Buchanan picks new target: products that mask drug use
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Five years after taking the lead in "Operation Pipe Dreams," which prosecuted people who sold marijuana pipes around the country, U.S. Attorney Mary Beth Buchanan is leading a similar investigation called "Operation True Test."
The newest project for Ms. Buchanan is looking into companies that sell "masking products" that are supposed to help drug-users pass employer drug tests.
Opponents of the products contend that they can put the public at risk if a person like an airline pilot were to use them to hide drugs in his system. The products are regulated on a state-by-state basis; there is no federal law covering them.
But critics, including comedian Tommy Chong, whom Ms. Buchanan prosecuted as part of Operation Pipe Dreams, say this is just another example of a frivolous prosecution and misplaced priorities.
"The terrorists crash into her area, and she's concentrating on porn and bongs," Mr. Chong said, referring to the Sept. 11, 2001, crash of United Flight 93 in Somerset County. "That kind of tells you the direction she's headed."
Search warrants for Operation True Test were served Wednesday at nine locations in six states -- though none in Ms. Buchanan's Western District of Pennsylvania.
"We have no idea what the connection to Pittsburgh is," said Jennifer Kinsley, the attorney for Spectrum Labs, whose Newport, Ky., offices were searched.
Another target was the business in Signal Hill, Calif., that makes The Whizzinator, a prosthetic penis in which clean urine is stored to be used to beat drug tests monitored by an observer.
Spectrum Labs makes a number of masking products, including one known as Urine Luck, a liquid that is added to urine to purify it.
Only a small amount of product was seized during the search Wednesday, Ms. Kinsley said.
The main items taken were documents -- including bank records, business documents and order forms.
Also seized, Mr. Chong said, were 8,000 to 10,000 copies of the recently released documentary "a/k/a Tommy Chong," a film chronicling his journey through arrest, prosecution and nine-month prison term. Attorneys for Spectrum Labs have said no copies of the documentary were seized.
"It's a way to punish the distributor financially," Mr. Chong said. "There's no way to get the DVDs back until the investigation is over." Mr. Chong said he has no ownership in the film.
He called the documentary a "focal point" of the raid. It was released about a month ago, and sales were slow, Mr. Chong said.
"It's selling like crazy now, thanks to Mary Beth. She's brought us a nice publicity gimmick."
Ms. Buchanan would not comment on Mr. Chong's allegation or discuss what alleged crimes are being investigated as part of Operation True Test.
She also turned down an invitation to appear on Fox News Channel's "Geraldo At Large" last night with Mr. Chong.
Laws regulating masking products vary from state to state.
In Kentucky, the law refers to masks for alcohol and controlled substances, Ms. Kinsley said, while her client's Web site says it targets nicotine use.
In Pennsylvania, it's a third-degree misdemeanor to sell or use drug-free urine to try to pass a drug test.
A New York congressman tried to pass a federal law dealing with the issue with the Drug Testing Integrity Act of 2005. But it never got off the ground.
Some have said that such products fall under federal drug paraphernalia laws, but Ms. Kinsley strongly disagrees.
Under the U.S. Criminal Code, drug paraphernalia are defined as "any equipment, product, or material of any kind which is primarily intended or designed for use in manufacturing, compounding, converting, concealing, producing, processing, preparing, injecting, ingesting, inhaling or otherwise introducing into the human body a controlled substance."
Ms. Kinsley does not believe that definition applies to her client's products, and she thinks that Congress agrees with her -- otherwise there wouldn't have been a movement to create a new law to address masking products.
Lawyer Stanton D. Levenson, who represents Mr. Chong and the company that makes The Whizzinator, said he also has heard the government is trying to make a paraphernalia case, "which just blows my mind.
"We're ready to do battle with them," he said. "There's no way this is a paraphernalia case."
The maker of The Whizzinator learned there was an investigation going on as far back as October 2006 when its network provider was served a subpoena.
Mr. Levenson is a strong critic of the Pipe Dreams prosecutions, calling them "stupid," and a waste of money.
But he called the current investigation involving The Whizzinator more serious.
"It would appear there's a potentially more legitimate purpose to this type of prosecution than the head-shop one," Mr. Levenson said. "There could potentially be some public benefit to this.
"We don't want school bus drivers and airline pilots who have drug problems beating the test and driving intoxicated."
Laura Shelton, the executive director of the Drug and Alcohol Testing Industry Association, agrees. That's why her organization has been lobbying for a national law for several years.
The problem with sporadic, individual state enforcement, she said, is that the company that makes the masking agents can just move across state lines.
The Government Accountability Office did a study on this issue in 2005, and an update is expected next week.
Ms. Shelton hopes with the renewed focus on masking products that a federal ban might get some traction.
Current federal law requires mandatory drug testing for a number of professions, including truck drivers, airline pilots and railroad engineers. However, the law does not require labs to screen for adulterants that are used to mask the results.
"The majority of them are detectable, but the labs just aren't testing for them," Ms. Shelton said. "Unfortunately, on some of these issues, it takes a crisis to get something going."
Ms. Kinsley, the lawyer for Spectrum Labs, is already familiar with Ms. Buchanan from another of her cases -- the prosecution of Extreme Associates, a film production company in California that makes violent, graphic films.
The owners of the company are charged with 10 counts of violating federal obscenity laws by transporting obscene materials through the U.S. mail and over the Internet.
Ms. Kinsley is on the team of lawyers representing Extreme Associates. That case is still not scheduled to go to trial.
When Ms. Kinsley learned that Ms. Buchanan was leading the masking products investigation, she wasn't surprised.
"I laughed," she said. "Here we go again."
She wonders how prosecutors will make the new case into a federal crime. With Extreme Associates, federal investigators posed as customers and ordered the graphic pornography online and had it mailed to them in Pittsburgh.
The search of the Extreme Associates offices was conducted in April 2003, and the indictment was handed up four months later.
Because of the volume of documents taken, Ms. Kinsley expects a much longer lag time if charges are filed in the Spectrum Labs case.
Correction/Clarification: (Published May 14, 2008) An attorney for Spectrum Labs, the company searched on May 7 by federal agents, said that 8,000 to 10,000 copies of a Tommy Chong documentary were not seized in the raid. This story as originally published May 11, 2008 was incorrect.
First Published May 11, 2008 12:00 am