Hideaway owner sues over DEA’s fake pot ban

Business owners say the ban on synthetic marijuana is unfair.

Kyle Potter

Wally Sakallah is ready to take on the U.S. Drug Enforcement Administration.

The owner of Hideaway Head Shop in Dinkytown pulled packages of salvia divinorum in August after former Gov. Tim Pawlenty signed a ban into law.

Now that the DEA wants to prohibit synthetic marijuana, heâÄôs not willing to comply just yet.

Use and sales of synthetic marijuana, sold under names like “K2” and “Spice,” have spiked over the last year, and so have stories about its dangers.

Synthetic marijuana is a blend of herbs that is sprayed with a chemical compound that mimics the effects of THC, the active ingredient in marijuana.

A month after the DEAâÄôs November announcement that it would make these products illegal until further research is completed, Sakallah joined three other Midwest head shops in a lawsuit against the agency.

Forcing businesses to halt product sales without providing scientific evidence they are harmful is unfair, Sakallah said. Sales of synthetic marijuana products account for 75 percent of HideawayâÄôs sales and the demand has led him to triple his staff, he said.

“Just give us time, and do your own testing,” Sakallah said of the DEAâÄôs decision. “When you know this is not good âĦ we can stop selling it.”

The lawsuit filed on behalf of the shop owners by Minneapolis attorney Marc Kurzman says criminalizing the compounds for a year would cause a significant loss in profits, violates due process and lacks research to support the claim that the products are dangerous.

Part of the Controlled Substances Act allows the DEA to temporarily schedule, or classify, a drug on an emergency basis without judicial review. That is unjust, Kurzman said.

“Apparently, the DEA deputy administrator, if this is upheld, is going to be above the law and is going to be able to do something that trumps the law,” Kurzman said.

The DEA announced the day before Thanksgiving that it would temporarily classify five chemicals commonly used in synthetic marijuana products as Schedule I drugs for at least a year, making their sale or possession illegal.

Schedule I drugs, a category that also includes heroin and marijuana, are the most strictly controlled drugs that are “unsafe, highly abused substances with no medical usage,” according to the DEA website.

“We have the authority to use our emergency powers to schedule substances that might be harmful to the public, and we certainly believe this is,” DEA spokesman Rusty Payne said.

There were 89 calls to poison control centers in Minnesota related to these substances in 2010, according to the Minnesota Poison Control System. There were just a handful of related calls in 2009, MPCS Director Deborah Anderson said.

KurzmanâÄôs clients “jumped the gun,” the DEA said in its response to the complaint filed by the four Minnesota head shops.

Though the DEA announced it planned to temporarily schedule the products almost two months ago, it wonâÄôt be effective until the beginning of February at the earliest.

The U.S. Department of Health and Human Services will continue its research of the compounds after the temporary ban is in place and will eventually recommend whether the DEA should make them illegal permanently. The agency can extend the temporary ban an extra six months if necessary.

Eighteen states have some kind of synthetic marijuana ban on the books, and 14 other states have proposed legislation, according to the National Conference of State Legislatures. Minnesota is among them.

When the state Legislature reconvened in early January, Sen. Katie Sieben, DFL-Cottage Grove, followed through on the promise she made over the summer and introduced a bill that would add more than a dozen “synthetic cannabinoids” to the stateâÄôs list of Schedule I drugs.

The issue came to SiebenâÄôs attention in the summer when a Hastings teen nearly died after using the substance, she said. She worked with the Minnesota Board of Pharmacy to draft a bill that would ban all possible compounds that could be used in different brands of synthetic marijuana.

“ItâÄôs important to note that this isnâÄôt marijuana. It has much stronger side effects,” she said.

Sakallah and the three other businesses involved in the suit have their first hearing Friday. With the threat of a state bill looming, heâÄôs not just fighting against the DEA.

“If we win this case,” he said, “then we can have the judge on our side in Minnesota to allow us to keep going and fight this case.”