Is it a Crime to Sell Counterfeit Drugs?


Most people already know that selling controlled substances is an illegal act that can lead to severe penalties with a criminal conviction. But what happens if a person is caught selling fake drugs? For example, what are the legal implications of being caught by law enforcement for selling acetaminophen while claiming that it is Xanax? Even though the purchaser believes they are acquiring an illegal drug, the seller was never in possession of illegal drugs. In this case, would you still face criminal charges? The simple answer is yes. State and federal laws make the selling of fake drugs illegal in all states.

What Makes Selling Fake Drugs Illegal?

Selling counterfeit drugs is illegal across the United States, including in Nebraska. Although you are not in possession of a controlled substance, the process of emulating the sale of an illegal drug is considered a criminal act. Nebraska Revised Statute 28-416 even directly names “counterfeit controlled substance” in the text of the law. According to Nebraska Revised Statute 28-416:

“Except as authorized by the Uniform Controlled Substances Act, it shall be unlawful for any person knowingly or intentionally: (a) To manufacture, distribute, deliver, dispense, or possess with intent to manufacture, distribute, deliver, or dispense a controlled substance; or (b) to create, distribute, or possess with intent to distribute a counterfeit controlled substance

The statute clearly states that intent to distribute a counterfeit controlled substance is illegal. Any individual attempting to do so will face a serious felony charge. The punishments for distributing or attempting to distribute fake drugs depend on a variety of factors.

Penalty for Intent to Distribute Counterfeit Drugs

The sale of counterfeit controlled substances is illegal, but are the penalties less severe than if the actual drug was present? Not according to the law. In some cases, the attempted distribution of fake narcotics is actually more severe than in the case of real drugs. The penalty for attempting to distribute a counterfeit drug is the same as it would have been if the actual drug was present, but the process of selling counterfeit drugs may lead to additional federal criminal charges as well. Determining the actual penalty of an intent to distribute a counterfeit drug charge can be difficult, and the details of a case should be discussed with a lawyer to understand the process more clearly. A variety of factors play a role in determining the severity of an intent to distribute charge, including:

  • Where you were attempting to sell the drug(s);
  • The amount of drug(s) in your possession;
  • The type of drug(s) you are claiming to sell;
  • The age of the individual you are selling the drug(s) to; and
  • The number of prior criminal convictions you have

The exact criminal charge and resulting penalty for the intent to distribute drugs, or counterfeit drugs, can be severe and have life altering implications. It is important that you consult an experienced Nebraska drug attorney if you were charged with intent to distribute counterfeit drugs.

Federal Penalty for Intent to Distribute Counterfeit Drugs

You may also face federal criminal charges if you attempt to sell fake drugs. According to 21 U.S.C. Section 331, it is illegal to sell an adulterated or misbranded drug in interstate commerce. If the counterfeit contraband has crossed state lines, you will be in violation of federal code. Any person who violates this section of federal code faces up to one year in prison and/or a fine of up to $1,000. You could also be charged with criminal fraud under 18 U.S.C. Section 1001. According to this section, it is illegal to make any materially false, fictitious, or fraudulent statement or representation. Basically, you could be charged with fraud for leading somebody to purchase fake drugs with the belief they were actual contraband. If convicted, you could be facing up to 5 years in prison and/or fined not more than twice the gross gain/loss from the drug sale.

Nebraska Drug Lawyers

If you have been arrested for the attempted distribution of counterfeit drugs, you may be in the most important battle of your life. Due to the “war on drugs,” the penalties related to drug crimes are often steep, even if the drugs are counterfeit. You may also be facing federal charges alongside state criminal ones. An attorney can advise you on the possible penalties you are facing, build a strong defense, and set forth the best course of action for your future. Berry Law’s Nebraska drug lawyers have experience defending clients from drug related offenses. If you or somebody you know is facing intent to distribute charges for selling fake drugs, contact Berry Law today at 402-260-5767 to schedule a confidential consultation.

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