NEW DRUG FAD IS LEGAL IN MINN., NOT N.D.

A middle-aged woman in the pink halter top strolled into the Moorhead
store and headed straight for the herbal incense.

Flipping through the shiny plastic packets, she found one she hadn't
tried before, a black bag labeled "Smoke XXXX."

After shelling out $50 for the 3-gram pouch, she climbed into her
minivan and tore open the package.

Carefully, she poured the potpourri-like substance into her "Stairway
to Heaven" hitter box (a small container normally used for
marijuana), loaded up her cigarette-style pipe and fired it up.

She took a drag, drawing the smoke deep into her lungs, and waited
for the high to arrive.

The woman confessed to a Forum reporter by her side that she had "not
a clue" about the name or nature of the mind-altering substance
sprayed on the incense.

The packaging didn't list the drug in the ingredients, but it did
warn that the incense was "not for human consumption."

"But actually it is," she said.

Asked how she knows, she said, "Because I smoke it and I'm still
alive."

The woman spoke to The Forum on condition of anonymity, fearful she
would lose her job at a local financial institution.

With the rest of the incense still in her hitter box, she drove away
from the parking lot and turned toward her home in North Dakota,
where the substance she'd just ingested was outlawed in February.

As she crossed the Red River into Fargo, she committed a felony.

And she's not alone.

Since May 1, Fargo police have arrested or sought charges against at
least a dozen people for possessing synthetic drugs that mimic the
high produced by smoking marijuana, Lt. Pat Claus said.

The chemically enhanced incense is legal in Minnesota. It's commonly
known as Spice or K2, but also sells under a host of other names.
Among those seized by Fargo police are Spark 10, Fire N' Ice, Karma
Kind and California Dreams.

'Not a good thing'

Nowhere on the packaging does it instruct the user to smoke the
incense in a pipe. But the way the product is marketed often appears
to be less of a "wink, wink" and more of an emphatic nod. For
instance, one website selling a brand of premium Spice offers a free
pipe with an order of 2 grams for $34.99.

"They know that the manufacturer who put that stuff on there intended
them to smoke it and get the hallucinogenic benefits," said Howard
Anderson, executive director of the North Dakota State Board of
Pharmacy.

The woman who recently purchased incense in Moorhead used to have it
delivered to her Fargo home after purchasing it online. But since the
Board of Pharmacy issued an emergency rule on Feb. 25, defining
several chemicals that are sprayed on the incense as controlled
substances and thereby making them illegal to possess or sell, the
company will no longer mail it to her home.

So, she goes to Moorhead, where the incense is sold at Discontent,
Mellow Mood and Mother's Music.

Moorhead police know it's being sold, but they haven't encountered it
on the street or received any reports from hospitals that it's
causing health problems, Lt. Brad Penas said.

Still, he'd like to see Minnesota follow the lead of North Dakota and
a growing number of states racing to ban it.

"It's not a good thing for us to be having for sale over here, making
it legal for somebody that's 18 years old to walk in, purchase it and
turn around and walk out and sell it to a kid that's 14 and there's
no repercussions for anybody," said Penas, who oversees the
department's narcotics division.

Minnesota Board of Pharmacy Executive Director Cody Wiberg said his
office had "not received a single call from anyone about this" until
a phone call from The Forum last week.

The board just finished a major revision of its Schedule I controlled
substances a couple of months ago, he said.

"Based on what I know right now, even though we have to do more
research, I probably will have our board begin the rulemaking process
to place these in Schedule I," he said.

Mother's Music co-owner Brady Bredell said the store carries the
product because its competitors do, and will continue as long as it's
legal. He said he hopes North Dakota will reconsider and make
possession of the substance a misdemeanor offense, at most.

"The potential is, they're going to be locking up their own sons and
daughters and putting them in prison for this," he said.

Usage blossoms

Every morning at the Missouri Poison Center, Director Anthony Scalzo
sits down and scans through the list of calls from the day before.

In November, he noticed one call referring to a marijuana substitute.
He noted a few similar calls in December, and about a dozen more in
January.

The callers, he said, were mostly emergency room doctors reporting
patients who had smoked K2. They had become extremely agitated and
anxious, with accelerated heart rates and blood pressures as high as
200/110 (for adults, 120/80 is considered healthy).

The symptoms aren't typical of someone who smokes marijuana, he said.
In a few cases, K2 users reported tremors and hallucinations.

By mid-May, poison centers nationwide had logged 352 similar cases in
35 states. As of Thursday, the total stood at 545 cases in 41 states,
according to the American Association of Poison Control Centers.

"It's just blossoming around the country," Scalzo said.

K2 lab tests found the incense had been sprayed with a compound
called JWH-018 -- a chemical originally synthesized in 1995 by a
graduate student of research professor John W. Huffman at Clemson
University -- or the related JWH-073.

The chemicals, known as synthetic cannabinoids, act on the same brain
receptors as THC, the active ingredient in marijuana.

Huffman said JWH-018 "was not designed to be a super-THC." He points
out there are no valid, peer-reviewed studies of the compound's
effects on humans, or any data regarding its toxicity.

"It should absolutely NOT be used as a recreational drug," he wrote
in a blanket response to e-mailed questions.

Scalzo said the unknowns of chemically enhanced incense is what
concerns health officials.

"You don't know what you're getting. You don't know what's in there.
There's no quality control," he said.

Emergency action taken

The North Dakota Board of Pharmacy raised similar concerns when it
took emergency action classify JWH-018 and six other chemicals as
Schedule I controlled substances earlier this year.

North Dakota law states that the board shall place a substance under
Schedule I if it has "high potential for abuse" and no accepted
medical use in treatment.

North Dakota is one of three states where JWH-018 and other drugs
used in incense blends are illegal, the others being Kansas and
Kentucky.

Bans take effect Thursday in Alabama, Georgia and Tennessee.
Lawmakers in seven other states have either approved bans that are
awaiting a governor's signature or are considering bans.

North Dakota's emergency rule took effect Feb. 26, the day after the
board passed it. The board adopted it as a final rule in May and is
waiting for Attorney General Wayne Stenehjem's review and approval,
said Anderson, the board's director. It will be introduced as
legislation in 2011, he said.

For law enforcement purposes, it's already in effect.

Under state law, anyone found in possession of a controlled substance
without a doctor's prescription may be charged with a Class C felony,
or a Class B felony if they're within 1,000 feet of a school.

However, in the case of marijuana, possession of one ounce or less is
a misdemeanor -- in other words, the law is harsher when it comes to
what some consider imitation marijuana than for the real thing.

Ryan Zueger, co-owner of Big Willies in Mandan, N.D., where customers
used to be able to buy Spark 20 and 10 other brands of the incense,
said 50 percent or more of his sales came from the product prior to
the board's action, which he criticized as overreaching and being
done in an emergency meeting without public notice.

The board action was prompted in large part by two teenagers who
wound up in a Bismarck emergency room after injecting stardust, a
stimulant mixed with bath salts that produces a high that's been
compared to cocaine or methamphetamine. (The Moorhead shops don't
carry stardust.)

Zueger said his shop stopped selling stardust two days before the
board outlawed its active ingredient, mephedrone, and a second
stimulant.

"If people are going to get hurt, I don't really want to carry that
product," he said.

But the board went a step further in also banning JWH-018 and four
other drugs sprayed on incense.

"We just decided, let's schedule them all and make it illegal to
possess or sell them," Anderson said.

Zueger said the board jumped the gun without evidence the incense
causes negative health effects. The incense is sold as aromatherapy,
he said, and some people prefer it to prescription painkillers. One
customer from Montana dropped by every two to three weeks to buy it
for his son who was in a debilitating car accident, he said.

But Anderson said the lack of information on the packaging is what
creates the potential for harm.

"People buy this stuff and they think, 'Well, it's for sale, must be
OK.' But it isn't," he said.

Staying competitive

Bredell, the Mother's Music co-owner, said the only reason his record
store carries the incense is because customers requested it "and we
got sick of giving people the address of our competitors."

"The music business is struggling, and we're just trying to stay
competitive to similar businesses," he said.

As for how customers are using the product, he said, "We sell it as
incense, and I guess that's all I can say about that."

A manager at Mellow Mood who spoke to The Forum about the incense
refused to give his last name for attribution. He provided the e-mail
address of the store's owner, who didn't return a message seeking
comment.

Staff at Discontent also declined comment and provided a phone number
for the store's owner, who couldn't be reached for comment.

The Mellow Mood manager said he believes some customers from North
Dakota still don't realize it's illegal there. He said he won't be
surprised if the product is eventually outlawed in Minnesota, given
the reaction in other states.

Legislation likely in Minnesota

It's uncommon for a drug to be banned in North Dakota and not in
Minnesota, but there are exceptions -- although one of them is about
to expire.

Salvia divinorum, a mint herb native to Mexico, and its active
ingredient, salvinorin A, were banned by the North Dakota Legislature
in 2007.

Minnesota lawmakers caught up last spring, approving a ban that takes
effect Aug. 1.