The following article by Transform's Steve Rolles appeared (originally in Spanish) in a special cover feature edition of the Mexican magazine Nexos. Of the six articles in the feature another was by Transform/MUCD's Lisa Sanchez, about the upcoming UN General Assembly Special Session on Drugs in New York next month (available here in Spanish).
Nexos magazine cover this month
Novel Psychoactive Substances have sometimes referred to in the international political and media discourse as “legal highs”—a term initially coined by those marketing them, and then latched onto by the media. But it is an increasingly unhelpful term, not least because many of them are no longer legal in many jurisdictions. There are a huge range of drugs that come under this broad NPS heading, and they include substances that are similar to or mimic more familiar illegal drugs including psychedelics, stimulants, opiates, and cannabis. The European Drug Monitoring Center has observed more than 602 different NPS, with 101 new NPS emerging during 2014 alone.
The emergence of NPS can therefore be seen as driven primarily by prohibition. There would have been, for example, no demand in Western markets for the synthetic NPS cannabis mimics if their(much safer and less potent) natural cousin had been legally available. If the last 50 years teach us anything it is that whilst demand remains for a particular drug (or drug effect), the profit opportunity created means that the market will always find a way to meet it—whether legal or illegal.
Just as the emergence of NPS is an unintended consequence of historic prohibitions, so prohibiting a particular NPS can then have significant unintended consequences. Especially when demand for a given substance has been established, a ban is likely to have one or more of the following impacts; Creating a void in the legal NPS market into which one or more new substance will move (the net health impacts of which are impossible to predict); Diverting users back to the illegal substances the NPS are likely to have been a substitute for (exposing users to the risk of the illegal market and criminalisation over and above the risks of the drug use); or leading to the emergence of criminal market for the formerly legal NPS—in which it is likely that the quality (in terms of purity and reliability) of the product decreases and the cost increases. All of these phenomena have been witnessed with attempts to ban successive waves of NPS in Western markets.
The NPS phenomenon therefore presents a huge challenge for policy makers. The unregulated legal markets for NPS are clearly not acceptable, but at the same time it seems clear that prohibitions will, as so often before, only make things worse. One solution tried has been to stop banning one drug at a time and simply ban everything. Ireland attempted such a ‘blanket ban’ on all psychoactive substances in 2010. Whilst it successfully led to the most visible retail NPS sales ending, and closure of many so-called ‘head shops’, use of NPS amongst young people (aged 16-24) in Ireland is today the highest in the EU, and has increased since the 2010 ban, from reported lifetime use of 16% in 2011 to 22% in 2014. The market simply moved from shops to street and online markets. In Poland, a blanket ban was temporally followed by a rapid decrease in the number of reported ‘legal-high related poisonings’. However, three years after the ban the number of poisonings reports had increased above pre-ban levels. Polish officials have suggested this is partly due to the continued availability of NPS via international online markets.
There is, therefore, an urgent need to explore regulated market options that occupy the middle ground between total prohibition and unregulated free markets. These could allow for strictly controlled sales of certain lower risk NPS that had been appropriately safety tested, with regulatory tools be deployed that offer a degree of control over products, vendors, and availability. This is the road taken by New Zealand which in 2013 passed the ‘Psychoactive Substances Act’, which allows certain “lower- risk” NPS to be legally produced and sold within a strict regulatory framework. The new law puts the onus on producers to establish the risks of the products they wish to sell, as well as mandating a minimum purchase age of 18; a ban on advertising, except at point of sale; restrictions on which outlets can sell NPS products; and labelling and packaging requirements. Criminal penalties – including up to two years in prison – were established for violations of the new law.
The New Zealand government stated: “We are doing this because the current situation is untenable. Current legislation is ineffective in dealing with the rapid growth in synthetic psychoactive substances which can be tweaked to be one step ahead of controls. Products are being sold without any controls over their ingredients, without testing requirements, or controls over where they can be sold”. The new law remains in place, but has run into a number of technical challenges – crucially, how to establish ‘“low-risk” harm thresholds without using animal testing – as well as political opposition. As yet no NPS are regulated under the system – but it has at least demonstrated that another way is possible.
 Polish REITOX Focal Point. ‘2014 National Drug Report: Poland – New developments, trends, and in-depth information on selected issues,’ EMCDDA, 2015, p. 131. http://www.emcdda.europa.eu/publications/national-reports/poland-2014