Chapter 8: Proposed approach to drug regulation

Background

The Law Commission outline their approach to the review, where they separate substances currently controlled by international drug conventions (“convention drugs”) and those new substances that aren’t (“non-convention drugs” e.g. BZP and other so-called ‘legal highs’).

For “non-convention drugs” the Law Commission proposes a new framework of regulations over new substances coming onto the market.  Their proposals provide a much stronger level of control than we currently have.  Many will remember the weakness of the system when BZP hit the market with no controls at all, and it was left to the Government to demonstrate whether the substance was safe or not.

Key questions to consider

Should new recreational drugs that are not covered by the international drug conventions be regulated with restrictions rather than prohibited, with prohibition only used as a last resort? 

Yes. The Drug Foundation agrees with the Law Commission that a model of legalisation with regulatory restrictions should be the starting point for regulating drugs not covered by the conventions.  Full prohibition should be the last resort when regulatory restrictions prove ineffective or the harm of a drug outweighs the harm of prohibited substances. There is no obligation to prohibit psychoactive substances that are not covered by the conventions. We argue that regulations over new psychoactive substances allow for greater control than an outright ban, where specific policy responses can be tailored to the new substance (e.g. age restrictions).

The Drug Foundation believes that a lesson should be learned from the BZP situation, and that the processes by which such products are introduced and regulated should be fully examined. Such a system needs to recognise that as fast as one substance is banned, another ‘designer drug’ will be introduced.

Should psychoactive substances falling within the ambit of the proposed regime require an approval from the regulatory body before it can be manufactured or imported?

Yes. The Drug Foundation agrees with the Law Commission, that any regulatory regime for new recreational psychoactive substances require approval before they can be manufactured, imported or distributed in New Zealand. We also support the Law Commission’s suggestion that, as part of the approval process, the importer or manufacturer of such substance should be required to provide the regulatory body all available information about the composition of the substance and its known health effects so that appropriate controls can be put in place. We further agree that if a substance is not approved, the regulatory body should refer the substance to the agency responsible for prohibited drugs.

This process is fundamental for any regulatory regime to ensure research into the harms of new psychoactive substances is carried out before they enter the market, not several years after their introduction.

Do you agree that all new psychoactive substances that are manufactured or imported for recreational use should be covered by the proposed new regulatory regime?

Yes. The Drug Foundation agrees with the Law Commission that it is better for all new psychoactive substances, other than food or medicine, to automatically fall into a new regulatory regime.  This would ensure that the risks associated with the recreational use of all substances are assessed by a regulatory body on a substance by substance basis; and that appropriate controls are put in place before it becomes available for sale.

Where they are approved for manufacture or import, should minimum standards covering distribution and supply (e.g. age restrictions, place of sale restrictions, advertising restrictions) be imposed? What should the main minimum standards be?

Yes. The Drug Foundation agrees with the Law Commission, that there are some regulatory requirements that should apply to all recreational psychoactive substances, if they are approved. These generic conditions should be included in primary legislation. We agree with the Law Commission on the main minimum standards and have added some more of our own:

Age restrictions: A statutory minimum age of 20 should apply to the sale and supply of all recreational psychoactive substances.

Advertising/promotional restrictions: The Act should contain similar restrictions to those found in the Smoke-free Environments Act. The restrictions should also include a prohibition on advertising on the internet.

Places of sale restrictions: The restrictions currently in the Misuse of Drugs (Restricted Substances) regulations should be included in legislation - this includes keeping their sale separate to alcohol. However the sale of recreational psychoactive substances should be prohibited at petrol stations as alcohol is. This also should apply to pharmacies, non-fixed premises such as vehicles, tents and mobile street cars, and places where children gather. There should be no free of charge supply or the offering of incentives such as promotion gifts to encourage purchase.

Restrictions on who can supply recreational psychoactive substances: Persons under 20 should be restricted from sale and supply. Furthermore there should be a prohibition on the manufacture and sale of legal substances by persons under 20. We agree that the court should also have the power, when sentencing a person convicted of an offence related to a legally available psychoactive substance, to prohibit that person from manufacturing or selling substances under the regime.

Substances must be stored in a child-proof and tamper proof container.

Labels must contain the phone number and address of the National Poisons Centre.

What other matters should become minimum standards?

• Branding: No branding of products should be permitted. Packaging should be plain, with content information and health warnings.
• Information on packaging: Information on packaging should be based on norms for pharmaceutical drugs. It should include information on contents, dosage, effects, side effects, general risks, specific risks, secondary risks, and information about help and support services (e.g. Alcohol Drug Helpline, and the DrugHelp website).
• Volume sales/rationing controls: Sales to individual purchasers could be restricted to levels deemed appropriate for personal consumption.
• Manufacture quality controls: Manufacture quality controls should be similar to that used for food standards.
• Degree of intoxication of purchaser: Sale to intoxicated persons should not be permitted.

Some of these proposed minimum standards are listed as options that the regulatory body can opt to impose additional to the minimum standards. However we believe that for a robust regulatory regime these need to be minimum standards.

Do you agree that the regulating body should have power to impose additional conditions on an approval for a new recreational psychoactive substance?

Yes, all substances have different properties and therefore will need tailored responses to make sure necessary regulations are put in place to minimise the harm that might occur as a result of the use of such products. We support the list provided by the Law Commission and have no amendments. 

Do you agree that new recreational psychoactive substances should be regulated by a separate regime designed specifically for new recreational psychoactive substances rather than HSNO?

Yes. The Drug Foundation agrees with the Law Commission that a new separate regime is preferable to regulation through HSNO, however it should follow the approach of HSNO. We would prefer that new recreational psychoactive substances be placed under the Misuse of Drugs Act in an improved version of the Restricted Substances category. In 2005 the Restricted Substances Regime was added to the Misuse of Drugs Act, intended to provide a regulatory regime for new recreational psychoactive substances that were not harmful enough to justify prohibition. Current irregularities within the regime would need to be addressed as well as a strong focus on the approvals process and the accountability of manufacturers, suppliers and importers.

For such a regime to be improved, tailored criteria would need to be devised for deciding whether a substance should be regulated and an approval issued. The Law Commission has listed relevant criteria which we endorse:

• The nature of the harm caused by the substance and any benefits associated with its use;
• Whether that harm can be effectively managed by the imposition of regulatory controls;
• The likely consequences of any proposed regulatory controls or prohibiting the substance (including cost effectiveness);
• Any possible displacement effects that might occur because of the way other substances are regulated;

These criteria must be transparent, as it is important that a decision to approve or not approve a substance must be rational. It is important that any regulatory regime is actively monitored and evaluated.

Under the proposed separate regime do you agree that the Minister of Health rather than the Director-General should issue approvals?

Yes. The Drug Foundation agrees with the Law Commission that approvals should be made by the Minister of Health. It important that such decisions are informed by expert advice and evaluation.