§ 3383. Imitation controlled substances. 1. For purposes of this
section, the following terms shall have the following meanings:

a. "Manufacture" means the production, preparation, compounding,
tableting, processing, encapsulating, packaging, repackaging, labeling
or relabeling of an imitation controlled substance.

b. "Markings" means a simulated trademark, trade name, imprinting or
other mark, or likeness thereof, of the manufacturer, distributor or
dispenser of a controlled substance or a simulated code number or symbol
or likeness thereof identifying a controlled substance or combination of
such substances.

c. "Imitation controlled substance" means a substance, other than a
drug for which a prescription is required pursuant to article one
hundred thirty-seven of the education law, that is not a controlled
substance, which by dosage unit appearance, including color, shape and
size and by a representation is represented to be a controlled
substance, as defined in the penal law. Evidence of representations that
the substance is a controlled substance may include but is not limited
to oral or written representations by the manufacturer or seller, as the
case may be, about the substance with regard to:

(i) its price, nature, use or effect as a controlled substance; or

(ii) its packaging in a manner normally used for illicit controlled
substances; or

(iii) markings on the substance.

2. It shall be unlawful for any person to manufacture, sell or possess
with the intent to sell, an imitation controlled substance.

3. It shall be unlawful for any person to possess or use any punch,
die, plate, stone or any other equipment in order to print, imprint, or
reproduce the trademark, trade name or other identifying mark, imprint
or device of another or any likeness of any of the foregoing upon any
substance or container or labeling thereof with intent to manufacture an
imitation controlled substance.

4. No liability shall be imposed by virtue of this section on any
person licensed pursuant to article one hundred thirty-one of the
education law or licensed under this article who manufactures,
distributed, sells, prescribes, dispenses or possesses an imitation
controlled substance for use as a placebo or for use in clinical
research conducted pursuant to the federal food, drug and cosmetic act.

5. Nothing in this section shall apply to a noncontrolled substance
that was initially introduced into commerce prior to the initial
introduction into commerce of the controlled substance which it is
alleged to imitate.

6. In any prosecution under this section it shall be necessary to
prove that the imitation controlled substance was represented to be a
controlled substance; however, it shall not be a defense to a
prosecution under this section that the accused believed the imitation
controlled substance to be a controlled substance.

7. A violation of subdivision two or three of this section shall be a
class A misdemeanor. A violation of subdivision two or three of this
section by a person previously convicted of a violation of this section
within the preceding five years shall be a class E felony.

8. If any provision or part of this section or application thereof is
held invalid, the invalidity shall not affect other provisions, parts or
applications of this section which can be given effect without the
invalid provisions or application, and to this end the provisions of
this section are severable.