Analog Act, you go through this in the book. Could you give me a review of how we even got to this place, why it was necessary to do this, or why it was considered necessary. I don't think it was necessary, but what, what led to the act being passed and why was this done in the first place?

Jordan Rubin: 1:10:11

Sure, so with your, your caveat, which I knew you didn't have to say, big reveal, um, Yeah, so if you want to go back to the Reagan era, the height of the war on drugs, or one of the heights of the war on drugs, um, maybe we'll even reach a new height, who knows, uh, someday, but the problem from law enforcement's view was that It Let's go actually back just briefly a bit further, just to the initial Nixon era Controlled Substances Act. I'm not going to go through the whole history of that. But just to say, you have this scheduling system where the way you know certain drugs are illegal is that they're on this list. And whatever you think about the drug war, there's A certain logic to that, just as far as giving people notice about what's illegal, it's, you know, cocaine and heroin, et cetera, are legal because they're on this list of things that are illegal and you know about it. You could look it up. Nobody does, but you could if, if you wanted to, you kind of just know that it's there. And so the problem, again, from law enforcement's view, is that underground chemists were looking at that getting into the, into the 80s and saying, Hmm, well, if I tweak a molecule here or there, I can still make something that's, you know, Gonna get people high, but isn't something that's on the list of schedules. So, presto, I'm not breaking the law, and I'm still making money, and people are still getting high, and then everyone's happy, right? Well, no, from law enforcement's view. And that's why they felt that they needed the Analog Act, because They saw it as a loophole. And so, the initial issue was a time issue. It took too long under the Nixon era Controlled Substances Act to make something illegal. So, initially, before the Analog Act, in 1984, you have the Emergency Scheduling Law, which winds up being super important. Um, and that basically speeds up the Nixon era scheduling system, which could take, has to go through this multi factor analysis through health services.

Hamilton: 1:12:05

Could you, could you break that down? Because I think that a lot of people don't even understand on a basic level how a drug is made illegal. So before getting into emergency scheduling, um, how is a drug made illegal traditionally? Sure.

Jordan Rubin: 1:12:21

So right. Um, there's basically three ways that you can think of it, including, including the analog act. There's what might be called, you know, the normal way. And um, I know you, Hamilton, have had some recent experience with how the scheduling system goes down and what you were able to successfully fight for the, the DEA to, to back away from. Um, but, but again, that's, uh, I bring that up just to say that it's illustrative of the fact that there's notice when it comes to the, the normal, uh, scheduling process. And so If you're thinking about how does a drug become illegal, basically Congress has outsourced this to the DEA. It doesn't mean Congress can't make drugs illegal on its own, but it's basically, it kind of goes against what you might be thinking of, of if you sort of paid attention in passing in school, that there's the legislative branch that passes the laws, there's an executive branch that enforces the laws, and there's the judiciary that, um, decides the legality. of those laws when it comes to not just drugs, but in this case drugs, since that's what we're talking about. You have the legislative branch that's essentially delegated to the DEA what to deem illegal. And so the law refers to the Attorney General. If you look at the Controlled Substances Act, it'll say it's the Attorney General who's making these determinations, but that has actually been a delegation within a delegation to the DEA. But again, Congress outsources it to the DEA, DEA, if you're going through what we might call the normal scheduling process, we're still talking about the first of the three main ways to do it, is they have to go through Health and Human Services, which has to do this eight factor analysis that's looking through all of these different things, including Um, the potential for abuse, which is the main thing that separates the different schedules in the controlled substance system. And so it's that what can be a laborious process, even if it can be sort of a foregone conclusion, if they're going to go through the process that they could kind of get where they want to go, if the DEA wants them to at the end of the day, but nonetheless, there's, there are bureaucratic steps that you have to go through if you're the DEA through the normal scheduling process of. Basically showing that this is something that's a dangerous thing, or at least can be. And so you need to have some evidence, at least theoretically, that's backing this up for you to go forward. And so that's a summary of what you might call the normal scheduling system. And so that was creating a problem going into the mid eighties from law enforcement's view because It was just taking too long to do. Um, You had these underground chemists that were tweaking these molecules and making new, what were called designer drugs. You know, there were different types that this was happening under, including, this has come a bit full circle now, but analogues of fentanyl and things that were related to that, that was, uh, caused a lot of issues in law enforcement's view then. So yeah, the first normal sort of scheduling of drugs, the second type is emergency scheduling. And so that's what Congress passed in 1984. This is before the analog act. And so it's basically just a ramped up version of the normal scheduling process. So the DEA can do it much more quickly and with less bureaucracy. They don't have to go through all of that. Um, an important thing though Um, to say with both of them is that you still have notice that these things are happening. And so if you were selling any of these substances, you'll be able to see in the federal register, which is the place where the DEA makes these announcements. Again, it's not like they're going door to door or putting it in the, you know, New York times or on Fox news that these things are happening, but it's placed in the federal register. The fact that we are planning on doing these things, it's a function of administrative law. And so you have the normal scheduling system. Yeah, the sped up scheduling system in 1984. But still, in law enforcement's view, it's not good enough, because even if you can schedule a drug more quickly, it's happening after the fact, so you can't go after the, quote unquote, bad guys who are doing this stuff, and so that's where you get the Analog Act, where But the law says, and this is in 1986, a couple of years after the 1984 emergency scheduling law, that if you're selling something that's substantially similar to a scheduled substance in structure and effect, it's as if you were selling that scheduled substance all along. It's kind of like a, you know, a thriller where it actually was illegal the whole time. You just may or may not have known it until a jury says so. And so that's. Very summary view of what you might think of, of a few ways for a drug to become illegal, including the Analog Act, which is kind of the ghost that hovers over everything. That's this vague thing that you never know exactly how the government's going to use it. Well,

Hamilton: 1:17:21

emergency scheduling as well. It seems very problematic to me because you have a situation where the same agency that is enforcing the laws is making the laws. I mean, it seems like this is one of the major reasons that there are divisions in government is to prevent that type of scenario from occurring.

Jordan Rubin: 1:17:38

And I mean, that's true under the regular scheduling too. There's nominally the involvement of HHS, right? But it's still really. And I think at the end of the day, it's, it's correct to think of it as DEA basically making the law when it comes to what's illegal and what's not as far as drugs go. And so, yeah, it's the emergency scheduling, they're able to, to do that more quickly with even less oversight than they were before. And so it's a ramped up version of that. And then the analog act is just a total free for all on both sides of it, which I think the government has now come to sort of. Uh, not being so hot on it these days in terms of using the analog act, even though it was, and, and if I could just add it another thing about the passage of the analog act, which relevant to this conversation of the sort of the separation of powers between the different branches, if you will, it's, it's not the Congress. Woke up one day and said, uh, this is a problem. When I say it was a problem in law enforcement's view, it was the Justice Department that was effectively lobbying for this law and telling Congress what it should say. And obviously Congress did its own tinkering on the back end, but it was the prosecutors who would wind up using this law, who effectively wrote and lobbied successfully for The analog act. So I just wanted to add that in just to have the context of these laws are just falling from the sky. They're essentially made by the prosecutors who would wind up wielding the analog act. And once you couple that with the fact that it's the DEA essentially making the law and they're the ones who are going to be testifying in court in these analog cases, it's not a lot of oversight when you talk about what's being made illegal and how that. It

Hamilton: 1:19:27

seems that a lot of this can be traced to fear of fentanyl analogs and the poisonings associated with MPTP. But I think the irony there is that MPTP was created by somebody who was making a different drug explicitly because he didn't want to break the law. I mean, this is like somebody who's going out of their way to be law abiding while also satisfying their opioid dependence. And as a result of their attempt to not commit a crime, they make this mistake that results in their own poisoning. Subsequently, a different chemist makes another batch and the same thing happens, but this is all, again, something that happened as a result of Prohibition. Like the, no, he would have, Barry Kidston would have never been making MPTP if he could have accessed Demerol in the first place. So this is like, just, uh, a tragic history of people getting hurt as a result of these laws.

Jordan Rubin: 1:20:33

Right. Prohibition was creating a problem in order to solve it with the Analog Act and so that hasn't been a solution because there can't be a solution because people are always going to want to alter their consciousness, people are going to do what they have to do to get there, whether by legal means or not, and so the Analog Act is more just a question. It's almost more of a prosecutorial question than anything. It's the government still wanting to be able to go after the bad guys regardless of there may or may not be in the law, but it's we've seen it hasn't changed anything. Again, we're, we're back full circle where we were, uh, with fentanyl, if not in a even worse place than we were then. So it certainly hasn't done what it was set out to do if it was set out to help people, but I'm not. Sure that it was necessarily. So whether it's successful might depend on who you ask and what it was used for because it has been used to prosecute people who might not have been able to be prosecuted otherwise. So if you are the Justice Department that was pushing it, you might think that it's had some successes. But I think even now they've backed away from that, especially when it comes to fentanyl, because you have the fentanyl related substances issue, which is I look at it is basically the. A supercharged version of the Analog Act where they won't need to use the Analog Act now when it comes to these fentanyl related substances because there's a law now that's even more overbearing, the one that's been temporarily in effect for the last several years, again, showing a little bit of the ridiculousness of the emergency Uh, scheduling law, because that was an emergency scheduling several years ago, which is essentially just keeps being extended. That's how long the, the fentanyl related

Hamilton: 1:22:16

substances. Well, I'm not familiar with this, the fentanyl related substances.

Jordan Rubin: 1:22:20

What is this? Yeah. So this is, uh, and I talk about this at the very end of the book briefly, because this is something that was starting to, to come about. And this is actually during the Trump presidency, I believe it was when Jeff Sessions was still the attorney general. And so there's a law that's been in place for, for several years, initially through emergency scheduling, but it's been extended and I'm not going to be able to rattle off all of the science of it, but basically it outlaws fentanyl related substances as defined, you know, in the structural classes by the DEA. And so it's like the analog act in the sense that it. is preemptively and theoretically outlawing an infinite number of substances, however many can be conceived to, to fit or be created within this class. But one difference from the analog act is that it's the, to be a fentanyl related substance, it's only the structure that the DEA needs to find is the relation there. There doesn't have to be a pharmacological similarity, which, you know, Way better than me, it can cause, Ah, issues, because, you know, different structure can have a different affect, and so, it can effectively outlaw things that are, you know, not only not as bad as Fentanyl, but things that could even be helpful.

Hamilton: 1:23:42

Right, of course, yeah, absolutely. And, of course, there's a certain desperation in all of this, the attempts to continuously prohibit new substances, the Federal Analog Act, it, it feels as if there is a lesson that is not being learned. And my concern is that the lesson will never be learned. I mean, there has been some reform in drug policy, there are glimmers of hope in various isolated niches in the drug world, but I see just as many instances of really frightening trends emerging. I mean, one that, I don't know if this ever actually passed, but I saw that there was a lot of discussion of laws that would categorically ban drugs, not based on their structure and not based on their effect, but based on the receptors that they would bind to. So you could say, Any drug that binds to the CB1 receptor is, by virtue of that pharmacological interaction, a controlled substance. And that seems like, kind of, the most dystopian outcome, where it truly is getting to the point where certain types of consciousness are being outlawed.

Jordan Rubin: 1:24:57

Yeah, I don't know if this is exactly what you're saying, but back in 2012, at the time when they were going after spice and bath salts, there was, uh, Law, uh, bill that was signed into law by Obama, the Synthetic Drug Abuse Prevention Act, which outlawed cannabimimetic agents, which I feel like kind of gets at what you're saying. I don't know if it's, what's that or if you're familiar with, um, what I'm talking about there.

Hamilton: 1:25:20

Yeah. I think that is what I'm describing. I was looking for it before this interview. I was having difficulty finding it. I remember reading about it in around 2012, so that's probably the same thing. Yeah, because I

Jordan Rubin: 1:25:31

think that's, that's somewhat similar, um, and I use that word sort of cautiously, but just in a real sense, to what's happening with the fentanyl related substances. Um, but it's, in a weird way, I think there's something to be said. For an overbearing law, if what you're trying to prevent is a situation like the one that I write about in Bizarro with Burton Ritchie and Ben Galecki, I think if there wasn't this nebulous analog act floating out there, if there was something that was basically saying in legal language Um, there's no way in hell you're not going to prison if you do what you're about to do, then it's less likely that they would have done it. Now, there's problems on the back end and the front end when it comes to research and things like that, but depending on what you're trying to prevent, they're There can be benefits to a law that's much more overbearing if clearer than the analog act, although again, there's still problems it creates for research and liberty and attended things.

Hamilton: 1:26:30

Certainly, yeah. And do you think that this is a lesson that is ever going to be learned or will the trend continue with increasingly overbearing laws that people inevitably will figure out a way to evade and if they don't figure out a way to evade them? Then people will just continue using the drugs regardless, as is the case with heroin. I mean, this is the other dimension of this, of course, is that prohibition, even when it is specific, even when there is a explicitly controlled substance, still doesn't prevent people from using those substances. So the Exercise is completely futile no matter how you package it. But do you predict based on your research into this and the history of it, that people will ever come to their senses?

Jordan Rubin: 1:27:18

No. Uh, I have no reason to think that the status quo will end because it's not. And I think the fentanyl resurgence shows that this isn't a linear thing, right? We're kind of going in a bit of a circle in some ways where it's not, I don't think we're along anything that could be called a, a progression because I think the fentanyl issue and, you know, there's no one who doesn't want all the overdoses happening that are happening. Um, everyone agrees on that. And I think, I think the. reemergence of fentanyl and related things especially is problematic for someone trying to end the drug war because Because of how dangerous these substances can be, that in turn is a very powerful tool for the government in perpetuating the drug war, and so they would never put it that way, but I think it They would much rather be out there saying we're trying to stop the fentanyl crisis than saying we were trying to fight the cannabis crisis or something like that. That's why spice wound up being something that They could feel comfortable standing up and saying that we're going after, you know, because this is causing these problems that you could point to people passing out in the street and whatnot, even though it's a direct result of cannabis prohibition. So I think in the place we are now, it's a place where I think there's very little reason to think that there's going to be any sort of structural change, so to speak, when the main issue, uh, is fentanyl or if it's. Pitched as the main issue from the government's point of view, as you sort of alluded to Hamilton, there are little things that are happening. Biden talked about looking at a potential revision of where cannabis is scheduled. Um, I really don't know how much that's going to mean in the ends. Um, it's, it seems like kind of a small thing right now, all things considered, but. I don't really, it would have to be kind of part of a bigger conversation of the way that the criminal system is used. Um, there are some interesting things happening for the DEA in particular, or that I could foresee happening. Um, and that's when I tried to lay out how much. Power is delegated to the DEA and how it is sort of running its own fiefdom as far as saying, uh, what's legal and what's not. There's been an interesting movement, and this has really been a more Republican led movement that's been sort of against what might be termed the administrative state. Now it's usually seen in things like going after financial regulators and environmental regulators that Want to regulate businesses. So that's sort of the classic, you know, kind of modern Republican thing to want to fight against but there's some potential I think for interesting litigation to happen against the DEA Because it's in a similar boat in terms of having this vast power that's delegated to it. I'm not aware of that coming to pass yet, but actually just recently, the Supreme Court agreed to hear a case next term that's broadly going to look at this issue about how much deference is owed to administrative agencies. And so that's not a DEA specific issue, but it's just interesting to me in general that there is this movement in the law, especially with. Um, the Supreme Court having this Republican super majority that is skeptical of what might be termed the administrative state. I'm curious to see whether the DEA winds up catching any shrapnel from that. I'm not convinced that it would. I'm just interested to see whether there winds up being any sort of coordinated effort against the DEA's power and a successful one at that in the same way that we see it against some of the financial and environmental regulators.

Hamilton: 1:31:11

Right. I mean, maybe there's a couple of, as much as I dislike the Federal Analog Act, and I dislike it very much, there are a couple of things about it that I think have been beneficial in a strange way. One is that it is so difficult to make a controlled substance not a controlled substance that it has never been done with the exception of alcohol. So, there is not a single historical instance of anything ever being schedule. Instead, of course, you get bifurcated scheduling. So THC is approved as Marinol, that's shifted to Schedule 3, but THC as non Marinol remains Schedule 1. The same is true of GHB. The same chemical simultaneously occupies two legal schedules. The same thing is going to be true if MDMA and psilocybin are approved. You'll get the same kind of bifurcated scheduling, which Speaks to the total insanity of the system that the exact same molecule can occupy two different legal schedules based on really nothing other than its means of distribution, but I think it also speaks to how hard it is to undo this and having a nebulous cloud of vague illegality Has at the very least stop them from placing all of these compounds in schedule one, which for me is for scientists and people doing basic research. That's hugely important because analog laws don't apply to any of the work that I'm doing because it is. Bonafide, not for human consumption, academic, scientific research. So, I don't have to worry about that. But, if all these compounds, like for example, DIBT, the drug that I study, um, had been made a schedule one controlled substance, it would have had dramatically Negative implications for the research that I'm doing, even if it would have been from a sort of like legal, moral perspective, better defined in its place in the realm of legality. And this was something that actually, there was a DEA chemist named Terry Delcassin, who, um, I was talking with, and he said that he was willing to testify on our behalf and say, DIPT should not be placed in Schedule 1 because it's an analog of 5 MeO DIPT. So I never thought I'd be in a position where I was using the Analog Act, uh, in my defense, but this was sort of the situation that we found ourselves in. Thankfully, it never got to that and they withdrew their intention to prohibit the substances before a hearing was necessary. But that was one of the things that we had as a defense strategy was pointing out that these things are already illegal for human consumption under the Federal Analog Act. So making them explicitly illegal was unnecessary and would interfere with basic scientific research.

Jordan Rubin: 1:34:11

But these aren't things that have been prosecuted under the analog

Hamilton: 1:34:14

acts. These are things that are essentially not used by humans, so there has been no opportunity to prosecute under the Federal Analog Act. I mean, this is the other bizarre dimension of it, is that by no stretch of the imagination could any of those five tryptomines that were being discussed for prohibition be considered a threat to public health. Um, even at the height of their popularity in, you know, Two or whenever it was kind of when this industry started to emerge you're talking you could count on your fingers the number of instances that they had recorded of seizures of these compounds and really the vast majority of them if not all of them in some instances were just them raiding the homes or the distribution hubs of various research chemical suppliers and then counting that seizure as if it was representative of Uh, a seizure on the street, right? Like there's a, there's a difference between raiding a lab or a distribution facility, maybe lab isn't quite the right term, and finding a bunch of chemicals and, you know, finding a bunch of people showing up in an ER having overdosed on something. There was not a single hospitalization associated with DIPT recorded anywhere in the medical literature internationally. And the same is true of 5 MeO DET and most of the other substances that were being discussed.

Jordan Rubin: 1:35:41

Yeah, it's interesting the idea of the Analog Act essentially being touted, even by someone who doesn't like it, because that's actually something that I noticed happened in connection with this fentanyl related substance scheduling issue, because that in some ways has become the latest front, or one of the latest fronts, I think. In the drug war, at least as it's playing out politically, because you have the temporary scheduling that went into effect several years ago of these fentanyl related substances, and you had Republicans who wanted to push to make this class wide scheduling permanent, and then you had Democrats who were arguing against that, and it's broadly stated, and the funny thing to me, and I touched on this briefly at the end of Bizarro, is that you have Democrats, who could fairly be called liberal, speaking out against the fentanyl related substances class wide measure as being this overbearing thing, but pointing to the Analog Act as saying the government doesn't need this overbearing law because you have the Analog Act that you could use against these substances. Even in one of the instances, a Democrat saying that the Analog Act is this important check on over criminalization, which I have to just think they were just not familiar with it, um, because I don't think that that's what someone would say if they were just looking at the, the history of the analog act. So it's kind of a funny thing to read after you've gone through the whole, the whole history of the law. But just to say, I detected some similarity there, just in the sense of Reaping a benefit from the existence of the Analog Act, even if you don't like it, to achieve something in real terms that you're

Hamilton: 1:37:23

trying to achieve. Well, it becomes the lesser of two evils if one situation Prevent scientific research on a compound and the other doesn't, then the Analog Act is better than it being placed formally in as a controlled substance, but it's obviously, uh, really just a bad way of contending with the issues associated with drug use in the United States in general. I mean, it's been disastrously ineffective. Why do you think the DEA continues going down this road? Like, they must know that this is a losing battle. That the work that they're doing is not. Uh, preventing people from using drugs and it never has, it never will. So how do you think a DEA agent justifies this strategy, the prohibitionist strategy?

Jordan Rubin: 1:38:14

In general, not with the analog at

Hamilton: 1:38:15

specific. Yeah, yeah. In general. Oh,

Jordan Rubin: 1:38:17

I mean, I've. Again, in my, my past life as a prosecutor, I've, you know, worked with DEA agents. I'm still friendly with people who are DEA agents. I just don't know if that's the way that they ask the question. I think it's more about, well, there are a couple of, I think there are a couple of different ways, if you're in law enforcement, how you look at drug enforcement and why you're doing it. I mean, putting to the side, just not thinking about it and it's just kind of your job, which is certainly a possibility for anybody. But there's the I'm trying to get drugs off the street because that helps people who are suffering from addiction. That's one kind of idea that whatever there is to say about it, it's a, it's a coherent thought that you could get your head around, right? I think the, um, and what I, I would say personally, in my opinion, that I find to be, um, a more compelling, uh, arguments for. Drug enforcement is that selling drugs, and this is not, and I'm not talking about somebody who is in the throes of addiction and it's the person who's, you know, selling because that's the only way that they can survive, you know, not, um, I'm talking about someone who actually is not in that situation, but To say, the reality is that there are a lot of bad people who make money selling drugs, and that's not a popular thing to say, I think, in the context of The conversation that we're having, but it's a reality that I learned, you know, working as a drug prosecutor in New York. And I think it's a separate, it's a separate question from the question of is the drug war, It's not about solving any issue. It's the question of drug enforcement as a tool to go after people who are doing bad things. And that's controversial in its own right. But I say that just as an alternative explanation to try and answer your question of what's the mindset of somebody who is Kind of still perpetuating the status quo one way is I'm going after bad guys even aside from how you're doing it You know, it could it could be not drugs. It could be you know pencil shavings or toothpicks or hats, you know If those were illegal

Hamilton: 1:40:44

Right. Yeah. And I don't think anyone would disagree that there are bad people that sell drugs, or at least there are people who are selling drugs who are having destructive effects on society. But I think the issue is if you are truly against that badness, this is not the best way of preventing that type of badness. Most of these people wouldn't even exist in the same. I mean, the obvious example is bootlegging of alcohol by making alcohol legal and regulating it. You don't have an issue with clandestine distilleries. You don't have an issue with organized crime and speakeasies. All of that disappeared when it became a legal regulated market. And you'd think given how well known. Alcohol prohibition is to everyone in the United States that that simple lesson would have been learned.

Jordan Rubin: 1:41:36

Oh, for sure. I was just trying to come up with an answer to you. Oh, yeah,

Hamilton: 1:41:39

yeah, yeah, yeah, yeah, yeah, yeah. And, uh, did you, did you get much into web trip? Was that something that you. No.

Jordan Rubin: 1:41:49

No. I, I know, I know of it, but no, that wasn't, I remember seeing it in my research, but not really finding it super relevant for one reason or

Hamilton: 1:42:02

another. Oh, you should look at, I mean, it's, it's a similar, it was kind of the first iteration of this in the United States. I mean, there, there are some earlier president that you described, like the, um. AET case. Did you talk to that guy or was that just from historical, uh, legal documents, the AET analog case? The defendant?

Jordan Rubin: 1:42:21

Or the Yeah, the defendant. Couldn't find him, uh, Damon Forbes. Don't know whatever became of him. He seemed like an interesting character. Yeah. Oh, I would have, I would have liked to, um, if you're listening to this, I'd still be interested in, uh, doing that. Um, no, that was all, uh, through court documents. That was actually a bit of a difficult file to get, um, but that, uh, cause there's some cases that are easy to look up. You know, with the older ones, you actually have to go through this archive, and I wound up having to, to order it, but I have the Forbes case file, which has all of these transcripts, uh, that are in there, some, including some things that I don't think are, uh, posted online. There are some things that are posted. I think the decision will be, has been posted some places, and so a lot of people have seen that, um, that the judge wrote, but some of the transcripts in it are actually, uh, pretty interesting, I found.

Hamilton: 1:43:16

Oh, wow. Would you share that with me? I would love to read it, because I've always been very interested in AET, and in that case in particular.

Jordan Rubin: 1:43:25

Yeah, it was super interesting, because it was, this was what, back in the early 90s? Um, yeah, and it was also kind of a weird example for an analog case. And this was something I kind of wrestled with, too, just in telling the story, because you talk about how the Analog Act came about in terms of trying to combat this new designer drug thing, but AET was this thing that had been around. All along, right? So it's, you know, one of the early precedents that we have for the use of the Analog Act wasn't exactly coming in connection with exactly the type of problem that law enforcement was trying to solve as far as, you know, an underground chemist coming up with a new thing. It was the same idea in terms of someone being kind of wily and selling something that wasn't listed, but it didn't exactly fit the mold, um, I don't think of. the new, you know, fentanyl type analogs that were coming about. I don't know if you disagree with

Hamilton: 1:44:18

that. No, no, I agree completely. And I think it's a really important example of, you know, you go into the importance of and versus or in the substantially similar in a, in structure and effect or it's or effect is the wording, right? It's or. So in, in most of these instances. The or distinction is not so important. It tends to be the case, at least in the instances that I'm aware of, like the synthetic cannabinoid ones being the prime example, that they're all ands. But AET is definitely an or, because AET is not similar in effect to DMT. It's very, very, very different. Pharmacologically, it's a completely different type of drug. So, to say that AET is substantially similar in structure and effect to DMT is wrong on both Both here is as far as I'm concerned, but indisputably wrong in terms of a fact.

Jordan Rubin: 1:45:21

Oh, yeah. And, um, let me just say on, on the kind of conjunctive, disjunctive debate, and just to kind of orient that briefly, we're talking about the fact that the analog act says you need substantially similar structures, substantially, uh, similar effect. The way that the law is written, there's debate in court over whether you need both or just one or the other. So, um, yeah. Yeah. Yeah. Yeah. Yeah. Yeah. that we're still waiting for a decision on in Burton and Ben's case in the Ninth Circuit. The judges in the case actually didn't take as a given that it's conjunctive, that you necessarily need both. Um, that wasn't even an issue in the case. They kind of brought that up on their own, so that was just a freaky thing that happened in the argument, and maybe it won't wind up factoring into the decision, but the, we sort of take as a given in all of these cases that you do need both, but it's actually technically a legally unsettled thing that you do because there's been such little binding case law on the analog act. So I don't know if they're going to address that in this or what effects, uh, so to speak legally it'll really have anyway, just given how few cases are still pending based on that. But, uh, just to say, I thought you might find that aspect. Interesting. Cause it was a really weird part of the argument. And

Hamilton: 1:46:34

as it's written, it is not conjunctive, right? It is or am I wrong about that? It is

Jordan Rubin: 1:46:40

or, but whether that therefore makes it, but let me, I actually have it, uh, bookmarked right here. So this is the, to try and make it a little more sense, um, of what we're saying of where the or comes into play. So we're basically talking about. three prongs to the analog act. It's substantially similar structure, one, substantially similar effect, two, or representing that there's a substantially similar effect. And so the question is whether the or coming after the second thing means you only need one of those three things, or whether you definitely need Structure, and then you could have either actual effect or representation of effect. And now, there are certainly reasonable linguistic arguments you can make, just looking at it on the face of it. But, one of the problems that comes up with that, that I touch on briefly in Bizarro, isn't so much the issue of how, you know, structure and effect can kind of go hand in hand, that is a problem. But, as far as a prosecution standpoint, and a ridiculousness of Finding yourself on the wrong end of one of these cases, that means you can be prosecuted, if it's a completely disjunctive theory, you can be prosecuted solely based on representing something to have a certain effect, regardless of the structure and regardless of the actual effect, and we saw this actually come up in a case where these guys were selling a mix of candle wax and flour and saying it was crack, and so that means you could Go to prison for decades for selling that under the analog act if it's a conjunctive or I should say if it's a disjunctive interpretation that prevails if you only need representation of effects, then you could go to jail to prison based on selling anything that you're convicted of representing as being a similar effect to a schedule one or two substance.

Hamilton: 1:48:43

Maybe another reason for not for human consumption. Well,

Jordan Rubin: 1:48:51

right. Well, I mean, human consumption would be a given if you're in the process of representing that something has a certain effect, right? So, I don't know. I might be on my own in terms of the being kind of a human consumption, uh, skeptic or whatever you would call me. It's, I think it's a thing that a lot of people focus on, um, but it's, I feel like it would be better for, People who end up being charged in these cases, or people who are thinking of selling this stuff, if that wasn't even a part of the law, like, I think, uh, that would actually be. Um, if, uh, you know, the DEA isn't taking my calls, but if that was actually a change that, you know, could be made, probably in retrospect, because who knows what's going to come of it now. If that human consumption kind of shell game was taken out of it, and you could just focus on the substantial similarity issue, I think that actually would be better for everybody. You would still have the substantial similarity issue, but you could at least get right into the heart of it without having to play this side game. Right,

Hamilton: 1:49:51

I mean, there are also a few instances of industrially useful and medically useful compounds that conceivably could be sold not for human consumption, like You know, one example would be GBL, which is like, in actuality, a very useful solvent that probably a lot of people would use for cleaning if it weren't controlled. Like it, it's a very, very effective solvent. Uh, it's also used in scientific research. So So, So, In those instances, I could see it being valuable, but yeah, I just don't know enough of the case law to know how successful that has been in instances where it seems pretty apparent that people do intend to consume the product.

Jordan Rubin: 1:50:34

Yeah, it's just not something you can really hang your hat on, even though I do think it has actually caused some prosecutors to shy away from it, just because a federal prosecutor in particular wants to have everything really buttoned up and have them have no chance of possibly losing a case, no matter what it's about.

Hamilton: 1:50:49

Right, right. Are there any final notes about the work that you did on this book and what you learned or anything that you think listeners should be aware of about this research and your work?

Jordan Rubin: 1:51:04

To me, arguably the biggest outstanding issue that's unresolved in my mind, something that's still sticks in my craw that I don't consider Finnish business is this question of whether the DEA, in particular, Terry Bowes, whose name you'll still find on these letters and scheduling notices and in the Federal Register that are going out, uh, whether he told the truth when he said on the stand that he was not aware of anyone within the DEA, uh, disagreeing with him about the analog. status of certain substances when, as I lay out in Bizarro, I just have a very hard time understanding how that's the case. I reached out to him about that. I've reached out to the DEA about that several times. No one has responded to me about it, but I just have a really hard time understanding how he could not have known about that, and that if that's the case, then that means what he said wasn't true, and that's something that I still consider. A matter that's worthy of further inquiry and something that's not done yet in my mind.

Hamilton: 1:52:15

Right. Right. Well, thank you so much for your time and for writing this book. I think it's a book that really needed to be written and there's nothing else like it. So I recommend anybody listening to this, get a copy of it and, uh, thanks again. Hey, thanks

Jordan Rubin: 1:52:30

Hamilton. Really appreciate it.

Hamilton: 1:52:32

Okay. All right. Have a good day. Yeah, you

Jordan Rubin: 1:52:34

too.