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The Ministry of Health has recently taken an important initial step in addressing one of five priority areas of the National Drug Policy (NDP) by releasing a discussion document on a review of drug utensils regulation. Submissions are called for on the review due by 20 September 2016.

Priority area three of the National Drug Policy (NDP) 2015 to 2020 is ‘getting the legal balance right’. This involves ensuring our drug laws and their enforcement effectively balance the NDP’s three strategic approaches of problem limitation, demand reduction and supply control.

The Ministry is reviewing drug utensils regulation to ensure it supports the NDP’s goal ‘to minimise harm from alcohol and other drug use and promote and protect health and wellbeing’. The review is thus a good opportunity to assess whether a new approach to drug utensils regulation might more effectively meet this goal and better follow the government’s stated approach that drug policy should be proportionate, compassionate and innovative.

The Ministry defines drug utensils as anything used as an aid to take drugs. This can include bongs, pipes, vaporisers (including repurposed e cigarettes) and household items repurposed as drug utensils (e.g., knives, spoons, plastic bottles and hoses).

Review criteria

To assess whether the regulation of drug utensils delivers on the NDP’s harm minimisation goal, the Ministry is using the following five criteria:

  • harm prevention (particularly for young people) – does prohibiting possession of drug utensils actually prevent harm? - once a choice to use drugs has been made various means can be used to take the drugs, regardless of the availability or legality of drug utensils
  • harm reduction – some utensils may actually reduce harm from drug use by facilitating safer use
  • proportionality – are criminal penalties for utensil possession justified in relation to harm caused and proportionate to other offences?
  • cost-effectiveness – is enforcing the regulatory regime prohibiting drug utensils a cost-effective use of government resources?
  • ease of implementation – is the drug utensils regulatory regime straightforward to understand and enforce and does it work as intended?

We consider that the five criteria provide a useful and appropriate range of aspects from which to assess whether the drug utensils regulatory regime is effective at minimising harm from drug use.

Current regulations

Under the Misuse of Drugs Act 1975, it is currently a criminal offence to:

  • supply, import or offer specified drug utensils for sale
  • possess a drug utensil if it’s intended to be used to commit an offence against the Act, such as consuming an illicit drug, with exemptions for needles and syringes obtained through the needle exchange programme.

As regards supplying, importing or selling specified drug utensils only, the Act allows the Minister of Health to specify which drug utensils the Act applies to, and the conditions under which those utensils can be sold or possessed for sale/supply. These sale/supply prohibitions currently include cannabis and methamphetamine utensils, such as bongs and pipes and even vaporisers. However, the prohibition on drug utensils possession is absolute and applies to any object (e.g. knives or water bottles) if it can be proven that it was used to take an illicit drug.

Penalties for supplying, importing or offering a drug utensil for sale are up to three months imprisonment and/or a fine of up to $1,000 (or $5,000 for a body corporate). Penalties for possessing a drug utensil are up to one year’s imprisonment, and/or a fine of up to $500.

It’s concerning that potential penalties for possessing a drug utensil are greater than those for possessing illicit drugs. The maximum prison term for possessing a drug utensil is double that for possessing a Class A drug (one year for utensil, six months for Class A drug). This doesn’t make sense.

Options for new approaches

The Ministry assesses two options for new approaches for regulating drug utensils:

  • Option 1: enhanced status quo. This option would continue prohibition, but change some settings, like reducing penalties for personal possession of drug utensils, to meet certain objectives
  • Option 2: replacing possession prohibition with regulations to restrict and manage supply. This option would remove all prohibition on utensils and replace it with regulations to inform and reduce harm.

Drug Foundation’s view

The Drug Foundation support’s option two, in line with the Law Commission’s recommendation to remove the offence of drug utensil possession, as noted in its 2011 report ‘Controlling and Regulating Drugs – A Review of the Misuse of Drugs Act 1975’. The Commission also noted that there doesn’t appear to be any evidence that this offence deters drug use or reduces drug-related harm, again this is something we agree with. If people choose to use drugs there are various ways they can do this without using utensils, or by repurposing whatever’s available. When utensils are used, they shouldn’t be additionally penalised for doing so. Also, some utensils, like clean needles and syringes and vaporisers can reduce harm to health and impediments to using these, despite how they’re obtained, should be removed.

Drug-related harm results primarily from factors including types of drugs used, means and patterns of use, context of use and users’ personal characteristics. Prohibiting possession of drug utensils does not help address these important factors.

However, regulating the availability of drug utensils, as proposed in option two, allows controls that may help reduce drug-related harm. This gives authorities the ability, for example, to ensure products are safe, restrict location of sale or problematic marketing that might appeal to minors and provide a useful mechanism for getting health messages to the drug using community.

The Drug Foundation will be making a formal submission on the review. Details on making a submission are available on the Ministry of Health’s website (closing 20 September 2016).

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