Question: I sold a baggie of aspirins that I said was OxyContin to a guy at a concert. After the show, I heard that there were undercover officers in the crowd. Could I be busted for selling fake drugs?

Answer: Yes. States and federal laws make the sale of fake drugs illegal, and you can even be charged with an attempted drug sale under some laws.

This article discusses laws on the sale of counterfeit drugs generally. For more information on specific drug laws, see Drug Possession Laws & Drug Charges.

Fraud

Taking money from someone under intentionally false pretenses is fraud. (18 USC § 1001.) Under the law, an intentionally and materially false statement relied upon by another constitutes fraud.

“Intentionally”

A person intentionally makes a false statement when he makes the statement knowing it to be untrue. You knew that the baggie contained only aspirin when you told the other person that it contained OxyContin, so you intentionally made a false statement.

“Materially”

“Materially” means that the false statement concerns a fact that is of significance in the context. So, when person intentionally misrepresented the baggie of aspirin as OxyContin to someone who paid to purchase (and believed he was purchasing) OxyContin, the intentional misrepresentation was material to the transaction. The buyer would not have paid you if the true contents of the baggie were known to him.

Of course, it is highly unlikely that a victim who was trying to illegally purchase drugs would report being ripped off by a dealer who sold him aspirin instead of OxyContin. But, selling to an undercover officer or a police informant could lead to your arrest for fraud.

Fake Illegal Drugs

Most states make it a crime to attempt to sell a substance on the premise that it is an illegal drug, even if the substance itself is not illegal. This is also a criminal fraud.

Man Convicted Of Criminal Fraud For Attempt To Sell Fake LSD After following undercover agents to a hotel parking lot, a Missoula, Montana, man attempted to sell them a sheet of paper that he claimed was “blotter acid.” Even though the paper tested negative for LSD, the man was charged with criminal fraud and faced a five-year prison sentence and a fine of $50,000.

In another Montana case, a man was busted for offering to sell what he said was the drug Ecstasy but was actually flour. After he tweeted that he Ecstasy to sell, police officers obtained a warrant and found the flour, paraphernalia, and the phone he tweeted on in his apartment.

Counterfeit Pharmaceuticals

OxyContin is a prescription drug, and like all prescription drugs, it is regulated by the federal government. Federal law prohibits the sale of counterfeit drugs. (21 USC § 331.) This law requires that the counterfeit drug sale involve “interstate commerce.” So, if you bought the aspirin in your home state, attended the concert in that state, and made the fake drug sale in the same state, the federal counterfeit drug law may not apply to your situation. However, most states also have laws against the sale of fake drugs, so you are not in the clear. And, if you crossed state lines to go to the show, or bought the aspirin during a trip out of state, you have engaged in interstate commerce and are subject to the federal law.

Online sales of pharmaceuticals have led to an increase in prosecutions for counterfeit drug sales. Each individual sale can be charged and punished as a separate violation, leading to sentences of many decades for offenders who make several sales of a counterfeit drug. All online drug sales involve interstate commerce.

Defenses

Here are a few of the defenses available to a person charged with selling fake drugs.

Lack of Intent, no Fraud

Where a person offers something to another with no intent to mislead the other, there is no fraud. For example, suppose you had a bag of aspirin at the concert and another person asked if you had any OxyContin to sell. If you said no, but offered to sell him your bag of aspirin (because he is going to need it the day after the concert!), you would not have committed fraud. You had no intent to defraud the other person and you did not misrepresent a fact to him.

Lack of Intent: Not a Defense

The federal law prohibiting counterfeit drug sales makes it a crime simply to sell a fake pharmaceutical drug. The penalty is increased where the person makes the sale with intent to defraud or mislead.

So, a person charged with a counterfeit drug sale who can show that he did not intend to defraud the victim may receive a lighter sentence, but he likely will not be acquitted.

Lack of Knowledge

A person who lacks knowledge that he is dealing in a fake substance has not committed fraud. So, if you had received a baggie of tablets from a third party who told you it was OxyContin and then you sold the substance as OxyContin to another person, you would not be guilty of fraud or of selling a counterfeit drug with the intent to mislead or defraud another. (of course, you could face charges for selling the real thing, which is a controlled substance.)

Penalties for Selling Fake Drugs

A person convicted of criminal fraud may face a sentence of up to five years in prison. (18 USC § 1001.)

A person convicted of a sale of a counterfeit drug involving interstate commerce with no intent to defraud or mislead may face a sentence of not more than one year in prison, a fine of not more than $1,000, or both. (21 USC § 333 (a)(1).)

A person convicted of a sale of a counterfeit drug involving interstate commerce with intent to defraud or mislead may face a sentence of not more than three years in prison, a fine of not more than $10,000, or both. (21 USC § 333 (a)(2).)

And, each individual sale can be treated as a separate violation punished by the maximum sentence. So, a person who sells fake OxyContin online to 10 people may face up to 30 years in prison and a $100,000 fine.

Consult a Lawyer

Selling fake drugs is a serious offense and a conviction carries the risk of significant prison time and fines. If you are charged with selling fake drugs, or any other drug-related or fraud crime, consult with an attorney in your state who has experience in criminal defense law.