Cross-Examination: Legal highs bring legal lows, a follow-up
Cross-Examination is a blog series about current legal issues in New Zealand produced by EJP Communications volunteers.
Cross-Examination: Legal Highs Bring Legal Lows, a Follow-Up
A fortnight, it seems, is a long time in Government.
Writing my previous article on the issue of the then ‘legal highs’, I relied on the statement of Associate Health Minister Peter Dunne that legal highs “are here to stay”. Hours after that post was published, however, the Minister announced a radical revision of Government policy.
Dunne’s announcement detailed the Government’s intention to immediately end the transitional period under the Psychoactive Substances Act 2013 (the Act). During this transitional period, psychoactive substances on sale before the Act commenced could remain on sale until the full regulatory regime came into force. After this regulatory period began, it was only then that psychoactive substances were to undergo clinical trials to establish they posed no more than a “low-level of risk” to the individual user. As a result of this change, no products will be able to be sold until trials are conducted, which cannot take place until the full regime is implemented.
Effect was given to the announcement by the passing under urgency of the Psychoactive Substances Amendment Bill on 6 May 2014, the Amendment commencing on 8 May 2014 (the Amendment Act).
Interim approval of products was provided for by the First Schedule to the Act. The Amendment Act repealed clauses 3 – 6 of the Act’s First Schedule: disestablishing the means by which interim approval could be obtained, revoked all existing interim approvals, and mandated the Psychoactive Substances Regulatory Authority (PSRA) to immediately recall every product formerly sold with interim approval. The PSRA’s recall notice, issued on the day the Act commenced, mandated this be completed within 21 days.
In addition to decrying the harms associated with these drugs, protests surrounding legal highs had also expressed concern at the prospect of animal testing being used in order to establish the safety of legal highs. In response to this concern, sections 12(1), 12(2), and 33(3) of the Act (as amended) prohibit the PSRA from using results of animal testing to establish that a product being submitted for full approval poses no more than the “low-level of risk”. Section 12(2) does, however, allow the results of trials on animals undertaken overseas to be used to establish that products do pose more than a “low-level of risk”. However, animal testing “remains a necessary and important component” of establishing the safety of new products, Health Minister Tony Ryall admits. As any product seeking approval must be proven to be safe, the inability to use these tests, necessary to doing so, makes it uncertain how any product can now gain approval.
Not only does the Amendment Act therefore effectively serve to both immediately withdraw all legal highs from sale in New Zealand, it potentially prevents any product from gaining approval in the future. With the Amendment Act having been passed by 107 votes to 14, demonstrating political near consensus on this issue; it appears that ‘legal’ highs will remain illegal for some time, if not indefinitely.
I made the suggestion in my previous post that the “low-risk of harm” those products with interim approval posed was unacceptably high, and that more effective regulation of these products was necessary to reduce the impact of these substances on the most vulnerable members of the community. The effective prohibition of these substances can be seen as providing this regulation. This is certainly the Government’s view, as expressed by Health Minister Tony Ryall’s remarks following the passing of the Amendment Act.
There are, however, social justice concerns in regards to the new legislation.
The manner in which the prohibition has been implemented poses concerns. The First Schedule to the Act, as amended, provides that it is a defence to a charge of possessing an unapproved psychoactive substance that the offence was committed within fourteen days of the Schedule commencing (until 22 May 2014). This provides a small grace period to retailers to affect the recall notice, and for those in possession of psychoactive substances to consume them.
Media reports from the days following the ban suggest, however, that significant stockpiling of synthetics took place in the days before the ban. It is entirely possible that significant stockpiles of the drugs will still exist after 22 May.
This situation gives rise to concerns similar to those discussed at the Equal Justice Project Symposium on Drug Reform held at the University of Auckland on 28 April.
Speaking at the symposium, Senior Law Lecturer and Tumuaki/Associate Dean (Maori) Khylee Quince noted that particular groups, especially Maori and Pasifika, are more likely to be subject to searches and other police action for possessory offences than other groups. Such minorities are thus disproportionately criminalized by the prohibition of possession. This greater likelihood stems, she argues, from their greater visibility to police – a greater visibility acknowledged by National MP Simon O’Connor, the other speaker at the symposium.
Furthermore, as argued in my previous article, these same marginalised groups are also the most likely to be chronic users of synthetics and other drugs, making them the most likely to have stockpiled them.
Accordingly, it seems probable than any enforcement actions taken by police under the amended Act are most likely to target these marginalised groups. Members of these groups, considering their already precarious economic position, are the least able to afford the $500 maximum fine the Act prescribes for possessory offences relating to unapproved synthetics.
Moreover, the PSRA has itself identified that the majority of chronic users of synthetics were previously chronic users of natural cannabis, attracted to the synthetics because of their licit status. Accordingly, that these products are now illicit, I believe that many users of synthetics will now return to natural cannabis.
Whilst evidence charted in my previous article suggests synthetic cannabis is medically more harmful than natural cannabis, there is emerging evidence that natural cannabis is potentially more dangerous than previously thought. Increased use of any drug cannot be regarded as a positive development.
Certainly, many chronic users of synthetics were attracted to them by their being unable to be detected by drugs testing. With employment contingent on returning clean results, any growth in the use of natural cannabis is therefore likely to result in the further economic marginalisation of these groups as a result of job losses stemming from positive drug testing results.
Quite apart from that, the consequences of possession or use of cannabis, a class C drug, are greater than the consequences of an offence against the Psychoactive Substances Act 2013. Therefore, any increase in the use or consumption of these substances resulting in an increase in prosecutions for possessory offending will more greatly impact on those already most the marginalized – presenting the same social justice concerns discussed above.
Reports also emerged in the days preceding Parliament sitting to amend the Act that Health Services were bracing for an increased demand for help from people suffering withdrawal from the drugs following the prohibition. As stated in my previous article, those most likely to have become addicted to synthetics, the most marginalised members of our community, are the least able to effectively cope with extreme drug use or to break addictions.
Consequently, the individuals most likely to suffer withdrawal will be the least able to deploy strategies to address these symptoms, leading to their being the most heavily impacted in terms of their personal well-being by prohibition by default.
In another concern, the amendments in the Act have done nothing to address the concern raised in my previous article, and by Ms Quince at the Symposium, around the definition of ‘harm’ in the legislation being too narrowly medical in its focus; leading them to fail to address the broader social harms of drugs. Mr O’Connor was also mindful of these broader harms in his statements at the Symposium. These social justice issues surrounding the regime will re-emerge if and when products are authorised for sale.
It appears, therefore, that New Zealand has not yet found an equitable way to regulate and ameliorate the harms connected with psychoactive substances, or the social factors relating to that usage. Certainly, any regime which further harms those who are already the most vulnerable in our community is incompatible with an ideal of equal justice. Further reform, addressing the issues I have outlined, is necessary.
The views expressed in the posts and comments of this blog do not necessarily reflect those of the Equal Justice Project. They should be understood as the personal opinions of the author. No information on this blog will be understood as official. The Equal Justice Project makes no representations as to the accuracy or completeness of any information on this site or found by following any link on this site. The Equal Justice Project will not be liable for any errors or omissions in this information nor for the availability of this information.
 Peter Dunne “Hamilton City Council Policy shows Psychoactive Substances Act has teeth” (press release, 11 March 2014).
 Peter Dunne “All remaining legal highs to be withdrawn from sale” (press release, 27 April 2014).
 Psychoactive Substances Amendment Act 2014, s 8.
 Ministry of Health “Recall Order issued under section 88 of the Psychoactive Substances Act 2013” (recall order, 8 May 2014).
 Psychoactive Substances Act 2013, ss 12(1), 12(2), 33(3).
 Psychoactive Substances Amendment Bill 2014 (206-1) (explanatory note).
 Tony Ryall “Psychoactive Substances Amendment Bill passed” (press release, 6 May 2014).
 See Advisory Council on the Misuse of Drugs Drug Misuse and the Environment (United Kingdom Ministry of Health, 1998); Gabriele Schäfer “Family Functioning in Families with Alcohol and Other Drug Addiction” (2011) Social Policy Journal of New Zealand 37 1; Sandro Galea, Arijit Nandi and David Vlahov “The Social Epidemiology of Substance Use”(2004) Epidemiologic Rev 26 36 as cited in Sebastian Hartley “Cross-Examination: Legal highs bring legal lows” (27 April 2014) Equal Justice Project <www.equaljusticeproject.co.nz>
 Ryall, above n 7.
 Psychoactive Substances Act 2013, sch 1 cls 12(6)(b).
 Mike Wesley-Smith “Synthetic high users stockpile before ban” (7 May 2014) Three News <www.3news.co.nz>
Khylee Quince, Senior Lecturer and Tumuaki/Associate Dean (Maori) Faculty of Law, University of Auckland (Equal Justice Project Symposium on Drug Reform, 28 April 2014).
 Simon O’Connor, Member of Parliament for Tamaki (Equal Justice Project Symposium on Drug Reform, 28 April 2014).
 See Advisory Council, Schäfer, and Galea, Nandi, and Vlahov as cited in Hartley, above n 9.
 Psychoactive Substances Act 2013, s 48(3).
 Psychoactive Substances Regulatory Authority Safety Assessment of Psychoactive Products Report (Ministry of Health, 1 October 2011).
 As reported in Simon Collins “Legal Highs Linked to Psychosis” The New Zealand Herald (online ed, Auckland, 5 April 2014); Jodi M Gilman and others “Cannabis Use is Quantitatively Associated with Nucleus Accumbens and Amygdala Abnormalities in Young Adult Recreational Users” (2014) 34 The Journal of Neuroscience 5529.
 Australian Government – Australian Institute of Criminology “Synthetic cannabis: prevalence of use among offenders, perception of risk and negative side effects experienced” Criminal Justice Bulletin Series (online ed, Canberra, March 2013); See Generally Bridgit O Crews, “Synthetic Cannabinoids: The Challenges of Testing for Designer Drugs” Clinical Laboratory News (online ed, Washington DC, February 2013).
 Compare Psychoactive Substances Act 2013, s 48(3) and Misuse of Drugs Act 1975, s 7(2)(b).
 As reported in Rebecca Malcolm “Health services brace for legal highs ban” The New Zealand Herald (online ed, Auckland, 3 May 2014).
See Advisory Council, Schäfer, and Galea, Nandi, and Vlahov as cited in Hartley, above n 9.