Although the federal Drug Enforcement Agency has repeatedly banned several of the substances sprayed on the herbs, as soon as one chemical is barred, others are introduced. Packages of synthetic cannabinoids are stamped “not for human consumption,” a technicality making it very difficult to ban and control the product, even though most who buy the substance do so to smoke it, Seabrook Sgt. Brett Walker has said.
According to Delker’s ruling, in the complaint, Walsh asserts that his store sells, “incense products,” which “some town citizens think contain synthetic cannabis,” and which has “engendered some hostility in the community.” Delker wrote that Walsh said one of his customers been arrested, had his vehicle towed and was charged with violating the ordinance “based upon what he had purchased from my store.”
The next day, Walsh said in the complaint, the same customer was arrested again for violating the ordinance, Delker wrote.
“Several other customers have been arrested for products purchased from (Walsh),” Delker wrote. “Since passage of the ordinance, ‘that portion of (Walsh’s) businesses is down 50 to 60 percent.’ “
According to Delker, the crux of the lawsuit’s argument wasn’t that Seabrook’s ordinance was unlawful or invalid, but that it shouldn’t apply to Walsh’s businesses because he didn’t sell any products that contain the 13 prohibited compounds on the ordinance list, and that the Smoking Monkey and Smokers City are located in parking lots off of Route 1, technically a state road.
“Neither the complaint nor the affidavits of William Walsh allege that the petitioners are not selling any substances that fall within the definition of the ordinance,” Delker wrote. “For example, the petitioners have not alleged that their products do not contain salts, isomers, or salts of isomers of any compound in any of the prohibited classes — they merely allege that the products test negative for the 13 enumerated compounds.”