Did you know that it is illegal in Washington State to sell “forged” pharmaceutical drugs? In fact, selling, manufacturing, or even possessing such “counterfeit substances” is a felony crime that can land you serious jail time and significant monetary fines. The state created these prohibitions in order to address concerns about fraud and consumer safety surrounding counterfeit drugs. Washington's prohibitions against counterfeit substances and the penalties an individual could face if convicted of one of these crimes will be laid out.
What are “counterfeit substances”?
The Revised Code of Washington does not clearly or explicitly define the term “counterfeit substance.” However, it lists a host of prohibitions against their creation, delivery, and possession within a chapter entitled the “Uniform Controlled Substances Act” (UCSA), which is codified at Chapter 69.50 RCW. The UCSA is Washington State's version of a federal act – called the Controlled Substances Act (CSA) – that regulates the manufacture, possession, use, and distribution of certain drugs. The CSA was drafted by the U.S. Department of Justice and subsequently adopted in relatively similar forms by all fifty states.
Section 802 of the CSA defines a “counterfeit substance” as a “controlled substance” that, without authorization, bears the trademark, brand name, or other identifying mark of a manufacturer or distributor other than the individual or organization who in fact created that substance – essentially, a “forged” controlled substance. The term “controlled substance” generally refers to a laundry list of drugs and other chemicals, including both illegal drugs and prescription medicine, whose manufacture and use are regulated by the government. These lists are constantly updated as new drugs are created, and in Washington State can be found in Schedules I – V in RCW 69.50.204-.212.
Thus, a “counterfeit substance” is still a drug – legal or illegal. For example, it could be a generic brand painkiller that is repackaged in the bottle of a name brand competitor. The substance is still a "controlled substance,” but the individual selling/manufacturing the substance is trying to pass it off as something it is not.
Note that in RCW 69.52.030, the UCSA also contains a prohibition against the manufacture, distribution, or possession (with the intent to distribute) of “imitation controlled substances.” However, imitation controlled substances are not the same thing as counterfeit substances. An imitation controlled substance is a substance that looks like a controlled substance, but is not actually a controlled substance – essentially, a “fake” controlled substance. An example of an imitation controlled substance would be flour that is packaged to resemble an illicit drug like cocaine. In that example, the actual substance is not a controlled substance, but rather an innocuous baking ingredient. Counterfeit substances, while not exactly what they appear to be, are still controlled substances.
Prohibitions against Manufacture, Distribution, and Possession
Two subsections of the UCSA contain direct prohibitions against the manufacture, distribution, or possession of counterfeit substances: RCW 69.50.416 and RCW 69.50.4011.
1. RCW 69.50.416: Counterfeit substances prohibited
RCW 69.50.416(1) prohibits the “knowing or intentional” manufacture, delivery, or possession (with intent to manufacture or deliver) of counterfeit substances. “Knowing or intentional” means that an individual must be aware that he or she is manufacturing, delivering, or possessing counterfeit substances, or that such a result is their specific intention. Thus, for example, someone who happens to purchase a pharmaceutical drug that, unbeknownst to them, is actually a “knock-off” drug (and therefore a counterfeit substance), cannot be charged with possession of counterfeit substances under RCW 69.50.416, because they did not know it was inauthentic.
RCW 69.50.416(2) also prohibits the knowing or intentional manufacture, delivery, or possession of the printing dies or plates used to forge the trade name or other identifying mark used on their counterfeit substances. A violation of either subsection of RCW 69.50.416 is a class C felony that carries a penalty of imprisonment for not more than two years, a fine of not more than $2,000, or both.
2. RCW 69.50.4011: Counterfeit substances
RCW 69.50.4011 also contains prohibitions against counterfeit substances, which are similar to the prohibitions of RCW 69.50.416, but, in at least one manner, go further. RCW 69.50.4011(1) prohibits the creation, delivery, or possession of a counterfeit substance. The focus of this subsection is broader than the previous one, as it does not require that an individual “knowingly or intentionally” created, delivered, or possessed the counterfeit substance. Conceivably, a prosecutor could charge an individual who, through no fault of his or her own, simply possessed a medicine or drug that was counterfeit, even though s/he thought it was legitimate.
The severity of the penalty for violating RCW 69.50.4011 depends on the type of counterfeit substance at issue. If an individual violates this section of the UCSA with respect to a Schedule I or II narcotic drug, methamphetamine, or the Schedule IV substance “flunitrazepam,” they are guilty of a class B felony and if convicted, could face a prison term of up to ten years, a fine of up to $25,000, or both. If the counterfeit substance at issue is any other substance classified in Schedules I through V, the person is guilty of a class C felony, which is punishable by a prison term of up to five years. See RCW 9A.20.021(1)(c). Adult offenders could also face a fine of up to $10,000 instead of, or in addition to, this potential incarceration.
“Let My Extensive Experience as a Former Prosecutor Work For You.”
The prohibitions contained in the UCSA related to counterfeit substances are no joking matter. These charges can threaten your reputation and your livelihood. A conviction could mean jail or prison time and can affect your future education, financial aid, and employment. If you have been accused of a crime related to counterfeit substances, you need to speak with an attorney right away. The Law Office of Steve Karimi is dedicated to protecting your constitutional rights and freedom. Steve Karimi will take all measures necessary to fight for your legal rights and to advocate for your best interests. As a former prosecutor, he understands the options available to you and will use his experience to achieve the best possible resolution for you. Contact the Law Office of Steve Karimi at 206-660-6200.