Kentucky Revised Statutes Title XVIII. Public Health § 218A.350.Prohibited practices concerning substances that simulate controlled substances; penalties

(a) Whether the noncontrolled substance was packaged in a manner normally used for the illegal sale of controlled substances;

(b) Whether the sale or attempted sale included an exchange of or demand for money or other property as consideration, and whether the amount of the consideration was substantially greater than the reasonable value of the noncontrolled substance.

(c) Whether the physical appearance of the noncontrolled substance is substantially identical to that of a controlled substance.

(7) (a) Any person who violates any of the provisions of this section shall be guilty of a Class A misdemeanor for the first offense and a Class D felony for subsequent offenses.

(b) In lieu of the fine amounts otherwise allowed under KRS Chapter 534, for any offense under this subsection the court may impose a maximum fine of double the defendant's gain from the commission of the offense, in which case any fine money collected shall be divided between the same parties, in the same ratio, and for the same purposes as established for forfeited property under KRS 218A.420.

(c) It shall be an affirmative defense to an offense under this subsection that the defendant committed the offense during the course of the defendant's employment as an employee of a retail store and that the defendant did not know and should not have known that the trafficked substance was a synthetic drug.