JUST 18 months ago, New Zealand was the talk of the world's drug law reformers. It had set up a system to allow new recreational drugs to gain official approval and be sold legally. Moreover, it had won sweeping parliamentary support for this – the Psychoactive Substances Act was passed with a solitary vote against. It seemed that a government had finally taken the bold step towards ending prohibition.
And yet now it is far from clear that the law will ever be used to approve a drug. A panicky government amendment may have made it unworkable. What happened has lessons for others seeking a better way than the failed "war" on drugs to minimise the problems related to psychoactive substances.
The act was meant to establish a process for new psychoactive substances to be tested and, if posing only "a low risk of harm", approved for sale. Regulations would cover testing, importation, manufacture and sale. Politicians seemed to understand that "low risk" did not mean "no risk".
The law was attempting to get to grips with a market that had been raging for years. Designer drugs were emerging one after the other in a chaotic, unregulated retail environment before being declared illegal. For example, the "party pills" BZP and TFMPP appeared in New Zealand in around 2000 and were banned in 2008. No deaths had been attributed to them and they may have reduced methamphetamine use. But they were associated with binge drinking and emergency hospital admissions. By the time they were banned, 1 in 5 New Zealanders had used them.
In 2005, the first in a series of synthetic cannabinoids reached New Zealand. They were progressively outlawed, but each time one with a slightly different chemical structure would pop up. Eventually, associate heath minister Peter Dunne accepted that this game of whack-a-mole could not continue and championed the new law.
The act established an "interim period" in which some products and suppliers could apply for temporary licences while the final regulations were written. All the drugs granted interim licences were synthetic cannabinoids.
At the same time, the wider market was sharply curtailed. The number of retail outlets for "legal highs" was slashed, from as many as 4000 to fewer than 170. The number of products fell from around 200 to fewer than 50. There was evidence that related hospital admissions fell, along with reports to the National Poisons Centre.
The purge also magnified attention on the remaining outlets, largely unwelcome in their communities. They became a focus for the media. Some looked disreputable when journalists visited. In addition, personal stories of chaos and woe received widespread coverage. That these problems had developed in the unregulated market or were caused by products already removed were of little consequence.
On top of this, an already under-resourced regulatory authority was sluggish to respond. The interim regime was left carrying more weight, and for longer, than had been anticipated. Imports could not be checked for purity as required, and obtaining and delivering certificates of analysis proved a challenge for all concerned. It became difficult to say exactly what was in some products – the very opposite of what had been intended.
Despite these problems, perhaps the real damage was done before the act was even passed. The early, relatively benign synthetic cannabinoids had been banned for years. When the act passed, only so-called third-generation cannabimimetics were still legal. Their harms were poorly understood.
In May, amid the media panic, the government rushed through an amendment ending the interim licensing period and removing all the drugs from sale. The act remains in place. Indeed, it's in good shape. The long-awaited regulations for manufacturing, importing and research and product approvals were signed off in July and are in force. Those for wholesaling and retailing are on track for the second half of 2015.
But one part of the amendment has thrown a bomb into the works. It banned the use of animal testing results, in New Zealand or elsewhere, to show that a product met the "no more than a low risk of harm" standard. But a senior Ministry of Health official said recently that "at this point in time, it is not possible to have a product approved without animal testing".
The idea of a law that applies similar testing standards to these substances as any other approved drug – to ensure it is not genotoxic for example – is now broken. All recreational drugs are outlawed, and thus back in the hands of the black market. Familiar patterns of substance abuse are returning to the street and the internet is still a broad channel for the import of untested drugs. Chances of the animal-testing ban being rescinded look slight for now.
The lessons? The interim period may have caused more problems than it solved. The delay in introducing a proper regulatory infrastructure was harmful. But more than that, New Zealand's experience has shown the perils of attempting to regulate new psychoactive substances without reviewing drug law as a whole. The first synthetic cannabis product, having been on the market for five years unnoticed and problem-free, was banned under the vague, sweeping analogue provisions of the country's Misuse of Drugs Act. How different might things have been if that product had still been around?
It makes little sense to deal with new substances in isolation. If there is a solution to the difficult problem of seeking alternatives to the war on drugs, it very likely lies not only in looking forward, as New Zealand attempted, but also looking back and reflecting on the laws we already have.
This article appeared in print under the headline "The Kiwi comedown"
Ross Bell is executive director of the New Zealand Drug Foundation, which aims to prevent and reduce harm from drug use via evidence-based policies
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