§ 4228. Unlawful manufacture, distribution, dispensing, or sale of a noncontrolled drug or substance

(a) It is unlawful for any person to knowingly dispense, manufacture, process, package, distribute, or sell or attempt to dispense, manufacture, process, package, distribute, or sell a noncontrolled drug or substance upon either:

(1) the express or implied representation that the drug or substance is a controlled drug; or

(2) the express or implied representation that the drug or substance is of such nature or appearance that the dispensee or purchaser will be able to dispense or sell the drug or substance as a controlled drug.

(b) For the purposes of this section, a "controlled" drug or substance shall mean those drugs or substances listed under schedules I through V in the federal Controlled Substances Act, 21 U.S.C. § 801 et seq. as amended.

(c) In determining whether there has been a violation of subsection (a), the following factors shall be considered:

(1) whether the physical appearance of the package or container containing the noncontrolled drug or substance is substantially similar to the physical appearance of packages and containers regularly used in the dispensing or sale of controlled drugs or substances;

(2) whether the dispensing or sale or attempted dispensing or sale included an exchange or demand for money or other valuable property as consideration for the noncontrolled drug or substance and the amount of such consideration was substantially in excess of the reasonable value of the noncontrolled drug or substance;

(3) whether the overall physical appearance of the capsule, tablet, or other finished product containing the noncontrolled drug or substance is substantially similar in size, shape, color, and markings to the physical appearance of a capsule, tablet, or other finished product containing a specific controlled drug or substance.

(d) The provisions of this section shall not be applicable to:

(1) law enforcement officers acting in the course and legitimate scope of their employment;

(2) persons who dispense, manufacture, process, package, distribute, or sell noncontrolled substances to licensed medical practitioners for use as placebos in the course of professional practice or research or for use in FDA-approved investigational new drug trials;

(3) licensed medical practitioners, pharmacists, and other persons authorized to dispense or administer controlled substances and acting in the legitimate performance of their professional license.

(e) In any prosecution under this section, it is no defense that the accused believed the noncontrolled drug or substance to actually be a controlled drug or substance.

(f) A person convicted of violating this section shall be subject to imprisonment for a term of up to one year or a fine of up to $5,000.00, or both. If the violation of this section involves dispensing, distributing, or selling to a person under the age of 21, the person shall be subject to a term of imprisonment of not more than two years or fined up to $10,000.00, or both. (Added 1981, No. 177 (Adj. Sess.), § 1; amended 1989, No. 100, § 16.)