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Aromatherapy distributors challenge new 'look-alike' synthetic drug law

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Four companies that sell novelty items, aromatherapy products and other items have filed a lawsuit against Indiana’s prosecutors, alleging a newly enacted law that makes it illegal to possess or deal “look-alike” synthetic drugs is unconstitutional.

The companies, located around the state, claim the new law – Senate Enrolled Act 536, which took effect May 7 – could lead a reasonable person to include cigarettes, potpourri or catnip under the synthetic drug look-alike substance definition.

Sen. Jim Merritt (R-Indianapolis) authored the bill that tightened the state’s ban on synthetic drugs and closed a loophole in the previous drug ban by making it illegal to make, distribute or possess synthetic drug look-alike substances.

Even before this law took effect, the plaintiffs say they were subjected to search and seizures by law enforcement, according to the lawsuit filed Wednesday in the Indianapolis Division of the Southern District of Indiana. After the statute was enacted, plaintiff Little Arm Inc. had products taken by the Indiana State Excise Police claiming that they were a look-alike substance.

“Plaintiffs have suffered a significant loss of revenue and goodwill in their respective communities as a result of Defendants’ actions and will continue to suffer those losses as long as Defendants persist in targeting Plaintiffs’ lawful business activities with baseless accusations, threats and/or intimidation through media statements and harassment of Plaintiffs’ customers and/or vendors,” the suit says.

The plaintiffs deny that their aromatherapy products contain synthetic drugs. They allege the new law is unconstitutional because it violates due process under the 14th Amendment, the equal protection clause in Article 1, Sections 23, and constitutes a regulatory taking of property in violation of the Fifth Amendment and Article 1, Section 21 of the state Constitution.

The companies seek a preliminary and permanent injunction preventing enforcement of the new law.

Indiana Attorney General Greg Zoeller said Wednesday his office will defend the legislators’ public policy decision that “the Indiana Code ought not be circumvented by peddlers of synthetic drugs who try to exploit loopholes in order to profit from the sale of potentially dangerous substances.”

The case is Little Arm Inc., et al. v. Prosecutors, et al., 1:13-CV-862.

 

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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