Although there was clearly some overlap with the question addressed in the first workshop (about the best approach to protect young people from emerging new synthetic drugs), the second workshop focused particularly on the most effective legislative approach for controlling new potentially harmful substances and so took a different direction. This included views about the effectiveness of the current approach of classifying and scheduling substances according to the Misuse of Drugs Act (MDA), the creation of a temporary ban classification, and an exploration of complementary control regimes for responding to new substances.

The second workshop was attended by the following stakeholders:

·    a civil servant (health)
·    an enforcement officer (consumer protection/trading standards)
·    a civil servant (health/medicines)
·    a police officer
·    a police officer
·    a former civil servant (enforcement)
·    a former civil servant (enforcement advocate)
·    a lawyer, reformer charity
·    a drug education specialist
·    a pharmacologist
·    a frontline youth worker, London borough
·    an academic, specialising in new psychoactive substances

The global nature of the problem

Participants agreed that the emergence of new psychoactive substances is a global problem because of the way they are produced and distributed (in 2011, coming predominantly from China) and the way information about them is ordered and shared via the internet. The market for new substances was driven by the desire for drug taking in the West, and the money that could be made by producers in supplying this market. Participants felt that these factors posed a series of new challenges that existed outside current control mechanisms. Moreover, these new challenges were added on top of existing concerns about the current system of control, which was not perceived to be working well enough, as discussed in chapter 2.

Issues relating to control and regulation of ‘legal highs’

Much of the discussion focused on different options for regulation. This included regulation through the Medicines and Healthcare Products Regulatory Agency and medicines legislation, or through Trading Standards provisions, which regulate solvents, tobacco and alcohol among other substances. Currently, sellers of ‘legal highs’ have circumvented medicines legislation by advertising psychoactive substances as ‘not for human consumption’ or for alternative uses. It was also suggested that, because of the lack of other beneficial medicinal uses for ‘legal highs’, medicines legislation would not be an appropriate mechanism of control. The possibility of dual or multiple use for substances determines the type and extent of control measures. For example, amyl nitrites (poppers), although quite frequently used as a stimulant, are not controlled under the MDA as there are many industrial uses for these chemicals so banning them would be problematic.

It was felt that a regulatory system that included better labelling, advice and purity could reduce some harms associated with new psychoactive substances, though this sentiment was not shared by all of the workshop participants. Such a system would also hold the seller or distributor accountable for the demonstration of public safety (as with foodstuffs and medicines) providing evidence and warning about potential harms, rather than placing the burden on the Government to determine whether substances are harmful. However, it was felt that, to be adopted, a control or regulatory system for new substances needed to demonstrate a clear benefit (not just a reduction in harm).

Moving forward: options for control

Based on the discussion in this workshop, we concluded that there are broadly five options available to the Government in seeking to control the availability and use of new ‘legal highs’. Participants at the workshop agreed the following:

·    There is a wide range of different pieces of legislation besides the MDA that could be used for controlling new harmful substances.
·    The number of substances now controlled and the multiplicity of ways in which this is done is confusing and potentially inefficient and ineffective.
·    There are a number of potential benefits to taking a step back and producing a simplified, overarching control framework, such as a Harmful Substances Control Act. This framework would include alcohol, tobacco and solvents, among a range of potentially harmful substances.

In considering the different options for control it is important to be clear about the objective of the exercise and the criteria that a good or more effective control framework must meet. Our research and the workshops we have undertaken would suggest that a suitable control framework would aim to:

·    provide protection for the public (and especially children and young people) from potentially dangerous substances

And to be effective it must:

·    ensure there are practical and enforceable control mechanisms in place for the production, supply and distribution of potentially harmful substances
·    ensure those who produce or supply substances outside any control regime are dealt with in a proportional manner
·    meet international obligations under UN drug control conventions and EU treaties
·    be designed to minimise unintended harms resulting from the application of the regulations

These factors bear much similarity to those endorsed by the Police Foundation Independent Inquiry into the MDA.135

But what are the realistic options available to a government and parliament that wishes to reduce the risk of widespread use of potentially harmful substances without incurring other unintended harms from the associated enforcement efforts and accompanying black markets? Figure 3 below provides a visualisation of the different forms of control that exist for psychoactive substances in the UK. We have used these options, in conjunction with the discussion in the workshop, to identify a range of possibilities to controlling new psychoactive substances, from little change to more radical approaches.

Option 1 An ‘as you are’ option

Until there is clear evidence of harms, it could be argued that there is no reason to place any controls on these new substances. Any system of controls will take resources to enforce and have the potential for having a negative impact on users, for example through criminalisation. The use of the new substance may also have benefits, for example substituting for something more harmful, which might be negated by any system of control. Given that there is an element of fashion involved in recreational drug use it may be that the drug will have a period of popularity followed by a natural dwindling in use anyway.

However, there are a number of potential problems with this approach. First, it may take some time before the harms from taking a new drug are evident and it may become harder to control a substance once a market for it has developed than when it first emerges. A challenge also comes from the expectations placed on the UK as signatories to various UN drug control conventions and similarly with EU treaties. Once there is an international call or agreement to prohibit a substance or to introduce stricter controls then the UK would be in an embarrassing position if it were to stand out against such moves. In addition there may be pressure from the media, concerned family members and political opponents that ‘something must be done’ to stop new drugs, whether or not there is compelling evidence of their harms. In such cases, the momentum to classify a new or emerging substance under the MDA may become overwhelming.

Option 2 Control under the Misuse of Drugs Act and increase enforcement

A second option is to control new substances under the MDA and provide increases in expenditure for enforcement agencies including the police, customs and the planned National Crime Agency, to be able to increase their efforts to reduce production, supply and use. In the foreseeable economic climate, and set against a planned substantial reduction in expenditure (with estimates ranging from 6 per cent to 20 per cent) for police services in 2011/12 and future years, this does not seem a plausible option. Various estimates have been made of the utility of extra spending on enforcement activities and there is no hard evidence that increasing spending would result in a proportionate decrease in supply and availability. There might be more arrests of criminals and drug seizures, as has happened over the past 40 years. But the simple economic laws of supply, demand and prices suggest that, at best, the lid is being kept on the drugs market .136 It is highly probable that the law of diminishing returns is already operating and we would see increasing inefficiencies.

Option 3 Use the current drug control legislation more flexibly

A third option is to take the opportunity to be more flexible within the current drug control framework. For example, anabolic steroids are class C drugs to be sold only by
pharmacists with a doctor’s prescription. It is legal to possess or import steroids as long as they are in the form of a medicinal product for personal use. But possession or importing with intent to supply (which includes giving them to friends) is illegal and could lead to 14 years in prison and an unlimited fine. Cannabis is a class B drug with a maximum penalty for simple possession of five years’ imprisonment and an unlimited fine, like other class B drugs. But for cannabis the police also have the power to issue warnings and penalty notices with a fine, and are using them with increasing frequency, if unevenly, across the country.137 Recent advice from the Association of Chief Police Officers following the control of the cathinones, including mephedrone, was that unless there were special circumstances, the police should avoid arresting users for simple possession cases.138

The new temporary control measures will not include penalties for possession, although police officers will be able to search people suspected of possessing the drug and seize any suspect substances (without having to verify that they are the substance in question). Therefore it is probable that police resources will be directed more towards intervening in the production and supply chains rather than the consumption or user end. If a drug subsequently becomes formally controlled under the MDA, it is possible that the police may continue with this approach. On the other hand, there is no guarantee they will.

The Government has recently turned also to the use of other powers to complement action taken under the MDA, for example invoking importation controls using the General Importation Licensing provisions and encouraging local council trading standards staff to take action against ‘head shops’ selling ‘legal highs’. This approach, which envisages use of existing powers, is taken further in recent Irish legislation aimed at regulating ‘head shops’ (the Criminal Justice (Psychoactive Substances) Act 2010) as mentioned in chapter 2.

The use of controls across a particular drug and its analogues (a whole group of very similar substances) is another tactic adopted within the existing framework. This happened with anabolic steroids and with cathinones. However, as raised in chapter 2, a generic approach needs to be weighed against the possible downside of potentially discouraging the research and development of drugs with possible beneficial medical impacts.

Reclassifying and rescheduling are also appropriate and legitimate responses, though many observers would comment that the traumatic experience of the reclassification of cannabis does not auger well for those who argue for less punitive sanctions for cannabis possession or growing for personal use. Indeed, it could be argued that all these options have already been tried without huge success in limiting use but certainly impacting on police and courts’ time.

Parliament could go further and amend the sentences for possession offences under the MDA in order to remove the threat of imprisonment (depenalisation) or it could even remove criminal sanctions altogether for simple possession offences and instead put in place a series of civil penalties (possession decriminalisation). This is the approach adopted by Portugal, discussed in chapter 2. All of these approaches have, at various times, been proposed by a number of bodies. Recently, for the first time, the Advisory Council on the Misuse of Drugs (ACMD) has raised the idea of decriminalising personal possession for all drugs.139

All these options are valid within the parameters and spirit of the international conventions, but such tinkering with the system has led to an accretion of control measures. While they may be pragmatic responses to changing circumstances, there is the danger that they simply lead to further inconsistencies and confusion. Moreover, these ad hoc changes are unlikely to satisfy advocates on either side of the drug debate spectrum: those who argue for more fundamental change on the one hand, and those who favour an uncompromising stand against drugs on the other. What muddies the water is that in the public mind drug use is seen as synonymous with crime, especially when it comes to an addiction driving acquisitive crime. This takes us to the fourth option for change, which begins to see drug use and the use of new substances as a significant public health challenge. Figure 3 illustrates how governments control potentially harmful substances.

Option 4 Control through consumer protection legislation or regulations

Our fourth option for addressing the growing challenge of new ‘legal highs’ is to turn towards controlling their production, supply and use not through the MDA framework but rather through consumer protection legislation, such as that enforced through the local trading standards system. Trading Standards officers have responsibility for overseeing an extensive range of regulatory powers, including those relating to medicines, poisons, agricultural chemicals, veterinary drugs, foodstuffs, animal health, tobacco, alcohol, industrial chemicals and cosmetic products as well as health and safety. The law regulating such substances, many of which are harmful or dangerous, is extensive and complex. Trading Standards officers work closely and in collaboration with the police and a wide range of other bodies such as the Medicines and Healthcare Products Regulatory Agency and Royal Mail to enforce controls and regulations on the production, supply and use of those substances.

One such piece of legislation is the Intoxicating Substances (Supply) Act 1985. This act came into being following the deaths of many young people around the UK from the inhaling of solvents, including glue. Even now, there are approximately 36 deaths each year related to volatile substances .140 The legislation introduced stricter controls on the retailing of volatile substances, most of which (gas, aerosols, glues and other solvents) had approved or licensed commercial applications. Manufacturers over the years have adapted their products to make them less hazardous and retailers and wholesalers have acted more responsibly in reducing access, especially to children and young people.

This legislation could offer a vehicle to control the selling of new unlicensed or unapproved substances such as ‘legal highs’, either through physical outlets such as ‘head shops’ or through internet sales. The UK Drug Policy Commission has previously called for a new system outside the MDA of temporarily controlling or regulating new drugs so that a full assessment of their actual or potential harms can be undertaken.141 It would be feasible to ensure that an amended Intoxicating Substances (Supply) Act included provisions for the use of temporary powers both to restrict sales and supply of ‘legal highs’ and to put the onus on suppliers and manufacturers to demonstrate that their products were safe to use. In the event that an assessment of harms did not confirm a satisfactory level of proportionate safety, the legislation could provide for restrictive control measures to be put in place, with either civil or criminal penalties for breach.

Through taking such domestic legislative steps, the UK would be adhering to the international drug control treaties through means other than the MDA. The Coalition Government plans to set up new local authority led health and wellbeing boards in England and this would provide a unique opportunity to shape control of emerging ‘legal highs’ within this new public health system. Such a step would not be without practical and financial implications for local councils and trading standards departments. We have not sought at this point to estimate any financial implications but rather believe the general principle is one worth exploring. By focusing on just new psychoactive substances, it would also allow policy makers to evaluate the impacts of complementary control regimes without reopening the debate about whether to be ‘soft or hard’ on drugs.

In the second workshop, participants considered the makeup of an ‘ideal’ regulatory system for new psychoactive substances, which they considered would overall reduce harms. Their control framework included licensed sellers with the responsibility for providing labelling of harms and adverse effects, product assurances and liability, and age restrictions. All these are adopted in various forms with other potentially harmful substances controlled through trading standards and consumer protection regulatory legislation.

Option 5 A new Harmful Substances Control Act

The fifth option involves the creation of new more embracing drug control legislation .142 This would consolidate a wide range of existing legislative provisions covering controlled drugs with at least those for the control of alcohol and tobacco.

A proposal for a Misuse of Substances Act was set out by a Royal Society of Arts Commission on illegal drugs, communities and public policy in their report Drugs – Facing Facts in 2007. The RSA Commission concluded,

the law as it stands embodies a classification of illegal drugs that is crude, ineffective, riddled with anomalies and open to political manipulation... the Misuse of Drugs Act 1971 and the subsequent legislation associated with it be repealed and be replaced by a comprehensive Misuse of Substances Act. 143

The commission proposed that the focus of the law should not be on individual drugs (as in the existing MDA ABC classification) but on the harms that drugs cause. At the heart of a new framework should be an index of substance-related harms: ‘The index should be based on the best available evidence and should be able to be modified in the light of new evidence – and also in the light of the coming onto the market of new substances.’

Others, including participants in the second workshop conducted as part of this project, have raised the possibility of integrating controls on a much wider range of chemicals and harmful substances (eg medicines, solvents or poisons) into a single Harmful Substances Control framework. The argument in support of this approach is that ‘while it is traditional to regard the other substances in isolated groups, they all overlap to a greater or lesser extent’ .144 It would also have the advantage of decluttering the current drug control legislation and provide an opportunity to remove a number of anomalies that have grown up over the years. As suggested above, the launch of the new body Public Health England could provide a unique
opportunity to progress fresh approaches to influence and control potentially harmful behaviours.