(a) The commissioner may designate a consumer commodity as an abusable synthetic substance if the commissioner determines that the consumer commodity is likely an abusable synthetic substance and the importation, manufacture, distribution, or retail sale of the commodity poses a threat to public health.
(b) In determining whether a consumer commodity is an abusable synthetic substance, the commissioner may consider:
(1) whether the commodity is sold at a price higher than similar commodities are ordinarily sold;
(2) any evidence of clandestine importation, manufacture, distribution, or diversion from legitimate channels;
(3) any evidence suggesting the product is intended for human consumption, regardless of any consumption prohibitions or warnings on the packaging of the commodity; or
(4) whether any of the following factors suggest the commodity is an abusable synthetic substance intended for illicit drug use:
(A) the appearance of the packaging of the commodity;
(B) oral or written statements or representations of a person who sells, manufactures, distributes, or imports the commodity;
(C) the methods by which the commodity is distributed; and
(D) the manner in which the commodity is sold to the public.