§ 21-7. Illegal smoking material/illicit synthetic drugs.

(a)

Definitions. For the purpose of this article, the following words shall have the meaning herein described to them:

Illegal smoking material means any substance, however marketed, which can reasonably be converted for smoking purposes whether it is presented as incense, tobacco, herbs, potpourri, spices, teas, bath salts or any other substance or blend of substances thereof if it, includes any of the following chemicals or a comparable chemical:

(1)

Salvia divinorum or salvinorium A; all parts of the plant presently classified botanically as salvia divinorum, whether growing or not, the seeds thereof, any extract from any part of such plant, and every compound, manufacture, salts, derivative, mixture or preparation of such plant, its seeds or extracts;

(2)

Datura stramonium; all parts of the plant presently classified botantically as datura stramonium, whether growing or not, the seeds thereof, any extract from any part of such plant, and every compound, manufacture, salts, derivative, mixture or preparation of such plant, its seeds or extracts;

(3)

2-[(1R, 3S)-3-hydroxycyclohexyl]-5-(2-methyloctan-2-yl) phenol (also known as CP 47, 497) and homologues;

(4)

(6aS, 10aS)-9-(hydroxymethyl)-6, 6-dimethyl-3-(2-methyloctan-2-yl) -6a, 7, 10, 10a-tetrahydrobenxo [c] chromen-1-ol (also known as HU-211 or Dexanabinol);

(5)

1-pentyl-3-(1-naphthoyl) indole (also known as JWH-018);

(6)

1-butyl-3-(1-naphthoyl)indole (also known as JWH-073); or

(7)

1-pentyl-3-(4-methoxynaphthoyl)idnole (also known as JWH-081

Products containing some or all of the above substances are currently being marketed under the following commercial names: "K-2", "K-2" SUMMIT", "K-2 SEX," "GENIE", "DASCENTS", "ZOHAI;, "SAGE", "SPICE", "KO KNOCK-OUT2", "SPICE GOLD", "SPICE DIAMOND", "YUCATAN FIRE", "SOLAR FLARE", "PEP SPICE", "FIRE N' ICE", "SALVIA DIVINORUM", "JIMSON WEED", "GYPSUM WEED", "DEVIL'S TRUMPET", "DEVIL'S WEED", "THORN APPLE", "TOLGUACHA", "JAMESTOWN WEED", "STINKWEED", "LOCOWEED", "DATURA", "PRICKLYBURR", "DEVIL'S CUCUMBER", "HELL'S BELLS", "MOONFLOWER", "SCOOBY'S SNAX", "SHAGGY'S MIX", AND "ANGRY BIRDS".

Any material containing any of the botanical or chemical compounds set forth above shall be subject to the provisions of this section, regardless of whether they are marketed under these or other names.

Person means an individual, a group of two (2) or more individuals, proprietorship, corporation, partnership, wholesaler, association or other legal entity, or any licensed or unlicensed business.

Misbranded drug means any drug for which:

(1)

The label is in any way false or misleading;

(2)

The label does not bear the name and place of business of the manufacturer, repackager, or distributor of the finished form of the drug;

(3)

The label does not bear adequate directions for use; or

(4)

The label does not bear adequate warnings against use.

Consumption or consume means the ingesting, inhalation, injection, dermal absorption, nasal insufflations, or other means of introducing into the body a substance, whether in its original form or the smoke, vapor, or other form derived from that original product.

Herbal incense shall mean aromatic plant material, whether referred to as potpourri or otherwise, that is distributed in a loose, leafy, powder or granular form or in a compressed block or blocks that can be crushed to result in a powder or granular form, and can be placed into a pipe, cigarette paper, or other drug paraphernalia for purposes of ingestion by smoking, inhaling or other method, regardless of how the substance is labeled or marketed, including, but not limited to, whether or not such product is labeled "as not for human consumption."

Illicit synthetic drug means:

(1)

Any vegetative material, or herbal or plant material, however constituted, designed, intended, marketed, manufactured, or engineered, that contains any quantity of a synthetic chemical or synthetic chemical compound that has no legitimate relation to the advertised use of the product.

(2)

Any vegetative material, or herbal or plant material, with packaging or labeling that indicates, suggests, or implies that the substance is a substitute for or otherwise mimics the pharmacological effects of marihuana ("marijuana"), a controlled substance, or a controlled substance analogue as defined by V.T.C.A., Health and Safety Code, § 481.002.

(3)

Any vegetative material, or herbal or plant material, offered for sale or sold with verbal or written representations regarding the purpose, methods, use, or effect of the substance that indicates, suggests, or implies that the substance mimics the pharmacological effects of marihuana ("marijuana"), a controlled substance, or a controlled substance analogue as defined by V.T.C.A., Health and Safety Code, § 481.002.

(b)

Sale, delivery, offer or gift. It shall be unlawful for any person to possess, provide, sell, barter, produce, manufacture, distribute, or to offer, display, market or advertise for sale, or purchase with the intent to provide, sell, barter, produce, manufacture, or distribute, or to offer, display, market or advertise for sale any illegal smoking material or illicit synthetic drug.

It shall be unlawful for any person to sell, offer to sell, publicly display, barter, deliver, or give any misbranded drug to any person, or to own a property where such activity occurs.

In determining whether a product is prohibited by this section, statements on package labeling such as "not for human consumption" may be disregarded when other relevant factors (viewed alone or in totality) indicate that the product is intended to be consumed or ingested by humans, or is a product regulated by this chapter. Other relevant factors that may be used to determine whether a product or sale is prohibited by this chapter include, but are not limited to: verbal or written representations at the point of sale regarding the purpose, methods, use, or effect of the product; aspects of the packaging or labeling suggesting that through consumption of the product the user will achieve a "high", euphoria, intoxication, relaxation, mood enhancement, or that the product has other effects on the body; the cost of the product is disproportionately higher than other products marketed for the same use; the product contains a warning label stating or suggesting that the product is in compliance with laws regulating controlled substances; the product's name or packaging uses images or slang referencing an illicit street drug; illicit or underground methods of sale or delivery are employed by the seller or provider; whether the product can be smoked; and whether the product resembles an illicit street drug such as cocaine, methamphetamine, or marijuana.

Nothing in this section is intended to apply to legitimate air fresheners, potpourri, bath or beauty products, or other aromatherapy products that do not contain the botanical, chemical, or related compounds described in this section or ingredients that are illegal under state and federal law.

(c)

Use or possession of illegal smoking material. It shall be unlawful for any person to have in their possession or to purchase, use, or consume illegal smoking material within the corporate limits of the City of Laredo.

(d)

Failure to publicly display or label herbal incense.

(1)

Herbal incense offered for sale to the public must be publicly displayed at all times through actual or representative packaging.

(2)

All herbal incense offered for sale to the public must include a label listing each active ingredient.

(e)

Defenses to prosecution.

(1)

It shall be a defense to prosecution of a violation of this article if the use of the illegal smoking material is done at the direction of or under a prescription issued by a licensed physician or dentist authorized to prescribe controlled substances within the State of Texas.

(2)

It shall be a defense to prosecution of a violation of this article if the person charged with such violation presents legitimate and complete documentation from clergy or a spiritual leader recognized by the State of Texas that the use of such material is part of a religious ceremony or activity of a religious denomination in which the person charged has a documented long-standing membership.

(3)

It is a defense to prosecution under the provisions of this article that the person possessed the illicit synthetic drug under the lawful supervision of an authorized law enforcement officer to enforce or ensure compliance with this article.

(4)

It is a defense to prosecution that a violation of this article is expressly permitted by state or federal law.

(f)

Seizure. Any product or substance possessed, provided, sold, bartered, produced, manufactured, distributed, or offered, displayed, marketed or advertised for sale or purchased with the intent to provide, sell, barter, produce, manufacture, or distribute, or to offer, display, market or advertise for sale, in violation of any provision of this article, may be seized by any peace officer. Such product or substance may be destroyed as authorized by state law after its use for evidentiary purposes is no longer required.

(g)

Penalty. Any person violating the provisions of this section shall be guilty of a misdemeanor and upon conviction shall be punished by a fine not to exceed two thousand dollars ($2000.00).

Each occurrence of such violation shall constitute a separate offense.

Each separate package, container, or other separate unit containing any illegal smoking material or illicit synthetic drug shall constitute a separate and distinct offense.

Prosecution or conviction under this section is cumulative of and shall never be a bar to any other civil or administrative remedy provided or allowed in this article of by law.

(h)

Other remedies. The penal provisions imposed herein shall not preclude the filing of a lawsuit to enjoin violation of this ordinance. The City of Laredo shall retain all legal rights and remedies available to it pursuant to local, state and federal law.

(Ord. No. 2014-O-132 , § 1, 11-3-14)

Editor's note

Ord. No. 2014-O-132 , § 1, adopted Nov. 3, 2014, added provisions to the Code but did not specify manner of inclusion. Therefore, at the discretion of the editor, said provisions have been included as § 21-7 herein.