(a)(1) It is unlawful for any person knowingly to manufacture,
deliver, distribute, dispense, possess with the intent to
distribute, or sell a noncontrolled substance upon either: (A) The express or implied representation that the substance is
a narcotic or nonnarcotic controlled substance; (B) The express or implied representation that the substance is
of such nature or appearance that the recipient of said delivery
will be able to distribute said substance as a controlled
substance; or (C) The express or implied representation that the substance has
essentially the same pharmacological action or effect as a
controlled substance. (2) The definitions of the terms "deliver," "delivery," "distribute," "dispense," and "manufacture" provided in Code Section 16-13-21 shall not be applicable to this Code section; but such terms as used in this Code section shall have the meanings ascribed to them in the ordinary course of business. (b) An implied representation may be shown by proof of any two of
the following: (1) The manufacture, delivery, distribution, dispensing, or sale
included an exchange or a demand for money or other valuable
property as consideration for delivery of the substance and the
amount of such consideration was substantially in excess of the
reasonable value of the noncontrolled substance; (2) The physical appearance of the finished product containing the
substance is substantially identical to a specific controlled
substance; (3) The finished product bears an imprint, identifying mark,
number, or device which is substantially identical to the
trademark, identifying mark, imprint, number, or device of a
manufacturer licensed by the Food and Drug Administration of the
United States Department of Health and Human Services. (c) In any prosecution for unlawful manufacture, delivery,
distribution, possession with intent to distribute, dispensing, or
sale of a noncontrolled substance, it is no defense that the accused
believed the noncontrolled substance to be actually a controlled
substance. (d) The provisions of this Code section shall not prohibit a duly
licensed business establishment, acting in the usual course of
business, from selling or for a practitioner, acting in the usual
course of his professional practice, from dispensing a drug
preparation manufactured by a manufacturer licensed by the Food and
Drug Administration of the United States Department of Health and
Human Services for over-the-counter sale which does not bear a label
stating "Federal law prohibits dispensing without a prescription" or
similar language meaning that the drug preparation requires a
prescription.
(e) The unlawful manufacture, delivery, distribution, dispensing,
possession with the intention to distribute, or sale of a
noncontrolled substance in violation of this Code section is a
felony and, upon conviction thereof, such person shall be punished
by imprisonment for not less than one year nor more than ten years
or by a fine not to exceed $25,000.00, or both. (f) All property which would be subject to forfeiture under the provisions of subsection (d) of Code Section 16-13-49 for a violation of this article which is used, or intended for use, to facilitate, or is derived from, a violation of this Code section and any noncontrolled substance which is manufactured, distributed, dispensed, possessed with the intent to distribute, or sold in violation of this Code section are declared to be contraband and there shall be no property interest therein. Any property or noncontrolled substance which is subject to the provisions of this subsection shall be forfeited in accordance with the procedures of Code Section 16-13-49. |