Drug Abuse

All governments seek to control the availability of harmful substances in society, and there are a number of ways in which a government can do this. In the UK, since 1971 the Misuse of Drugs Act (MDA) has been the primary legislation for controlling psychoactive substances, primarily through police enforcement. However, there is other legislation in the UK that controls harmful substances, including the Intoxicating Substances Supply Act and the Medicines and Health Act and the various Licensing Acts governing sale of alcohol in different parts of the UK.

The choice of regulatory option depends on a number of factors:

·    the toxicity of the substance
·    the prevalence in use and the desirability of its effect
·    historical and cultural precedents
·    ‘beneficial’ medicinal or industrial uses

Regulatory options are constrained by international and supranational agreements. There are three UN conventions on drugs. The first is the 1961 Single Convention on Narcotic Drugs, which applies to opiates, cocaine and cannabis. The second, the Convention on Psychotropic Substances in 1971 extended controls to LSD, amphetamine, barbiturates and benzodiazepines. Third, the Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances in 1988 focused on aligning international efforts to tackle international drug trafficking.

The UN’s Single Convention on Narcotic Drugs 1961 and its efforts establishing the Convention on Psychotropic Substances (ratified in 1971) informed UK policy and the development of the classification system under the MDA. James Callaghan, then Home Secretary, told Parliament in 1970 that in developing the ABC classification system the Government had used the UN Single Convention on Narcotic Drugs and guidance provided by the World Health Organization to place drugs ‘in the order in which we think they should be classified of harmfulness and danger’. Box 4 presents a brief history of UK drug control policy.

Box 4    Brief history of UK drug control policy

Reuter and Stevens present the history of UK drug policy in four phases, covering pre-1916, 1916–1928, 1928–1960s and the 1960s onward. 70

The first major piece of UK legislation was the Dangerous Drugs Act 1920, which limited production, import, export, possession, sale or distribution of opium, cocaine, morphine or heroin to licensed persons. Before this, legislation of potentially harmful substances was limited to the 1868 Pharmacy Act, which was the first regulation of poisons and dangerous substances, limiting sales to chemists, and the 1908 Poisons and Pharmacy Act, which specifically included coca in regulations on sale and labelling.

The Dangerous Drugs Act restricted sale and distribution generally, but allowed for the prescribing of cocaine and heroin to addicts by licensed doctors and pharmacists. Known as the
British System for its uniqueness compared with other countries’ legislation, this system functioned until the 1960s when abuses of the system combined with other external factors to hasten its revision.

In the 1960s, the UK passed two additional Dangerous Drugs Acts (in 1964 and 1967) driven by the cultural liberalisation of drug taking, particularly among young people. Under these acts, drug offences were penalised equally, with no recognition of differing relative harms. These acts generated criticism because of the harsh punishments prescribed for cannabis possession. In response to a publicity campaign by celebrities and experts in the UK, the Wootton Committee was established and argued for the abolition of imprisonment for cannabis possession. This eventually led to the MDA in 1971, which made the distinction between sales and use in scope of punishment.71

The Misuse of Drugs Act 1971

In addition to creating a classification system that used the harm caused by a drug as a means of guiding sentencing, the MDA also created the Advisory Council on the Misuse of Drugs (ACMD) as an independent body to provide guidance on the classification of substances according to their harms. The MDA sought to combine a sense of proportionality with a commitment to evidence-based policy making. The Act makes it a statutory requirement that the ACMD is consulted to assess harms before making amendments to a drug’s classification (although its findings do not have to be followed by the Secretary of State). In addition to a drug’s class under the MDA (consisting of A, B and C categories), the Act also provides a scale of varying controls (known as Schedules) to allow a substance’s use for medical and/or research purposes. Table 1 lists the drugs included in the British Crime Survey and their classification under the MDA; table 2 lists the drugs included in the schedules determining medical use controls under the MDA.

The unintended harms associated with drug control

Much of the criticism of current drug policy approaches rests on the failure of enforcement-led policy to prevent the availability and use of illicit substances like cannabis, cocaine, heroin and ecstasy despite huge amounts of expenditure in time, money and resources. A number of high profile evaluations and reports have pointed to the diminishing returns to supply side approaches that involve enforcement and incarceration. According to a UK Prime Minister’s Strategy Unit report from 2003, ‘even if supply-side interventions were more effective, it is not clear that the impact on the harms caused by serious drug users would be reduced’.72

Another major criticism of current drug control measures arises from an increasing recognition that prohibition itself can result in harm. As Antonio Maria Costa recognised when he was executive director of UNODC, banning substances can have a wide range of negative consequences, including:

·    the creation of an expansive and powerful criminal black market, with associated violence and other crime
·    black market drugs being more likely to be cut with other substances to increase profit, leading to uncertainty around safe dosage levels and exposure to potentially harmful contaminants, resulting in health harms or even death

·    the criminalisation of people (particularly ethnic minorities and low income communities), including young people, if caught in possession of illicit substances that are nevertheless in widespread use
·    the stigmatisation of people suffering from addiction, which may impede access to treatment and rehabilitation75

Current drug control measures also give rise to a number of displacement effects. For example:

·    policy displacement (high expenditure on enforcement at the expense of other policy areas, such as public health)
·    geographical displacement (enforcement efforts concentrated in one country leading to the development of new producer countries or distribution routes
·    substance displacement (restricting the availability of some drugs leading to the development of new drugs)

At the street level, successful enforcement initiatives can have the effect of raising the price of drugs, which may cause dependent users to commit crime in order to obtain their ‘fix’. It can also affect the purity of drugs and lead to overdosing among drug users and the introduction of potentially harmful cutting agents. Finally, criminal drug laws often disproportionately affect certain communities, particularly those in lower income neighbourhoods. As the ACMD highlighted, the development of serious health and social problems as a result of heroin injecting in the 1980s was largely associated with social disadvantage.76 This inequity also extends to different ethnic groups as has been well documented in the USA,77 and research shows a similar picture in the UK, with black people six times more likely than white people to be arrested for drug offences and 11 times more likely to be imprisoned despite there being no evidence that black people are more likely to use or deal drugs than white people.78

Nevertheless, it remains extremely difficult to quantify the harms of drug control policy (relative to the harms of drugs themselves). In a recent debate during the scrutiny stages of the Police Reform and Social Responsibility Bill in Parliament, the Home Office drugs minister, James Brokenshire MP, argued:

The impact of domestic and international prohibition policy on levels of consumption and production globally is key in any meaningful
assessment and analysis of the 1971 Act. We do not accept that meaningful figures can be ascribed to the likely public and individual health cost or that it is possible to properly assess the impact of drugs on productivity
and industry or on industrial or traffic accidents. Those fundamental difficulties point up the question of whether the task is an appropriate use of research funding. In our judgment, it would not be a proper use of public money. 79

Yet just because measuring harms is difficult does not mean that they do not exist, nor that some attempt to measure them should not be made.

Recent trends in drug policy

As the culture of drug use changes, and as society’s attitudes to drugs change, so drug policy needs to evolve. This section identifies three trends in the formation of drug control policy in the UK and globally. They include:

·    increasing liberalisation in the USA, Latin America, Europe and Australasia.
·    increasing controversy around drug harms and scheduling and classifications
·    the blurring distinction between alcohol and cigarettes, and illicit substances

These trends, some of which were discussed in the previous chapter in relation to the rise of ‘legal highs’, provide the context for considering drug control policy in the twenty-first century and the challenge of new psychoactive substances.

Increasing policy liberalisation

Initiated with a strong emphasis on prohibition, drug policy in some countries has steadily shifted towards ‘harm reduction’ and treatment in addition to, or as an alternative to, criminal enforcement. This shift has been underpinned by changes in public opinion, particularly with respect to cannabis. Figure 1 shows Gallup polls carried out in the USA on the legalisation of marijuana.80

In the UK, the British Social Attitudes Survey shows that between 1983, when three-quarters of respondents were against legalising cannabis and only about a tenth were in favour, and 2001 there was increasing support for cannabis being legalised. Indeed in 2001 the proportion in favour was roughly the same as the proportion against; just over two-fifths of respondents in both cases. However, the 2007 survey showed some reversal of this liberal trend with just over a half against legalisation and only a quarter supporting it.81

Policy liberalisation in Europe

Although there is some evidence that public opinion has moved in the direction of relaxing legislation, at least for some drugs, changing policy still requires a committed reforming government to expend political capital in the face of a likely media backlash. This may be particularly true in the UK. Elsewhere in Europe, governments have taken steps towards liberalisation.

Despite all European countries being signatories to the UN conventions on illicit drugs, there is a significant amount of variation in the way this is translated into drug policy.82 These differences mainly consist of punishments for charges for possession of different drugs, but also include policy more generally relating to cannabis. In Europe, possession of drugs for personal use is not a criminal offence in Spain, Portugal and Italy. Perhaps surprisingly, despite the well-known coffee shops in Amsterdam where cannabis has been readily available since 1976, the Netherlands has not decriminalised cannabis or other drugs; it has simply chosen not to enforce their laws in the coffee shops. The same is true in Germany, where personal possession remains an offence but policy and judicial guidelines recommend against punishment for these offences. The first European country to decriminalise personal possession for all drugs was Portugal (box 5).

Box 5    The Portuguese approach

Much has been made about the Portuguese experience by experts and those in the media who advocate reform of UK drug laws. In 2001, Portugal abolished legal penalties for the personal possession of drugs, including marijuana, cocaine and heroin, and replaced arrest and incarceration with the offer of treatment. These changes were based on the premise that incarceration is more expensive than treatment and that there are social and economic reasons why treatment should be the first option and imprisonment a last resort. 83

Drug policy debates in general have been predicated on the assumption that liberalisation (in the form of de-penalisation and/or decriminalisation) will lead to higher rates of drug use and greater harms to society. According to Professor Alex Stevens of Kent University, ‘the example of Portugal seriously challenges this argument’. 84 While it is difficult to extrapolate from the experience of one country, evidence from an independent study found that five years after personal possession was decriminalised, illegal drug use among teens in Portugal declined and rates of new HIV infections caused by sharing of dirty needles dropped. Moreover, the number of people seeking treatment for drug addiction more than doubled. 85

One of the difficulties in seeking conclusions from the changes introduced in Portugal is being able to distinguish changes that would have occurred anyway from those caused by the legislative change. In their recent study Hughes and Stevens compare the experience in Portugal with neighbouring countries and conclude,

the reduction in problematic drug users and reduction in burden of drug offenders on the criminal justice system were in direct contrast to those trends observed in neighbouring Spain and Italy. Moreover, there are no signs of mass expansion of the drug market in Portugal. This is in contrast with apparent market expansions in neighbouring Spain. 86

As a result of these policy changes, Portugal is one of the few European countries to have an integrated legislative and regulatory approach to drugs and alcohol.

In the UK, the introduction of cannabis warnings and fixed penalty notices following the reclassification of cannabis back to class B reflected an attempt to reduce the potential unintended harm associated with criminalisation of young cannabis users. This followed a long tradition of police expediency in using police cautions rather than automatic arrest and prosecution. However, the major increase in recent years in the number of drug offences recorded, which is largely accounted for by cannabis possession offences, suggests that an unintended consequence of this policy is that it has created a perverse incentive to give and formally record warnings that might otherwise have been dealt with informally.87

Liberalisation in Australia, the USA and South America

Outside Europe there has been a range of initiatives that soften or ameliorate the impact of drug laws, particularly for personal possession. In Australia the penalties in different states vary, but in most cases the possession for personal use of cannabis, including some plants, is not a criminal offence, but one for which fines can be imposed.

In the USA, the medical use of cannabis has grown significantly and is now legally approved in 15 states as well as the District of Columbia.88 While there have been attempts in some states, for example Montana, to repeal these laws there has also been the growth and increasing professionalisation of a budding industry in states like California and Colorado.89 A recent attempt to effectively legalise the recreational use of cannabis in California was only narrowly defeated in a referendum, and had attracted a wide range of professional investors. There have even been statements of support among the most conservative commentators and politicians in the USA, including Pat Robertson and Sarah Palin, for relaxing enforcement of laws against personal use of cannabis.90

A number of South American countries have also recently sought to decriminalise some drug use (primarily cannabis) in order to reduce the impact of illegal drug production and distribution in their countries.91 In August 2009, the Argentine Supreme Court declared that it was ‘unconstitutional’ to prosecute citizens for having drugs for their personal use, asserting that ‘adults should be free to make lifestyle decisions without the intervention of the state’, though it stopped short of advocating complete decriminalisation.92 In the same month, Mexico enacted a law decriminalising possession of small amounts of drugs, including cocaine and heroin in an attempt to enable police to focus on major criminals in the drug trade, rather than dealing with petty cases. Those found in possession of the equivalent of four joints of marijuana, or four lines of cocaine, will no longer be viewed as criminals. Instead, they will be encouraged to seek government-funded drug treatment, which will be compulsory if users are caught a third time.93

Mexico and Brazil are among other Latin American countries that are beginning to consider a recasting of drug policies. In the past few years, high ranking former officials, including Brazil’s former president, Fernando Henrique Cardoso, and a Brazilian judge, Maria Lucia Karam, have come out against the war on drug policy as being counterproductive.94 More recently, President Calderon of Mexico publicly acknowledged the need to have a debate about the pros and cons or enforcement versus legalisation and regulation.95 A recent briefing from the International Centre for Human Rights and Drug Policy and the International Harm Reduction Association argues that changes in a number of South American countries in favour of decriminalisation for personal possession of drugs are indeed consistent with international drug treaties.96

Harms and the classification system

While an international debate about drug policy continues, the UK classification system in particular has come under criticism in the past ten years as the result of a number of decisions. Charles Clarke when Home Secretary promised a review of the drug classification system in 2005 but his successor, Dr John Reid, did not follow through with this. The farrago over the reclassification of cannabis, a somewhat modest change in reality, brought untold opprobrium on the heads of many politicians. Both of these decisions generated criticism, revealing the fractiousness of debates around drugs. Other criticism has stemmed from decisions to classify new drugs, including ketamine, GHB, and steroids (all class C) as well as magic mushrooms (now all class A).

Many argue that the scientific basis of classification is undermined by combining harmful drugs like crack cocaine and heroin with less harmful substances like ecstasy or magic mushrooms in class A. It has also been argued that the complete exclusion of alcohol and tobacco from classification is not only analytically problematic, but may also send the wrong message and amounts to a form of ‘separate but equal’ in harm policy.97 Critics argue that at its worse the classification of drugs has become a political tool, rather than the expression of evidence of harm.

Professor David Nutt, formerly chair of the ACMD, and other experts recently published a review of harms caused by different drugs as assessed by experts. The process assessed physical, psychological and social harm to users; and harm to others, mostly social but including physical and psychological. The results, shown in figure 2, reinforce the critique of the current classification scheme since several class A drugs are among those with the lowest levels of harm. It also suggests that alcohol is the most harmful of all the psychoactive substances considered, while tobacco ranks sixth, making it more harmful than cannabis, mephedrone and ecstasy. It should be noted, though, that a number of concerns have been raised about the methodology used for this process.

The blurring distinction between alcohol, tobacco and illicit substances

One of the key critiques of a number of experts is that extremely harmful drugs like alcohol and tobacco are not regulated through the Misuse of Drugs Act (MDA). Instead, because of cultural and historical precedent they are controlled through a series of consumer protection, licensing and taxation measures, with varying degrees of impacts. Each year, alcohol misuse for all ages costs the NHS around £2.7 billion, but the wider cost to society including crime and disorder, social and family breakdown and sickness absence is estimated at closer to £25.1 billion.99 There are also high social costs in the UK for smoking, with the NHS spending approximately £2.7 billion a year treating diseases related to smoking.100 However, unlike illicit substances, tobacco and alcohol generate substantial levels of revenue for the Treasury because they are regulated outside the MDA. For example, in 2009/10, the Treasury earned £8.8 billion from taxes on tobacco.101

Some suggest that this has led to confusing public health messages, for example, suggesting that alcohol and tobacco are not as harmful as illicit substances, or that messages about the harm of illicit substances are dismissed as fear-mongering by the government. There has been increasing attention to strengthening regulation around the sale of alcohol and tobacco: for example, the Coalition Government is exploring the idea of raising the price of alcohol per unit to discourage binge drinking. More recently, it was announced that the Government would seek to ban the display of tobacco products in retail shops and is considering requirements for plain packaging for all tobacco products.102

As the 2010 EMCDDA annual report argues, there are a number of arguments that suggest that public health requires a comprehensive approach to illicit and licit substances that are potentially harmful and open to misuse .103 Perhaps the most important reason is that the use of licit and illicit substances tends to take place among the same population, and possibly in the same settings. From the perspective of those working in public health responding to problems with misuse and addiction, a comprehensive approach is better suited to reality. This has been recognised by the most recent 2010 UK drug strategy, which states that ‘severe alcohol dependence raises similar issues [to illicit drug misuse] and that treatment providers are often one and the same’ .104 The new body Public Health England will have a remit to bring together traditional public health efforts (eg diet, immunisation) with drugs and alcohol treatment services. However, the drug strategy also recognises that alcohol plays an ‘important part in the cultural life of this country’, and has an economic contribution ‘with large numbers employed in production, retail and the hospitality industry’. It notes that ‘pubs, bars and clubs contribute to community and family life and also generate valuable revenue to the economy’, but points out that ‘alcohol is a regulated product’.

Legislating against ‘legal highs’: experiences abroad

At present there exists a variety of international responses to ‘legal highs’. Where drug laws are used to control use and supply there are significant differences between countries. Outside drug laws are control options that restrict sale, with or without medical supervision, largely through consumer protection or trading standards type legislation.

Internationally, there have been different approaches to controlling ‘legal highs’ thus far, including:

·    an analogue or generic approach
·    medicines legislation
·    trading standards or consumer protection (‘restricted sales’)
·    temporary bans or emergency legislation

Analogue legislation

An analogue approach entails banning or controlling all substances within a particular chemical group. The US Federal Analog Act enacted in 1988 is the most cited example of this type of approach. It was passed as a means of correcting the slow process needed to schedule potentially harmful substances. Before this Act the Drug Enforcement Agency had to legislate for each chemical or substance separately, which could take months if not years. The scheduling of ecstasy in the USA entailed a four-year process.105 The Analog Act allows for the scheduling of a substance if it is ‘substantially similar in structure’ and has a ‘substantially similar chemical effect’ to a substance that is already prohibited .106 Because of the vagueness of the language in the Analog Act, and the tendency for courts to defer to government interpretation, every substance that has been proposed for scheduling under the Analog Act has been approved for prohibition. According to Reuter, it is unclear whether the Analog Act is part of the reason ‘legal highs’ have been less of an issue in the USA, or whether it is the comparative severity of prison sentences for drug prosecutions that have thus far discouraged entrepreneurial chemists from aggressively targeting the US market.

There has been little public debate in the UK about adopting an analogue approach similar to the US model, for example, although the ACMD is apparently undertaking a review of different approaches including the analogue approach. Thus far, the Government has opted for introducing temporary bans (discussed further below); while in dealing with mephedrone, it has banned a wide range of cathinone derivatives at the same time. The minister’s comments in a recent parliamentary debate about ‘legal highs’ suggest that, although the UK is developing a broader classification approach that does not have to deal with specific chemicals individually, it is felt that the analogue approach would cast the regulatory net too widely. Banning substances without clear evidence of harm could forestall the research and development of useful medicines, or have unintended consequences by driving people towards more harmful substances.107

Medicines legislation

Medicines legislation provides for control of substances through medical supervision, or prescription. At the heart of such regulatory and control processes are strict standards to be applied to product quality control and knowledge about the likely benefits and problems of their use through established clinical trials. Under medicines legislation, the burden of proof about safety rests largely with the manufacturer and/or distributor within a structured regulatory framework. In some countries, including the Netherlands and Finland, ‘legal highs’ such as mephedrone have been controlled through medicines legislation.108 Austria has also used medicines legislation to restrict the sale of Spice without criminalising users .109 There has thus far been little analysis – at least in the public domain – about the effectiveness of this approach. In the UK and other countries, producers and distributors of ‘legal highs’ circumvented medicines legislation by putting a disclaimer on their products saying ‘not for human consumption’ and advertising them as ‘plant food’ or ‘bath salts’.

Trading standards and consumer protection (‘restricted sales’)

The experience with BZP in New Zealand presents the richest and best-documented case of a government struggling with an array of choices for regulating a new psychoactive substance.110
In 2005 the New Zealand Government’s first regulatory effort placed BZP in a new schedule within the NZ Misuse of Drugs Act as a ‘restricted substance’. This prohibited sale to anyone under 18 and prohibited various promotional activities, which had been widespread, but aside from these measures the substance was unregulated.111 In lieu of formal regulation, voluntary guidelines from an industry association were used but not thought to be effective. Because of this confusion most people in New Zealand believed use of BZP was legal, whereas in fact it was merely not prohibited.112

In 2006 and 2007, New Zealand’s Expert Advisory Commission on Drugs conducted an intensive review of the regulatory options for BZP and concluded that the risks to users were moderate.113 As a result, in April 2008 the New Zealand Government moved to schedule BZP as class 1 under the Drugs Misuse Act of 1975, which amounted effectively to full prohibition. To allow for this shift to prohibition, the New Zealand Government enacted a six-month transition period in which purchase, possession and use were not yet prohibited.

Following this, the New Zealand Law Commission conducted a review of the control and regulation of new psychoactive substances and published an issues paper that favoured regulation rather than prohibition as the default option and proposed some possible options based on current regulatory frameworks for other substances.~~4

Ireland has taken an approach which goes beyond this, but also still represents a form of trading standards control. The Criminal Justice (Psychoactive Substances) Act 2010 targets ‘head shops’ in which ‘legal highs’ are often sold. Among a wide range of provisions on drug use paraphernalia and cultivation equipment, it makes it a criminal offence to sell or supply for human consumption substances that may not be specifically controlled under the Misuse of Drugs Acts but which have psychoactive effects. It also gives powers to the police and the courts to intervene quickly to prevent the sale of psychoactive substances by way of prohibition notices and prohibition orders. It is too early to assess the impact of this approach.~~5

Temporary ban and emergency legislation

Another approach adopted for ‘legal highs’ has been the use of emergency powers to ban a substance – often for a year – to allow for research into its harms. The USA recently used such emergency legislation to ban five cannabinoids used in Spice. The planned temporary ban in the UK is one form of such emergency legislation. As described by the minister with responsibility for drugs, James Brokenshire MP, the temporary ban will only apply to the sale, supply and distribution of substances, and not to personal possession in order to avoid ‘criminalising users, particularly young people’. The waiver of possession charges makes it unnecessary for police officers to have to test drugs in order to determine their chemical make-up. It is however proposed that they can stop and search people and seize any substance they suspect is subject to a temporary ban.

From a public health perspective, in light of the rapid emergence of substances about which little is known, a temporary ban may prevent the spread of a new drug if it is enacted quickly enough. It also ostensibly keeps intact an approach to drug control based on evidence of harms, rather than simply basing drug control on an over-application of the precautionary principle (see below). However, there are a number of concerns about a temporary ban approach. For example, some suggest that once a substance is subject to a temporary ban, there is a strong internal logic and likelihood that the substance will become permanently controlled. This is in part due to the complications around prosecuting someone during the temporary ban period and then having to revisit those convictions if it was later decided that little harm was posed and the drug should be unclassified. Another concern is that unbanning a substance could be seen as suggesting it is completely safe (rather than of low risk compared to other psychoactive substances) and this might lead to a rapid increase in use. There is also the risk that a temporary ban could have the same effect as an analogue approach in hindering the development of drugs with medical benefit. For example, one substance recently banned through emergency powers in the USA as a synthetic cannabinoid (JWH-133) has been shown in tests on animals to have ameliorating effects on Alzheimer’s disease.~~6

The precautionary principle and ‘legal highs’

As Reuter argues in his report, legislating on ‘legal highs’ represents simply another instance of the government being forced to make policy in the face of uncertainty.»' In this instance, the harms of these new substances are generally unknown, as is the likely growth and evolution in this new market. The precautionary principle is one approach to policy making in the face of uncertainty when the action in question may pose ‘a possible danger to human, animal or plant health’.~~a The application of the precautionary principle has been explored mainly in the context of environmental protection, in which instance it is often used by advocates of environmental protection in the face of potentially polluting industries. The
precautionary principle assumes that policy makers are extremely risk averse in the face of uncertainty. In applying the precautionary principle, policy makers assume that the risks of a certain policy choice are so great (often judged on the basis of a worst-case scenario) that any benefits of that policy choice are completely outweighed. In contrast, the New Zealand Law Commission states its view that ‘in a free and democratic society full prohibition should be a last resort option when lesser regulatory restrictions have proved ineffective’.119

The adoption of the precautionary principle may seem appropriate for legislation around controlling new emerging psychoactive substances. In this instance, it is used to defend the current approach to drug control through enforcement and criminal sanction. While some application of the precautionary principle may be necessary, there is a risk that prohibiting a substance can actually increase harms, in which case legislation becomes potentially counterproductive. For example, prohibiting a substance that is still highly desired by substantial sections of society can encourage the involvement of organised criminals who are willing to take the risk of legal sanctions in order to reap the monetary reward of serving that demand. It can also influence quality control and assurances, the absence of which increases the harmful impact on individual users on average. In addition, it makes gathering data on the drug and its use much more difficult, which impedes the provision of prevention and harm reduction programmes as well as effective policy development and enforcement.

The decision to prohibit a new psychoactive substance, argues Reuter, is similar to the decision faced by drug regulatory agencies and pharmaceutical companies in bringing a new medicine to market. On the one hand, a regulatory agency could face criticism for delaying a potentially beneficial medicine while its safety was being assessed. On the other hand, bringing a medicine to market too soon could see a proliferation of potentially dangerous and ineffective medicines. Similarly, banning a new psychoactive substance too early can potentially make it difficult to gather information on its harms and potential beneficial uses. Banning it too late – as could arguably be the case with mephedrone – can allow the drug to proliferate and become better established. However, there are two important characteristics that distinguish the two examples.

First, there are well-established lobbying interests on both sides of the debate about regulating medicines: pharmaceutical companies and sometimes patient interest groups on the one hand, and consumer protection NGOs along with bodies like NICE on the other. However, there is hardly a substantial user base of recreational users of psychoactive substances that commands similar influence. There are of course a number of people who criticise prohibitionist drug policy, but their influence on policy has thus far been marginal. Second, and most importantly, there is a clear medical benefit at issue in the context of a decision about new medicines. The primary benefit of new psychoactive substances is the pleasure derived by users, and there is a further benefit if users are encouraged to use less harmful substances. According to Reuter,

emphasizing substitution, that these substances may be less harmful than those that are already being used, whether legally or illegally, may be a more promising strategy for persuading the public that there can be gains from allowing regulation of risky new drugs.120

The discourse around drug control ought to take account of any possible benefits from use of some psychoactive substances in moderation, as is recognised in the case of alcohol. These may include simply pleasure or the excitement of doing something new, but may also be a way of dealing with problems, including severe physical and mental health problems121 or improving confidence or performance. These are generally the reasons why people take the initial decision to use some drugs. An oft-mentioned concern for policy makers is to send a message to young people that use of psychoactive substances is harmful, but for such messages to be credible they also need to acknowledge the factors that attract young people to the use of these substances. This lop-sided view of drug control may also hamper the formulation of effective drug policy.

The recent proposal to create new temporary banning powers to tackle ‘legal highs’ and the use of Open General Importation Licensing provisions to stop mephedrone and other cathinones may be seen as an effort to think laterally. But it is still predicated on the assumption that banning a substance will control or deter production, supply and use whereas the last 40 years’ experience suggests this is wholly unrealistic. It also does not take into account the harms that may arise from enforcement discussed earlier.

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