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Let's imagine that the police arrested someone on suspicion of selling illegal narcotics. Upon chemical analysis of the seized goods, they discover that these goods are not narcotics, but some perfectly legal substances that the "dealer" was selling to clients as narcotics.

What would this person most probably be charged with? Would it be both selling narcotics and fraud? Or would it be just one of these two options? I know that this may vary from country to country, but I am interested in what would the most frequent classification be.

5 Answers 5

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Attempt to traffic

If the accused believed the substance to be a controlled substance, then the offence would be at least an attempt to traffic. Just because the facts turn out that a particular offence would not or could not be completed, that does not preclude a conviction for an attempt. See United States of America v. Dynar, [1997] 2 SCR 462:

For example, A may take possession of property believing it to have been stolen when it has not been; B may smuggle a substance for reward believing it to be a narcotic when it is sugar.

... There is no legally relevant difference between the pickpocket who reaches into the empty pocket and the man who takes his own umbrella from a stand believing it to be some other person’s umbrella. Both have the mens rea of a thief.

Here's a more recent example:

Mr. Sandhu admitted to transporting packages of sham drugs that he thought contained controlled substances. ... I find that a reasonable, properly instructed jury could find Mr. Sandhu guilty of attempted trafficking in controlled substances.

Actual trafficking

If in the course of events, the accused made, and intended to make, an offer to sell a controlled substance, that on its own would be the offence of trafficking. R. v. Mamchur, [1978] 4 WWR 481 (Sask. C.A.); R. v. Murdock (2003), 176 CCC (3d) 232 (Ont. C.A.); R. v. Campbell, [1999] 1 S.C.R. 565:

The actus reus of the offence of trafficking is the making of an offer, and when accompanied by intent to do so, the necessary mens rea is made out. ... There is no need to prove both the intent to make the offer to sell and the intent to carry out the offer: ... See also, e.g., R. v. Sherman (1977), 36 C.C.C. (2d) 207 (B.C.C.A.), at p. 208, upholding a conviction where there was evidence that the accused had offered to sell heroin to a person he knew was an undercover police officer, with a view to “rip off” the officer and not complete the sale.

Fraud

If the accused knew that the substance was not what they were passing it off as, the accused would have committed fraud. Section 380 of the Criminal Code:

Every one who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of this Act, defrauds the public or any person, whether ascertained or not, of any property, money or valuable security or any service ... is guilty of an indictable offence

I do not know of an example where this has been prosecuted, but Wikipedia has a summary of similar law in the United States.

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  • 1
    In the fraud case, there is a good chance that you get away with it because the victim won’t go to the police because they would admit to an attempted drugs purchase. But some victims have gone to the police which then made two arrests.
    – gnasher729
    Oct 29, 2022 at 17:45
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In the United States, you could be charged:

  • Under 21 U.S.C. Section 331, which makes it illegal to sell an adulterated or misbranded drug in interstate commerce;

  • With a violation of federal code if you cross state lines with counterfeit contraband, facing up to one year in prison and/or a fine of up to $1,000;

  • With criminal fraud under 18 U.S. Code § 1001, which makes it illegal to make any materially false, fictitious, or fraudulent statement or representation (facing up to 5 years in prison and/or a fine of up to twice the gross gain/loss from the sale).

As another example, in New South Wales, you would be charged as if you were supplying real drugs, if police are able to prove that you supplied the substance, and that you represented the substance as drugs.

See Counterfeit illegal drug selling

Also Section 40 of the Drug Misuse and Trafficking Act 1985 No 226

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  • 1) It's not clear that heroin is a "drug" within the meaning of the food and drug act, which seems to apply to drugs listed in the US pharmacopeia; (2) which section of the federal code? (3) 18 USC 1001 does not apply to false statements made to private parties. The facts presented in the question do not include a false statement to federal officers.
    – phoog
    Nov 1, 2022 at 11:04
  • It may be perfectly legal to sell rat poison if it’s labelled as “rat poison” but at least attempted murder if it is sold labelled “cocaine”.
    – gnasher729
    Nov 3, 2022 at 17:52
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Section 4(3)(a)-(c) of the Misuse of Drugs Act 1971 creates offences of offering to supply, being concerned in the supply and being concerned in the making of an offer to supply controlled drugs.

The Crown Prosection Service's (CPS) prosecution guidance for Drug Offences says of this:

An offence of offering to supply can be prosecuted simply by proving the existence of an offer. The prosecution does not have to prove either that the defendant intended to produce the drugs or that the drugs were in his possession. The offer may be by words or conduct (R v Showers [1995] Crim. LR 400).

In deciding whether there has been an offer to supply, prosecutors should not take into consideration principles of contract law (R v Dhillon [2000] Crim. LR 760). The fact that the drug supplied is different to that offered or not in fact controlled affords no defence - see R v Goodard [1992] Crim. LR 588, R v Mitchell [1992] Crim. LR 723 and R v Prior (2004) EWCA Crim1147.

(my emphasis in bold)

Section 5 of the Psychoactive Substances Act 2016 creates an offence of offering to supply a psychoactive substance. The CPS prosecution guidance for this offence is the same as the above quote related to the offences under s4 Misuse of Drugs Act 1971.

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Translations and emphasis mines

Under the Code de la santé publique (Public Health code)

Definition

Article L. 5111-3 states :

On entend par médicament falsifié tout médicament, tel que défini à l'article L. 5111-1, comportant une fausse présentation :

1° De son identité, y compris de son emballage et de son étiquetage, de son nom ou de sa composition s'agissant de n'importe lequel de ses composants, y compris les excipients, et du dosage de ces composants ;

2° De sa source, y compris de son fabricant, de son pays de fabrication, de son pays d'origine ou du titulaire de son autorisation de mise sur le marché ;

3° Ou de son historique, y compris des autorisations, des enregistrements et des documents relatifs aux circuits de distribution utilisés.

La présente définition n'inclut pas les défauts de qualité non intentionnels.

Are seen as fake medicine any medicine, [...], presenting falsely :

  1. Its identity, including its packaging and labeling, of its name, composition, [...], and dosing of those ingredients

  2. Its source, beit its manufacturer, country of fabrication, country of origin, or holder of the Autorisation de Mise sur le Marché (Authorization to put medicine in the market)

  3. Its history, including authorizations, documents and recordings linked to used distribution channels

The definition doesn't apply to non-intentional quality defects


Simple Detention

Article L. 5421-14 states :

Sont punis de trois ans d'emprisonnement et de 75 000 € d'amende ceux qui, sans motif légitime, sont trouvés détenteurs de médicaments falsifiés.

Lorsque le médicament falsifié est dangereux pour la santé de l'homme, les peines sont portées à cinq ans d'emprisonnement et à 375 000 € d'amende.

Are punished by three years in prison and 75,000€ in fine those that, without a legitimate reason, are found in possession of fake medicine.

When that fake medicine is dangerous for human health, those penalty rises to fire years in prison and 375,000€ in fines.

Attempt

Article L. 5421-15 states

La tentative des délits prévus à l'article L. 5421-13 est punie des mêmes peines.

Attempt of the crimes laid in L. 5421-13 are punished by the same penalties

Attempting such activities will land you the same penalties as if you actually did the activities


Fabrication, Brokerage, Distribution...

Article L5421-13 states :

La fabrication, le courtage, la distribution, la publicité, l'offre de vente, la vente, l'importation, l'exportation de médicaments falsifiés définis à l'article L. 5111-3 sont punis de cinq ans d'emprisonnement et de 375 000 € d'amende.

Les précédentes peines sont portées à sept ans d'emprisonnement et 750 000 € d'amende lorsque :

1° Le médicament falsifié est dangereux pour la santé de l'homme ;

2° Ces mêmes délits ont été commis par des établissements pharmaceutiques autorisés conformément à l'article L. 5124-3, des courtiers déclarés conformément à l'article L. 5124-20, des pharmaciens d'officine titulaires de la licence mentionnée à l'article L. 5125-18 et des pharmaciens à usage intérieur mentionnés à l'article L. 5126-3 du même code ;

3° Ces mêmes délits ont été commis en bande organisée ;

4° Les délits de publicité, offre de vente ou vente de médicaments falsifiés ont été commis sur un réseau de télécommunication à destination d'un public non déterminé.

The fabrication, brokerage, distribution, advertising, sale offer, sale, importation, export of fake medicine defined under article L5111-3, are punished by five years in prisons and 375,000€ in fines.

Those penalties rise to seven years in prison and 750,000€ in fines when :

  1. The fake medicine is dangerous to human health

  2. Those crimes are committed by authorized pharmaceutical companies, declared brokers, or authorized pharmacists

  3. Those same crimes are committed in an organized gang

  4. Crimes of advertising, sale offer or sale of fake medicine on a communication network to undetermined public

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  • Recreational narcotics aren’t presumptively “medicine”, though, right?
    – Sneftel
    Oct 31, 2022 at 11:41
  • Under the blanket definition here (under point 1) @Sneftel, it seems they are, and anyways, in OP situation, all three paragraphs in the definition will apply as it is presenting with a different name, manufacturer, and tracability... Oct 31, 2022 at 12:27
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I would imagine that you would be condemned to listen to the prosecutor explain due to a lack of evidence they will be dropping your case as there's no law restricting the sale of oregano in dime bags on the mean streets AND because there's no one accusing the fake drug dealer of selling fake drugs because the types of people who deal in drugs don't tell the cops that they do so... and it's a small community. Soon or later, someone is going to buy fake weed and know it's not the genuine article. They also tend to, in the police and prosecutor's experience, the people in the drug trade tend to be working with products who's theft isn't protected by law and fetches a lot of money, which means someone paranoid person has found someone lying to them and has already proven they are capable of breaking at least some of the laws.

And once the prosecutor tells you all of this, they'll wish you the best of luck and ask you to leave. And if you're lucky, the prosecutor will tell the cops to try not to laugh in your face when you come to ask for some protection from a paranoid person who thinks you're a liar and may have broken some laws previously.

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