Making sense of our legal high law

Damian says he first tried synthetic cannabis out of curiosity. On a good day it helps him enjoy “food, gaming and other stuff so much more”.

“But the worst experiences I’ve had are feeling like my insides are falling out of my sides, forgetting where I am, even forgetting how to breathe. And then there’s the depression that kicks in,” says Damian, 20, who says he has tried at least 10 kinds of synthetic cannabis.

“Basically, they make you feel crazy. They’re nothing like weed. Weed makes you relaxed [whereas] these can make you feel quite on edge.”

Stephen Bright, a psychologist and researcher who specialises in addiction and psychoactive substances at Curtin University in Australia, says side effects such as those Damian felt are common among some people who use such drugs. 

But synthetic cannabis isn’t a new phenomenon. Bright says it first started making an impact worldwide in 2004 when a substance called “Spice” hit the market. 

Spice was a blend of herbs that mimicked the effects of THC – the key ingredient in cannabis – without showing up on drug tests. This started a trend of mixing herbs with substances to try to create a product that would create a legal high, Bright says.

“One of the things we tend to see is that users tend to perceive a lower risk from synthetic cannabis than regular cannabis, which isn’t so.”

Not long after Spice’s European debut, similar products began hitting the shelves on this side of the world, coming to the fore in New Zealand in the mid- to late 2000s, before skipping across the Tasman a couple of years later.

“[In Australia] it emerged in about 2011, when people started ringing [youth radio network] Triple J about this great product they were using where they could get really stoned after work and it didn’t come up in drug tests,” says Bright.

According to a survey Bright compiled on the use of psychoactive substances, most of the users were employed males, with a median age of 27. Going against the popular image of psychoactive substances serving as a gateway to harder stuff, 96 per cent of participants had previously used cannabis and many had an “extensive history” of drug use.

“The main reason people use them is curiosity. Some like the idea of using a legal product, with a perceived sense of safety attached to it,” he says. “One of the things we tend to see is that users tend to perceive a lower risk from synthetic cannabis than regular cannabis, which isn’t so.”

Bright says that the original synthetic products didn’t appear to be harmful, but hysteria surorunding the drugs led to them being banned in numerous countries, prompting other chemicals to enter the market that were more harmful than those that had just been outlawed.

Wellington lawyer James Dunne, a senior associate for Wellington law firm Chen Palmer, which represents some of the largest players in the industry, says it took numerous attempts to ban individual legal highs for lawmakers to realise that their responses were ineffective.

“When people suddenly discovered that you could churn out thousands and thousands of these substances, bring them into the country and then sell them one after the other, it became clear that the old model simply wasn’t going to work.”

The answer was to write up something completely unique: the Psychoactive Substances Act, which came into effect in July last year.

Dunne says the new law turns the table on traditional drug policy by allowing the sale of the substance if both the supplier and manufacturer can prove it carries only a “low risk of harm”.

“The purpose of the act is to protect the health of the public by regulating psychoactive substances to minimise the harm to people who use them,” he says. “They’re basically saying ‘look, don’t use drugs, but if you must, these are the ones’.”

Dunne says it’s a revolutionary take on controlled substances. “We’re the first country in the world to try this approach. Most countries are still trying the things we tried a couple of years ago, which boil down to ‘We’ll ban stuff ... faster,’ which doesn’t actually solve the key problem, which is that the chemists out there are working much faster than the lawyers and politicians.”

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The passing of the Psychoactive Substances Act meant that a regulatory body had to be established to respond to applications from retailers, importers, manufacturers, and wholesalers of the drugs.

The interim body, the Psychoactive Substances Regulatory Authority, is located within the Ministry of Health in Wellington. Its manager, Dr Donald Hannah, says the authority’s job is to assess the applications for various substances to see whether they are a “low risk of harm” to users.

It was a very unregulated environment out there. We suspect that there were between two and three thousand outlets around the country: dairies, corner stores, who-knows-what...

The authority works alongside a number of bodies to determine the safety of products, including a unit at Otago University that’s contracted to receive reports of adverse reactions and report them back to the authority. 

“That information is generated through the Poisons Centre [the contact details for which must now be included on the packaging of all synthetic substances], it’s generated through the emergency departments, the mental health units... There’s a variety of places where the presentations could happen where the information gets collected and then it becomes consolidated through the centre [at Otago],” Dr Hannah says.

“They have a system to look at how severe the reaction is, the cause, the effect and the treatment of it. That becomes very useful information for us to work out ‘What is the product? What issues are there around it and what actions need to be taken?’”

Before the law changed, monitoring was far more ad-hoc, he says. “It was a very unregulated environment out there.” 

“We suspect that there were between two and three thousand outlets around the country: dairies, corner stores, who-knows-what ... There were probably several hundred actual products out there, some of which were very obviously causing problems.

“One of the problems with that previous regime was that the only tools the government had to regulate it was that they had to identify products that were causing harm – so the harm had to actually be happening. They had to gather all the data from these types of mechanisms that we’re talking about and then take regulatory action.”

If we understand and control them properly, then we can regulate that risk in the same way that we regulate the risk from driving, or alcohol or tobacco or from bungee jumping

To get an interim licence to retail, import, manufacture, wholesale, research and sell psychoactive substances companies now have to prove that the products were being sold before the act came into effect without any incidents, Dr Hannah says.

“A number of products were applied for and we decided that there was sufficient evidence to say ‘We can’t be sure of its low risk of harm’, therefore, we didn’t give them approval. That’s products like Kryptonite, Kronic and G13.

“It’s interesting that the suppliers of the product known as K2 made a decision to not make an interim application; if they had, we have seen sufficient evidence that we would most probably not have approved it.”

But  Dunne says it’s still unclear what a “low risk of harm” actually means. “You’re never going to get an exact explanation of what that means. No one’s going to come out and say ‘that means one adverse effect a year’ because that’s not practical.

“Basically, if it’s something that shouldn’t be classified as a controlled drug, then it would fit into this area.

“The point is they are low risk. There is still a risk there, but if we understand and control them properly then we can regulate that risk in the same way that we regulate the risk from driving, or from alcohol, or tobacco, or bungee jumping,” says Dunne.

One of the regulatory authority’s key partners in enforcing the new law is the police, who say they are taking a “hard line” against people who blatantly breach the act.

Inspector Rob Duindam is in charge of the act’s implication for the National Criminal Investigations Group. He says the police have a couple of roles in enforcing the act and its provisions. “A big one, of course, is the ... licensing and sale of products and approved products and unapproved products. In the period since the act has come in our staff are regularly going to visit retail outlets and checking for compliance. We’ve also done a lot of controlled purchase operations to see if under-18s are buying.”

Duindam says these checks have seen a number of licences pulled as a result, as well as 37 charges being laid against retailers.

“We’ve got about 16-odd convictions coming up and we’ve got 12 to 15 cases pending outcomes. Certainly, that’s an indication to me that we’re quite active out there.”

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While praise for the Psychoactive Substances Act seems to have been widespread, its implementation has been found wanting, with Dunne saying it’s been a much more difficult process than anyone could have anticipated.

“Every step along the way has taken longer than expected. Because we’re the first ones to do this we can’t just copy someone else’s regulatory regime, which is usually the easiest way these things are done,” he says. “Every bump in the road we have to work our way over, and to some extent that’s probably why it’s taking so long to get it all up and running because we have to work every detail out ourselves.”

Regulations and rules for pre-market assessments that were promised a “few months” after the first interim licences were granted are still months away, which has reportedly frozen out competition, creating a bonanza for some sellers.

Dr Hannah says that promised regime is still “a little-wee way away,” and doesn’t expect it to come in until later this year.

“The regulations for the products will list the types of information around what the substance is, what data they have seen in test environments, what processes they are proposing to manufacture it, what the manufacturing process is, what conditions it will be manufactured in...” he says. “There are a whole lot of things that they will have to provide further information on.”

One of the main bones of contention with the new rules is the role local government will play. Under the law, each council can set what’s called a “local approved products policy”, which effectively means each district or city council will be able to provide guidance to the national authority on issues in their community.

However, Palmerston North Mayor Jono Naylor says councils have barely any power to respond under the law. “The way it was constructed, and the way some politicians from central government were talking, I think, implied that we had greater power than we really did and set up a false expectation in our communities about what local government would be able to do.”

This expectation was shown late last year when a legal high store was set up near the city’s polytechnic, UCOL, which proved highly controversial for surrounding residents and teachers at the campus.

There were protests calling for the drugs to be banned in the city, and for the city council to use its new powers under the Psychoactive Substances Act, but Naylor says they were unable to act.

“We’ve had a lot of pressure from people asking us to ban the sales, but we can’t do that. We have very limited powers to suggest where they should and shouldn’t be sold from. But at the end of the day, I don’t think there’s any compulsion on the Ministry of Health to actually have to comply with our local policies.

“When the bill was being constructed there was absolutely no interaction with the local government sector and yet, there were provisions in the act that had a great impact on local government. Frankly, I think that’s really poor legislation construction.

However, Naylor says the law as a whole isn’t bad. “In fairness, there are a lot of positive things that have come out from this legislation. We have eliminated the sale of these substances from our dairies so they’re no longer sitting alongside the milk, and lollies and bread. It’s not all negative.”

There’s this sort of sick joke where we call cannabis a controlled drug, when in fact it’s the least controlled drug in the country

Another concern raised by the law's introduction is that if it’s made harder to obtain psychoactive substances, will people just move to marijuana instead?

Dr Hannah says this is a concern for the authority, and it is trying to strike a balance. “Not only do we want to have a low-risk product available, if we make it too hard to actually access the safer product, does that mean we drive them to the unsafe illegal product? There’s a balance in there between making access but also restricting outlets.

“We have received anecdotal evidence that in those areas where there are no approved outlets, the illegal use of cannabis has increased – I don’t have numbers to support that, it’s anecdotal – but we would be concerned if we did get hard numbers that the act was actually driving people to illegal things,” Dr Hannah says. “We would want to look at how we were operating this and what actions we might be able to do to remedy that.”

Dunne suggests the Psychoactive Substances Act could be altered to cover cannabis in the future. “In my view it would make sense to bring some of these streams [of New Zealand drug law] together under one umbrella,” he says.

“You’ve got the Psychoactive Substances Act, the Misuse of Drugs Act, the Smokefree Environments Act, the Sale and Supply of Alcohol Act – what the legislation in almost all of these cases aims to do is regulate products that create a psychoactive effect to protect public health, but they’ve all got slightly different tests and slightly different regimes.

“In the long run it might make sense to try and bring them all together ... I suspect the political will to do that ... isn’t there. But that would be the logical next step, to bring some of these regimes into alignment.” 

Dunne says it’s inevitable that there will be more bumps in the road ahead as regulations around the new law are established. “We’re at the very early stages. The Ministry has to review the act by 2018 and obviously five years down the line we’ll have a completely different take on how the act has worked, and where it sits in a global context.”

Overall the act is a “good law”, he says. “The reality is that every other approach we’ve ever taken to drug policy hasn’t actually worked and there’s this sort of sick joke where we call cannabis a controlled drug, when in fact it’s the least controlled drug in the country.”  

“We tried banning substances really quickly and it’s never even come close to working. I don’t know if this one will work, but at least it’s something different.”

Bright says that while there is a long way to go in drug laws as a whole, the law is a start. “There’s always going to be a demand to get high and people are going to continue to meet that supply. By putting some controls around that supply, I think that’s a move in the right direction.”