(A) It is unlawful for any person to knowingly manufacture, distribute, advertise or possess a look-alike substance, as hereinafter defined.
“LOOK-ALIKE SUBSTANCE.” A substance, other than a controlled substance which, by overall dosage unit appearance, including shape, color, size, markings or lack thereof, taste, consistency, or any other identifying physical characteristics of the substance would lead a reasonable person to believe that the substance is a controlled substance; or is expressly or impliably represented to be a controlled substance or is distributed under circumstances which would lead a reasonable person to believe that the substance is a controlled substance. For the purpose of determining whether the representations made or the circumstances of the distribution would lead a reasonable person to believe the substance to be a controlled substance under this clause, the court or other authority may consider the following factors in addition to any other factor that may be relevant:
(1) Statements made by the owner or person in control of the substance concerning its nature, use or affects;
(2) Statements made to the buyer or recipient of the substance that it may be resold for profit;
(3) Where the substance is packaged in a manner normally used for illegal distribution of controlled substances;
(4) Whether the distribution or attempted distribution included an exchange of or demand for money or other property as consideration, and where the amount of the consideration was substantially greater than the reasonable retail market value of the substance.
This definition shall not apply to a non-controlled substance in its finished dosage form that was initially introduced into commerce prior to the initial introduction into commerce of a controlled substance in its finished dosage form which it may substantially resemble. Nothing in this definition prohibits the dispensing or distributing of non-controlled substances by persons authorized to dispense and distribute controlled substances under this act, provided that such action would be deemed to be carried out in good faith if the substances involved were controlled substances. Nothing in this division prohibits the manufacture, preparation, propagation, compounding, processing, packaging, advertising or distribution of a drug or drugs by any person registered pursuant to Section 510 of the Federal Food, Drug and Cosmetic Act.
“ADVERTISE.” The attempt, by publication, dissemination, solicitation or circulation, to induce directly or indirectly any person to acquire, or enter into an obligation to acquire, any substance within the scope of this section.
“DISTRIBUTE.” To deliver, other than administering or dispensing, a controlled substance.
“MANUFACTURE.” The producing, preparing, compounding, processing, encapsulating, packaging, repackaging, labelling or relabelling of a look-alike substance.
(B) This section applies to any prosecution brought under this section. It is not a defense to a violation of this section that the defendant believed the look-alike substance actually to be a controlled substance.
(C) Nothing in this section applies to:
(1) The manufacture, processing, packaging, distribution or sale of non- controlled substances to licensed medical practitioners for use as placebos in professional practice or research;
(2) Persons acting in the course and legitimate scope of their employment as law enforcement officers; and
(3) The lawful manufacture, processing, packaging, advertising or distribution of a drug or drugs by any person registered pursuant to Section 510 of the Federal Food, Drug and Cosmetic Act.
(Ord. 90-0-4, passed 5-29-90) Penalty, see § 134.99