A.G. Schneiderman Wins Court Victory In Push To Ban Mislabeled Drugs From Head Shops

NYS Supreme Court Strikes Another Powerful Blow Against Retailers Selling Synthetic Marijuana And Other Designer Drugs

Schneiderman: The Law Is On Our Side In The Fight Against Dangerous Drugs

**Click here to read the decision in full**

PLATTSBURGH -- Attorney General Eric T. Schneiderman announced today a major court victory in his statewide litigation against deceptively-labeled designer drugs, includingsynthetic marijuana. New York Acting Supreme Court Justice Kevin K. Ryan ruled that Plattsburgh area business woman, Carla Brotherton, is liable for selling mislabeled drugs to consumers while claiming that the products were merely "sachets" meant for room freshening or for whipping cream. While this is the first judicial opinion on the issue, Attorney General Schneiderman has won eight orders permanently removing synthetic drugs from the shelves of head shops statewide since July.

The decision comes after Attorney General Schneiderman's office conducted an undercover investigation into head shops across the state. The investigation revealed that head shop retailers were selling designer drugs, including commonly known synthetics such as "bath salts" and "synthetic marijuana." Undercover investigators statewide also discovered head shop employees were promoting these dangerous drugs, and giving tutorials on how to prepare and ingest them.

"The law is on our side in the fight against all dangerous designer drugs," Attorney General Schneiderman said. “Judge Ryan saw through the fraud being perpetrated by this industry against our communities and his ruling will be an important tool in dismantling the insidious growth of illicit, over-the-counter drug sales. By taking a creative approach in using the state's existing labeling laws, we can get swift results to remove dangerous drugs from store shelves and hold sellers accountable for breaking the law. We will continue to use every tool in our arsenal to combat the growing and dangerous designer drug epidemic."

"[I]t staggers the imagination to believe they were not intended to be consumed," Justice Ryan stated as he referred to Bizarro and Avalanche, both synthetic marijuana- type products, and nitrous oxide chargers, otherwise known as “Whip Its.”

"Simply put, the respondent offered over the counter drugs for sale without providing the consumer with much of the information required by law," the judge found.

The Decision and Order permanently bans the sale of any mislabeled, misbranded or unapproved drugs or intoxicants and also awards the State $15,000 in penalties and an additional $1,000 costs.

Under New York State's labeling laws, the packaging of consumer commodities must identify the name and place of business of the manufacturer, packer or distributor, the common product name, the net quantity of contents, and the net quantity of servings, uses, or applications represented to be present with appropriate directions and warnings for customary use.

On July 10, the Attorney General filed 12 lawsuits against 16 head shop locations, including Ms. Brotherton’s two stores, 20-Below and This and That. Within 36 hours of filing the lawsuits, the Attorney General’s office obtained Temporary Restraining Orders from all 12 judges, effectively removing the mislabeled products from the shelves. Judge Ryan’s Decision and Order now permanently bans Brotherton from selling designer drugs.

Additionally, on August 1, the Attorney General filed a new lawsuit against Tebb’s Head Shops for the sale of bath salts and synthetic drugs in violation of the state’s labeling laws. Attorney General Schneiderman sued John Tebbetts, III of Rome, NY, who owns and operates a chain of eight head shops located throughout Central and Northern New York, for violating the state’s labeling laws by selling designer drugs.

Although Federal and State authorities have attempted to outlaw certain chemicals and their analogs and to remove these items from commerce, their efforts continue to fall short as the chemists and producers providing products for head shops simply alter formulas to stay ahead of the legislation.

The Attorney General’s lawsuits also pursue retailers for the illegal sale of nitrous oxide to the public, a specific violation of the State Public Health Law. Commonly known as “Whip Its,” nitrous oxide has been linked to several deaths by asphyxiation. The gas is typically used by youths who see it as an easy “high.”

In addition to Judge Ryan’s action, judges issued the following orders removing synthetic drugs from the following retailers sued by Attorney General Schneiderman:

  • Village Sensations in Nanuet (Permanent order and judgment banning sales issued August 14)
  • Pavilion International (Permanent order and judgment banning sales issued August 29)
  • Trip on the Wild Side II in Watertown (Permanent order and judgment banning sales issued August 22)
  • Rolling Fire Glassworks in Endicott (Decision pending)
  • Goodfellas Alternative Smoke Shop in Utica (Store is no longer operating)
  • Shining Star Enterprises in Albany (Decision Pending)
  • Giggles in Poughkeepsie (Permanent order and judgment banning sales issued September 5)
  • East Coast Psychedelics in Oceanside and Commack (Decision Pending)
  • Tebb’s Head Shops (eight locations) in Central and Northern NY (Next court date – November 1, 2012)
  • Daze Smoke Shop in Baldwin (Permanent order and judgment banning sales issued July 31)
  • Look Ah Hookah in Rochester (Permanent order and judgment banning sales issued July 26)
  • Twisted Headz in Rochester (Permanent order and judgment banning sales issued September 25, 2012)

This case is being handled by Assistant Attorney General Hilary Rogers with the assistance of Senior Investigator Chad Shelmidine, under the supervision of Assistant Attorney General In-Charge Deanna R. Nelson and Executive Deputy Attorney General for Regional Affairs Martin J. Mack.

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