1. Except as otherwise provided in subsection 6, it is unlawful for a person to manufacture, distribute, sell or possess with the intent to distribute or sell an imitation controlled substance.

2. Except as otherwise provided in subsection 3, a person who violates subsection 1 is guilty of a misdemeanor.

3. A person who is 18 years of age or older who distributes or sells an imitation controlled substance to a person who is under the age of 18 years is guilty of a category C felony and shall be punished as provided in NRS 193.130. In addition to any other penalty, the court may order the convicted person to pay restitution for any reasonable costs incurred for the participation of the person to whom he or she distributed or sold the imitation controlled substance in a program for the treatment of substance use disorders. If the court orders the convicted person to make such restitution, the court shall notify the parent, guardian or other person legally responsible for the person to whom the imitation controlled substance was distributed or sold that such restitution has been ordered.

4. A person who:

(a) Uses or possesses with the intent to use an imitation controlled substance; or

(b) Advertises or solicits in any manner with reasonable knowledge that the advertisement or solicitation is to promote the distribution of an imitation controlled substance,

is guilty of a gross misdemeanor upon the person’s first and second convictions, and upon a third or any further conviction, is guilty of a category C felony and shall be punished as provided in NRS 193.130.

5. For the purposes of this section:

(a) “Distribute” means the actual, constructive or attempted transfer, delivery or dispensing to another of an imitation controlled substance.

(b) “Imitation controlled substance” means a substance, not a controlled substance, which:

(1) In the form distributed is shaped, marked or colored so as to lead a reasonable person to believe it is a controlled substance; or

(2) Is represented to be a controlled substance. In determining whether such a representation was made, the court shall consider, in addition to all other logically relevant factors:

(I) Statements made by the defendant regarding the nature of the substance, its use or effect.

(II) Statements made by the defendant regarding the recipient’s ability to resell the substance at a substantially higher price than is customary for the substance.

(III) Whether the substance is packaged in a manner normally used for illicit controlled substances.

6. This section does not apply to the manufacture, distribution, sale or possession of an imitation controlled substance for use as a placebo by a practitioner in the course of his or her professional practice or research.

(Added to NRS by 1983, 920; A 1995, 1284; 1999, 748)