(1) For the purposes of this section, the term “imitation controlled substance” means a pill, capsule, tablet, or substance in any form whatsoever which is not a controlled substance enumerated in chapter 893, which is subject to abuse, and which:
(a) By overall dosage unit appearance, including color, shape, size, markings, and packaging, or by representations made, would cause the likelihood that such a pill, capsule, tablet, or substance will be mistaken for a controlled substance unless such substance was introduced into commerce prior to the initial introduction into commerce of the controlled substance which it is alleged to imitate; or
(b) By express or implied representations, purports to act like a controlled substance as a stimulant or depressant of the central nervous system and which is not commonly used or recognized for use in that particular formulation for any purpose other than for such stimulant or depressant effect, unless marketed, promoted, or sold as permitted by the United States Food and Drug Administration.
(2) In those instances where the appearance of the dosage unit is not reasonably sufficient to establish that the substance is an imitation controlled substance, the court or authority concerned may consider, in addition to all other logically relevant factors, the following factors as related to “representations made” in determining whether the substance is an imitation controlled substance:
(a) Statements made by an owner or by anyone else in control of the substance concerning the nature of the substance or its use or effect.
(b) Statements made to the recipient that the substance may be resold for inordinate profit.
(c) Whether the substance is packaged in a manner normally used for illicit controlled substances.
(d) Evasive tactics or actions utilized by the owner or person in control of the substance to avoid detection by law enforcement authorities.
(e) Prior convictions, if any, of an owner, or anyone in control of the object, under state or federal law related to controlled substances or fraud.
(f) The proximity of the substances to controlled substances.
(3) It is unlawful for any person to manufacture, distribute, sell, give, or possess with the intent to manufacture, distribute, sell, or give an imitation controlled substance. Any person who violates this subsection is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(4) It is unlawful for any person 18 years of age or over to knowingly sell or distribute an imitation controlled substance to a person under the age of 18 years. Any person who violates this subsection is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(5) It is unlawful for any person to place in any newspaper, magazine, handbill, or other publication or to post or distribute in any public place any advertisement or solicitation with reasonable knowledge that the purpose of the advertisement or solicitation is to promote the distribution of imitation controlled substances. Any person who violates this subsection is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(6) Civil or criminal liability may not be imposed by virtue of this section against:
(a) Any person operating in accordance with the Florida Comprehensive Drug Abuse Prevention and Control Act who manufactures, dispenses, sells, gives, or distributes an imitation controlled substance for use as a placebo by a licensed practitioner in the course of professional practice or research; or
(b) A law enforcement officer acting in the officer’s official capacity during the course of an active criminal investigation relating to controlled substances which is approved or authorized by the officer’s agency or to an informer or third party acting under the direction or control of such an officer as part of an authorized, active criminal investigation relating to controlled substances.
History.—s. 1, ch. 85-319; s. 197, ch. 91-224; s. 1, ch. 2001-95.