Drugs: new psychoactive substances and prescription drugs - Home Affairs Committee Contents


2  New Psychoactive Substances

3.  New psychoactive substances (sometimes referred to as 'legal highs') are chemicals which have been synthesised to cause similar reactions to those produced by taking conventional drugs which are controlled under the Misuse of Drugs Act. These chemical substances are newly created, and hence, are not automatically controlled under legislation. If, therefore, the display of new psychoactive substances includes the disclaimer 'not fit for human consumption', they can be bought and sold legally. The concern surrounding use of new psychoactive substances (NPS) is a fairly recent phenomenon. Prior to the rapid growth in the consumption of the club drug mephedrone in late 2009, new psychoactive substances were not a widely recognised issue within drugs policy. However, between 2005 and 2012, some 236 new psychoactive substances were formally identified and logged on the European Monitoring Centre for Drugs and Drug Addiction's (EMCDDA) early warning system. In 2012, for the fourth consecutive year, a record number of new substances (73) were detected in Europe, up from 49 substances in 2011, 41 substances in 2010 and 24 in 2009.[3] The United Nations Office on Drugs and Crime (UNODC) World Drug Report notes that, worldwide, the number of NPS reported by Member States rose from 166 at the end of 2009 to 251 by mid-2012.[4] This exceeds the total number of 234 psychoactive substances currently controlled by the international drug conventions. In terms of popularity, the European Monitoring Centre's annual report 2012 highlighted that

in 2011, a European survey of youth attitudes, which interviewed more than 12,000 young people (15-24), estimated that 5 % of young Europeans had used 'legal highs' at some time, with about half of the countries falling in the range 3-5 %. The highest estimates were reported by Ireland (16 %) followed by Latvia, Poland and the United Kingdom (all at nearly 10 %).[5]

4.  A recent survey carried out by the charity DrugScope found that new psychoactive substances are widely and freely available. They have been found on sale at petrol stations, takeaways, tattoo parlours, newsagents, tobacconists, car boot sales, sex shops, gift shops, market stalls and pet shops.[6] Commander Bray, the ACPO lead for New Psychoactive Substances, added cobblers and pop-up shops to that list[7] and the Angelus Foundation told us that there had even been cases where ice-cream vans were used to sell them.[8]

5.  Maryon Stewart of the Angelus Foundation described the use of new psychoactive substances as an "epidemic". She talked of the number of letters, emails and phone calls the Foundation had received in regards to deaths and other harms which have occurred as a result of their use.[9] We note with concern that the number of deaths relating to new psychoactive substances has doubled in the past five years, with a sharp increase seen between 2011 and 2012, as set out below. 'However, we note that this remains a very small component of the 2597 total number of drug-related deaths.


2008 2009 2010 2011 2012
New

psychoactive

substances

25 26 22 29 52

Deaths Related to Drug Poisoning in England and Wales, 2012, Office of National Statistics

6.  It is thought that the popularity of new psychoactive substances stems from the lack of availability of high-purity conventional drugs and the fact that many of these substances are not controlled by statute so suppliers and consumers believe that they can be bought and sold freely. However, as the Minister pointed out, almost a fifth of these substances contain a chemical which is in fact controlled under the Misuse of Drugs Act 1971.[10]

7.  Consumption of new psychoactive substances appears to be more prevalent outside major towns and cities, in areas where it is more difficult to acquire conventional drugs. The police services that are dealing with the frontline of the new psychoactive substances problem are therefore less likely to command a significant budget for drug-related policing. Chief Constable Bliss highlighted the importance of discussing their work with Police and Crime Commissioners who control police budgets in order to ensure that they understood the nature of the problem.[11] Chief Constables and other law enforcement agencies are failing to understand the impact of psychoactive substances. We are deeply concerned that there is not enough data collated by each local police area regarding the usage and effect of these types of substances. We recommend that police forces start a process of data collection immediately in order to have established, within 6 months, the challenges they face locally. This will enable them to develop an effective strategy in tackling the problems presented by psychoactive substances, both in pursuing those who are selling substances which may contain illegal drugs and also producing an appropriate education strategy for potential users.

8.  The UNODC World Drug Report 2013 used the example of mephedrone as proof of the effectiveness of banning a drug in reducing its consumption. In the Drug Misuse Declared survey for 2010-11, mephedrone was the third most popular drug amongst people aged 16-59 and the second most popular drug amongst those aged 16-24. However, following its classification (which made the drug a controlled substance under the Misuse of Drugs Act), that popularity dropped by a fifth amongst 16-59 year olds and by a quarter amongst 16-24 year olds. The UNODC noted that internet surveys among clubbers in the United Kingdom also confirmed the downward trend. A 2011 EMCDDA "snapshot" identified a major decrease in the number of online shops offering mephedrone in Europe, notably in the United Kingdom.[12] This decrease is further evidenced in the 2012-13 edition of Drug Misuse Declared, which found that last year use of mephedrone amongst adults aged 16-59 decreased from 1.1% in 2011/12 to 0.5% in 2012-13. For young adults aged 16-24, last year mephedrone use decreased from 3.3% in 2011-12 to 1.6% in 2012/13.[13]

9.  However the apparent decrease in the use of mephedrone is not necessarily a sign of an overall reduction in the use of new psychoactive substances. It is at least as likely to be a result of the substitution effect we have discussed in our previous reports on this subject, whereby users switch to alternatives when a particular intoxicant is banned. Since January 2011, the Home Office's Forensic Early Warning System has found 27 completely new substances through testing that have never been seen before. The rate at which these new substances come onto the market makes it difficult in practice for the Misuse of Drugs Act regime to keep track of them: when one substance is controlled, an analogue with similar effects but sufficient structural differences to evade the ban can quickly be brought to market. As part of the documentary, Legally High: True Stories, "Dr Zee", a man who creates new psychoactive substances was asked if he was starting to run out of chemicals to make. He responded

The brain ... uses about five hundred, maybe more, different indigenous materials. It's very likely that any one of these chemicals will have ten to one thousand different analogues so there is no shortage of material to explore.[14]

The filmmakers say that for every new psychoactive substance that is banned, there is another one ready to be launched to take its place. We conclude that there is currently an epidemic of psychoactive substances and it is highly likely that the creation of new psychoactive substances will continue to increase in the future unless immediate action is taken.

10.  Legislation may decrease the use of one drug but the increase in deaths related to new psychoactive substances also suggests that that it is the substitution effect that is being observed. This then creates its own issues including those that were highlighted by one of our witnesses, Dan Reed—that users may not be able to judge what a correct 'dosage' of a new substance is or how it might interact with other substances (including alcohol).[15] Mr Reed also pointed out that many branded products were blended, with the composition differing from packet to packet.[16] This is supported by the forensic Early Warning System which has found that substances sold as a single 'branded' new psychoactive substance can contain up to three active drugs.[17]

11.  The Angelus Foundation told us that the way to protect young people was to emphasise the dangers of new psychoactive substances, rather than banning them, a view shared by the British Medical Association. The Angelus Foundation was critical of the Government's action plan to tackle new psychoactive substances which was published in May 2012, especially in terms of the lack of work done on raising awareness of the harms of new psychoactive substances.[18] Maryon Stewart noted that this had to be done carefully as previous experience had shown that talking about a new drug was likely to encourage its sale rather than dissuade consumers from purchasing it. Instead, she suggested that discussing cases where somebody had died from a new psychoactive substance might have an impact and that there ought to be more information available for parents.[19] She endorsed the approach taken in New Zealand, where all psychoactive substances are banned unless they are approved by the appropriate regulator.[20] This places the onus on manufacturers to prove that a product is relatively low-risk before it can legally be sold, and is accompanied by place-of-sale restrictions, other consumer protection measures such as health warnings on packaging and restriction on sale to under-18s, and localised decision-making over whether and where these substances may be sold.

12.  We congratulate the work done by the Angelus Foundation on raising the profile of the problems associated with psychoactive substances and educating others about the risks. However, we believe that there should be more engagement between the Government and the Foundation and that either the Home Secretary or Norman Baker, the new Minister with responsibility for drugs, should meet with the organisation. Education of young people is crucial in order to prevent further deaths from psychoactive substances. We recommend that schools and colleges extend the current educational sessions they run on drugs policy with effective evidence-based sessions.

13.  We welcome the Government's terms of reference for a review into the legislative options to tackle new psychoactive substances. Although much of the media relating to the story cites the example of New Zealand, we note that the written ministerial statement and the review fail to specify that country, with the terms of reference simply stating that the review will consider the opportunities and risks of legislative options, informed by international evidence. The ACMD have also been asked specifically to look at the American system of analogue legislation. We take this opportunity to highlight that in written evidence to this inquiry, the ACMD told us that it understood that

that the US Government have encountered legal difficulties in implementing the Analogue Act in controlling NPS and are considering a revision of this.[21]

Furthermore the UNODC noted in the 2013 World Drug Report that analogue legislation (which bans any substance that has a similar chemical structure and similar effects to a controlled substance) has not always been implemented successfully.

From the beginning, there have been issues related to the clarity of the statutory definition. The issues related to "similarity" are not always clear-cut. A court judgement is required. In this context, it has been argued that a retrospective process undermines the right of a defendant to know from the outset whether or not an offence has been committed. This led to a court case in which the law on the analogue system was upheld. Nonetheless, the question as to whether a substance is "substantially similar" has repeatedly led to experts butting heads. The situation has been aggravated by the fact that no United States court has ever issued detailed guidelines to establish the criteria to be applied.[22]

14.  It is clear that simply controlling new psychoactive substances under current legislation will not work. We welcome the Government's announcement that they are going to review other countries' systems and the Minister will be recalled to the Committee in 4 months time to give a full account on the potential costs and benefits of introducing these types of regulatory system within the UK. We believe that the burden of proof ought to be removed from enforcement authorities and placed on those who are selling the new psychoactive substance. The Home Office should introduce a new legislative model, taking into account the benefits of other systems in use abroad. The new model should shift the evidential responsibility, of proving the safety and the non-narcotic purpose of a substance, onto the seller for all new psychoactive substances. It should also be specifically related to the new psychoactive substances problem and not impinge on current legislation which controls illicit drugs.

USE OF ALTERNATIVE LEGISLATION

15.  In July 2010 ACPO issued guidance which contained the following advice to police officers.

Head shops[23] may be found to be selling products that are NOT controlled under the Misuse of Drugs Act 1971. In those circumstances there is legislation enforced by Trading Standards that could provide opportunities for prosecution if offences are disclosed. Whilst not an exhaustive list, possible alternatives include:

  • Consumer Protection from Unfair Trading Regulations 2008 (CPR's);
  • The General (Product) Safety Regulations 2005;
  • The Consumer Protection Act 1987, which includes The Cosmetic Products (Safety) Regulations 2006;
  • The Medicines Act, 1968 is also a potential legislative tool. The Medicines and Healthcare Products Regulatory Agency (MHRA) is responsible for administering and enforcing medicine legislation.[24]

In October 2011, the Advisory Council on the Misuse of Drugs made the following recommendation.

Specific legislation, namely the Consumer Protection from Unfair Trading Regulation and General Product Safety Regulations (2005), should be applied to the sale of legal highs, and the Advertising Standards Agency should investigate claims made by the websites selling legal highs.[25]

In December 2012, when we published our original report on drugs, we noted that the traditional policing approach towards drugs would not work with new psychoactive substances as many are not controlled under current legislation. We therefore recommended that the Government issue guidance on using trading standards legislation to tackle these products. We are glad to see that there have been some examples of alternative legislation being used against suppliers of new psychoactive substances.

16.  In the last week of November 2013, police forces, the National Crime Agency, Border Force, HM Prison Service and trading standards officers took part in a joint effort to target suppliers of new psychoactive substances. Operation Burdock resulted in 73 warrants being executed and 44 arrests made. Half a kilogram of controlled new psychoactive substances were seized in Huddersfield and Oldham, the Metropolitan Police Service recovered a firearm, £6,000 was recovered from a search in Cumbria and a drugs factory was identified in Hampshire. Police officers across the country visited head shops, to highlight to staff and owners that new psychoactive substances cannot be assumed to be safe or legal and that many of these products either contain controlled substances which are illegal or uncontrolled substances whose side-effects cannot be predicted. A number of head shops handed over the products which they had on sale for analysis, with one shop in Kent handing over nine kilograms as they were unable to prove the origin or content of the products on their shelves. Other shops in Avon and Somerset removed all their products. Information seized from suppliers meant that police officers were also able to make personal visits to 274 people who had purchased new psychoactive substances from online distributors and wrote to a further 574 to warn them of the dangers of using products labelled as 'legal highs.'

17.  ACPO also highlighted the work by West Yorkshire Police and the Crown Prosecution Service who used the Intoxicating Substances (Supply) Act 1985 to secure convictions of two market traders who had sold a synthetic form of cannabis to a person who was under 18. The legislation makes it illegal for the vendor to sell an intoxicating substance which is inhaled to a person under 18. Originally designed to reduce the abuse of solvents amongst minors, the innovative use of such legislation is impressive. Commander Bray also told us that he thought there had been a prosecution in Norfolk under the General (Product Safety) Regulations 2005.[26]

18.  On 12 December 2013, the Home Office produced guidance for local authorities on taking action against head shops selling new psychoactive substances as per our recommendation in December last year. We welcome this step although we are concerned by the length of time it took the Home Office to produce a five-page guidance note. Given that we published our report on 10 December 2012 and the Government response to our report in March 2013 contained approval of our recommendation to produce guidelines on using alternative legislation, it is disappointing that such guidance has only just been published. The people who create new psychoactive substances can respond to the control of a substance by creating and marketing a new one in its place in a very short space of time, the Government needs to have a much quicker reaction time if they wish to tackle the problem of new psychoactive substances.

19.  We welcome the use of alternative legislation to prosecute suppliers of new psychoactive substances and congratulate West Yorkshire Police and the Crown Prosecution Service on their use of the Intoxicating Substances (Supply) Act 1985 to secure convictions of two suppliers of new psychoactive substances—the innovative use of such legislation is to be commended. We also commend all of those involved in Operation Burdock and would highlight the cohesive nature of such an operation. Until the law has been amended we expect to see similar operations taking place as the benefits of such an approach are clear and we will be writing to every Police and Crime Commissioner to highlight the work done on this case. We are concerned by the length of time it has take the Government to produce guidance on the use of alternative legislation. When new substances are emerging at a rate of more than one a week, taking twelve months to produce a five page note is an unacceptably slow reaction time. The use of alternative legislation, however, in order to cover this increasingly blurred legal area is insufficient. The Government's inability to establish an effective legislative response is indicative of its sluggish response to this problem. The issue of new psychoactive substances is unique and needs an immediate and tailored response. We recommend that any new legislation, brought in to address the problem of 'legal highs', is specific and focused. The law must ensure that the police and law enforcement agencies can take action comprehensively against those who sell new psychoactive substances and remove the reliance on existing legislation which is ill-suited to comprehensively tackling this problem. The legislation needs to allow sellers of new psychoactive substances to be prosecuted for an offence which is equivalent in sanction to that of the Misuse of Drugs Act 1971.

FESTIVALS

20.  Both ACPO and the Angelus Foundation highlighted the danger of new psychoactive substances being taken at festivals and the work that was taking place to improve upon that situation. The Angelus Foundation told us that they had met with 30 Festival owners recently[27] and ACPO described using information collated at festivals to keep up to date with the different types of substances. Chief Constable Bliss told us that ACPO were already starting to draw up a plan for next year's festivals and that they hope to have the support of Public Health England officials working with them at festivals, focusing specifically on the educational angle.[28]

21.  We welcome the news that ACPO and Public Health England are already beginning to plan for the 2014 festival season. We recommend that, as well as raising awareness around the harms that new psychoactive substances can cause, police and trading standards officials also implement a joint operation, testing and monitoring the sale of substances at such events. We recommend that the police introduce quick turnaround mobile laboratory drug testing facilities at these types of event in order to facilitate the removal of potentially harmful or illegal substances from the site immediately.


3   http://www.emcdda.europa.eu/attachements.cfm/att_190854_EN_TDAC12001ENC_.pdf, P89 Back

4   http://www.unodc.org/unodc/secured/wdr/wdr2013/World_Drug_Report_2013.pdf, P59 Back

5   Ibid., P91-2 Back

6   Druglink November/December, p7 Back

7   Q20 Back

8   Q54 Back

9   Q71 Back

10   Q186 Back

11   Q29 Back

12   UNODC, P98-9 Back

13   https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/225122/Drugs_Misuse201213.pdf Back

14   Channel 4, Legally High: True Stories, broadcast 8 August 2013 Back

15   Q105 Back

16   Q98 Back

17   https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/98031/fews.pdf, p9 Back

18   Q69 Back

19   Q73 Back

20   Discussed in our earlier drugs report, [HC 184-I 2012-13] p65 Back

21   Ev 34 Back

22   World Drug Report, p110 Back

23   Head shops are retail outlets which sell drug paraphernalia and new psychoactive substances Back

24   http://www.acpo.police.uk/documents/crime/2010/201007CRIPPS01.pdf Back

25   NPS report Back

26   Q48 Back

27   Q56 Back

28   Q32 Back


 
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Prepared 20 December 2013