The sale of herbal incense that may give a high similar to marijuana remains in a regulatory void in Canada, despite a crackdown on similar substances south of the border.

A CBC News investigation has found that the product is available to buy in stores from St. John’s to Vancouver.

Packages of the herbal incense contain explicit health warnings that it is not for human consumption.

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Federal agents from the DEA remove sacks from a warehouse in Tampa on July 25, 2012. Agents were raiding several properties as part of an operation targeting people making synthetic marijuana. (AP Photo/The Tampa Bay Times)

But undercover CBC reporters found stores where staff suggested it is meant to be smoked.

Herbal incense is sold in foil packages at prices ranging from roughly $12 and $16 a gram.

It goes under brand names like Happy Shaman, K2 Grape Xtreme, Project 420, Fusion Atomic Green and Kick Ass White Rabbit.

Similar products in the United States have faced legislative action, with the vast majority of states taking action to ban them.

And last July, the U.S. Drug Enforcement Administration carried out Operation Log Jam, with law enforcement officers in 109 cities taking part and more than 90 arrests made.

A total of 4.8 million packages of synthetic cannabinoids, and the chemicals to make 13.6 million more, were seized. So was $36 million US in cash.

Police reaction in Canada

Police in this country have not been on the same page when it comes to products claiming to be an alternative to marijuana.

Calgary police carried out a series of raids in 2011, but the Alberta Crown office said it did not appear that any charges or conviction resulted.

And today, different police forces are taking different stands about whether the product is, in fact, legal.

The Winnipeg Police Service initially told CBC News that synthetic marijuana is not a controlled substance.

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The Zap'r herbal incense blend has this label on the back of the package. (CBC)

Now, in the wake of CBC inquiries, the force says it is concerned, is not sure about the legal status, and will look into it.

Police in Windsor, Ont., along with two other police services in that province, are starting a crackdown on convenience stores this week.

Windsor Police Insp. John McQuire says the force’s drug unit has sent away samples to Health Canada, which have tested positive for synthetic cannabinoid.

"It's illegal to have or to sell," McQuire said.

The package tested in Windsor carried the brand name "The Izms."

But The Izms chief executive Adam Wookey told CBC News his product is completely legal.

"The claim that it’s legal is based on its ingredients," Wookey said.

"The active ingredients are synthetic cannibinoids that have no similar structure to THC. Because of that, they are not considered to be similar synthetic preparation and, therefore, not illegal. The problem with basing laws on pharmacological effect is that it’s extremely dubious."

Wookey said that based on pharmacological effect, coffee and cocaine would be "similar."

"It would open the door to vitamins and things we use … in everyday life. If you started regulating stimulants ... it would open the door for a range of stimulants to be illegal."

Legal grey area

In Canada, products claiming to be marijuana alternatives seem to exist in a legal grey area.

According to the RCMP’s Sgt. Ken Cornell, not all synthetic cannabinoids have been declared by Health Canada in schedule II of the Controlled Drugs and Substances Act (CDSA).

Although they may have a similar chemical structure and make-up, he notes, pharmacologically they react very differently in the body.

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This herbal incense was bought in Newfoundland within the past month.

"This is likely where importers/users are trying to argue that their substances are unregulated," Cornell said in an emailed statement.

He works as national chemical diversion co-ordinator with the RCMP’s drug branch, federal and international operations.

"Also confusion may come into play with police departments or detachments that are aware of some of the typical synthetic cannabinoids being declared and others not."

Health Canada says smoking synthetic cannabinoids can result in symptoms that range from seizures to hallucinations to acute psychosis.

Proponents of the product — also known as "spice," or K2 — stress that it is legal.

But Health Canada considers it a controlled substance if it gives the same effect as marijuana.

CBC News is taking steps to securely destroy the packages it purchased during this investigation.

Big issue south of the border

The issue with similar products is much better known in the United States.

According to the Drug Abuse Warning Network, 11,406 Americans went to the emergency room with side effects from synthetic marijuana in 2010.

Earlier this month, the U.S. Centers for Disease Control issued a warning after finding that 16 synthetic marijuana users in six states suffered acute kidney injuries last year.

"Public health practitioners, poison center staff members, and clinicians should be aware of the potential for renal or other unusual toxicities in users of [these] products," the CDC report noted. 

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Karen Dobner's son Max died in a car crash after smoking synthetic marijuana. The Illinois woman has since started a foundation in Max's name, and lobbied the state government to bring in tough new legislation. (CBC)

For Karen Dobner, synthetic marijuana has had a more personal impact.

The Illinois woman’s teenage son Max died in 2011 after smoking it.

Just a half-hour before Max’s death, he called his older brother to tell him his heart was pounding, and he was freaking out.

But Max got in the car and started driving "like a maniac" through town, Dobner recalls.

'They think that just because it is sold in stores it is safe.'—Parent Karen Dobner

The car reached speeds of up to 160 kilometres an hour before coming to the end of a road. Max didn’t brake. The car flew more than 25 metres through the air before crashing into a house, causing $100,000 US worth of damage. Max died almost instantly.

Her son "was one of those kids that never got into any trouble," Dobner told CBC News.

"When I found out he went to the mall and was talked into purchasing this product by the store owner, I immediately jumped into action. I thought, ‘How could they be selling something so dangerous?’"

Dobner started a foundation in her son’s name. She began lobbying the Illinois state government to bring in rules that she says are now the toughest in the country.

"They’re not usually the kids that are getting into trouble. They are using synthetic marijuana because they don’t want to get in trouble. Those kids, they think that just because it is sold in stores it is safe."