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U.S. Chemical Control

The Controlled Substances Act (CSA) is the principal federal law directed at combating the illicit manufacture and distribution of controlled drugs in the United States. Since its passage in 1970, the CSA has been amended on a number of occasions. The most recent change in the scope of the CSA is the implementation of amendments and regulations regarding chemicals and equipment used in the illicit production of controlled substances. The clandestine production of drugs is dependent on the availability of chemicals necessary to accomplish the illicit activity. Most of the drugs in the illicit traffic, with the exception of marijuana, require chemicals to be produced. For example, although cocaine is produced naturally in the coca plant, large amounts of chemicals are needed to successfully extract the drug and purify it for the illicit market.

The controls placed on chemicals are substantially less than those imposed on controlled drugs because most of the chemicals have legitimate industrial applications. For this reason, the term "regulated" more appropriately describes chemicals covered under the CSA as compared to the term "controlled" that is used for drugs. Several items that are regulated as chemicals under the CSA are also non-controlled ingredients in drug products lawfully marketed under the Federal Food, Drug and Cosmetic Act and are, therefore, widely available to the general public. Examples of these products include over-the-counter (OTC) medications containing ephedrine, pseudoephedrine, and/or phenylpropanolamine.

DEA chemical control was initiated in the United States with the passage of the Chemical Diversion and Trafficking Act of 1988 (CDTA) that became effective on August 1, 1989. The initial legislation was drafted in 1985. The CDTA regulated 1 2 precursor chemicals, eight essential chemicals, tableting machines, and encapsulating machines by imposing record keeping and import/export reporting requirements on transactions involving these materials. United States companies were the main source of tons of chemicals used in the production of cocaine in the Andean countries of South America. The principal chemicals used in the production of cocaine at that time included acetone, methyl ethyl ketone, methyl isobutyl ketone, ethyl ether, potassium permanganate, hydrochloric acid, and sulfuric acid. Soon after the CDTA became effective, the quantity of many of these chemicals exported from the United States declined significantly.

Cocaine traffickers reacted to the reduction in the availability of U.S. chemicals for illicit production by developing new sources of supply in other parts of the world. The U.S. Government, with the leadership and assistance of the DEA, responded by eliciting the support of the international community for worldwide chemical control. The international community responded by incorporating Article 12 into the U.N. Convention Against Illicit Drug Traffic of 1988. Article 12 established chemical controls on a list of 22 chemicals used in the production of heroin, cocaine, LSD, PCP, amphetamine, methamphetamine, MDMA and related drugs, and numerous other clandestinely produced drugs. The DEA has sponsored a number of international meetings and training seminars to educate other nations in the benefits of chemical control as a tool to fight drug trafficking. DEA efforts have resulted in chemical control legislation and active programs to prevent the diversion of chemicals used in the clandestine production of drugs in many nations.

The CDTA also had an initial impact on the number of clandestine methamphetamine laboratories in the United States. In the first three years after the law was passed, the number of clandestine laboratories seized by the DEA declined by 61 percent. In addition, injuries attributed to illicitly manufactured controlled substances that were reported to the Drug Abuse Warning Network (DAWN) declined by almost 60 percent during the same time period.

The provisions of the CDTA regarding bulk ephedrine and pseudoephedrine caused methamphetamine traffickers to look for other sources of the precursors. The traffickers noted that the CDTA contained an exemption for over-the-counter (OTC) products that contained regulated chemicals. They took advantage of this loophole by turning to single entity OTC ephedrine tablets and capsules whose single active ingredient was ephedrine as a source of precursor material for the illicit production of methamphetamine.

Federal legislation was passed in 1993 in response to the methamphetamine traffickers' switch to OTC ephedrine products. The legislation was the Domestic Chemical Diversion and Control Act of 1993 (DCDCA) that became effective on April 16, 1994. The DCDCA eliminated the CDTA terminology of "precursors" and "essential" for chemicals regulated under that act and replaced them with the terms "List I" and "List II" chemicals. The DCDCA also removed the exemption for OTC single entity ephedrine tablets thus closing the loophole left by the CDTA. In addition, it gave the DEA the authority to remove the exemption for any other drugs containing listed chemicals if it was shown that they were being diverted for the illicit production of controlled substances. The DCDCA required that all manufacturers, distributors, importers, and exporters of List I chemicals be registered with the DEA and that bulk manufacturers of List I and List II chemicals report on the total quantity of listed chemicals produced during the year. Record keeping and reporting requirements for transactions in single-entity ephedrine products were also imposed by the DCDCA.

Methamphetamine traffickers quickly reacted to the provisions of the DCDCA by switching to single-entity pseudoephedrine products and combination products of ephedrine. The Comprehensive Methamphetamine Control Act of 1996 (MCA) was passed to counter the traffickers' response to the DCDCA. The MCA expanded regulatory controls on all lawfully marketed drug products containing ephedrine, pseudoephedrine, and phenylpropanolamine, and it increased penalties for the trafficking and manufacturing of methamphetamine and listed chemicals. The MCA also made it unlawful for any person to distribute a "laboratory supply" to a person who uses, or attempts to use, that "laboratory supply" to manufacture a controlled drug or listed chemicals with reckless disregard for the illegal uses to which such "laboratory supply" will be put. The Special Surveillance List was published by the Attorney General and consisted of all listed chemicals, all mixtures, and all OTC products and dietary supplements that contain listed chemicals, 28 other chemicals frequently used in the clandestine production of controlled drugs, or listed chemicals and 4 pieces of laboratory equipment commonly found at clandestine drug laboratories. Individuals who violate the "laboratory supply" provision of the MCA are subject to a maximum civil fine of $25,000. Businesses that violate the provision are subject to a maximum civil fine of $250,000.

Ready access to chemical supplies is critical to drug traffickers. Traffickers continuously look for loopholes in legislation and new methods of clandestine production routes in an effort to continue their illegal activity. The DEA has embraced chemical control as an important tool in reducing the availability of clandestinely produced drugs and is committed to depriving drug traffickers of the chemicals needed to manufacture illicit drugs. Currently, List I and List II of the CSA contain 35 chemicals.