2021 Georgia Code
Title 16 - Crimes and Offenses
Chapter 13 - Controlled Substances
Article 2 - Regulation of Controlled Substances
Part 1 - Schedules, Offenses, and Penalties
§ 16-13-22. Administration of Article; Standards and Schedules

1. The State Board of Pharmacy shall administer this article and shall add substances to or reschedule all substances enumerated in the schedules in Code Sections 16-13-25 through 16-13-29 pursuant to the procedures of Chapter 13 of Title 50, the "Georgia Administrative Procedure Act." In making a determination or identification regarding a substance, the State Board of Pharmacy shall consider the following factors:
   1. The actual or relative potential for abuse;
   2. The scientific evidence of its pharmacological effect, if known;
   3. The state of current scientific knowledge regarding the substance;
   4. The history and current pattern of abuse;
   5. The scope, duration, and significance of abuse;
   6. The risk to the public health;
   7. The potential of the substance to produce psychic or physiological dependence liability;
   8. Whether the substance is an immediate precursor of a substance already controlled under this article; and
   9. The designation, deletion, or rescheduling of a substance under federal law controlling controlled substances.
2. After considering the factors enumerated in subsection (a) of this Code section, the State Board of Pharmacy shall make findings with respect thereto and cause the publication of such findings as a rule, in accordance with Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," controlling the substance if it finds the substance has a potential for abuse.
3. If the State Board of Pharmacy identifies a substance as an immediate precursor, substances which are precursors of the controlled substance shall not be subject to control solely because they are precursors of the controlled substance.
4. Authority to control under this Code section does not extend to distilled spirits, wine, malt beverages, or tobacco, as those terms are defined or used in Title 3 or 48.

(Code 1933, § 79A-803, enacted by Ga. L. 1974, p. 221, § 1; Ga. L. 1982, p. 3, § 16.)

- State Board of Pharmacy generally, § 26-4-30 et seq.

JUDICIAL DECISIONS

Constitutionality.

- Former Code 1933, § 79A-803 (see now O.C.G.A. § 16-13-22) was not unconstitutional as violative of Ga. Const. 1976, Art. I, Sec. II, Para. IV, and Art. III, Sec. I, Para. I (see now Ga. Const. 1983, Art. I, Sec. II, Para. III, and Art. III, Sec. I, Para. I), which provisions deal with separation of powers and delegation of legislative power respectively. Harmon v. State, 235 Ga. 329, 219 S.E.2d 441 (1975).

Former Code 1933, § 79A-801 et seq. (see now O.C.G.A. § 16-13-20 et seq.) was not an unconstitutional delegation of legislative authority on the ground that the General Assembly had failed to maintain control over the determination of whether a substance should fall within its purview, since these provisions provide that the State Board of Pharmacy "shall consider" nine factors and shall make findings after considering those nine factors. Consideration of the statutory factors was mandatory. Ward v. State, 248 Ga. 60, 281 S.E.2d 503 (1981).

- Defendant was improperly convicted of violating the Georgia's Controlled Substances Act, O.C.G.A. § 16-13-20 et seq., by distributing a Schedule IV drug, Zolpidem, which was commonly known as Ambien, O.C.G.A. §§ 16-13-28(a)(33) and16-13-30(b), because the state failed to prove that the drug Ambien was regulated by law, and the trade name of a statutorily designated controlled substance was not the proper subject of judicial notice; while the state presented evidence that the defendant admitted to distributing Ambien and produced testimony that "Ambien" was a Schedule IV controlled substance, the state was required to identify "Ambien" as a trade name for Zolpidem through admissible evidence. DeLong v. State, 310 Ga. App. 518, 714 S.E.2d 98 (2011).

Cited in Cochran v. State, 136 Ga. App. 94, 220 S.E.2d 83 (1975); Davis v. State, 143 Ga. App. 329, 238 S.E.2d 289 (1977).

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Drugs and Controlled Substances, § 10.

- 28 C.J.S., Drugs and Narcotics, §§ 69, 70, 210 et seq.

- Uniform Controlled Substances Act (U.L.A.) § 201.