TITLE 37

FOOD, DRUGS, AND OIL

CHAPTER 27

UNIFORM CONTROLLED SUBSTANCES

ARTICLE I

37-2701.  Definitions. As used in this chapter:

(a)  "Administer" means the direct application of a controlled substance whether by injection, inhalation, ingestion, or any other means to the body of a patient or research subject by:

(1)  A practitioner or, in his presence, by his authorized agent; or

(2)  The patient or research subject at the direction and in the presence of the practitioner.

(b)  "Agent" means an authorized person who acts on behalf of or at the direction of a manufacturer, distributor or dispenser. It does not include a common or contract carrier, public warehouseman or employee of the carrier or warehouseman.

(c)  "Board" means the state board of pharmacy created in chapter 17, title 54, Idaho Code, or its successor agency.

(d)  "Bureau" means the drug enforcement administration, United States department of justice, or its successor agency.

(e)  "Controlled substance" means a drug, substance or immediate precursor in schedules I through VI of article II of this chapter.

(f)  "Counterfeit substance" means a controlled substance which, or the container or labeling of which, without authorization, bears the trademark, trade name, or other identifying mark, imprint, number or device, or any likeness thereof, of a manufacturer, distributor or dispenser other than the person who in fact manufactured, distributed or dispensed the substance.

(g)  "Deliver" or "delivery" means the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship.

(h)  "Director" means the director of the Idaho state police.

(i)  "Dispense" means to deliver a controlled substance to an ultimate user or research subject by or pursuant to the lawful order of a practitioner, including the packaging, labeling, or compounding necessary to prepare the substance for that delivery.

(j)  "Dispenser" means a practitioner who dispenses.

(k)  "Distribute" means to deliver other than by administering or dispensing a controlled substance.

(l)  "Distributor" means a person who distributes.

(m)  "Division" means the Idaho division of occupational and professional licenses.

(n)  "Drug" means: (1) substances recognized as drugs in the official United States Pharmacopoeia, official Homeopathic Pharmacopoeia of the United States, or official National Formulary, or any supplement to any of them; (2) substances intended for use in the diagnosis, cure, mitigation, treatment or prevention of disease in man or animals; (3) substances, other than food, intended to affect the structure or any function of the body of man or animals; and (4) substances intended for use as a component of any article specified in clause (1), (2), or (3) of this subsection. It does not include devices or their components, parts, or accessories.

(o)  "Drug paraphernalia" means all equipment, products and materials of any kind used, intended for use, or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance in violation of this chapter. It includes, but is not limited to:

(1)  Kits used, intended for use, or designed for use in planting, propagating, cultivating, growing or harvesting of any species of plant which is a controlled substance or from which a controlled substance can be derived;

(2)  Kits used, intended for use, or designed for use in manufacturing, compounding, converting, producing, processing or preparing controlled substances;

(3)  Isomerization devices used, intended for use, or designed for use in increasing the potency of any species of plant which is a controlled substance;

(4)  Testing equipment used, intended for use, or designed for use in identifying or in analyzing the strength, effectiveness or purity of controlled substances; however, testing equipment used, intended for use, or designed for use in identifying whether a controlled substance contains fentanyl, a fentanyl analog, or any derivative thereof shall not be considered drug paraphernalia;

(5)  Scales and balances used, intended for use, or designed for use in weighing or measuring controlled substances;

(6)  Diluents and adulterants, such as quinine hydrochloride, mannitol, mannite, dextrose and lactose, used, intended for use, or designed for use in cutting controlled substances;

(7)  Separation gins and sifters used, intended for use, or designed for use in removing twigs and seeds from, or in otherwise cleaning or refining, marijuana;

(8)  Blenders, bowls, containers, spoons and mixing devices used, intended for use, or designed for use in compounding controlled substances;

(9)  Capsules, balloons, envelopes and other containers used, intended for use, or designed for use in packaging small quantities of controlled substances;

(10) Containers and other objects used, intended for use, or designed for use in storing or concealing controlled substances;

(11) Hypodermic syringes, needles and other objects used, intended for use, or designed for use in parenterally injecting controlled substances into the human body;

(12) Objects used, intended for use, or designed for use in ingesting, inhaling, or otherwise introducing marijuana, cocaine, hashish, or hashish oil into the human body, such as:

(i)    Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls;

(ii)   Water pipes;

(iii)  Carburetion tubes and devices;

(iv)   Smoking and carburetion masks;

(v)    Roach clips: meaning objects used to hold burning material, such as a marijuana cigarette, that has become too small or too short to be held in the hand;

(vi)   Miniature cocaine spoons and cocaine vials;

(vii)  Chamber pipes;

(viii) Carburetor pipes;

(ix)   Electric pipes;

(x)    Air-driven pipes;

(xi)   Chillums;

(xii)  Bongs;

(xiii) Ice pipes or chillers;

In determining whether an object is drug paraphernalia, a court or other authority should consider, in addition to all other logically relevant factors, the following:

1.  Statements by an owner or by anyone in control of the object concerning its use;

2.  Prior convictions, if any, of an owner, or of anyone in control of the object, under any state or federal law relating to any controlled substance;

3.  The proximity of the object, in time and space, to a direct violation of this chapter;

4.  The proximity of the object to controlled substances;

5.  The existence of any residue of controlled substances on the object;

6.  Direct or circumstantial evidence of the intent of an owner, or of anyone in control of the object, to deliver it to persons whom he knows, or should reasonably know, intend to use the object to facilitate a violation of this chapter; the innocence of an owner, or of anyone in control of the object, as to a direct violation of this chapter shall not prevent a finding that the object is intended for use or designed for use as drug paraphernalia;

7.  Instructions, oral or written, provided with the object concerning its use;

8.  Descriptive materials accompanying the object that explain or depict its use;

9.  National and local advertising concerning its use;

10. The manner in which the object is displayed for sale;

11. Whether the owner, or anyone in control of the object, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products;

12. Direct or circumstantial evidence of the ratio of sales of the object(s) to the total sales of the business enterprise;

13. The existence and scope of legitimate uses for the object in the community;

14. Expert testimony concerning its use.

(p)  "Financial institution" means any bank, trust company, savings and loan association, savings bank, mutual savings bank, credit union, or loan company under the jurisdiction of the state or under the jurisdiction of an agency of the United States.

(q)  "Immediate precursor" means a substance which the board has found to be and by rule designates as being the principal compound commonly used or produced primarily for use, and which is an immediate chemical intermediary used or likely to be used in the manufacture of a controlled substance, the control of which is necessary to prevent, curtail or limit manufacture.

(r)  "Isomer" means the optical isomer, except as used in section 37-2705(d), Idaho Code.

(s)  "Law enforcement agency" means a governmental unit of one (1) or more persons employed full-time or part-time by the state or a political subdivision of the state for the purpose of preventing and detecting crime and enforcing state laws or local ordinances, employees of which unit are authorized to make arrests for crimes while acting within the scope of their authority.

(t)  "Manufacture" means the production, preparation, propagation, compounding, conversion or processing of a controlled substance, and includes extraction, directly or indirectly, from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of the substance or labeling or relabeling of its container, except that this term does not include the preparation or compounding of a controlled substance:

(1)  By a practitioner as an incident to his administering, dispensing or, as authorized by board rule, distributing of a controlled substance in the course of his professional practice; or

(2)  By a practitioner, or by his authorized agent under his supervision, for the purpose of, or as an incident to, research, teaching, or chemical analysis and not for delivery.

(u)  "Marijuana" or "marihuana" means all parts of the plant of the genus Cannabis, regardless of species, and whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin. It does not include:

(1)  Industrial hemp or hemp possessed, grown, transported, farmed, produced, processed, or possessed by any other entity engaged in hauling, transporting, delivering, or otherwise moving hemp in interstate or intrastate commerce pursuant to a license granted under the provisions of the 2014 farm bill, the 2018 farm bill, 7 CFR 990.1 et seq., or the approved state plan for the state of Idaho. "Industrial hemp" or "hemp" means the plant species Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a measured total delta-9 tetrahydrocannabinol concentration of not more than three-tenths of one percent (0.3%) on a dry weight or volume basis that shall determine the total delta-9 tetrahydrocannabinol (THC) concentration, including both delta-9 tetrahydrocannabinol and delta-9 tetrahydrocannabinolic acid (THCA) evaluated by decarboxylation during analysis, or by measuring each compound and calculating the total percentage of delta-9 tetrahydrocannabinol if the THCA was decarboxylated, which must not exceed three-tenths of one percent (0.3%).

(2)  The mature stalks of the plant genus Cannabis unless the same are intermixed with prohibited parts thereof, fiber produced from the stalks, oil or cake made from the seeds or the achene of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, except the resin extracted therefrom or where the same are intermixed with prohibited parts of such plant, fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.

Evidence that any plant material or the resin or any derivative thereof, regardless of form, that does not meet the definition of "industrial hemp" or "hemp" as provided in this section, or that is possessed without a license granted under the provisions of the 2014 farm bill, the 2018 farm bill, 7 CFR 990.1 et seq., or the approved state plan for the state of Idaho, contains any of the chemical substances classified as tetrahydrocannabinols shall create a presumption that such material is "marijuana" as defined and prohibited herein. "Marijuana" does not include drug product in finished dosage formulation that has been approved by the United States food and drug administration that contains: (i) cannabidiol (2-[1R-3-methyl-6R-(1-methylethenyl)-2-cyclohexen-1-yl]-5-pentyl-1,3-benzenediol), derived from cannabis and no more than one-tenth of one percent (0.1%) (w/w) residual tetrahydrocannabinols; or (ii) nabiximols.

(v)  "Narcotic drug" means any of the following, whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis:

(1)  Opium and opiate, and any salt, compound, derivative, or preparation of opium or opiate.

(2)  Any salt, compound, isomer, derivative, or preparation thereof that is chemically equivalent or identical with any of the substances referred to in clause (1), but not including the isoquinoline alkaloids of opium.

(3)  Opium poppy and poppy straw.

(4)  Coca leaves and any salt, compound, derivative, or preparation of coca leaves, and any salt, compound, isomer, derivative, or preparation thereof which is chemically equivalent or identical with any of these substances, but not including decocainized coca leaves or extractions of coca leaves which do not contain cocaine or ecgonine.

(w)  "Opiate" means any substance having an addiction-forming or addiction-sustaining liability similar to morphine or being capable of conversion into a drug having addiction-forming or addiction-sustaining liability. It does not include, unless specifically designated as controlled under section 37-2702, Idaho Code, the dextrorotatory isomer of 3-methoxy-n-methylmorphinan and its salts (dextromethorphan). It does include its racemic and levorotatory forms.

(x)  "Opium poppy" means the plant of the species Papaver somniferum L., except its seeds.

(y)  "Peace officer" means any duly appointed officer or agent of a law enforcement agency, as defined herein, including but not limited to a duly appointed investigator or agent of the Idaho state police, an officer or an employee of the board of pharmacy who is authorized by the board to enforce this chapter, an officer of the Idaho state police, a sheriff or deputy sheriff of a county, or a marshal or policeman of any city.

(z)  "Person" means individual, corporation, government, or governmental subdivision or agency, business trust, estate, trust, partnership or association, or any other legal entity.

(aa) "Poppy straw" means all parts, except the seeds, of the opium poppy after mowing.

(bb) "Practitioner" means:

(1)  A physician, dentist, veterinarian, scientific investigator, or other person licensed, registered or otherwise permitted to distribute, dispense, conduct research with respect to, or administer a controlled substance in the course of his professional practice or research in this state;

(2)  A pharmacy, hospital, or other institution licensed, registered, or otherwise permitted to distribute, dispense, conduct research with respect to, or administer a controlled substance in the course of its professional practice or research in this state.

(cc) "Prescribe" means a direction or authorization permitting an ultimate user to lawfully obtain or be administered controlled substances.

(dd)  "Prescriber" means an individual currently licensed, registered or otherwise authorized to prescribe and administer controlled substances in the course of professional practice.

(ee) "Production" includes the manufacture, planting, cultivation, growing, or harvesting of a controlled substance.

(ff) "Simulated controlled substance" means a substance that is not a controlled substance, but which by appearance or representation would lead a reasonable person to believe that the substance is a controlled substance. Appearance includes, but is not limited to, color, shape, size, and markings of the dosage unit. Representation includes, but is not limited to, representations or factors of the following nature:

(1)  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;

(2)  Statements made to the recipient that the substance may be resold for inordinate profit; or

(3)  Whether the substance is packaged in a manner normally used for illicit controlled substances.

(gg) "State," when applied to a part of the United States, includes any state, district, commonwealth, territory, insular possession thereof, and any area subject to the legal authority of the United States of America.

(hh) "Ultimate user" means a person who lawfully possesses a controlled substance for his own use or for the use of a member of his household or for administering to an animal owned by him or by a member of his household.

(ii) "Utility" means any person, association, partnership or corporation providing telephone and/or communication services, electricity, natural gas or water to the public.

History:

[37-2701, added 1971, ch. 215, sec. 1, p. 939; am. 1972, ch. 133, sec. 1, p. 261; am. 1974, ch. 27, sec. 78, p. 811; am. 1975, ch. 196, sec. 1, p. 545; am. 1980, ch. 388, sec. 1, p. 977; am. 1982, ch. 169, sec. 1, p. 442; am. 1983, ch. 218, sec. 1, p. 599; am. 1989, ch. 266, sec. 1, p. 646; am. 1995, ch. 116, sec. 23, p. 399; am. 1999, ch. 280, sec. 1, p. 696; am. 2000, ch. 469, sec. 84, p. 1528; am. 2010, ch. 118, sec. 2, p. 257; am. 2014, ch. 79, sec. 1, p. 211; am. 2015, ch. 25, sec. 1, p. 30; am. 2021, ch. 11, sec. 1, p. 15; am. 2021, ch. 35, sec. 1, p. 78; am. 2021, ch. 242, sec. 2, p. 738; am. 2022, ch. 22, sec. 1, p. 53; am. 2024, ch. 68, sec. 1, p. 334.]