NAHITA's Position on Laws that Limit American Consumer's Freedom of Choice.

Collectively, the Herbal Incense industry represents thousands of merchant retailers and hundreds of thousands of consumers of herbal incense aromatherapy products, whom collectively generate an estimated 4-6 billion dollars a year in taxable revenue.

SUMMARY OF NAHITA POSITION

The Herbal Incense Industry has somehow become a politically divisive issue. However, laws that ban products from the private market are built around the unconstitutional premise that the United States government has the authority to compel Americans to not purchase any private product that legislators assume can be harmful when misused, as a condition of lawful residence. If this is true, then there will be virtually no limit on the government's ability to regulate an individual's life.

The Equal Protection Clause, part of the Fourteenth Amendment to the United States Constitution, provides that "no state shall ... deny to any person within its jurisdiction the equal protection of the laws" under the federal constitution.

In respect to prohibition attempts against private market products (such as synthetic cannabinoids) in certain states; Bills and laws that ban private products in America without a ratified amendment to the federal constitution are, of themselves unconstitutional, and therefore invalid. This is not a matter of personal or legal opinion, as the constitution is the Supreme Law of the Land.

This premise has been clearly illustrated by the 18th amendment to the constitution, which allowed the U.S. government proper legal authority to restrict a private market product (alcohol) for the first (and last) time in American history, and limit the free choice of American Consumers.

Because of the toxic socioeconomic repercussions that prohibition introduced to the United States, the 21st Amendment was ratified in 1933, effectively repealing the 18th amendment. This action demonstrates that, not only are prohibition attempts that limit American's freedom of choice detrimental concept to Americas socioeconomic health, but are outside the boundaries of legislative authority and scope of work.

Please continue on to the NAHITA Statement of Positions below for more information, or refer to the legal citations below.

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HISTORY
America's founding fathers were worldly and well read men. They knew first hand that, to maintain individual freedom, government had to be held in check. They had lived through the horrors of the tyrannical kingdom of George III and carefully studied philosophers and governments of the past to glean the best formula to organize a nation. They also agreed citizens had natural and inalienable rights to life, liberty and the pursuit of happiness. These rights were not granted by the rulers, but "endowed by our creator".

Thus, the U.S. Constitution was ratified by America's forefathers, and it's amendments were adopted to provide the following rights for future generations of American Citizens.

• Freedom of choice in our private life;
• Freedom of choice in our economic life; and
• A set of objective laws that protect all citizens from the use of force or fraud against their person.

These simple objectives constitute the basic "Spirit of America". However, as put by George Mason, the "Father of the Bill of Rights", "From the nature of man we may be sure that those who have power in their hands… will always when they can… increase it." NAHITA advocates that expanding powers of the state, without supporting and defending the U.S Constitution, is wrong. NAHITA provides the following in support.

PROHIBITION'S UNCONSTITUTIONAL PREMISE
Laws that ban products from the private market are built around the unconstitutional premise that the government can compel Americans to not purchase any private product that can be harmful when misused, as a condition of lawful residence in the United States. If this is true then there will be virtually no limit on the government's ability to regulate an individual's life.

From a Constitutional standpoint, the mere existence of banning and prohibition laws is clear evidence that state legislature is not adhering to the provisions of the U.S. constitution. Consider these facts:

• According to the existence of the 18th amendment of the United States Constitution, the government is REQUIRED to seek a federal Constitutional amendment to enact a ban on a private market product.
• According to the presence of the 21th amendment of the U.S. Constitution, and the well documented circumstances around the amendment, banning a private market product is not only unconstitutional, it's a very dangerous exercise that is rife with unintended consequences.
  

In fact, prohibition leads to such grave circumstances, that, to date, the Twenty-first is the only amendment ratified by conventions held in the several states, rather than being ratified by the state legislatures.

The U.S. was founded as a constitutional republic (not a democracy), which means that the government was to be limited to powers that preserved and defended the individual rights of its citizens. Citizens were not to be governed by the majority of the population, but by the rule of law. The Founding Fathers knew the many flaws of majority rule and defined the constitution and Bill of Rights to protect the rights of the individual. Under the constitution, the limits of government’s functions are to protect the people from initiated force, fraud, and protect the people's natural RIGHTS to social and economic freedom. 

The Commerce Clause has been the most widely interpreted clause in the Constitution, making way for many laws which, some argue, contradict the original intended meaning of the Constitution.   To illustrate that the word “commerce” as employed under the Commerce Clause also does not extend any powers over buying and selling, consider that:

• The State cannot force someone to create a business and sell a product, and
• The State cannot force someone to buy a product – they must be willing to pay the price – a value judgment.

So, how could the commerce clause possibly give The State the power to force someone to NOT buy a product (i.e.: Market Prohibition)?

Historical resolutions show a clear, consistent understanding of how commerce clause refers to regulation through taxation (duties and imposts on importation) and not municipal law over internal commercial activities. Reason dictates that the U.S. government can constitutionally levy taxes on products imported between states and other countries, but the Commerce clause has nothing to do with influencing the restricting market goods for any reason.

If The State can prohibit ANY substance that it feels is harmful if misused under the Commerce Clause, then it can regulate virtually anything.  In this case, the government would no longer be one of limited and enumerated powers - it would have unprecedented control over how its citizens live their lives.

IMPACTS OF UNCONSTITUTIONAL LEGISLATION
NAHITA and U.S. Citizens in general are concerned that "Freedom of Choice" is no longer viable in today's America. The unfortunate truth is that anything a citizen is ""free" to choose" from has been "approved" by the state for American consumption - and Americans may only "choose" from that list. Choosing something not on the "approved" list is considered criminal and can result in one losing their freedoms altogether.

In our lifetimes, we have seen an increase in policies and practices that skirt the spirit of the legislative process. This includes legislative tactics like blanket legislative approvals, lack of diligence in evaluating financial impacts of legislation, and "emergency banning powers" like the ones recently exercised by the federal government's "Drug Enforcement Agency" against American small business owners and consumers.

With unconstitutional banning and prohibition measures, such as the ones proposed or enacted across various state against the herbal incense industry, many small business owners, employers, and income providers in America face the very real possibility that they may be harassed, arrested, charged with supposed crimes, or actually prosecuted for these classification of "crimes", regardless if the herbal incense products in their possession are legal or not.

Much like Alcohol Prohibition, banning policies against the herbal incense industry are going to cost millions to enact and attempt to enforce and will spark a wide array of unintended, yet foreseeable consequences. Aside from further diminishing American's freedom of choice and turning otherwise law-abiding, job-creating citizens into a new class of criminals, there will be very predictable socioeconomic impacts for banning states:

• Laws Cost Money. Contrary to the state's financial impact estimation, in order to enforce this round of prohibition, law enforcement agencies will need to significantly increase their budgets. Laws of this magnitude require the creation of:
  
• New Systems of Enforcement - New laws invoke the creation of new sub-polices across several agencies to deal with it - the ripple effect.
• New Enforcement Resources - Detection kits, detention facilities, incense-sniffing dogs, etc., and
  
• More People to Manage the Attempted Enforcement -
  
  • Police Officers to disrupt and raid convenience stores and other small business/community establishments, to confiscate, document and store any suspected goods
  • Legal/Judiciary/Administrative Staff to process the surge of new criminals and manage the collection of fines, and
  • Correction Officers and facilities to incarcerate business owners, their employees and private citizens that are currently positively contributing the market.
    

With our country at war and the existing state and federal budget crisis, the last thing voting taxpayers want to fund is resources to create & manage a of a new class of criminals (where none existed before), and costly injunctive civil rights lawsuits against the state .

Additionally, where the herbal incense industry generated an estimated 3-5 billion dollars of revenue a year in the United States alone, the government will lose a significant amount of tax revenue, as prohibition will only drive herbal incense consumers underground and/or to other illegal alternatives.

• Crime rates will surge under herbal incense prohibition. Where there is demand, there will be supply. American citizens that demand supply from the herbal incense industry will turn to the black market to fulfill their market demand. Organized crime groups will make MILLIONS of dollars on illegal herbal incense sales, displacing what was once taxable, job creating revenue. Banning artificially inflates the price of goods and increases crime, as consumers will have to spend a lot more for less.
  
  
• Prohibition of herbal incense will overburden already the overworked police, courts, and penal system. You can’t throw everyone in jail — yet with Alcohol Prohibition, even a small percentage of offenders couldn’t be locked away without overburdening the system. In 1923, for instance, the US District Attorneys spent 44% of their time on Prohibition cases. This takes time away from the real purpose of police and courts: to protect people and their possessions from force and fraud.
  
  As we've seen with the "War on Drugs" movement, prohibition is an impossible task to accomplish. This is especially true considering that there are no field tests in existence to detect the chemicals listed in banning policies. Even if there were, these tests would be astronomically expensive. Banning will force police to confiscate EVERY product from stores and consumers that they even SUSPECT to contain synthetic cannabinoids. Citizens and Business owners will grow even more fearful of police action and harassment, which will lead to more contempt of the law and doubt of the justice process.
  
  
• Prohibition of herbal incense will harm people financially, emotionally, and morally. Hundreds of thousands of people will lose their jobs because of Prohibition. People in the herbal incense industry will have two options: to find lower-paying work or become criminals (that is, staying in their profession). Prohibition compels otherwise law-abiding citizens to break the law just to support their families.
  
  
• Prohibition can cause physical harm. While the market has already established safe usage of existing known synthetic cannabinoids, under prohibition, synthetic cannabinoid manufactures will be compelled to supply new and unproven alternatives in an attempt to stay legal. This can lead to further unintended consequences to consumer safety.
  
  And who knows how many more people will perish because of organized crime, or due to overburdened police. When the police spend much of their time arresting and investigating crimes that cause no harm to others, the crimes that do cause harm increase and real criminals are more likely to go free.
  
  
• Prohibition prevents the treatment of substance abuse problems. It’s a lot harder to say you have a problem when it could land you in jail. Legally, you are either abstinent or a criminal — With prohibition laws. both occasional consumers and substance abusers are lumped into the same category. Substance abusers won't seek help, for fear they might end up in jail.
  
  
• Respect for the law will be greatly lessened. Prohibition of private market products encourages people to see the law as whimsical and unimportant, instead of something good and protecting. Prohibition does nothing to encourage the respect and obedience the law deserves.

IMPACT ON CONSUMER SAFETY

Abusing any substance can become a serious personal issue, which is only complicated when legislative prohibition measures are put in place.  Without prohibitive legislation, such person with a substance abuse issue is free to seek assistance for issues such as alcoholism without additional repercussions.  However, with the threat of fines, imprisonment and other legal sanctions, that same person is compelled to let their issues go untreated under the fear of punishment.  Prohibition is not conducive to public welfare.

In terms of product misuse, legitimate herbal incense products are clearly labeled "Not for Human Consumption.  However, if American citizens voluntarily choose to buy and consume products in unintended ways (misuse), Americans have the right to do so, so long as no harm is done to others. Prohibition is not within the constitutional scope of the American government, nor does it accomplish "keeping people safe".

In terms of state regulation, market forces have proven time and time again that, if people have adverse side effects to certain products through use (or misuse), then this information disseminates naturally by the market and people will choose to stop buying those products. In fact, consumer historical evidence shows that the market does a better, faster and more efficient job of identifying market threats than government "protection" agencies, like the federal Food and Drug Administration (FDA).

Further, based on market demand, herbal Incense products, even if misused, are far safer than legal products like FDA-approved pharmaceuticals, and habit-forming alternatives alcohol and tobacco, which the state collects special revenue from. In fact, according to the government's own Centers for Disease Control and Prevention, FDA-approved Prescription drug overdose (even when they are correctly given) is now the second leading cause of death in the U.S. Motor vehicle deaths are first).

Approximately 26,000 Americans are dying from government-approved prescription drug overdoses annually, according to the Center for Disease Control and Prevention. And, nearly 120,000 Americans go to hospital emergency rooms after overdosing on painkillers. “Addiction to prescription drugs is now one of the nation’s most serious drug problems,” according to Rod Colvin, author of Overcoming Prescription Drug Addiction. This government-regulated prescription drug epidemic costs taxpayers millions of dollars in health care, traffic accidents, joblessness, and absenteeism. Yet, the 48% Percent of the population reports using at least one prescription drug in the past month (between the years 2005-2008) Source: National Center for Health Statistics - Health, United States, 2010, table 94

CONCLUSION
In short, as history has shown, banning and prohibition does NOT solve societal problems, it causes a lot more of them.  Banning a tax-revenue generating product from the private market would assert the government's  authority over individual Freedom of Choice in an unprecedented and dramatic way.  NAHITA believes that state and federal Constitutions do not permit the development of legislation that limits the choices of the free market and causes irreparable harm to America's small business owners.

More Importantly, Without properly amending the United States constitution (as seen with early 20th century alcohol prohibition - The Volstead Act), the government has no constitutional authority to artificially intervene with market and "protect the consumer" through state control, when no force or fraud has been committed .

How many Americans have been arrested and imprisoned for selling goods and services that are not "approved" by the government? Our prisons are full of such people who have harmed no one socially, economically or physically, but regardless has had their freedom taken away by the state for giving people real choice. That's not freedom of choice, that's state control of people's lives.

Unless the US Constitution is properly amended, as it was with the 18th amendment, banning and prohibition measures are not only unconstitutional , they are plain un-American. We encourage State legislators to strike down prohibition related bills and repeal existing prohibition laws to avoid the unavoidable perils outlined in this statement.

There is no such thing as a drug-free community, nor will there ever be. Drugs, or substances that have physiological effects when ingested, are used every day by absolutely everyone! - from government approved alcohol, pharmaceuticals, and tobacco to chocolate and caffeinated products. So, unless the state is going to ban them all, it seems like the substance-related community issues would be best addressed through education vs unconstitutional legislation bearing unforeseen consequences.

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• Ga. Const. Art. I, § II, Para. V  (2009)  What acts Void
  “Legislative acts in violation of this Constitution or the Constitution of the United States are void, and the judiciary shall so declare them”.
  
  
• U.S. Constitution, Article VI, paragraph 2
  "This constitution, shall be the Supreme Law of the Land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding."
  
  
• Tenth Amendment, US Constitution
  "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."
  
  
• Sixteenth American Jurisprudence, Second Edition, Section 177. (late 2nd Ed. Section 256) Opinion of the Supreme Court on Unconstitutional Legislature
  "The general misconception is that any statute passed by legislators bearing the appearance of law constitutes the law of the land. The Constitution of the United States is the supreme law of the land, and any statue, to be valid, must be in agreement. It is impossible for both the Constitution and a law violating it to be valid; one must prevail. This is succinctly stated as follows:
  
  The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it.
  
  An unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed. Such a statute leaves the question that it purports to settle just as it would be had the statute not been enacted.”
  
  “Since an unconstitutional law is void, the general principals follow that it imposes no duties, confers no rights, creates no office, bestows no power or authority on anyone, affords no protection, and justifies no acts performed under it.
  
  A void act cannot be legally consistent with a valid one. An unconstitutional law cannot operate to supersede any existing valid law. Indeed, insofar as a statute runs counter to the fundamental law of the land, it is superseded thereby. No one is bound to obey an unconstitutional law and no courts are bound to enforce it.”
  
  
• Chief Justice Marshall, Marbury v. Madison, 5, U.S. (Cranch) 137, 174,176
  "All laws which are repugnant to the Constitution, are null and void."
  
  
• Norris v. Baltimore, 172, Md. 667; 192 A 531.0.
  "Where the meaning of the constitution is clear and unambiguous, there can be no resort to construction to attribute to the founders a purpose of intent not manifest in its letter."
  
  
• Miranda v. Arizona, 384 U.S. 436, 491.
  "Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them."
  
  
• Amos v. Mosley, 74 Fla. 555; 77 So. 619.
  "If the legislature clearly misinterprets a constitutional provision, the frequent repetition of the wrong will not create a right."
  
  
• United States v. Classic, 313 U.S. 299.
  "The courts cannot rightly prefer, of the possible meanings of the words of the constitution, that which will defeat rather than effectuate the constitutional purpose."
  
  
• South Carolina v. United States, 199 U.S. 437, 448 (1905).
  "The Constitution is a written instrument. As such, its meaning does not alter. That which it meant when it was adopted, it means now."
  
  
• Ervin v. Collins, Fla. 85 S. 852; 59 ALR 706.
  "The constitution is an instrument from the people and a construction thereof should effectuate their purpose from the words employed in the document; and the courts may not color it by the addition of words or the ingrafting of their views as to how it should be written."
  
  
• DuPont v. DuPont, Sup. 32 Ded. Ch. 413; 85 A 2d 724.
  "The basic purpose of a written constitution has a twofold aspect, first the securing to the people of certain unchangeable rights and remedies, and second, the curtailment of unrestricted governmental activity within certain defined fields."
  
  
• Muller v. Oregon, 208 U.S. 412.
  "It is the peculiar value of a written constitution that it places in unchanging form limitations upon the legislation and thus gives a permanence and stability to popular government which otherwise would be lacking."
  
  
• Hurtado v. California, 110 U.S. 516
  "The State cannot diminish rights of the people."
  
  
• Houston County v. Martin, 232 A 1 511; 169 So. 13.
  "Constitutions are not primarily designed to protect majorities, who are usually able to protect themselves, but rather to preserve and protect the rights of individuals and minorities against arbitrary action of those in authority."
  

ABOUT THE NORTH AMERICAN HERBAL INCENSE TRADE ASSOCIATION (NAHITA)
We are a self-regulated industry that is diligently represented by the North American Herbal Incense Trade (NAHITA). NAHITA members voluntarily subscribe to the following code of ethics.

"We possess the greatest faith in the future of the Herbal Incense Industry. We recognize that the Herbal Incense Industry is a significant economic contributor for North America and should be a self-regulated and fair-taxed industry.

We pledge our earnest cooperation with every reasonable effort to protect the interests of the public and our industry, through honest, upright business methods, prevent sales to minors, and put forth our sincerest efforts to breed, grow, produce, buy and sell only quality Herbal Incense.

We believe in the North American Herbal Incense Trade Association, subscribe to the principles for which it stands, and agree to be governed by its rules, constitution and bylaws. "