NY Pub Health L § 3383 (2021)
2021 New York Laws PBH - Public Health Article 33 - Controlled Substances Title 7 - Offenses, Violations and Enforcement 3383 - Imitation Controlled Substances.

§  3383.  Imitation  controlled  substances.   1. For purposes of this section, the following terms shall have the following meanings:   a.  "Manufacture"  means  the  production,  preparation,  compounding, tableting,  processing,  encapsulating, packaging, repackaging, labeling or relabeling of an imitation controlled substance.   b. "Markings" means a simulated trademark, trade name,  imprinting  or other  mark,  or  likeness  thereof, of the manufacturer, distributor or dispenser of a controlled substance or a simulated code number or symbol or likeness thereof identifying a controlled substance or combination of such substances.   c. "Imitation controlled substance" means a substance,  other  than  a drug  for  which  a  prescription  is  required  pursuant to article one hundred thirty-seven of the education law,  that  is  not  a  controlled substance,  which  by dosage unit appearance, including color, shape and size  and  by  a  representation  is  represented  to  be  a  controlled substance, as defined in the penal law. Evidence of representations that the  substance  is a controlled substance may include but is not limited to oral or written representations by the manufacturer or seller, as the case may be, about the substance with regard to:  (i) its price, nature, use or effect as a controlled substance; or  (ii) its packaging in a manner normally used  for  illicit  controlled substances; or  (iii) markings on the substance.   2. It shall be unlawful for any person to manufacture, sell or possess with the intent to sell, an imitation controlled substance.   3.  It  shall  be unlawful for any person to possess or use any punch, die, plate, stone or any other equipment in order to print, imprint,  or reproduce  the  trademark, trade name or other identifying mark, imprint or device of another or any likeness of any of the  foregoing  upon  any substance or container or labeling thereof with intent to manufacture an imitation controlled substance.   4.  No  liability  shall  be  imposed by virtue of this section on any person licensed pursuant  to  article  one  hundred  thirty-one  of  the education   law   or  licensed  under  this  article  who  manufactures, distributed, sells, prescribes,  dispenses  or  possesses  an  imitation controlled  substance  for  use  as  a  placebo  or  for use in clinical research conducted pursuant to the federal food, drug and cosmetic act.   5. Nothing in this section shall apply to  a  noncontrolled  substance that  was  initially  introduced  into  commerce  prior  to  the initial introduction into commerce of  the  controlled  substance  which  it  is alleged to imitate.   6.  In  any  prosecution  under  this section it shall be necessary to prove that the imitation controlled substance was represented  to  be  a controlled   substance;  however,  it  shall  not  be  a  defense  to  a prosecution under this section that the accused believed  the  imitation controlled substance to be a controlled substance.   7.  A violation of subdivision two or three of this section shall be a class A misdemeanor. A violation of subdivision two  or  three  of  this section  by a person previously convicted of a violation of this section within the preceding five years shall be a class E felony.   8. If any provision or part of this section or application thereof  is held invalid, the invalidity shall not affect other provisions, parts or applications  of  this  section  which  can  be given effect without the invalid provisions or application, and to this  end  the  provisions  of this section are severable.