As used in the Imitation Controlled Substances Act: A. “board” means the board of pharmacy;

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B. “controlled substance” means a substance as defined in Subsection E of section 30-31-2 N.M. Stat. Ann.;

C. “distribute” means the sale or possession with the intent to sell of an imitation controlled substance;

D. “imitation controlled substance” means a substance that is not a controlled substance which by dosage unit appearance, including color, shape, size and markings and by representations made would lead a reasonable person to believe that the substance is a controlled substance. The fact finder may consider:

(1)     statements made by an owner or by anyone else in control of the substance concerning the nature of the substance or its use or effect;

(2)     statements made to the recipient that the substance may be resold for inordinate profit;

(3)     whether the substance is packaged in a manner normally used for illicit controlled substances;

(4)     evasive tactics or actions utilized by the owner or person in control of the substance to avoid detection by law enforcement authorities;

(5)     prior convictions, if any, of the owner or anyone in control of the object, under state or federal law related to controlled substances or fraud; and

(6)     whether the physical appearance of the substance is substantially identical to a controlled substance; and

E. “manufacture” means the production, preparation, compounding, processing, encapsulating, packaging or repackaging or labeling or relabeling as an imitation controlled substance.