Section 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.