Massa, J.
Christopher Tiplick faces criminal charges for possessing, selling, and dealing in the chemical compound designated XLR11, and dealing and conspiracy to commit dealing in lookalike substances. He sought dismissal of all counts, on the grounds that: (1) the charging information failed to reference the Indiana Board of Pharmacy’s Emergency Rule 12-493(E), which criminalized XLR11; (2) the applicable statutory schemes are impermissibly vague under both the United States and Indiana Constitutions; and (3) our General Assembly impermissibly delegated the authority to criminalize XLR11 to the Pharmacy Board under the Indiana Constitution. The trial court denied Tiplick’s motion, and he appealed. We too find no constitutional or statutory infirmity to any of the charges, but find the charging information inadequate with respect to the XLR11-related charges, necessitating dismissal of those counts.
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I. The Synthetic Drug Statute Is Not Unconstitutionally Vague.
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Tiplick … asserts that the sheer complexity of Section 321 [I.C. § 35-31.5-2-321, defining “synthetic drug”] is beyond the grasp of an ordinary person, and thus is impermissibly vague. We do not agree. … [I]t may be that a person with ordinary experience and knowledge does not know what [(1-(5-fluoropentyl)indol-3-yl)-(2,2,3,3-tetramethylcyclopropyl)methanone] is made of, but that is not the test; rather, it is whether a person of ordinary intelligence would understand his conduct was proscribed. Here, an ordinary Hoosier, armed with this chemical formula for XLR11, could determine through appropriate testing whether he was attempting to sell any products containing it. That is what we demand of our penal statutes.
Second, Tiplick asserts that the cross-referencing of Section 321 and Section 4.1 [I.C. § 25-26-13-4.1, empowering the Board of Pharmacy to adopt emergency rules declaring additional compounds to be a “synthetic drug”] presents a “statutory maze” that prevents a person of ordinary intelligence from being able to discover which conduct is proscribed. [Record citations omitted throughout.] … Here, however, … “[s]ynthetic drug” is defined in Section 321, it names the Section 4.1 emergency rules as the only additional source for prohibited substances, and Section 4.1(c) describes where to look for those published rules, based on the procedures contained in Indiana Code section 4-22-2-37.1 (2012). This is not a “maze,” but rather a chain with three links—three discrete statutes which give clear guidance as to how to find everything falling within the definition of “synthetic drug” under Section 321. Such a statutory scheme is not unduly vague.
II. The Look-Alike Statutes Are Not Unconstitutionally Vague.
Tiplick also asserts a vagueness challenge to Indiana Code sections 35-48-4-4.5, 35-48-4-4.6 and 35-48-4-5 (2008), collectively referred to as the “Look-Alike Statutes,” which prohibit conduct related to substances “represented to be a controlled substance” and “counterfeit substances.” [Footnote omitted.] …
First, Tiplick asserts that the text of the statute itself is impermissibly vague, pointing out that terms such as “substance,” “dosage unit,” “consistency,” “control,” and “nature” are undefined. Tiplick primarily relies upon Record Head Corp. v. Sachen, which invalidated a local ordinance banning the sale of drug paraphernalia. 682 F.2d 672, 679 (7th Cir. 1982). …
Unlike the ordinance at issue in Sachen, all three of the Look-Alike Statutes have a sufficient scienter requirement—“knowingly or intentionally” dealing in a look-alike substance, Ind. Code § 35-48-4-4.5, “knowingly or intentionally” manufacturing a look-alike substance, Ind. Code § 35-48-4-4.6, and either “knowingly or intentionally” dealing in or “possess[ing], with intent to” deal in a counterfeit substance, Ind. Code § 35-48-4-5. … And in any event, although the particular terms noted by Tiplick are not defined by statute (and are thus arguably open to interpretation), there is no construction of these phrases which would “embrace a vast assortment of very acceptable and even salutary conduct that is clearly not criminal in nature,” thus rendering the statute unduly vague despite inclusion of a specific intent requirement. [Citations omitted.] Therefore, the text of the Look-Alike Statutes gives adequate notice to ordinary persons of the conduct proscribed.
Tiplick also asserts that the Look-Alike Statutes permit arbitrary or discriminatory enforcement, because … the charges against him under the Look-Alike Statutes were based on the sale of “chocolate chip cookies,” and thus even an ordinary grocery store could be subjected to search and seizure in the police’s sole discretion. But Tiplick overlooks two important pieces of context contained in the probable cause affidavit: (1) these cookies were being sold at a store named “Smoke Shop” that did not otherwise sell food products; and (2) these cookies were represented by the store staff as being “Hippie Chips,” not garden-variety cookies. … There are thus no grounds to find the Look-Alike Statutes are subject to arbitrary enforcement, or were arbitrarily applied to Tiplick.
III. The Synthetic Drug Statute Is Not an Unconstitutional Delegation of Legislative Authority.
Tiplick also asserts that Section 4.1 is in derogation of the Distribution of Powers Clause of the Indiana Constitution, [footnote omitted] because it impermissibly assigns the legislative function of enacting criminal statutes to the Pharmacy Board, an executive agency. …
… [I]t appears to be a matter of first impression whether our General Assembly may delegate rule-making power to an administrative agency if violation of such rules would result in penal sanctions. [Footnote omitted.] This issue contains two pertinent questions: (1) is such a delegation permissible under the Indiana Constitution; and (2) even if generally permissible, what test should we apply to determine whether a particular delegation of this kind is valid?
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Based on the weight and consistency of this authority [Touby v. United States, 500 U.S. 160 (1991), caselaw from twenty states interpreting similar statutes, and Burk v. State, 257 Ind. 407, 275 N.E.2d 1 (1971)], we find that the Distribution of Powers Clause of the Indiana Constitution does not prohibit our General Assembly from delegating rule-making authority to administrative agencies where violation of such rules may result in criminal penalties by statute, and moreover, that it is appropriate to apply Indiana’s traditional analysis [applied in civil cases] to determine whether such a delegation is valid.
In Indiana, “although the legislature cannot delegate the power to make a law, it can make a law delegating power to an agency to determine the existence of some fact or situation upon which the law is intended to operate.” City of Carmel v. Martin Marietta Materials, Inc., 883 N.E.2d 781, 788 (Ind. 2008) (internal quotations omitted). …
Here, the Pharmacy Board has not been empowered to legislate with respect to dealing, conspiracy to commit dealing, or possession of synthetic drugs; that power has already been exercised by the General Assembly, as contained in relevant part at Indiana Code sections 35-48- 4-10(a)(1) and -11 (Supp. 2012). The Pharmacy Board has merely been given the power to determine, via emergency rule, whether additional substances should qualify as “synthetic drugs” under Section 321—in other words, “to determine the existence of some fact or situation upon which the law is intended to operate.” City of Carmel, 883 N.E.2d at 788. …
In sum, we find Section 4.1 does not constitute an impermissible delegation of legislative authority to the Pharmacy Board under the Distribution of Powers Clause.
IV. The XLR11-Related Counts Must Be Dismissed for Failure to Reference the Emergency Rule.
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… Tiplick claims the [synthetic-drug charging] information was required to reference the Emergency Rule rather than just the criminal statute, because without it, there is nothing to indicate with specificity the criminality of XLR11. On this technical point, we find Tiplick to be correct. In State v. Jennings, the defendant was charged with possession of a “dangerous drug,” (namely, marijuana) … during a narrow gap between effective statutes where marijuana was only defined as a “dangerous drug” pursuant to such a Pharmacy Board rule. [262 Ind. 443,] 445, 317 N.E.2d [446,] 447–48 [(1974) (Givan, J., dissenting)]. We upheld the dismissal of the information, finding:
There being no statutory offense alleged, it was incumbent on the State to allege that the appellee violated the promulgated rule of the Board of Pharmacy . . . Yet, nowhere in the record before us does the Board of Pharmacy rule appear. The affidavit was clearly defective in that it alleged no criminal offense.
Id. at 444, 317 N.E.2d at 447. The same circumstances—almost to the letter—have occurred here: Tiplick was charged under Indiana statutes with dealing, conspiracy to commit dealing, and possession of synthetic drugs. Yet, the only synthetic drug listed in the information or the probable cause affidavit is XLR11. XLR11 was only illegal at that time pursuant to the Emergency Rule, and neither the charging information nor the probable cause affidavit reference that Rule. We thus find the charging information inadequate under Jennings.
… We are therefore obliged to dismiss counts VII through XV and counts XVII through XVIII of the information.13
[Footnote 13:] We wish to emphasize, however, that as we found no constitutional or statutory infirmity to the charges, the State remains free to re-file an amended information with proper reference to the Emergency Rule. [Citations omitted.]
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Rush, C.J. and Dickson, Rucker, and David, JJ., concur.
Christopher Tiplick faces criminal charges for possessing, selling, and dealing in the chemical compound designated XLR11, and dealing and conspiracy to commit dealing in lookalike substances. He sought dismissal of all counts, on the grounds that: (1) the charging information failed to reference the Indiana Board of Pharmacy’s Emergency Rule 12-493(E), which criminalized XLR11; (2) the applicable statutory schemes are impermissibly vague under both the United States and Indiana Constitutions; and (3) our General Assembly impermissibly delegated the authority to criminalize XLR11 to the Pharmacy Board under the Indiana Constitution. The trial court denied Tiplick’s motion, and he appealed. We too find no constitutional or statutory infirmity to any of the charges, but find the charging information inadequate with respect to the XLR11-related charges, necessitating dismissal of those counts.
….
I. The Synthetic Drug Statute Is Not Unconstitutionally Vague.
….
Tiplick … asserts that the sheer complexity of Section 321 [I.C. § 35-31.5-2-321, defining “synthetic drug”] is beyond the grasp of an ordinary person, and thus is impermissibly vague. We do not agree. … [I]t may be that a person with ordinary experience and knowledge does not know what [(1-(5-fluoropentyl)indol-3-yl)-(2,2,3,3-tetramethylcyclopropyl)methanone] is made of, but that is not the test; rather, it is whether a person of ordinary intelligence would understand his conduct was proscribed. Here, an ordinary Hoosier, armed with this chemical formula for XLR11, could determine through appropriate testing whether he was attempting to sell any products containing it. That is what we demand of our penal statutes.
Second, Tiplick asserts that the cross-referencing of Section 321 and Section 4.1 [I.C. § 25-26-13-4.1, empowering the Board of Pharmacy to adopt emergency rules declaring additional compounds to be a “synthetic drug”] presents a “statutory maze” that prevents a person of ordinary intelligence from being able to discover which conduct is proscribed. [Record citations omitted throughout.] … Here, however, … “[s]ynthetic drug” is defined in Section 321, it names the Section 4.1 emergency rules as the only additional source for prohibited substances, and Section 4.1(c) describes where to look for those published rules, based on the procedures contained in Indiana Code section 4-22-2-37.1 (2012). This is not a “maze,” but rather a chain with three links—three discrete statutes which give clear guidance as to how to find everything falling within the definition of “synthetic drug” under Section 321. Such a statutory scheme is not unduly vague.
II. The Look-Alike Statutes Are Not Unconstitutionally Vague.
Tiplick also asserts a vagueness challenge to Indiana Code sections 35-48-4-4.5, 35-48-4-4.6 and 35-48-4-5 (2008), collectively referred to as the “Look-Alike Statutes,” which prohibit conduct related to substances “represented to be a controlled substance” and “counterfeit substances.” [Footnote omitted.] …
First, Tiplick asserts that the text of the statute itself is impermissibly vague, pointing out that terms such as “substance,” “dosage unit,” “consistency,” “control,” and “nature” are undefined. Tiplick primarily relies upon Record Head Corp. v. Sachen, which invalidated a local ordinance banning the sale of drug paraphernalia. 682 F.2d 672, 679 (7th Cir. 1982). …
Unlike the ordinance at issue in Sachen, all three of the Look-Alike Statutes have a sufficient scienter requirement—“knowingly or intentionally” dealing in a look-alike substance, Ind. Code § 35-48-4-4.5, “knowingly or intentionally” manufacturing a look-alike substance, Ind. Code § 35-48-4-4.6, and either “knowingly or intentionally” dealing in or “possess[ing], with intent to” deal in a counterfeit substance, Ind. Code § 35-48-4-5. … And in any event, although the particular terms noted by Tiplick are not defined by statute (and are thus arguably open to interpretation), there is no construction of these phrases which would “embrace a vast assortment of very acceptable and even salutary conduct that is clearly not criminal in nature,” thus rendering the statute unduly vague despite inclusion of a specific intent requirement. [Citations omitted.] Therefore, the text of the Look-Alike Statutes gives adequate notice to ordinary persons of the conduct proscribed.
Tiplick also asserts that the Look-Alike Statutes permit arbitrary or discriminatory enforcement, because … the charges against him under the Look-Alike Statutes were based on the sale of “chocolate chip cookies,” and thus even an ordinary grocery store could be subjected to search and seizure in the police’s sole discretion. But Tiplick overlooks two important pieces of context contained in the probable cause affidavit: (1) these cookies were being sold at a store named “Smoke Shop” that did not otherwise sell food products; and (2) these cookies were represented by the store staff as being “Hippie Chips,” not garden-variety cookies. … There are thus no grounds to find the Look-Alike Statutes are subject to arbitrary enforcement, or were arbitrarily applied to Tiplick.
III. The Synthetic Drug Statute Is Not an Unconstitutional Delegation of Legislative Authority.
Tiplick also asserts that Section 4.1 is in derogation of the Distribution of Powers Clause of the Indiana Constitution, [footnote omitted] because it impermissibly assigns the legislative function of enacting criminal statutes to the Pharmacy Board, an executive agency. …
… [I]t appears to be a matter of first impression whether our General Assembly may delegate rule-making power to an administrative agency if violation of such rules would result in penal sanctions. [Footnote omitted.] This issue contains two pertinent questions: (1) is such a delegation permissible under the Indiana Constitution; and (2) even if generally permissible, what test should we apply to determine whether a particular delegation of this kind is valid?
….
Based on the weight and consistency of this authority [Touby v. United States, 500 U.S. 160 (1991), caselaw from twenty states interpreting similar statutes, and Burk v. State, 257 Ind. 407, 275 N.E.2d 1 (1971)], we find that the Distribution of Powers Clause of the Indiana Constitution does not prohibit our General Assembly from delegating rule-making authority to administrative agencies where violation of such rules may result in criminal penalties by statute, and moreover, that it is appropriate to apply Indiana’s traditional analysis [applied in civil cases] to determine whether such a delegation is valid.
In Indiana, “although the legislature cannot delegate the power to make a law, it can make a law delegating power to an agency to determine the existence of some fact or situation upon which the law is intended to operate.” City of Carmel v. Martin Marietta Materials, Inc., 883 N.E.2d 781, 788 (Ind. 2008) (internal quotations omitted). …
Here, the Pharmacy Board has not been empowered to legislate with respect to dealing, conspiracy to commit dealing, or possession of synthetic drugs; that power has already been exercised by the General Assembly, as contained in relevant part at Indiana Code sections 35-48- 4-10(a)(1) and -11 (Supp. 2012). The Pharmacy Board has merely been given the power to determine, via emergency rule, whether additional substances should qualify as “synthetic drugs” under Section 321—in other words, “to determine the existence of some fact or situation upon which the law is intended to operate.” City of Carmel, 883 N.E.2d at 788. …
In sum, we find Section 4.1 does not constitute an impermissible delegation of legislative authority to the Pharmacy Board under the Distribution of Powers Clause.
IV. The XLR11-Related Counts Must Be Dismissed for Failure to Reference the Emergency Rule.
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… Tiplick claims the [synthetic-drug charging] information was required to reference the Emergency Rule rather than just the criminal statute, because without it, there is nothing to indicate with specificity the criminality of XLR11. On this technical point, we find Tiplick to be correct. In State v. Jennings, the defendant was charged with possession of a “dangerous drug,” (namely, marijuana) … during a narrow gap between effective statutes where marijuana was only defined as a “dangerous drug” pursuant to such a Pharmacy Board rule. [262 Ind. 443,] 445, 317 N.E.2d [446,] 447–48 [(1974) (Givan, J., dissenting)]. We upheld the dismissal of the information, finding:
There being no statutory offense alleged, it was incumbent on the State to allege that the appellee violated the promulgated rule of the Board of Pharmacy . . . Yet, nowhere in the record before us does the Board of Pharmacy rule appear. The affidavit was clearly defective in that it alleged no criminal offense.
Id. at 444, 317 N.E.2d at 447. The same circumstances—almost to the letter—have occurred here: Tiplick was charged under Indiana statutes with dealing, conspiracy to commit dealing, and possession of synthetic drugs. Yet, the only synthetic drug listed in the information or the probable cause affidavit is XLR11. XLR11 was only illegal at that time pursuant to the Emergency Rule, and neither the charging information nor the probable cause affidavit reference that Rule. We thus find the charging information inadequate under Jennings.
… We are therefore obliged to dismiss counts VII through XV and counts XVII through XVIII of the information.13
[Footnote 13:] We wish to emphasize, however, that as we found no constitutional or statutory infirmity to the charges, the State remains free to re-file an amended information with proper reference to the Emergency Rule. [Citations omitted.]
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Rush, C.J. and Dickson, Rucker, and David, JJ., concur.