Noteworthy Spice Decision

     When Spice appeared as a street drug five or so years ago, state legislatures, including Utah’s, responded by listing the known kinds of Spice on their schedules of controlled substances, thus making those kinds of Spice illegal. Spice producers then changed the molecular structure of their products so they no longer matched the kinds on the schedules, thus their new products were not illegal. Thereafter, state legislatures added the new kinds of Spice to their schedules, and Spice producers responded as they did the first time. That cycle has continued for the last few years. At some point, state legislatures, including Utah’s, added a catch-all provision, the effect of which was to make illegal the listed kinds of Spice plus any unlisted “synthetic equivalent” of cannabis. Recently, the Iowa Court of Appeals upheld that language as providing sufficient notice to a defendant who argued his due process rights were violated on void-for-vagueness grounds in State v. Heinrichs, 845 N.W.2d 450 (Iowa Ct. App. 2013). Since we have identical catch-all language in Utah Code Ann. § 58-37-4.2, Heinrichs may be worth citing if you litigate this issue.