16-13-30.1. Manufacture, delivery, distribution, possession, or sale of noncontrolled substances; civil forfeiture.

1. (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:#

   1. (A)

      The express or implied representation that the substance is a narcotic or nonnarcotic controlled substance;#

   2. (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#

   3. (C)

      The express or implied representation that the substance has essentially the same pharmacological action or effect as a controlled substance.#

2. (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.#

An implied representation may be shown by proof of any two of the following:#

1. (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. (2)

   The physical appearance of the finished product containing the substance is substantially identical to a specific controlled substance;#

3. (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.#

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.#

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.#

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.#

1. (1)

   As used in this subsection, the terms “proceeds” and “property” shall have the same meanings as set forth in Code Section 9-16-2.#

2. (2)

   Any property which is, directly or indirectly, used or intended for use in any manner to facilitate a violation of this Code section, and any proceeds, 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 no person shall have a property right in them.#

3. (3)

   Any property or noncontrolled substance subject to forfeiture pursuant to paragraph (2) of this subsection shall be forfeited in accordance with the procedures set forth in Chapter 16 of Title 9.#