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The legal status of synthetic cannabinoids in Australia: A work in progress

This post is co-authored by my colleague Steve Bright. We recommend citing this post as:

Bright, Stephen J., & Barratt, Monica J. (2011, November). The legal status of synthetic cannabinoids in Australia: A work in progress. Drugs, Internet, Society. http://monicabarratt.net/?p=221

Update Feburary 2012: The TGA announced new federal laws that will move 8 classes of synthetic cannabinoids into Schedule 9 (hoping to cover all variations of synthetic cannabinoids) as well as including a new class in schedule 9 of drugs that mimic cannabis (that is, if their effects are described as similar to cannabis, they will be prohibited regardless of their chemical composition). These laws will come into effect on May 1 this year. See http://www.tga.gov.au/pdf/scheduling/scheduling-decisions-1202-final.pdf

Original article begins:

One of the challenges we faced when researching this paper was understanding the legal status of synthetic cannabinoids in Australia. Not only are there different federal and state frameworks, there are also many different chemicals that have been identified as synthetic cannabinoids.

While doing this research, we were only able to locate one Australian organisation that had a page about synthetic cannabinoids which included information about their legal status (The NCPIC or National Cannabis Prevention and Information Centre). We understand that NCPIC is soon to release an update to their page. Of Substance has also just published a good article on ‘the banning of synthetic cannabinoids’.

Nevertheless, we felt it was important to do our own investigation into the legal status of synthetic cannabinoids by going beyond news articles and media releases. So we accessed relevant federal and state schedules and acts to locate recent amendments.

On July 8, the TGA banned 8 synthetic cannabinoids which are thus by default illegal in all states since all the state acts refer to the Standard for the Uniform Scheduling of Medicines and Poisons (SUSMP), also known as the Poisons Standard 2011. The SUSMP contains a derivatives and analogues clause. Under this clause, the scheduling of 8 synthetic cannabinoids would also capture many other similar substances.

Nonetheless, products containing other synthetic cannabinoids not included in this list of 8 chemicals may still be legal to sell and supply in states and territories without their own analogue laws (although we are not 100% sure about this). On the other hand, other synthetic cannabinoids could be considered analogues under the federal code even if they remained legal under state codes. Confused yet? We were!

Table 1 shows the timeline of legal status for synthetic cannabinoids by state and territory. This table is clearly subject to change as the laws evolve.

Table 1: Timeline of legal status for synthetic cannabinoids by state and territory

State

Timeline of events/legislation changes

WA

14 June – WA banned 7 chemicals
5 August – WA ban another 14 chemicals, taking it to a total of 21 chemicals banned in WA. Others still may be legal to supply and possess.

SA

17 June – SA bans 17 chemicals

NSW

July 8 – NSW passed changes at the same time as the TGA legislation came into force; however, they have only scheduled the 7 that WA scheduled the first time around (JWH 073, 018, 122, 200, 250, CP47,497, & H8-CP47,497), and not the 8th chemical that the TGA scheduled (AM 694). Nonetheless, AM 694 would be covered by default through the NSW act’s reference to the federal SUSMP (the Poisons Standard).

TAS

August 2 – Tasmania has made significant changes to their legislation, introducing an analogues act, and scheduling a number of research chemicals that are not listed in the SUSMP, in addition to 4 synthetic cannabinoids

NT

August 12 – NT Banned 18 synthetic cannbinoids

QLD

QLD has proposed legislative changes, but thus far the changes have not yet been passed in parliament (note the endnote 3 on the last page).

VIC

VIC have proposed changes, but nothing has progressed.

ACT

No specific legislation was found, though the ACT’s laws refers to the SUSMP outlawing 8 chemicals. Nonetheless, the ACT government arranged to have an amnesty until 1 August 2011 when people were not prosecuted for offences related to these products.

Table 2 is our attempt to chart the scheduling of each individual synthetic cannabinoid, federally and across states and territories. Again this table is very much subject to change. (The link below leads to Table 2 in Excel hosted by Google Docs.)

Table 2: List of synthetic cannabinoids and their legal status

As the title of this post suggests, this information is a work in progress. Please speak to a lawyer if you need the assurances of accurate and up-to-date information on this issue: we provide no guarantees that our publication is correct, but we will do our best to update it. Readers are encouraged to comment and to suggest updates/edits to this information to assist us.

We noted with interest the poster displayed in a sex shop window on Bridge Road in Richmond (Victoria) last weekend boldly advertising that Kronic was available to purchase. It is clear that although the Poisons Standard includes a range of synthetic cannabinoids and others through its derivatives clause, the drug is currently still available for sale in retail outlets, at least in the state of Victoria. This situation is doubly confusing for people who buy Kronic who may believe the drug to be ‘legal’ given that a retail outlet is selling it. Is this sex shop breaching federal law by selling it? That would depend on what actual chemicals this blend contained, whether they were banned or derivatives of those banned.

The other issue we watch with interest is the trend towards state versions of derivative/analogue laws. For example, Queensland is considering the Criminal and Other Legislation Amendment Bill 2011 that would amend their Drugs Misuse Act 1986. A “dangerous drug” would also include a substance that “has a substantially similar pharmacological effect; or is intended, or apparently intended, to have a substantially similar pharmacological effect”. The idea here is for this law to enable all substances that mimic currently illegal drugs to also be deemed illegal without needing to continually schedule new chemicals. The unintended negative consequences of such a law and whether or not it would work in practice are yet to be seen.

36 comments

1 frank { 11.14.11 at 2:57 pm }

Thankyou for putting all the effort into finding this information. Getting anything out of the government, especially about substance regulation, is notoriously difficult. I find it completely obnoxious that information on such legislation can be so hard to attain; yet it is so easy to be prosecuted under such legislation whilst having no idea it even existed. It is a sad indictment of the state of ‘democracy’ in Australia. Yuck.

As for the catch-all analogue/derivative/imitator proposal for Queensland, wow. After years of researching this issue it still boggles my mind how little thought goes into such legislation and indeed, how little thought exists in a politician’s head outside the ‘more votes’ cortex. Under this proposed law, if anyone said “caffeine is intended to mimic the effects of amphetamine” then caffeine would instantly become just as illegal as amphetamine. Good work politicians, as usual. Don’t bother fixing any problems that actually exist, will you? Good.

2 Monica { 11.17.11 at 8:02 am }

Thanks heaps for your comment Frank.

We were equally frustrated when we tried to locate this information: it was not easy to find. Having spoken to people since posting this, it is also clear that you need to look at not only the drug legislation in each state, but also any other relevant acts. Eg. in a conversation with a Qld police officer at the recent drug conference, he said that although synthetic cannabinoids were not yet in the drugs act, they could be prosecuted under the health act. I have no idea what he means really as I’m not a lawyer… but it just shows again how complex the situation is. How they expect users to understand it is beyond me: nobody really knows what is going on!

3 Matt Gleeson { 11.18.11 at 11:59 pm }

Great summary of the complexities that are entailed when trying to create laws to prohibit drugs Monica. Apart form the obvious legal harms that may result for people due to the lack of clarity about the legalities of these substances, I am also concerned that with each shift in legislation that tries to keep abreast of new compounds health harms may also result as products are adapted to circumvent the laws. We need a tightly regulated legal highs industry subject to standards and quality assurance scrutiny, not further criminalisation.

4 Monica { 11.19.11 at 10:28 am }

I agree, Matt. The problem is that we don’t yet have acknowledgement that we can’t succeed in stopping people from trying to get high! Once we acknowledge that drug use is normal (I include alcohol and caffeine here as drugs), then we can look more sanely at best options for regulation.

5 Steve BArnier { 12.12.11 at 1:53 pm }

Need to know where the QLD analog, or same or similar laws are now? Are they in use yet?

6 Monica { 12.12.11 at 3:19 pm }

Hi Steve. Looks like the Qld Analogue amendment is still a ‘bill’: it was introduced into the Qld parliament 13 Oct 2011 but there is no indication that it has been made into an act (legislated) at this date. But see this link for further updates on its status… the bill is called ‘Criminal and Other Legislation Amendment Bill 2011′

http://www.legislation.qld.gov.au/Bill_Pages/Bill_53_11.htm

(PS. I’m not a lawyer so please do your own research on this as I make no claims to be correct… just my personal research)

7 Monica { 12.12.11 at 7:38 pm }
8 David McDonald { 01.07.12 at 5:33 pm }

Hi Monica. Thanks for that, and yr APSAD contribution.

If you are still on this case, the position in the ACT is straightforward. The legislation under which these drugs are ‘controlled’ (funny term to use for the drugs that are not controlled by governments) is the ACT Medicines, Poisons and Therapeutic
Goods Act 2008. Section 15 provides that changes made by TGA (the Commonwealth agency) automatically apply in the ACT, as follows:
15 Meaning of medicines and poisons standard—Act
(1) In this Act:
medicines and poisons standard means the poisons standard, as in
force from time to time and as modified by regulation (if any).
Note For the public availability and inspection of a copy of the medicines and poisons standard, see s 18.
(2) For subsection (1), but subject to any modification prescribed by regulation—
(a) an amendment of a current poisons standard takes effect on the
date notified under the Therapeutic Goods Act 1989 (Cwlth),
section 52D (4) (b); and
(b) a new poisons standard takes effect on the date of effect
notified under the Therapeutic Goods Act 1989 (Cwlth),
section 52D (3) (b).

This system works in tandem with the list of prohibited substances found in the schedules to the ACT Criminal Code Regulation 2005 .

It was intended, some years ago, that all Australian states and the 2 territories take this approach (automatically adopt decisions made by the TGA without needing separate state/territory legislation ) so that we would have uniform scheduling of drugs, but that did not occur (states’ rights arguments) leaving us with the stupid situation we have today, with a given chemical and product legal in one state/territory but illegal in an adjacent one!

Regards – David

9 Monica { 01.08.12 at 4:58 pm }

Thanks for clarifying the ACT position, David.

I think we need more published clarification on how the state and federal laws interact for each state/territory. Perhaps that’s for another post!

10 Rae { 04.16.12 at 9:11 pm }

I’ve just read Comment No. 4 from Monica and that is the gist of the whole matter. Illegalising anything is not going to stop people doing it. I only discovered synthetic cannibanoids a few months ago and the greatest advantage I’ve found is that I don’t cough any more and my lungs are much better for it. How typical is it that the Government is once again spoiling everyones fun? They had Prohibition of Alocohol in the US for many years. Did it work? No. They made Marijuana illegal. Did it work? No. Even prostitution was illegal until the 1990′s. Did it work? No yet again. An appropriate anonymous quote “Every time history repeats itself the cost of the lesson goes up”, sums it up, I think!

11 Amstar { 07.29.12 at 6:06 pm }

Synthetic cannabis is getting stronger and very dangerous. If someone uses it and has even the smallest amount there well being is seriously compromised, PLEASE make people aware this stuff is NOT like marijuana , and regardless of the legal issues it is the awareness of how a small amount can be the worst 20 minutes of your life if you ever recover from the effects. Everyone BE CAREFUL this is NO FUN ….. Just don’t do it

12 henry { 07.30.12 at 2:14 pm }

hello im confused i can count 9 classes listed on page 147 of TGA but you say there is 8 classes can please explain.. kind regards

13 Monica { 07.31.12 at 8:10 pm }

Thanks Amstar and henry for the comments.

@Amstar – yes there have definitely been some bad experiences with synthetic cannabis products, no doubt more bad experiences with synthetics than with the original plant-based cannabis. I wouldn’t recommend taking it – really the main reason I would avoid it is that you really don’t know what you will get. some of these chemicals cause seizures, others are associated with rapid heart beat. Having said that, a lot of people who have used them have not had problems. Indeed some people do like them and enjoy using them. Most, however, would prefer to use cannabis proper.

@henry Sure, I can explain that. The 9th class listed on p. 147 of TGA document is ‘synthetic cannabinomimetics’ which is not a class at all – it is a catch-all term to cover any drugs that mimic the effects of cannabis not otherwise classified in the first 8 classes. This is what it is supposed to do, but it’s unclear yet how that will work in a court of law.

14 Deane { 08.06.12 at 11:33 am }

Hi all,

Carry out your own due diligence to confirm what I write below…

NSW legislation has not adopted the SUSMP at all as there is no corresponding Schedule 9 in the NSW Poisons Act. Schedule 8 of the NSW Poisons Act refers to ‘Drugs of Addiciton’ and as it stands that has not been agreed upon for SCs. The TGA recommendation will ‘possibly’ appear in the NSW Drug Misuse and Trafficking Act 1985 but I am not aware of any specific date.

The Commonwealth Criminal Code Act is possibly the most concise legislation to deal with SCs at the national level as it lists: i) Tetrahydrocannabinols and its analogues, etc as controlled drugs and border controlled drugs; and ii) Cannabinoids and their analogues, etc as border controlled drugs.

I am still seeking expert opinion on the Criminal Code to determine if it is as robust as it seems i.e. Cannabinoids and their analogues = nil import/ export but as to manufacture internally??? because it is a border controlled drug NOT a controlled drug.

15 Deane { 08.06.12 at 11:42 am }

Amendment to my last post (already):

Border Controlled Drugs…”Cannabinoids (other than a Cannabinoid of a kind that can be obtained from a plant that is not a Cannabis plant)” and Cannabinoid drug analogues…

16 Monica { 08.06.12 at 12:11 pm }

Thanks Deane, I appreciate having someone from Dept of Justice commenting on the blog :) You may know more about NSW specific situation than I do. I have been chatting with a representative from NSW Police who told me that they are currently preparing some extra state legislation as a response to the 1 May changes in the SUSMP.

17 Justin { 08.11.12 at 6:20 pm }

Dean’s post caught my eye as I am currently researching this exact thing for a Military case. I have been able to confirm the Synthetic Canabinoid (SC) AM2201 is listed as a Schedule 9 prohibited substance in WA; however, it seems that all of our policy refers back to the Criminal Code Act 1995 and specifically Border Controlled Drugs(BCD’s). Unfortunately, I can’t see in the list of BCD’s (section 314.4) where/how this SC is described, as Item 30 (Canabinoids) does not mention analogues. Any advice?

18 Deane { 08.13.12 at 8:32 am }

Justin,

Read s314.4(2) which – IMHO – pertains to drug analogues of all BCDs listed at 314.4(1) including Cannabinoids. The same applies to THC drug analogues as per s314.1(2)

Also keep in mind the caveat in the Criminal Code at s313.1 ‘conduct justified or excused by or under a law of a State or Territory’.

The way I see it is that if WA Legislation has any loophole it may also create a loophole in the Criminal Code.

19 Justin { 08.13.12 at 10:13 pm }

Dean,

S313.1 may prove to be gold in this case. I had taken a good look at s314.4(2) but I think I need somebody with a chemistry degree to explain that one to me!

I’m not comfortable putting my work e-mail on here but will add my home one if you’re interested in contacting me for more details and possibly offering some advice.

Finally, apologies to Monica for hijacking the discussion.

Jodieandj

20 Justin { 08.13.12 at 10:14 pm }
21 Monica { 08.14.12 at 9:13 am }

Justin and Deane – on the contrary, I’m pleased I can host such discussion and glad you may be able to help each other. I wish I could help you more myself but unfortunately I’m not a legal expert. Feel free to report back with more!

22 Richard Clancy { 09.04.12 at 3:57 pm }

Hi Monica & Steve
Your site is a useful resource. Thank you for posting it online.
I am a Research Fellow with a background in Mental Health & Substance Use…
Can you point me in the direction of data on which synthetic cannabis variants are commonly used in Australia today?
Or which variants are contained in any of the products currently on the market in Australia.
I have located a point of care “dipstick” urine drug test which identifies recent use of JWH-018 and JWH-073.
I note that these are now illegal in NSW, so I presume are probably less commonly used as a result.
Any help would be appreciated.
Richard

23 dave brooker { 09.08.12 at 10:23 am }

When push comes to shove Commonwealth law always takes precedence.

24 Monica { 09.09.12 at 10:29 am }

Hi Richard – thanks for the comment. It’s hard to know exactly what is in current Australian synthetic cannabinoid products as the contents changes periodically. Unfortunately I don’t know off hand of data available publicly about what is in current products. I’m sure it would be available privately though – through police or govt documentation.

You are right – it is unlikely that people are currently using/selling 018 or 073, so the urine test won’t necessarily capture the products available.

Dave, I am not a lawyer at all. It does make sense to me though that if there is a conflict between state and federal, federal would win out. But I don’t know how that looks legally. It’s probably more about process than anything. In order to use federal law, federal bodies have to administer that law, right? And if they are not resourced to do so or have other matters of greater importance, this is less likely to occur?

25 Duncan Parkes { 10.10.12 at 7:12 pm }

Fascinating article, thanks for putting it together.
I was wondering if you’ve found anything on the research chemicals 25I nBome, if it’s illegal or not in Victoria. I read about it here:
ww.adelaidenow.com.au/news/south-australia/new-hallucinogenic-drug-25b-nbome-and-25i-nbome-led-to-south-australian-mans-bizarre-death/story-e6frea83-1226472672220
It seems to infer that it’s illegal in south australia, but I’m not sure.
I’m not sure what legally it would be classed under, if at all.

26 KC { 03.06.13 at 11:43 pm }

Synthetic cannabinoids is not a dangerous drug by any standard, just like marijuana it is near impossible to die from excessive usage or an “overdose” unlike alcohol or prescription drugs which can easily kill you in excess. Unless there is a serious pre existing medical issue like heart problems then you shouldn’t be smoking anyway. The only reason this drug was bought to the attention of the government was due to underage and younger users becoming scared while under the influence and calling the hospital for advice. The majority of deaths are not caused by this drug itself but by its misuse by the user eg. Operating heavy machinery or senseless and self endangering acts by the individual under the influence. Rather its a lack of education and understanding of the safe ways to use, just like any drug be it caffeine, Panadol, Valium or even alcohol all effect motor functions and alter natural brain chemical function to some standard. Everyone knows not to drink and drive, take prescription drugs and drive, don’t they?

Thousands of people each day enjoyed the use of these synthetic cannabinoids only due to the fact that it was readily available and legal. They had the right and choice to relax in their favored method without fear of prosecution, jail time, financial and emotional hardship. Not everyone enjoys water, some people like milk, Australia is a Police country where we are all being told to drink the water, at a certain rate and in a certain way and to never touch milk. It makes me sad to call myself an Australian, in a country that was founded on the American Constitution and Bill of Rights we have very very little freedoms and choices and the government is taking more off us each day. Many people turned to this item as a way to help quit Cannabis.

Marijuana itself is an all natural plant that has show to have amazing healing and medical properties and yet is still illegal. Am i going crazy? No. Due to the fact that it is too hard to regulate and the government cannot put out their greedy hands and take their share of the cash. Marijuana legalization in America has reduced youth crime by up to 20 percent in one year alone. Imagine if Australia could adopt a similar circumstance? There wouldn’t be a need to make synthetic cannabinoids. How much it would stimulate our economy and reduce crime rates by epidemic proportions, We would reduce prison overcrowding and cost, increase tourism all while allowing the medial properties of Cannabis to benefit ours and future generations. Everyone benefits………except the winging baby we call the government who is supposable doing what is best for its citizens.

Alcohol on the other hand is legal because the government makes millions of dollars in revenue from its sales each year yet it is killing 75,000 people each year. Not to mention pharmaceutical companies and their drugs which also give millions of dollars in kickbacks and bonuses to the government while they produce man made drugs that they know have overwhelming side affects causing serious irreversible physical and mental damage to the user but its ok because the government is getting paid and the drug has “medical use”.

This is just another example of the Australian Governments plans to slowly remove civil rights and freedoms that our relatives fought and founded this country on. The people of this country need to stand up fight for their rights before we have none left at all. Australia already refuses us the right of self defense in our own home, the freedom of speech, and the assumption to be innocent until proven guilty and now it has taken another freedom of choice.

27 jase { 03.09.13 at 12:33 am }

hi all i have just had some herbal smoke confiscated by the local police in my town in wa and i brought the product beleiving it is leigal .now i spoke to the detective involved and vented my frustration at having lost my product that i was looking forward to having but to no avail ,anyway i was told that it was to be sent of for annalicice and if proved to be a banned substance i could be charged ,problem is as i see it ,these products have been avalibale for sale from retail out lets for quite some time and i didn’t buy from inter state i got it from a retailer in WA so mydelemmer is if the WA police let shops sell these products knowingly,and have done for over 6 months,then why would i be getting charged for buying what i beleived to be a legal product and having read the comments before it seems that the laws are so confusing that its hard to know were you stand from a legal stand point ?? this country is going backward there is no fredom ,no justice and now rights for any one other than the police them selves ….police are organised crim with a badge backed by greedy politicions that only care about the bottom line in there own back pockets

28 John { 04.07.13 at 7:43 am }

Hi very good information here would really like to see it updated tho.
Thanks for your hard work.

29 Monica { 04.20.13 at 11:43 am }

Yes I would like to update it – but it’s a bit of a task. Hopefully we will get a chance to do so soon.

As to the other comments, I couldn’t agree more. It’s wrong for you to go to a store, buy something from it thinking it is legal, then be busted by the cops. What exactly did you do wrong here? Furthermore, why are some drugs we’ve known about for 1000s of years (e.g. cannabis) prohibited whilst drugs we know nothing about (new synthetic cannabinoids) are being sold in shops as legal?

When you begin looking into it, drug policy is full of contradictions.

30 Nick Wallis { 10.11.13 at 4:55 pm }

Drug law is perhaps the most frustrating thing to read and try to wrap one’s head around. It’s making me re-think the point of legislation in the first place. I’ve got a lot of information on the various jurisdiction’s legislation as it currently stands.

I don’t really see the point of complex legislation and expensive judicial proceedings for something that can’t be understood by the average Australian and is entirely inconsistent. Rather than playing these stupid legislative word games – Has anyone wondered, “What’s the point of this, anyway?”

Extending the state’s jurisdiction to my consciousness has a lot of consequences for the way that one sees themselves and how they fit into society – it is the most sinister form of coercion… and it appears to be done as a reflexive reaction rather than critical evaluation.

Makes me mad.

31 nate { 10.26.13 at 9:22 am }

More people wasting money on victim less crimes. If you don’t do it it won’t hurt you and if your kids do it you are a horrible parent. I hate society now. Our founding father frown upon every one of us.

32 Richard Clancy { 02.21.14 at 4:15 pm }

Hi Monica & Steve.
I am trying to locate precisely which Acts and Regulations place restrictions on the importation, production, sale, posession and or consumption of new and emerging psychoactive substances in NSW.
I note your reference in this blog the TGA SUSMP, but would be grateful for any furthe direction.
Thanks
Richard
Thank you

The

33 Nick Wallis { 02.22.14 at 1:09 pm }

Hey Richard – I may be able to help you out with that. I think if you click on my name my email should be there. Otherwise, Monica has it!

34 Matt { 02.24.14 at 1:51 am }

Hey guys Great Article read and re-read a few times now.
I was wondering if i could ask one of the posters a question about the current legal status in Victoria (2014)?
Whether or not it is legal to purchase it here?
I recently saw someone on ebay(Believe it) selling a variation of K2′s “Spice” the listing was removed within a couple weeks but it got me thinking why can’t the gov be straight forward with us as to the legality of these substances.
I hear people saying that synthetics are still available in sex shops (Vic), I don’t personally smoke it and don’t have any other reason to enter a sex shop to check if they actually are still being sold, hence the reason I’m asking :P

Thanks to anyone who can fill me in :)

35 research chemicals { 03.22.14 at 2:38 pm }

Hey,check here ,very nice online store if someone want to buy research chemicals here

Buy Cannabinoids online at

http://dealchemical.com/

36 drop crotch chinos { 04.04.14 at 4:00 pm }

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