1 February 2014
In country after country a vast array of new psychoactive substances, rapidly spread via online sources, is causing havoc for law and policy makers. Attempts to arrest their harms almost routinely fail, and many are now looking to the example of recent New Zealand legislation. Max Daly asks whether we have got it right, or does regulation just lead to further problems?
The proliferation of new psychoactive substances (NPS) and legal highs has changed the drug world forever and thrown a spanner into the Drug War machinery.
This armoury of chemicals, and the way they are produced and sold, has left policy makers dazed and confused amid a hail of chemical formulae, brands, legal loopholes, underground chemistry labs, virtual currencies and online encryption.
At the start of the Drug War, the enemies were more honest, simply made from plants. Later came LSD, speed and ecstasy, which were made in labs, but everyone knew what they were. Then the NPS revolution happened in the 2000s, and the enemy had changed.
The drugs hid in plain sight. They were confusingly sold in high street shops and on the internet pretending to be anything but psychoactive drugs, some labelled as bath salts, some as plant food. Moreover, they were legal, cheap and accessible.
Their names looked like they had been created by a baby repeatedly hitting a keyboard (25X-NBOMe, X-APDB, PB22-5F) or for a bunch of D-list superheroes (Exodus Damnation, White Rhino). But what exactly are these substances, and where do they come from?
Even what to call them has caused confusion.
Until the late 2000s, what people called ‘legal highs’ were generally a duff mix of herbs and potions people bought online or at head shops and festivals – basically a waste of time. They weren’t quite as inert as dried banana skins, but most were just powdered caffeine with a cosmic name.
“New psychoactive substance” was a term coined in 2012 by the Commission on Narcotic Drugs to cover all novel highs, illegal or legal. It generally refers to the drugs that arrived after the rapid rise of
mephedrone in 2009. To complicate matters further, many NPS products are marketed as legal but frequently contain banned substances.
They are a hotchpotch of cheaply made, second-grade versions of well known drugs, and they have a growing client base among young people in the developed world. NPS products are unpredictable but easily available. For drug users, it’s a lucky dip that makes buying a gram of coke or bag of weed seem like a highly reliable activity. Nevertheless, they are popular.
There are many media stories about the number of NPS stacking up year on year. But this is somewhat misleading. Technically and legally, they are new, but virtually all are tweaks to existing chemicals, in most cases, synthetic cannabinoids or mimics of MDMA.
As soon as one substance is banned, another one, with a slightly tweaked chemical structure, materialises. Part of the problem for those tasked with stemming the NPS supply is seeking out who, exactly, is making them.
According to Mike Power, who investigated the trade in legal highs for his book Drugs 2.0: The web revolution that’s changing how the world gets high, most originate in laboratories and factories dotted across Eastern Europe, India and predominantly China.
On the surface, these companies are totally above board. Most earn their bread and butter through making intermediary chemicals for products most likely found in your home.
When the new breed of narcoentrepreneurs came knocking with lucrative orders for fairly easy-to-make compounds, who were these firms to refuse?
“Put yourself in their shoes,” says Power. “You get an email saying, ‘I’ll give you £3000 for a kilo of a synthetic cannabinoid’. With chemical, knowledge and access to a library of chemicals, this is something you know you can make for about £50. If you think what £3000 gets you in modern day India, the values of exchange make it a very attractive prospect. And it’s completely legal. What would you do?”
Power knows how easy it is to get a brand new drug made. He’s done it. Confronted by numerous claims in the media about how easy the process is, he emailed a respectable looking Chinese lab and ordered a tweaked version of the banned stimulant phenmetrazine – formerly a popular slimming drug and an early recreational drug for The Beatles.
The lab sent him a chromatography rendering of the drug and delivered it for free. When the packet arrived, he got it tested and confirmed the white powder was his own new stimulant powder.
It is not only the labs making a killing. Wholesalers importing the compounds are making astronomical profits. Power estimates that, with a £10,000 investment in his new drug, he could have made £1m within 6 months, though the process is easier said than done.
“It’s a fallacy to say that, after a ban, you can just make a new drug the next day. It takes time. The cathinone ban really did wipe out a hugely popular category of drugs, as did the ban on ketamine-like substances. Nothing has been a mephedrone killer yet, no one’s stolen its crown.”
So where will the next drugs come from? According to Power, the hunt for new drugs is generally led by the people who have capital, such as bioresearch chemical companies. They will spend R&D resources finding any new chemical that is legal but has psychoactive effects.
“I don’t think there are many big players. In the UK, I think there are probably two or three companies working as a cartel. It appears to be a bigger market because each company has maybe 10 different front companies, each appealing to different market segments.”
Power says drug forums play a large role in which drugs the companies choose to go big on. A privileged set of forum users will receive a sample in the hope they’ll write a good review. “If the reviews are good, they will release it onto the market bit by bit until there’s a buzz and it starts selling.”
Mike Slocombe, founding editor of the London-based underground bulletin board Urban75, said NPS companies employ people to generate interest on these fora.
“When mephedrone was kicking off, these minions got chatting to people on our drugs forum,” said Slocombe. “They make friends with as many people as possible. Then they will send private messages to around 300 people with links to where to buy this great new drug.”
NPS sellers have also learnt the art of attracting as much web traffic as possible: gateway pages, algorithms and invisible wording. “If you are in a crowded roomand you want to draw attention to yourself, you have to shout,” said Slocombe.
The new era of the drug trade has its roots in the internet. In fact, the first thing ever bought and sold over the web was a bag of cannabis. Since then, their similarly maverick nature has meant psychonauts and internet geeks have remained bed partners.
The web has facilitated the spread of NPS by shortening the lines of communication between user and producer, effectively bypassing middlemen.
Mephedrone was the catalyst. Created by an online chemist, it was the substance that opened the doors to the possibilities of the online drug trade for the general public and to people with an eye for a quick profit. But mephedrone could not have exploded onto the drug scene in the way it did without the internet.
Websites doubled as both a market stall and a talking shop for the drug, and they caught everyone off balance. Google’s Adword service, which automatically generates ads from keywords, meant that alongside online newspaper stories about the dangers of mephedrone would appear adverts for how to buy it.
The appeal of NPS over and above traditional illegal drugs rides on bang for buck. However unreliable and nasty they are, they are generally cheap and potent. Unlike other drugs, they are available 24/7, rain or shine. Moreover, they attract users because they are or claim to be legal. Incountries with strict student and workplace drug-testing regimes, such as the US, New Zealand and Australia, they have been used to avoid positive drug screening tests.
NPS are very much the drugs of a new generation. A UK investigation into NPS trends among young people carried out by DrugScope found the younger generation viewed the kind of drugs NPS mimic, such as cocaine, LSD, MDMA and cannabis, as remnants of a bygone era. Put simply, NPS were seen as fashionable while traditional drugs were not.
The survey also showed that with NPS, the emphasis was on getting a cheap hit. One drug worker told DrugScope, “From what I’ve seen, it’s the potency of a particular brand that is more of a pull for young people rather than the fact they may be legal. With synthetic cannabinoids, it’s all about getting totally out of it. Lots of them will use a bong and actually say it was a negative experience.”
“It’s not used for relaxing like normal cannabis,” another drug worker said. “There is a real need for escapism. It’s a comfort blanket so they can forget everything. Yes, it’s a substitute for cannabis, but if you use the same dose as cannabis, it wipes you out.”
Worryingly, drug workers have raised concerns that some products seemed to become more popular even after being linked to hospitalisations and deaths.
Still, the use and online purchasing of NPS across the world’s population remains a small proportion of global drug activity. The ‘old school’ drugs and the local drug dealer still account for the lion’s share.
Yet these products are increasingly causing problems for users. The US and UK, for example, have witnessed slow but steady rises in the number of people being treated by drug services and hospitals for NPS use.
In the UK, PMA, a more toxic substitute for MDMA, was linked to 23 deaths in 2013, while AMT (alphamethyltryptamine), an LSD-style psychedelic, has been linked to the deaths of three. In the US, there have been five confirmed deaths from the hallucinogenic 25I-NBOMe, and in Sweden 5-IT – legal in most European countries and supposedly resembling MDMA – was involved in 14 deaths.
There is increasing evidence showing synthetic cannabinoids are more harmful than cannabis. Users of these products, marketed at young people in the same colourful, shouty ‘yoof’ way alcopops were, have suffered extreme reactions, including heart attacks. Their inventor, Professor John Huffman, who created 200 types of synthetic cannabinoids for use as anti-inflammatories, has publicly warned that smoking them can lead to serious psychological problems.
In November, researchers at the University of South Florida unveiled a study that officially links synthetic cannabinoids to strokes in “otherwise healthy adults”. In the US, more than 11,000 emergency department visits, a third of which were made by children under 17, were specifically linked to synthetic cannabinoids.
In New Zealand last year, three people were hospitalised with serious kidney problems after smoking synthetic cannabinoids. The country’s National Poisons Centre has reported a rise in calls from doctors and ambulance officers reporting breathing problems, paranoia and recurrent psychotic episodes as a result of the drug. And doctors have reported concerns over the increase in clients in their emergency departments suffering adverse effects after taking them.
A 12-month study on the adverse effects of synthetic cannabinoids, published in Human Psychopharmacology last year, found that one in 40 people surveyed who had used them had sought emergency medical attention. In the same journal, a paper called “Spiceophrenia”: a systematic overview of “Spice”- related psychopathological issues and a case report concluded that synthetic cannabinoids posed more of a health risk than natural cannabis.
Stephen Bright, who teaches addiction studies at Curtin University in Australia, says the extra health risks posed by synthetic cannabinoids could be because they do not contain naturally occurring chemicals found in cannabis. CBD is a natural anti-psychotic while THC works as an anti-convulsive.
“Cannabis has been used for thousands of years,” says Bright. “We know the effects. With the synthetic version, thousands of people have unwittingly become lab rats in this global mind experiment. To be sold like this, other drugs would have to have gone through thousands of hours of clinical trials.”
Part of the problem is buyers and even sellers of NPS products often have little idea of what chemicals they contain. Analysis of one ‘Rockstar’ ecstasy pill found it contained 11 different drugs. Yet at a time when the forensic analysis of drugs has become vitally important, many nations have found it impossible to keep track, due to financial constraints and the sheer volume of samples.
Drug services now appear to have come to terms with the new landscape. The philosophy of many services in the UK, which has one of the world’s most varied NPS markets, appears to be one of keeping calm and dealing with symptoms rather than chemicals. “It’s about going back to basics, treating the presenting issues rather than having to be an expert in the compound itself,” said Katy MacLeod, National Training and Development Officer at the Scottish Drug Forum.
Widespread confusion around NPS has predictably been reflected in the global media, although how much of this is confusion and how much is wilful narcotic scaremongering, it’s hard to tell. The truth appeared to walk the plank time and time again with the appearance of mephedrone in the US, the description of ‘bath salts’ and the case of the Miami zombie who turned out not to have taken cathinones, just cannabis.
It is no fluke that New Zealand was the first country to think outside the box and come up with laws to actually regulate NPS.
Its remote location and relatively small population has always kept it adrift from global trade routes. It is one of the few countries not to have a branch of H&M (the fashion world’s equivalent to Starbucks), so it follows that getting hold of ‘exotic’ products like cocaine and MDMA is an expensive or disappointing hobby.
New Zealanders, therefore, with their largely Anglo Saxon-influenced urge for getting out of it, have historically done the only thing they could do: make their own drugs. This is why high-quality homegrown cannabis and locally cooked-up methamphetamine are so big here.
And it’s why one firm, Stargate, decided in 1999 to make its own ecstasy or ‘party pills’ out of the legal stimulant BZP. Abandoned as both an anti-worming drug for cattle and an anti-depressant, BZP was efficiently promoted as a safer, cheaper alternative to methamphetamine and ecstasy. It sold fast. A report prepared for the Ministry of Health estimated that approximately 20 million doses of party pills were sold in New Zealand between 2002 and 2006.
But the party pills were not all ‘party’. Research began to link BZP with a number of health risks, including toxic seizures. This prompted the New Zealand Government to begin a trial and error journey of drug law that would see it experiment with a hotchpotch of potential solutions.
The first attempt was the Misuse of Drugs Amendment Act 2005. This created a classification for new psychoactive drugs deemed lower risk than drugs like cocaine and cannabis. The plan was to place a set of restrictions on the sale of party pills. But the half-baked law backfired. Not only did the government fail to enforce its restrictions, pill makers decided to steer clear of BZP and replaced it with similar, legal alternatives, such as 1,3 dimethylamylamine (DMAA).
This set in motion a cat and mouse game later to be repeated around the globe: as soon as one substance was banned, another hit the shelves. When a new wave of legal highs in the shape of synthetic cannabinoids appeared, the ban-inventban- invent game began playing on a bigger and bigger pitch.
BZP was made a Class C drug in 2008, but the production of new legal highs increased in intensity. In total, 35 substances were banned, and every one of them was quickly replaced with another set.
This was clearly not ideal. While some substances fell within the country’s existing drug analogue laws and could be banned, others required lengthy chemical analysis before they could be taken off the shelves. It was this delay that worried the government. It meant potentially harmful products could remain uncontrolled and readily available.
Determined to solve what appeared to be the drug law equivalent of a Rubik’s cube, the government decided it was time to clear the decks.
A review by the New Zealand Law Commission review of the Misuse of Drugs Act pointed out that, under existing drug law there was no mechanism for effectively regulating NPS before they reached the market. The onus was completely on the government to determine whether a substance was harmful.
This led to the Psychoactive Substances Act 2013, which sailed through Parliament in July last year with a majority of 119 votes to one. Its key aim was to put the onus on NPS producers to develop products that were low risk. Manufacturers must now send their products for clinical testing before they can be legally sold, while the government oversees the importation, manufacture and sale of these products under tight regulations.
Explaining the logic behind the new law to Australians in the Sydney Morning Herald in September last year, Ross Bell, Executive Director of the New Zealand Drug Foundation, wrote: “The producers of synthetic substances always hold the upper hand; their chemists are always one step ahead of any regulation. The New Zealand Government finally lost patience and did something counter-intuitive. It moved new synthetic drugs from a legal grey area to a well-defined and robust regulatory framework.
“These substances will be better regulated than tobacco or alcohol. By shifting the burden of proof on to manufacturers, it forces producers into the light of day and makes them responsible for the safety of their products.”
Bell felt the need to spell all this out because New South Wales (NSW) had just introduced a new “tough” anti-NPS law that made banning them easier. Instead of awaiting scientific analysis, as long as it could be proven a substance had psychoactive qualities (and as long as it’s not alcohol, tobacco or caffeine), it would be banned. “There is no silver bullet to protect people from the scourge of psychoactive drugs, but the NSW Government has developed ground breaking laws to tackle the problem,” NSW’s Minister for Fair Trading Anthony Roberts explained.
However, as Bell said in his article, the new law was not “ground-breaking”, it was merely a more speedy way of banning drugs and an approach that had been tried across the Tasman for 6 years with little success.
Australian Drug Foundation Chief Executive John Rogerson described the new law as “the typical Australian response to drug-related issues” that “does little in the long term to deal with the issue. We have to try new policies as we know banning drugs does not work and leads to many harmful unintended consequences.”
Weeks after this new law came into effect, the Sydney Morning Herald found NPS were still available online and being shipped into the state. So much for banning.
Meanwhile, European policy makers are still jostling to find a way to tackle NPS. The European Monitoring Centre for Drugs and Drug Addiction says, since 2009, seven European countries have implemented one type of control measure and subsequently initiated another. They say it is clear suppliers are making great efforts to stay within the law.
For example, in 2010, Ireland enacted a blanket ban on the sale of NPS, specifically targeting head shops. According to the government, in the 3 months following commencement of the law, the number of shops fell from about 100 to just six. But somehow, the Irish are still getting hold of legal highs. An EU survey in 2011 found that Ireland had a higher proportion of young people trying NPS than any other EU country, and most people said they bought their hit from head shops. Go figure.
The UK’s response has been to ban each substance as it appears via temporary banning orders. The government’s Advisory Council on the Misuse of Drugs surprised many when it recommended adopting US-style analogue laws, something New Zealand has stopped doing and which the US Drug Enforcement Administration recommended the UK not do. There has been no visible slowdown in new substances.
But the problem faced by European countries is that they are packed like sardines in a can. As the European Commission pointed out, a chemical that one country bans is easily available via e-commerce and cheap postal services from a neighbouring country where it is still legal. You can’t check every bit of mail, and websites just reopen under new names.
US attempts at stamping out NPS are faring little better. The US Federal Analogue Act failed to stop the arrival of synthetic cannabinoids and cathinones. The Synthetic Drug Control Act 2011 added a swathe of new drugs to the schedule. Within weeks of the new law, cheaper and more dangerous drugs, such as the NBOMe series of chemicals, experienced a steep rise in popularity, and deaths linked to them spiked.
At the 2013 UN Commission on Narcotic Drugs meeting, a resolution was agreed to “enhance international cooperation in the identification and reporting” of NPS. In policy terms, the resolution encouraged the sharing of effective responses to the unique challenge of NPS, including “new laws, regulations and restrictions”. Cue sounds of tumbleweed and anxious glances towards the Land of the Long White Cloud.
So all eyes are on New Zealand. In August 2013, The Economist marvelled at the fact that the country’s new NPS law had resulted in a published list of “all the most prolific drug manufacturers and dealers in the land, complete with their full names and addresses”.
“Anywhere else in the world, such a roll-call of drug makers and dealers would be unthinkable. Many people may be horrified that peddlers of mind-addling concoctions are listed on the health ministry’s website as if they were manufacturers of medicines. But the lists make clear some of the advantages of bringing the business into the daylight.”
But on the ground, there are signs of frustration. Details on dosage limits, the testing system, packaging and health warnings have yet to be announced. Since the law was passed, local newspapers have reported frequently on small-scale community protests against the continued sale of synthetic cannabinoids in high street shops. Despite having reduced the number of stores selling legal highs from 3,000 to 170 and removing the most dangerous substances, there is the feeling the new law is just too soft.
Just over 100 years ago, the world’s superpowers set out in earnest thinking prohibition would reduce the volume and range and availability of drugs.
Now in 2014, the tide has begun to turn. This year, Uruguay and the US states of Colorado and Washington legalised recreational cannabis, partly because a regulated market, out of the hands of criminals, would be safer. New Zealand’s changes in regards to NPS have been made for similar reasons.
As well as changing forever the way people produce, buy and use drugs, the era of new psychoactive substances and the online drug trade has made a mockery of prohibition. It was a policy already on a century-long losing streak, but faced with the challenge of an even more resilient and slippery enemy, it’s now a policy that seems to be eating itself whole.
“We are confusing cause and effect,” says Power. “The reason so many new drugs are appearing is precisely because we keep banning them. That approach worked in the 1960s and 1970s, but in the internet era, it is impossible to control this market. More laws equals more drugs.”
While New Zealand’s NPS regulation is sensible, it leaves us with a situation where some substances, synthetic cannabinoids, for example, are legal while arguably less toxic ones like cannabis are banned and the most dangerous drugs, such as heroin and crack, are left to roam wild. Common sense says the only way of solving this narcotic riddle is either to control all drugs or prohibit all drugs out of existence. And the dawn of NPS has finally put paid to the latter.
Drug use is not all about logic and science, nor should it be, and a healthy dose of realpolitik must be taken into account. Drug taking is imbued with a cultural, not just chemical, significance. The desire to become intoxicated is a morally charged decision. But as the links between intoxication and morality, largely created by religion and politics, continue to melt away, so the inevitable journey to the cold hard logic of regulation and control becomes ever smoother.
The Criminal Justice (Psychoactive Substances) Act came into effect on 23 August 2010 to deal with head shops. This law makes it an offence to sell, import, export or advertise a psychoactive substance (including importation or exportation via online means).
Following concerns that the formal procedure of control was not fast enough, Temporary Class Drug Orders were introduced into the Misuse of Drugs Act on 15 September 2011. Such orders allow the Home Secretary to control a substance as a drug for 1 year with the approval of the UK Parliament. An order may be drawn up where a substance is misused or likely to be misused and where there could be harmful effects. If a substance poses an urgent or significant threat to public safety, an ‘urgency procedure’ allows for consulting only the ACMD Chair.
In 2013, Decree-Law 54/2013 established a list of psychoactive substances that pose a public health risk comparable to controlled drugs and prohibited their advertising and distribution, punishable by administrative fines and closure of premises.
In 2012, a generic definition of cathinones was added to the list of substances controlled by drug legislation.
In 2010, mephedrone was classed as subject to the pharmaceutical laws and therefore could not be distributed without a licence.
In 2012, generic definitions of cathinones, cannabinoids, phenethylamines and tryptamines were added to drug control legislation.
A new regulation on narcotic drugs has been published, omitting earlier references to “derivatives”, which had proven unclear in prosecution, and instead including generic group definitions for synthetic cannabinoids, cathinones, phenethylamines and tryptamines.
In 2012 Austria’s new ‘Act on New Psychoactive Substances criminalised supply of substances that have the potential for “psychoactive effects” and are likely to be abused by certain sections of society and pose a potential threat to consumer health.
Italy introduced an analogue classification of synthetic cannabinoids under the drug control law in May 2011. In December, this was broadened, and a group classification of cathinones was also added.
A law to control NPS in Romania was passed in 2011. A permit is required to sell any product likely to have psychoactive effects. These are defined as those provoking “changes in functions, mental processes and behaviour”, or “causing dependency”, but no specific reference to harmful substances is made. The unauthorised distribution of these substances and their advertising is punishable by imprisonment but not possession for personal use.
The Controlled Drugs and Substances Act is the main legislation for drug control. It contains eight schedules listing substances that are subject to the Act. Substances not listed may also be subject to the Act if they are a salt, derivative isomer, analogue, salt of a derivative, or similar synthetic preparation of a particular controlled substance. For instance, JWH-018 is considered a similar synthetic preparation of cannabis and is therefore considered to be included in Schedule II.
The US Federal Anolog Act 1986 defines an analogue as a substance that is “substantially similar” to a scheduled substance and has either an effect similar to or greater than a controlled substance or is thought to have such an effect. The Synthetic Drug Control Act of 2011 banned several drugs, such as cathinones and synthetic cannabinoids.
In 2011 Australia placed eight synthetic cannabinoids under Schedule 9 (Prohibited substances) of the Poisons Standard. Prohibited substances are poisons and preparations whose sale, distribution, use, possession and manufacture are prohibited, and they may be used only for medical and scientific research. In New South Wales, new laws provided a blanket ban on psychoactive drugs, with exemptions for tobacco, medicines, foods, drinks, caffeine and herbal remedies. An expert panel will decide what is exempt.
The Psychoactive Substances Act 2013 made the importation, supply, labelling, manufacture and possession of NPS subject to requirements similar to those imposed upon manufacturers and suppliers of medications, food or chemicals. It aims to balance the demand for access to such substances with the risk of likely harm to individuals and society. Manufacturers will be required to have their products assessed in order to prove that they are low risk before they are approved. Additional restrictions include a sale restriction to minors, no sales from convenience stores, limited advertising, childproof packaging and clear listing of ingredients and health warnings.
Max Daly is a journalist specialising in illegal drugs and author of Narcomania: How Britain Got Hooked on Drugs (Windmill, 2013).
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