Does Tennessee law (specifically the 2010 ban on synthetic cannabinoids and salvia divinorum at Tenn. Code Ann. § 39-17-438, or the broader counterfeit-substances statute at § 39-17-423) reach 'White Lightning' and similar products sold as legal alternatives to LSD and cocaine?

Plain-English summary

In late 2010 and early 2011, products marketed as legal "synthetic" versions of LSD and cocaine showed up in Tennessee gas stations and head shops. "White Lightning" was one of those products. Senator Herron asked whether existing Tennessee drug law caught them. The AG's answers separate three different statutes:

1. Tenn. Code Ann. § 39-17-438, the 2010 statute targeting synthetic drug analogues, applies only to the active chemical in salvia divinorum and to four named synthetic cannabinoids (JWH-018, JWH-073, HU-210, HU-211). It does not reach "White Lightning" unless the product contains one of those specific ingredients.
2. The general Schedule I and II controlled substance statutes (§§ 39-17-406, 39-17-408) already cover LSD itself (Schedule I) and cocaine, cocaine derivatives, and chemically equivalent substances including synthetic cocaine (Schedule II). The Court of Criminal Appeals confirmed that reading in State v. Greene. So if a product actually contains LSD, cocaine, or chemical synthetic equivalents, it is already illegal regardless of how it is marketed.
3. The counterfeit-controlled-substance statute (§ 39-17-423) prohibits selling something represented to be a controlled substance when it physically imitates one in color, shape, size, and markings. The AG looked at the facts available about "White Lightning" and concluded it probably falls outside this statute: it is sold openly in gas stations, in factory packaging, labeled "not for human consumption" as bath salts, insect repellent, or fertilizer. The statute excludes substances that can be lawfully purchased over the counter so long as the seller does not represent them as a controlled substance.

The AG identified "White Lightning" as a brand name for methylenedioxypyrovalerone (MDPV). MDPV was not, at the time of the opinion, scheduled under Tennessee or federal law. The takeaway: as of March 2011, MDPV-based products like "White Lightning" largely fell outside Tennessee's existing drug statutes.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The legislature did move quickly on MDPV after this opinion was issued, and the federal Drug Enforcement Administration temporarily scheduled the major bath-salts compounds (including MDPV) later in 2011. Tennessee's controlled-substance statute has been amended many times since 2011 to keep pace with new synthetic drug formulations. Anyone researching the current legality of a particular synthetic compound should consult the current text of Tenn. Code Ann. §§ 39-17-401 et seq. and any DEA emergency scheduling actions.

Common questions

What did Tenn. Code Ann. § 39-17-438 prohibit at the time?
Only specific compounds: the active chemical in salvia divinorum and the synthetic cannabinoids JWH-018, JWH-073, HU-210, and HU-211. Tennessee enacted that law to address synthetic marijuana products (often marketed as "K2" or "Spice") and salvia. It did not reach the synthetic cathinones (like MDPV) that were being sold as bath salts and as "synthetic" LSD or cocaine.

Was synthetic cocaine already illegal in Tennessee?
Yes. Tenn. Code Ann. § 39-17-408(b)(4) classifies cocaine and its derivatives, including chemically equivalent substances "produced by means of chemical synthesis," as Schedule II controlled substances. State v. Greene, 1990 WL 192007 at *3 (Tenn. Crim. App. Dec. 5, 1990), confirmed that synthetic cocaine falls within the statute.

What about synthetic LSD?
The opinion notes that LSD itself is a synthetic hallucinogen, and Tenn. Code Ann. § 39-17-406 lists LSD as a Schedule I substance along with "any material, compound mixture, or preparation which contains any quantity" of the listed hallucinogens, plus their salts, isomers, and salts of isomers. So any product that actually contains LSD or a covered LSD analogue is already illegal.

Was 'White Lightning' covered by the counterfeit-substance statute?
Probably not. Section 39-17-423 prohibits selling a substance "represented to be" a controlled substance that is substantially similar to a real controlled substance in color, shape, size, and markings. The AG identified two reasons "White Lightning" likely escaped: (1) the seller did not represent it as a controlled substance; it was labeled as bath salts or insect repellent and "not for human consumption," and (2) the statute carves out substances legally sold over the counter that are not represented as controlled substances. The white powder did resemble cocaine physically, but the open retail labeling cut against the "represented to be" element.

Background and statutory framework

Tennessee's drug scheduling system, like the federal Controlled Substances Act it mirrors, lists specific compounds and their analogues by Schedule. The general possession, manufacture, distribution, and sale prohibitions sit at Tenn. Code Ann. § 39-17-417(a). The schedules themselves run through §§ 39-17-406 through 39-17-412.

The synthetic-drug problem in 2010-2011 was that chemists were synthesizing new psychoactive compounds (synthetic cannabinoids, synthetic cathinones) that produced effects similar to scheduled drugs but were not themselves scheduled. The 2010 amendment that became § 39-17-438 (Chapter 922 of the 2010 Public Acts) was Tennessee's first response, but it named specific compounds rather than using broad analogue language. As a result, a product like "White Lightning" containing MDPV could be openly sold without violating § 39-17-438.

The counterfeit-substance statute, § 39-17-423, was designed for a different fact pattern: someone selling baking soda as cocaine, for example. It targets fraudulent representation plus physical mimicry. A product openly labeled as not-for-human-consumption bath salts in factory packaging is not the kind of fraud the statute was built to address.

Citations

• Tenn. Code Ann. § 39-17-406(d)(15) (LSD as Schedule I)
• Tenn. Code Ann. § 39-17-408(b)(4) (cocaine and synthetic cocaine as Schedule II)
• Tenn. Code Ann. § 39-17-417(a) (general possession/manufacture/distribution prohibition)
• Tenn. Code Ann. § 39-17-423 (counterfeit controlled substances)
• Tenn. Code Ann. § 39-17-438 (salvia divinorum and named synthetic cannabinoids)
• Chapter 922 of the Public Acts of 2010 (enacting the synthetic cannabinoid/salvia ban)
• State v. Greene, 1990 WL 192007 (Tenn. Crim. App. Dec. 5, 1990) (synthetic cocaine prohibited)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2011/op11-028.pdf

Original opinion text

Applicability of Tennessee Law to Synthetic Forms of LSD and Cocaine

QUESTIONS

Under Tennessee's current drug statutes, LSD is designated as a Schedule I controlled substance and cocaine is designated as a Schedule II controlled substance. Tenn. Code Ann. § 39-17-406(d)(15) (2010); Tenn. Code Ann. § 39-17-408(b)(4) (2010). Possession, manufacture, distribution, and sale of controlled substances are prohibited by Tenn. Code Ann. § 39-17-417(a) (2010). Recently, products such as "White Lightning" have become available that mimic the effects of cocaine, LSD, and other controlled substances, but such products are not marketed as controlled substances. Based on these new products, you have raised the following questions:

1. Does Tennessee Code Annotated § 39-17-438, as amended by Chapter 922 of the Public Acts of 2010, prohibit the production, manufacture, distribution, or possession of synthetic forms of the drugs LSD and cocaine, including, but not limited to, the product known as "White Lightning"?

2. If not, does Tennessee Code Annotated § 39-17-423 or any other provision of Tennessee Code Annotated prohibit the production, manufacture, distribution, or possession of synthetic forms of the drugs LSD and cocaine, including, but not limited to, the product known as "White Lightning"?

OPINION

1. No. Tennessee Code Annotated § 39-17-438 relates specifically to the active chemical ingredient in salvia divinorum and synthetic cannabinoids. It does not reach synthetic forms of LSD and cocaine, nor does it reach "White Lightning," unless such products contain the active chemical ingredient in salvia divinorum or synthetic cannabinoids.

2. Yes, under some circumstances. Tennessee law prohibits the production, manufacture, distribution, or possession of synthetic forms of cocaine. Tennessee law also proscribes the production, manufacture, distribution, or possession of any product containing any quantity of lysergic acid diethylamide or that contains any of its salts, isomers, and salts of isomers. Tenn. Code Ann. § 39-17-423 further prohibits the sale, delivery, distribution, or manufacture for sale or exchange of any substance represented to be a controlled substance and that is substantially similar in color, shape, size, and markings or lack thereof. A product, however, that neither contains any controlled substance nor represents itself to be a controlled substance would not be prohibited. From the facts available, "White Lightning" appears to fall into this latter category.

ANALYSIS

1. Tennessee Code Annotated § 39-17-438 deals specifically with the production, manufacture, distribution, or possession of the active chemical ingredient in the hallucinogenic plant salvia divinorum or the synthetic cannabinoids JWH-018, JWH-073, HU-210 and HU-211. If a product purporting to be synthetic cocaine or synthetic LSD does not contain any of these chemical ingredients, it would not be proscribed under Tenn. Code Ann. § 39-17-438. It might, however, be proscribed under other sections of the Tennessee Code limiting or prohibiting the production, manufacture, distribution, or possession of controlled chemical substances, depending on its active chemical ingredients. As discussed in greater depth below, "White Lightning" does not appear to have any of the substances listed in Tenn. Code Ann. § 39-17-438 as its active chemical ingredient. Therefore, Tenn. Code Ann. § 39-17-438 would not prohibit its production, manufacture, or distribution.

2. Tenn. Code Ann. § 39-17-406 sets forth lists of substances classified as Schedule I controlled substances. These lists include LSD and other hallucinogenic substances, as well as any material, compound mixture, or preparation which contains any quantity of the listed hallucinogenic substances, or which contains any salts, isomers, and salts of isomers of these substances. Thus, a product purporting to be synthetic LSD which contained any quantity of LSD or any salt, isomer, or salt of isomer of LSD or any of the other Schedule I hallucinogens would be proscribed under Tennessee law.

Tenn. Code Ann. § 39-17-408 sets forth lists of substances classified as Schedule II controlled substances. These lists include cocaine, derivatives of cocaine, and substances that are chemically equivalent to cocaine, including synthetic cocaine. See State v. Greene, 1990 WL 192007, at *3 (Tenn. Crim. App. Dec. 5, 1990) ("a careful reading of T.C.A. § 39-6-408(a)(4) [now Tenn. Code Ann. § 39-17-408(b)(4)] reveals that synthetic cocaine is also prohibited"); see also Tenn. Code Ann. § 39-17-408(b)(4) (Schedule II includes substances produced "by means of chemical synthesis").

Even if a product purporting to be synthetic LSD or synthetic cocaine were found not to contain a controlled substance, it may still qualify as a counterfeit controlled substance under Tenn. Code Ann. § 39-17-423. This provision prohibits the sale, delivery, distribution, or manufacture for sale or exchange of any substance represented to be a controlled substance, as classified in Tenn. Code Ann. §§ 39-17-406 through 39-17-412, and that is substantially similar in color, shape, size, and markings or lack thereof.

The opinion request presents the specific question of whether Tennessee law, in its present form, reaches "White Lightning." "White Lightning" does not appear to be a synthetic form of LSD or cocaine. "White Lightning" is one of a number of names under which methylenedioxypyrovalerone (MDPV) is sold. MDPV is sold as bath salts, insect repellent, or plant fertilizer and labeled "not for human consumption." In spite of this warning, it appears that users are snorting or otherwise ingesting the MDPV. MDPV causes increased blood pressure, increased heart rate, agitation, hallucinations, extreme paranoia, and delusions. Press Release, American Association of Poison Control Centers, U.S. Poison Centers Raise Alarm About Toxic Substance Marketed as Bath Salts (Dec. 21, 2010), available at http://www.aapcc.org/dnn/NewsandEvents/NewsMediaResources.aspx. MDPV is not currently a controlled substance under Tennessee law or federal law.

If "White Lightning" were chemically analyzed and found not to contain any controlled substance, as appears to be the case, the next question would be whether "White Lightning" falls under the classification of a counterfeit controlled substance under Tenn. Code Ann. § 39-17-423. From the facts available, it probably would not.

Under Tenn. Code Ann. § 39-17-423, a product purporting to be a controlled substance must also substantially imitate or be substantially similar in "color, shape, size, and markings or lack thereof, to a Schedule I, II, III or IV controlled substance." "White Lightning," which is a white powder, bears some substantial physical similarity to cocaine. Caroline Moses, Legal Versions of Cocaine, LSD, Ecstasy for Sale in Tenn., Oct. 7, 2010, http://www.wsmv.com/print/25319707/detail.html. However, it is sold openly in gas stations and other retail outlets, in factory packaging, labeled as not for human consumption and purporting to be an insect repellant or bath salts. Id. Tenn. Code Ann. § 39-17-423 specifically excludes from its purview any substance that may be legally purchased at a drug or grocery store without a prescription, so long as the substance is not represented to be a controlled substance.

ROBERT E. COOPER, JR.
Attorney General and Reporter

JOSEPH F. WHALEN
Associate Solicitor General

RACHEL E. WILLIS
Senior Counsel

Requested by:
The Honorable Roy Herron
State Senator
309 War Memorial Building
Nashville, TN 37243-0024