Pubdate: Sun, 11 May 2008
Source: Pittsburgh Post-Gazette (PA)
Copyright: 2008 PG Publishing
Author: Paula Reed Ward, Pittsburgh Post-Gazette
Bookmark: (Drug Testing)


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.

"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. 
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