Controlled Substance Scheduling (Part 2)

The Appellate Division continued in relevant part: Defendant argues alpha-PVP’s designation as such by the federal government does not necessarily mean the substance was in Schedule I under the CDSA. Rather, defendant contends that once the federal government schedules a substance, N.J.S.A. 24:21-3(c) requires the Director to either update the list of controlled substances through publication in the New Jersey Register or file an objection to the federal government’s scheduling of the substance. Because the Director never formally recognized alpha-PVP as a controlled substance after the federal government did so, defendant argues his possession of alpha-PVP was not contrary to New Jersey law at the time of his arrest.

We disagree. When the federal government schedules a substance, N.J.S.A. 24:21-3(c) gives the Director thirty days to do one of two things: (1) control the substance consistent with the federal government’s scheduling, or (2) file an objection in the New Jersey Register. Absent is a requirement that the Director give notice when he or she intends to control the substance as directed by federal law. Thus, if the Director fails to file an objection to the federal government’s scheduling within thirty days, as was the case with alpha-PVP, the Director must control the substance consonant with federal law.

The regulations promulgated by the Director confirm that substances scheduled by the federal government automatically receive the same designation under the CDSA, unless the Director objects. N.J.A.C.13:45H-1.7 provides: regulations promulgated pursuant to the United States Comprehensive Drug Abuse Prevention and Control Act of 1970, which designate, reschedule or delete a substance as a controlled substance under Federal Law, shall be deemed to be effective under the CDSA thirty days after their effective date of the Federal regulation, unless the Director, within that thirty day period, shall object to inclusion, rescheduling or deletion, which objection shall thereafter be published in the New Jersey Register.

Here, inertia works in favor of the prosecution. It is doubtful that the state authorities analyze every controlled substance that is banned by the federal government. Even if they did, there is little motivation to object to a classification of a potentially harmful drug.