Can I Go to Jail for Selling Fake Drugs?

Selling fake drugs can land you in as much trouble as selling the real ones.

By , Attorney · Mitchell Hamline School of Law
Updated 7/14/2023

Selling drugs—fake or real—can lead to arrest and criminal charges. Even if what you're actually selling is legal, such as trying to pass off aspirin as OxyContin, it's still a crime under state and federal laws. And the penalties can be harsher than you might think. While the average buyer might not report you for a fraudulent drug transaction, the undercover cop/buyer could arrest you on the spot.

Is It Illegal to Sell Fake Drugs?

Yes. State and federal laws prohibit selling fake drugs—these include imitation and counterfeit drugs. Imitation drug often refers to a substance that resembles a different controlled substance by its appearance or what the seller purports it to be. Counterfeit drugs tend to be substances that are meant to look legitimate in their markings or labeling. However, these definitions can vary depending on the specific law. For example, some states group both types of fake drugs into one definition of imitation, simulated, or counterfeit drugs. Other states simply refer to selling a substance that isn't the represented drug.

State Crimes and Penalties for Selling Counterfeit or Imitation Drugs

Selling fake drugs could land you with state charges regarding counterfeit or imitation drug sales or general fraud charges.

State Counterfeit or Imitation Drug Charges and Penalties

Many states have crimes specific to selling fake drugs. Florida, for instance, makes it a crime to unlawfully sell or offer to sell a person a controlled substance and then sell that person a different substance. California has a chapter of law known as the "California Imitation Controlled Substance Act" that criminalizes selling both imitation and counterfeit drugs. Other states with crimes specific to selling imitation drugs include Louisiana, Maine, New York, Texas, and Washington, just to name a few.

State penalties range widely from misdemeanors to serious felonies. California's imitation drug law, for example, carries misdemeanor penalties with increased jail time if the person sold the fake drugs to a minor. Florida has both felony and misdemeanor penalties depending on the type of drug alleged for sale. In Louisiana and Washington, the crimes are felonies. Some states increase the penalties if the buyer suffers any physical harm from the fake drugs.

State Fraud Charges and Penalties

A person who sells fake drugs could also face fraud charges. It's illegal to obtain a benefit or financial gain by intentionally making false statements about a key or material fact in a transaction. Taking someone's money by selling them what they think is a controlled substance is fraud. Penalties for fraud often vary based on the amount of loss to the victim.

(Cal. Health & Safety Code §§ 109550, 109575, 109580; Fla. Stat. § 817.563; La. Rev. Stat. § 971.1; Maine Rev. Stat. § 17A-1104; Wash. Rev. Stat. § 69.50.4012 (2023).)

Federal Crimes and Penalties for Selling Counterfeit Controlled Substances and Drugs

A person selling fake drugs can face the following federal charges and penalties.

It's a felony to knowingly manufacture, sell, or hold for sale any counterfeit drug. Federal law defines a counterfeit drug as any drug that bears a false trademark, label, imprint, or likeness to another drug in an effort to look like the purported drug. A conviction can mean up to 10 years in prison. (21 U.S.C. §§ 321, 331(i)(3), 333(b)(8) (2023).)

Federal law also makes it a crime to create, sell, or possess with intent to sell a counterfeit substance. A counterfeit substance is defined as a controlled substance that bears a false trademark, label, imprint, or likeness to another controlled substance in order to look like the purported controlled substance. The penalties for this offense vary depending on the type of controlled substance involved, whether the victim suffered harm or was a minor, and whether the defendant has prior convictions. (21 U.S.C. § 841 (2023).)

Why Make It a Crime to Sell Fake Drugs?

Selling imitation drugs might sound harmless, especially if the unknowing drug buyer is getting aspirin. But that's not always the case.

Imitation and counterfeit drugs may contain harmful ingredients, such as detergents, cement, or chalk. Or an unsuspecting buyer might have a severe allergy to active or inactive ingredients used in a counterfeit drug, such as dyes or penicillin. If the dosage isn't working (because the drug's medicinal qualities are falsified), the user might overdose. And doctors trying to treat someone who's taking an imitation or counterfeit drug won't have accurate information for treatment.

Federal and state laws aimed at selling fake drugs are also aimed at combatting the crime and violence associated with illegal drug activities. Lawmakers have an interest in preventing all drug trafficking and abuse, even when those drugs are fake.

Consult a Lawyer

Selling fake drugs is a serious offense and a conviction carries the risk of significant prison time and fines. If you are charged with selling fake drugs, or any other drug-related or fraud crime, consult with an attorney in your state who has experience in criminal defense law.

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