In late 2009 and early 2010, the UK media reported widely on the ‘unstoppable rise’ of a new and ‘legal’ drug: methylmethcathinone (mephedrone).7 Similar to drugs like amphetamine and cocaine in its effects and chemical composition, mephedrone ‘emerged from nowhere’ to become, according to one online survey, the fourth most popular drug among British clubbers.8 However, mephedrone was different from other drugs in that it was legal and could be purchased over the internet at affordable prices, with no limitations on the size of orders. Users could even get next day delivery.

At first, the amusing street names (meow meow, bubbles) and this easy accessibility were enough to guarantee media coverage and generate worry among policy makers. There soon followed a series of drug-related deaths among young people, reportedly tied to this new and unknown drug. While a media frenzy commenced in the immediate run-up to the general election of 2010, the Home Secretary Alan Johnson responded by banning the substance by classifying it under the Misuse of Drugs Act (MDA) following a swift review by the Advisory Council on the Misuse of Drugs (ACMD).9

Since the mephedrone episode, there has been growing concern about new psychoactive substances.10 Previously, BZP, GBL and Spice had received attention from users and policy makers alike but the apparent extent of mephedrone use, and the speed with which it occurred, were unprecedented. Once mephedrone was banned, other new and seemingly more dangerous substances emerged, including NRG-1, Ivory Wave and Benzo Fury.11

The Coalition Government’s response to the emergence of new psychoactive substances is the creation of a temporary banning order under the MDA. This is currently (early 2011) passing through Parliament as part of the Police Reform and Social Responsibility Bill. The temporary ban would control new substances by placing them in a holding classification for a year, allowing the ACMD to conduct research into its harms. At the end of a year’s time, the substance would then either be banned (permanently classified as A, B or C in the MDA), or regulated through alternative means. Our research suggests there are a number of concerns about the likely efficacy of this approach which are discussed later.

New challenges

New psychoactive substances present policy makers with a number of challenges. Unlike opium, cocaine and cannabis – the effects of which have been intensively researched – new substances can emerge and be available for purchase over the internet very quickly without any information on their composition, effects or safety. This speed to market makes it difficult for toxicologists and other experts to give advice on the short- and long-term effects of such drugs. The prospect of significant numbers of people using untested and potentially dangerous substances in an unsupervised or uncontrolled manner raises serious public health concerns. And yet, the old approach to controlling harmful substances – through the MDA – is increasingly being seen as ineffective since the constant growth and product ‘innovation’ in the synthetic drugs market allows producers to stay ahead of the law.12 While heroin, cocaine and cannabis originate mostly from organic sources, the composition of synthetic drugs can be constantly altered to circumvent legislation. As the list of substances continues to grow, the financial and operational burden on enforcement agencies will become increasingly unmanageable particularly in light of public sector cuts.

There is a tendency, not only in the UK but internationally, to propel any new substances into a control through criminal penalties framework, even where the actual evidence of harms may be limited (see Appendix I for short glossary of key drug policy terms). This precautionary approach can have unintended consequences. Some commentators suggest that the growth in popularity of new substances such as mephedrone and the potential risk they pose could have arisen as a result of the enforcement efforts on illicit drugs like ecstasy and the stricter controls of chemicals like BZP13 (although others argue for cyclical patterns in drug use with some drugs going in and out of fashion). Such substitution has the potential to increase harms. Some of the drugs that have been substituted for mephedrone are more powerful and may be more harmful if taken in similar doses. There is also emerging evidence that some people may have substituted mephedrone for cocaine, and this may have reduced cocaine-related deaths, although this requires confirmation.14

The rapid development of new substances and their availability on the internet requires a re-examination of drugs control policies and the process by which potentially harmful substances are controlled. The boundaries between recreational drugs used for pleasure, cognitive enhancers, some medicines, and other commercially used substances, are becoming increasingly blurred. This poses considerable ethical and practical questions about why one drug may be controlled by the MDA and others through the medicines legislation or other regulatory systems, such as the Intoxicating Substances Supply Act 1985, which is essentially a piece of consumer protection legislation. Moreover, the internet continues to confound enforcement and regulation, not only for these new psychoactive substances. Counterfeiting of legitimate medicines is increasingly a global problem and is proving very difficult to police.

Adding to these new challenges is the fact that the UK already has among the highest rates of illicit drug use in the European Union, although more recently there has been a downward trend.15 Illicit drug use continues to affect every part of the UK and every social group, though some more so than others. Approximately one in three people between the ages of 16 and 59 in the UK have used a controlled substance at some time in their life, demonstrating that, although illegal, these substances remain widely available.16 Drug use is also
increasingly intertwined with alcohol problems, which affect communities, families and individuals. Clearly, something is not working very well.

A new approach

In 2011 the MDA will be 40 years old. The world is very different now than it was in 1971. Over ten years ago the Police Foundation Independent Inquiry into the Misuse of Drugs (chaired by Dame Ruth Runciman), one of the first independent assessments of the Act concluded, ‘The main aim of the law must be to control and limit the demand for and the supply of illicit drugs in order to minimise the serious individual and social harms caused by their use.’17 Such an assertion seems equally valid today even if circumstances have changed.

However, it is uncertain whether government can continue to control emerging substances in the same way as it has done in the past. There are now over 600 substances that are controlled through the MDA, with new substances emerging virtually weekly.18 According to the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA), there was a record 24 new synthetic psychoactive substances identified in 2009, and another 15 had emerged by July 2010.19 The Daily Telegraph reported that data presented to the Independent Scientific Committee on Drugs showed 40 new substances had emerged by the end of 2010, a new record.20

New drugs bring new demands on the resources of enforcement and public health services. At a time of mounting financial pressure, there is a question of government’s capacity to respond to an increasingly long list of controlled drugs through the MDA. Enforcement agencies including the police, borders and customs face enormous practical challenges in light of expenditure reductions and the costs of forensic testing in order to secure possible prosecutions. There is also a risk that the current recession and increasing unemployment, particularly among young people, could lead to an even further rise in drug use, though this is by no means a certainty.

The costs in other parts of the criminal justice system are also already substantial. The current cost per prison place is estimated at £45,000 per year and the cost of Crown Court process imposing a prison sentence is £30,500 per conviction.
With people convicted of drug offences making up 15 per cent of male and 24 per cent of female sentenced prisoners in April 2010, this suggests there are well over 10,000 people in prison for drug offences at any one time. Given that many will serve less than one year, the number being sentenced annually is still larger and it can be seen that annual costs solely for drug control offences in excess of a billion pounds are likely to be incurred.21 In addition to this there are the wider costs to the society of other drug-related offending by people with drug problems, which will be even greater; it is estimated that between a third and a half of the people in prison have drug problems.22

Meanwhile, there is a growing willingness in some countries to handle control and enforcement in different ways. This includes decriminalising drugs possession for personal use in countries such as Portugal, the Czech Republic, Argentina, Ecuador, Brazil and Bolivia.23 As the Police Foundation Inquiry found in its research, a number of other countries in the developed world including the Netherlands, Spain, Australian states and Italy have tried various approaches including administrative expediency in enforcement and prosecutions, and
the use of civil rather than criminal penalties for drug users.24 The experiences in these countries may hold transferable lessons for policy makers, enforcement agencies and public health professionals here in Britain. Among contested views about the interpretation of evidence one thing is clear, the drug problem has not spiralled out of control in those countries.

To some extent, UK governments have shown some flexibility and adaptability in how they seek to control and regulate psychoactive substances. For example, regulating the misuse of solvents though the Intoxicating Substances (Supply) Act of 1985; classifying anabolic steroids with no prosecution for simple possession, as is also proposed under the temporary ban category; increasing the use of fines and warnings for cannabis possession; as well as the recent use of a ban under the Open General Import Licence powers for the importation of cathinones (the group of substances that includes mephedrone) before the classification of mephedrone in April 2010 and recently recommended by ACMD for desoxypipradol (sometimes sold as Ivory Wave). Tobacco controls also illustrate the ability of policy makers to take radical steps and, more recently, new restrictions are proposed for alcohol sales. Such flexibility is perhaps a classic British pragmatic response to changing circumstances and priorities. It shows that the law is not immutable and there is a range of innovative and creative methods of control.

This project

The aim of this project is to use the lens of new psychoactive substances to re-examine and explore how UK drug control policy might utilise a broader range of policy options apart from the established bans under the MDA. We have not sought to replicate other valuable work that has examined how the MDA might be incrementally improved (eg the Police Foundation Independent Inquiry report or by the Science and Technology and Home Affairs committees).25

We have also avoided reopening the debate about whether existing drugs such as cannabis or ecstasy should be reclassified or even whether the classification and scheduling system itself should be revised or abolished. A stalemate of sorts has been reached in those discussions: new drugs present new challenges, which the current control system is increasingly ill-equipped to deal with. The rapid arrival of new substances, technology and distribution systems, allows us to examine carefully and consider how a different approach to their control might work in practice.

The project consisted of two main elements. First, we commissioned an international review to look at the experiences of emerging ‘legal highs’ in the UK and abroad and analyse the different regulatory approaches that countries have thus far taken to new psychoactive substances. This review was conducted by Peter Reuter, Professor in the Department of Criminology at the University of Maryland and a founder of the RAND Drug Policy Research Center.26

Second, we convened 24 key stakeholders for two day-long workshops addressing the ‘legal highs’ issue from two different starting points. We also conducted qualitative interviews with ten drug experts in the UK. The workshops made use of an innovative systems approach pioneered in a project concerned with youth nuisance on deprived estates and outlined in previous Demos reports System Failure (2001) and Connecting the Dots (2009).27 Our aim was to bring together a range of experts and stakeholders who do not meet regularly to engage in a comprehensive discussion about how drug policy can tackle the new challenge of ‘legal highs’.

The workshops were conducted under Chatham House Rules, and because of the sensitivity of the topic participants will remain anonymous. Participants included senior civil servants in relevant government departments and agencies, covering enforcement, health, medicines, young people and education, and consumer protection, as well as pharmacologists and chemists, frontline workers from a variety of charities, a parent activist, a young person peer drug mentor, and advocates from lobbying organisations from opposite sides of the drug control debate.

Too often, policy is made and implemented in isolation from other stakeholders. This can have unintended consequences and result in policies that work at cross purposes. The aim of the workshops was to bring to the surface the different perspectives
represented by those attending and foster a more constructive debate.

The first workshop explored how best to protect young people from new psychoactive substances. The second workshop explored what steps could be taken to control the availability of new psychoactive substances.

Our aim in this report is to demonstrate that it is possible to gain agreement from people with contrasting perspectives on actions and improvements to policy. Drug policy is already fraught with complexity, value conflicts and high stakes. The emergence of new psychoactive substances complicates drug policy further through a new set of challenges.

We argue that a different approach to the development of drug policy is needed: a fresh approach that gives greater consideration to our pluralist society in which people hold many different and opposing views, so evidence to underpin policy making is vital, even if it is not perfect. Instead of arguing for one side of the debate over another in a zero-sum game, we advocate the need to find better consensus on areas that more people can agree on and then seek to make improvements to policy.

The report structure

In the first chapter, we look briefly at the history of psychoactive substances in order to put the emergence of new ‘legal highs’ into context. This chapter also includes previous research into ‘legal highs’ as well as the findings from Peter Reuter’s report into the experiences of ‘legal highs’ in other countries.

In the second chapter, the focus shifts to the policy context.

It includes a brief history of drug control policy, discussion of the recent debates on drug policy and lessons from abroad on dealing with the emergence of new psychoactive substances.

Chapters 3 through 5 focus on the soft systems approach to drug policy and the findings from the workshops. Chapter 3 describes the soft systems methodology and the conceptualisation of the ‘drugs problem’ as a ‘wicked issue’.

Chapter 4 presents the findings from the first workshop. This includes the areas of broad agreement on non-legislative approaches that can help protect young people from the harms of emerging new substances.

Chapter 5 presents the findings from the second workshop, looking specifically at legislative options for controlling the emergence of new psychoactive substances.

In Chapter 6 we offer recommendations for policy.