A. The board shall administer the Controlled Substances Act and may add by regulation substances to the list of substances enumerated in Schedules I through IV pursuant to the procedures of the Uniform Licensing Act [61-1-1 to 61-1-31 NMSA 1978]. In determining whether a substance has the potential for abuse, the board shall consider the following:

(1) the actual or relative abuse of the substance;

(2) the scientific evidence of the pharmacological effect of the substance, 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; and

(7) the potential of the substance to produce psychic or physiological dependence liability.

B. After considering the factors enumerated in Subsection A of this section, the board shall make findings and issue regulations controlling the substance if it finds the substance has a potential for abuse.

C. If any substance is designated as a controlled substance under federal law and notice is given to the board, the board may, by regulation, similarly control the substance under the Controlled Substances Act after providing for a hearing pursuant to the Uniform Licensing Act.

D. Authority to control under this section does not extend to distilled spirits, wine, malt beverages, tobacco or pesticides as defined in the Pesticide Control Act [76-4-1 to 76-4-39 NMSA 1978].

History: 1953 Comp., § 54-11-3, enacted by Laws 1972, ch. 84, § 3; 1989, ch. 177, § 20; 2006, ch. 16, § 1.

The 2006 amendment, effective July 1, 2006, deleted former Subsection E which provided that the board exclude any nonnarcotic substance from a schedule if the substance may, under 61-11-22 NMSA 1978, be lawfully sold over the counter without a prescription.

The 1989 amendment, effective July 1, 1989, in Subsection A deleted former Paragraph (8), which read: "whether the substance is an immediate precursor of a substance already controlled under the Controlled Substances Act"; inserted "of this section" in Subsection B; deleted former Subsection C, which read: "If the board designates a substance as an immediate precursor, substances which are precursors of the controlled precursor shall not be subject to control solely because they are precursors of the controlled precursor"; redesignated former Subsections D through F as present Subsections C through E; substituted all of the language of Subsection D beginning with "pesticides" for "economic poisons as defined in Section 45-9-2 NMSA 1953"; and in Subsection E substituted "Section 61-11-22 NMSA 1978" for "Section 67-9-53 NMSA 1953".

Board's scheduling of drugs not unconstitutional delegation of authority. — To allow the board of pharmacy to schedule drugs, resulting in the attachment of differing criminal penalties for the possession of scheduled drugs, is not an unconstitutional delegation of authority under N.M. Const., art. III, § 1. Montoya v. O'Toole, 1980-NMSC-045, 94 N.M. 303, 610 P.2d 190.

Penalty provisions applicable to drugs scheduled by regulation. — Express legislative authority is not required to make the penalty provisions of the Controlled Substances Act (30-31-1 NMSA 1978) applicable to drugs scheduled by administrative regulation. State v. Reams, 1981-NMCA-158, 98 N.M. 372, 648 P.2d 1185, aff'd in part, rev'd on other grounds, 1982-NMSC-075, 98 N.M. 215, 647 P.2d 417.

Law reviews. — For annual survey of New Mexico law relating to administrative law, see 12 N.M.L. Rev. 1 (1982).

For annual survey of New Mexico law relating to constitutional law, see 12 N.M.L. Rev. 191 (1982).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 25 Am. Jur. 2d Drugs, Narcotics and Poisons §§ 17, 19, 33, 179, 181, 187, 188.

28 C.J.S. Drugs and Narcotics § 117 et seq.