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Jailed merchant had sued to halt law on synthetic pot

Bays

Before he was led off in handcuffs this week on a federal drug warrant, Barry Bays tangled with officials over the sale of what he calls “air freshener” and “aromatherapy” products.

The owner of Little Arm Inc., which does business as B&B Distribution, Bays was picked up by Fort Wayne police and federal authorities on a warrant from a federal court in Texas, accusing him of being involved in the trafficking of synthetic marijuana.

If he’s convicted, Bays faces up to 20 years in prison on the federal charge, the result of a bill signed into law in 2012 by President Barack Obama banning the harmful chemicals used to manufacture synthetic marijuana.

But a few months ago, Bays led a lawsuit filed with two other manufacturers of “aromatherapy” products – one in Huntington and the other in Bloomington – attacking a newly enacted state law making it illegal to possess synthetic marijuana.

As defendants, the lawsuit targets all of Indiana’s prosecutors and claims the law, passed in May, criminalizes substances that look like other substances to “reasonable people.”

Calling the law “utterly nonsensical and irrational,” Bays and the two other plaintiffs want a federal judge to declare the state law unconstitutional and prevent its enforcement.

Law tweaked

The new state law actually just tweaked an earlier state law, passed by the state legislature in 2012, which cracked down on the sale of synthetic marijuana and other banned synthetic drugs.

The new version of the law also went after those who manufactured the products as well.

The laws include not only the synthetic marijuana-type drugs, such as “Spice” and “K-2,” but also went after “Bath Salts,” a synthetic drug known as a “substituted cathinone,” which mimics a stimulant used in East Africa and the Middle East known as Khat, according to The Partnership for a Drug-Free America.

Either one is a cocktail of chemical compounds that can vary from packet to packet, brand name to brand name. And the chemicals to make these drugs are easily available all over the Internet – identified as “research chemicals” and sold on websites like SkullofSkill.com.

Bays was, according to the federal criminal documents, buying his chemicals from someone named Samuel Madeley in Texas. Madeley told investigators his role was to connect chemical dealers with those who needed the synthetic cannabis chemicals to spray on the plant material for smoking.

Bays was buying so much of the chemicals that Madeley found someone else to deal with him, according to court documents.

Law enforcement has been looking into Bays’ activities for a while. In December, police officers searched his warehouse and manufacturing building at 4914 Speedway Drive, as well as his home in the 2500 block of East Tillman Road.

The evidence that led to the search warrants was from undercover purchases of synthetic marijuana known as “Street Legal.”

Investigators snooped through his trash and found discarded labels for “Street Legal” and “Roses Air Freshener” similar to the ones purchased. And other packaging included packaging for plant leaves used to make synthetic cannabis.

More than a pound of the synthetic cannabinoid “AKB48” was also found, according to court documents.

Eventually, Bays moved his operation to a distribution facility in Defiance, Ohio. Indianapolis police intercepted a package mailed from his new shop to “Hazy Daze” in Galveston, Texas.

In the box, they found more than 2 kilograms of synthetic marijuana packaged as “B2 Da Bomb,” “Street Legal,” and “V8 Air Freshener.” There was also a letter in the package, signed by Bays, saying the chemicals were not banned in Indiana.

Lab tests revealed the substances weren’t on the state’s banned lists but were part of an up-and-coming group of chemicals identified by the DEA and as an analogue of a banned substance that is illegal to possess when it is intended for human consumption, according to court documents.

The lawsuit

Look-alike drugs are at the core of the lawsuit filed by Bays and the other manufacturers earlier this year.

Bays contends that a reasonable person could conclude that stamps look like LSD packets and therefore are a look-alike drug, alongside catnip because it looks like marijuana, and talcum powder because it is a white powdery substance. Cigarettes with their intoxicating effect and individually wrapped condoms are also problematic because they cost more when they are sold individually, according to the lawsuit.

Bays’ products are necessary, he contends in an affidavit, because the stores that carry them cater to individuals who maintain a “tough guy/girl image” while also “enjoying pleasurable fragrances and scents but do not want to be seen buying candles, air fresheners and similar products from stores such as Hallmark or Bed, Bath, and Beyond.”

“Little Arm’s Products have been labeled to state, in part: ‘for novelty purposes only not for human consumption,” Bays said in court documents. “Little Arm has also labeled (the products) to specifically state ‘(p)lease call poison control if consumed.”

Enforcement of the law and alleged pre-emptive contact by state officials to businesses selling the products have damaged Bays’ business. The laws, they contend, are unconstitutional because they are vague and irrational.

On behalf of the state’s county prosecutors, the office of the Indiana Attorney General filed a response.

Denying most of Bays’ claims, with the exception of a few outlining the new law, the state contends the federal court doesn’t have jurisdiction, in part, because there’s been no controversy yet.

While the federal civil case awaits a response to Little Arm’s motion for summary judgment, Bays awaits a hearing in U.S. District Court in Fort Wayne.

In the custody of the U.S. Marshals Service in the Allen County Jail, Bays is scheduled to appear Tuesday for a hearing on his identity and whether he should be detained while the case progresses.

rgreen@jg.net

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