Trying the Limits of Legality:
Middlebury Wrestles With the Purple Sticky Stuff

By Cindy Ellen Hill, Esq.

Humans have consumed plants since the dawn of time, with a broad variety of effects on our bodies. They provide nutrition and antioxidants (beets, spinach), enhance the flavor of boring grains (thyme and oregano), soothe a rumbly tummy (peppermint), wake us up (coffee, yerba mate), or send us off to sleep (catnip, dill). Plants form the basis of many regulated prescription drugs, like valerian yielding Valium, or the foxglove extract digitalis. Although the pharmaceutical companies complain and issue press-release style info-mercials warning of the danger of utilizing herbal remedies, the vast majority of these plants are legal and unregulated, even when packaged and marketed to cause an impact on the human body (like SleepyTime tea, or Gypsy Cold Care).

Some herbs, however, have found their way into the category of unlawful substances no matter what form they take. Marijuana and coca come to mind, even though these have been used in their natural leaf form by indigenous peoples for thousands of years. In the case of marijuana, selective plant breeding over the years has created a much more powerful product than that used traditionally in native cultures, and American teens using the drug recreationally create a societal disturbance not associated with the herbs' indigenous cultural usages. And while coca leaves have been chewed daily in those regions the plant natively inhabits, the coffee or betel-nut-like buzz from chewing the leaves is a far cry from the penetrating impact of the highly refined white powder sold on the streets. (Though this powder also classifies as a regulated medical material, used as an anesthetic in dental surgery -one of the reasons hospital pharmacies are so heavily armored.)

There remain, however, hundreds of herbs which occur naturally around the world which, if eaten, or burned as incense, smoked, taken as snuff, or steeped as tea, with effects ranging from euphoria, to visions and vivid dreams, to intensive hallucinations. Some of these are outright poisonous. Many of them grow right here in the hills of Vermont. Any perusal through a good herbology book, or consultation with a wise wild-crafter, will surreptitiously yield up the knowledge of which of these green leafy things is which, usually by means of a stern caution - "Don't eat those mushrooms, or you'll be seeing flying cows, and I don't mean on the Vermont Family Farms organic skim half-gallons, either."

These substances remain unregulated because they haven't caused a problem. And the reason most have not caused a problem is that, quite frankly, most people who are real intent on obtaining a high or a trip are not going to take the time to learn about, find, and identify likely plants, pick them, dry them, and then cook them into tea. And if they do, they wind up with a cup of tea that gives them bad dreams for a night, and no one particularly cares. No one seems to be brewing up 55 gallon drums worth of tea from, say, Potentilla picked off their front lawn, in such concentrations that people are reeling in the streets, crashing cars, and not showing up for their morning shift at McDonalds. If they were, someone would probably regulate it.

LIKE, WOW

Salvia divinorum is one such previously unregulated herb. A member of the mint (Labiatae) family, with the square stems and hairy divided leaves that would look familiar to any Vermont gardener, this particular mint variety is native to the warmer climes of Mexico.

Mints have to be one of the most potent and well-used families of plants. The true mints are used in cooking, medicine, and beverages; the extracted menthol is particularly effective in clearing sinuses and treating chest colds. Pennyroyal always comes with the warning 'not to be consumed by pregnant women' - along with tansy, this common and tasty mint has been used since ancient times as an abortifacient. The expression 'rosemary is for remembrance' reflects the use of rosemary oil and tea to enhance memory - carry a spring of it in your pocket the next time you have a test to take, and see whether occasional sniffs help you out. Ordinary garden sage, Salvia officinalis, is called 'sage' because it, too, impacts the thought process. Sage tea is said to cause clear thinking and access to deep memories; some people attribute the tendency of people to sit around the table after a Thanksgiving meal telling stories of childhood memories to the abundance of sage in the stuffing and gravy (others just attribute it to the wine, but that would be the issue of grapes, which isn't part of this story).

Salvia divinorum, also known as Diviner's Sage, Magic Mint, Shaman's Herb, and many other marketable monikers, is known for putting people who consume it into a trance-like and meditative state, in which, depending on the mode of consumption, can include seeing things that are not really there, which, depending on the cultural context, can be known as having visions, hallucinating, or taking an acid trip. According to the every-reliable anonymous Internet resources, Salvia divinorum has been used in this context in religious practices in southern Mexico for millennia. Marketed as an aid to shamanistic and meditative practices, the dried leaf herb has long had a place in pagan supply catalogues and from other websites and stores selling incense and tie-dyed goods (I'm not casting stones here - my car sports the yellow peace symbol that my friends all refer to as my hip-eye sticker).

In this form, Salvia divinorum never crossed the radar screen of law enforcement or society's morality police in the form of news media and religious institutions; there don't seem to be any reports of people flipping out, running rampant with heavy equipment, or crashing school busses full of kids, because they were under the influence of Salvia divinorum. Apparently folks were simply drinking the tea, sitting around wearing tie-dye, and saying 'like, wow'.

Recently, that changed.

PURPLE STICKY STUFF

The problem with sitting around in a blissful, meditative, smoky peaceful totally legal state is that, sooner or later, something is going to mess it up. The phone will ring, your boss will knock at the door to tell you you're fired, the cat will cough up a hairball, or some idiot will decide to ratchet stuff up and make some money off things and it will all get out of hand. While no doubt the former events have occurred to Salvia divinorum users, it is this latter which resulted in the substance being brought to the forefront of Vermont news in recent weeks.

The active property in Salvia divinorum is a substance called Salvinorin-A. Described by the chemistry literature as a hallucinogenic compound with dissociating effects, Salvinorin-A interacts with the body's opioid receptors, but unlike all other known hallucinogens, is not an alkaloid. Internet debate rages as to whether the substance is truly the most powerful hallucinogen known to humankind, or not. It seems that not too much scientific study has been done comparing the various options; or if it has, the subjects apparently had trouble keeping the various samples distinct in their post-experiment notes for some reason. (The most thorough and knowledgeable information source for the average reader seems to be http://sagewisdom.org a website created and maintained by Daniel Seibert, a Salvia advocate who apparently holds the credentials to have also had a number of scientific articles on the subject published in medical journals.)

Sometime in the mid-1980's, someone in Mexico first extracted Salvinorin-A from the humble Salvia plant. And in successive years, extraction became a commercial enterprise. Salvinorin-A was not a regulated substance as it hadn't existed outside the Salvia leaf before. Now 'fortified' leaf of 'enhanced' Salvia - the herb, dried, with additive of concentrated Salvinorin-A extract - is sold in a wide variety of strengths, generally marked with designations such as '5X'or '10X' to indicate, roughly speaking, how much stronger the enhanced product is than the natural leaf. The strongest stuff is colloquially referred to as the purple sticky stuff.

According to the internet-available scientific journal articles, and the reports of several twenty-somethings I've talked to who've done the stuff in this form, the result of smoking (sold in single hits for $35 to $50) is an intense 15- or 20-minute hallucination state. Like acid trips, these can be good or bad. Several folks I talked to didn't like it, or liked it the first time and then hated it the second: they got highly agitated or outright terrified. A common effect is that the user forgets he or she took the substance, and then falls into a state of terror not knowing why the world suddenly looks out of sorts.

INTO THE MOUTHS OF BABES

In the last couple of years, Internet sales of Salvia divinorum, leaf and enhanced, have steadily increased around the world, and the attention of legislatures and law enforcement has not been far behind. A number of countries, including Australia, Belgium, Denmark, Finland, Italy, South Korea, and Sweden, have specifically outlawed it or placed it on their lists of regulated drugs, and many other countries appear to be starting to enforce against Salvia divinorum through broadly-worded definitions of the term 'drug' or laws outlawing hallucinogens generally. In the U.S., the Drug Enforcement Agency has had the substance under consideration for several years, but as of this writing there is no federal law against Salvia. Several states, however, have taken action against the substance. Louisiana and Missouri outlawed it in 2005, and Delaware in 2006. Georgia, Illinois, New York, North Dakota, Oregon, and Utah have Salvia-banning bills pending.

Oklahoma outlaws Salvia leaf that is "enhanced, concentrated, or chemically or physically altered," which seems to indicate that the living or dried plant leaves in their natural form would be considered legal. Tennessee took a similar course, outlawing growing, manufacturing, and distribution of the "active chemical ingredient" but exempting the growing and harvesting of the plant for "aesthetic, landscaping, and decorative purposes."

But in Vermont and most other states, Salvia divinorum, in natural or enhanced states, remains unregulated. Except in Middlebury.

According to the presentation of Police Chief Tom Hanley to the Middlebury Selectboard on April 8th, the town's astute School Resource officer noticed a sudden spike in substance-related behaviors in some circles of the town's high school - and middle school - students. Investigation swiftly led back to a tobacco shop in town, which was selling concentrated Salvia divinorum, dispensed with an information sheet and helpful advice on maximizing the psychotropic impacts of the substance.

According to town law enforcement officials, the substance was being sold - legally - to customers as young as 13. The inherent purchasing shields of Internet sales - the need for a credit card, shipments that arrive in the family mailbox - were absent in sales from a local store counter.

The specter of middle-schoolers consuming intense hallucinogens warranted action. The police chief indicated that while no one had been injured yet, some young students had become ill as result of the intense experience, and it was only a matter of time until some child in a hallucinatory state wandered over a cliff or in front of a bus.

Hanley requested that the town decline to renew the store's tobacco license, which was calendared for reconsideration that night. But as the Selectboard pointed out, there was no assertion that the storeowner had sold any regulated tobacco products to underage consumers.

The town health officer, Dr. Bob LaFiandra, stepped forward with an alternative solution: using the Vermont health officer's broad powers to protect the public from health threats, he would issue an emergency order declaring Salvia divinorum a dangerous substance, and prohibit its sale from the tobacco store. Under 18 VSA Section 602(a), town health officers are mandated to investigate all reports of conditions that may be a public health hazard, and to "prevent, remove, or destroy any public health hazard." Logically concluding that a substance causing youngsters to hallucinate and become ill constituted a health hazard, LaFiandra issued the order and had it served on the store owner within the next several days.

WHITHER GOES THE LEAF

As of this writing, the storeowner has removed the Salvia divinorum from his Middlebury store, but is appealing the town health officer's ruling. While there are not easily accessible historical records of town health officer rulings across the state, anecdotally it would appear that LaFiandra's order is unique in the annals of Vermont law. Town health officer orders are usually addressed to things like septic failures or leaking tanks that threaten town water supplies, not to consumer goods sold in a tobacco shop.

Adding to the list of outlawed items runs contrary to Vermont's basic libertarian-leaning political druthers. Yet the unregulated sale of powerful hallucinogens to kids would seem to cross that line. And Vermont is not alone in facing the problem - the New Jersey legislature is reportedly considering Salvia regulation after two 15 year olds were arrested, only to have the police officer learn to his chagrin that there was no law against the substance. If a person is visibly tripping in public, it's possible that disorderly conduct charges might be applicable; otherwise, Vermont's existing laws do not appear to address the circumstances. In Vermont, child endangerment is a crime that can only be charged against a parent or custodian of a minor. And contributing to the delinquency of a minor is based upon there being an underlying illegal act by the minor; but purchasing and consuming Salvia is legal. An emergency public health order seems the only available tool; imperfect and unprecedented, perhaps, but instead of waiting for an eighth grader to throw themselves in front of a train, Middlebury officials worked with what tools they had.

While the appeal of the Health Officer's order is pending, Montpelier will no doubt ponder other options. Since the Vermont legislature has already passed cross-over (the cut-off date for individual legislators to introduce new bills), there is little opportunity for immediate action on new legislation. The Vermont Department of Health could, however, opt to add Salvia divinorum to the state's list of regulated drugs. If they do so, Middlebury will not be pressed to defend its groundbreaking action, and sales into the state from all sources, including Internet sales, will be blocked. On the other hand, the opportunity to carve out less omnibus prohibitions, like those in Oklahoma or Tennessee, will be lost if it's added to the list of regulated substances.

But with Middlebury's ruling prominent in the news, parents and educators across the state have at least been made aware of the substance and its hazards. Of course, countless other folks have also been made aware of this legal hallucinogen, and are flocking to the tie-dye shops in other towns around the state to check the stuff out. Hopefully those shop owners will exercise discretion regarding sales to minors, and the over-18 crowd who rushes to try it will come to no harm, but simply sit around and say, Like, Wow, as they wait to find out what the legal system, legislature, and state agencies are going to do about the purple sticky stuff.

Cindy Hill is an attorney, freelance writer, and musician living in Middlebury.