A.G. Schneiderman Wins NYS Supreme Court Case Banning Sale Of Mislabeled Designer Drugs

WATERTOWN ‑ Attorney General Eric T. Schneiderman has won another important victory in State Supreme Court as part of his office’s statewide litigation against retailers selling deceptively labeled designer drugs. Supreme Court Justice James McClusky issued a decision filed late Monday, holding business owner John Tebbetts III responsible for selling deceptively labeled drug products to consumers from his many stores, despite denying they were meant for human consumption.

Tebbetts owns and operates a chain of eight Tebbs head shops located throughout Central and Northern New York.

"The evidence is clear that these items were marketed and sold for human consumption not withstanding labeling that indicated it was not for human consumption," wrote Judge McClusky. The judge further found Mr. Tebbetts liable for the illegal sale of nitrous oxide, the circumstances of which, the judge ruled, made clear that it was being sold to be used to provide a "high" to the users as opposed to any legal use. In further response to Mr. Tebbetts' claims that these were "not meant for human consumption," Judge McClusky stated, "The labels are not only for the protection of the end user, but also for society who must deal with the aftermath of those who do use the misbranded drugs."

"Judge McClusky has seen through the fraud being perpetrated by the industry, and his ruling will be another important tool in dismantling an insidious growth of illicit over the counter drug sales within our communities,” Attorney General Schneiderman said. “The judge's order proves that, by taking a creative approach in using the state's existing labeling laws, we can get swift results to remove dangerous drugs from store shelves and hold sellers accountable for breaking the law. We will continue to use every tool in our arsenal to combat the growing and dangerous synthetic drug epidemic."

The court ruling comes after Attorney General Schneiderman's office conducted an undercover investigation into head shops across New York. The investigation revealed that head shop retailers were selling designer drugs, including commonly known synthetics such as "bath salts" and "synthetic marijuana." Undercover investigators statewide also discovered head shop employees were promoting these dangerous drugs and advising consumers how to prepare and ingest them.

The Decision and Order permanently bans the sale of any mislabeled, misbranded or unapproved drugs or intoxicants, and requires Mr. Tebbetts to produce an accounting of all commodities he sold or offered for sale between January 1, 2012, and August 1, 2012, including the name of the product, the manufacturer/distributor of the product, a description of the product, the retail price of the product, and the number of units sold. A hearing to establish the applicable penalties and costs is set for February 20.

Under New York State's labeling laws, the packaging of consumer commodities must, at a minimum, identify the name and place of business of the manufacturer, packer, or distributor, the common product name, the net quantity of its contents, and the net quantity of servings, uses, or applications represented to be present with appropriate directions and warnings for customary use.

On July 10, the Attorney General filed 12 lawsuits against 16 head shop locations. Within 36 hours of filing the lawsuits, the Attorney General's office obtained Temporary Restraining Orders from all 12 judges effectively removing the mislabeled products from the shelves. Judge McClusky's Decision and Order permanently bans the retailer from selling designer drugs.

On August 1, the Attorney General followed up with this second lawsuit against Tebb's Head Shops for the sale of bath salts and synthetic drugs in violation of the state's labeling laws.

Although Federal and State authorities have attempted to outlaw certain chemicals and their analogs and to remove these items from commerce, their efforts continue to fall short as the chemists and producers providing the products for head shops simply alter formulas and stay ahead of the legislation. The Attorney General's lawsuits also pursue retailers for the illegal sale of nitrous oxide to the public, a specific violation of the State Public Health Law. Commonly known as "Whip Its," nitrous oxide has been linked to several deaths by asphyxiation and other adverse health effects. In addition to Judge McClusky's action, judges issued the following orders removing synthetic drugs from the following retailers sued by Attorney General Schneiderman:

• Village Sensations in Nanuet (Permanent order and judgment banning sales issued August 14)

• Pavilion International (Permanent order and judgment banning sales issued August 29)

• Trip on the Wild Side II in Watertown (Permanent order and judgment banning sales issued August 22)

• Rolling Fire Glassworks in Endicott (Decision pending)

• Goodfellas Alternative Smoke Shop in Utica (Store is no longer operating)

• Shining Star Enterprises in Albany (Permanent order and judgment banning sales issued October 16)

• Giggles in Poughkeepsie (Permanent order and judgment banning sales issued September 5)

• 20 Below/ This and That in Plattsburgh (Permanent court order and judgment banning sales issued October 23)

• East Coast Psychedelics in Oceanside and Commack (Decision Pending)

• Daze Smoke Shop in Baldwin (Permanent order and judgment banning sales issued July 31)

• Look Ah Hookah in Rochester (Permanent order and judgment banning sales issued July 26)

• Twisted Headz in Rochester (Permanent order and judgment banning sales issued September 25)

This case is being handled by Assistant Attorney General In Charge Deanna R. Nelson with the assistance of Senior Investigator Chad Shelmidine, and under the overall supervision of Executive Deputy Attorney General for Regional Affairs Martin J. Mack.