The problem with banning

Edit: You can listen to a version of this post here: Link to 1233 Newcastle clip

Tragically, we have seen another teen (Henry Kwan) die after consuming what he believed to be LSD, but which was actually an NBOMe (e.g. 25I-NBOMe), which is a much newer and more potent psychedelic substance. At the same time the NSW Fair Trading Department has banned a list of products that contain synthetic analogue drugs and has raided stores across that state.

I was asked onto ABC Radio in Newcastle this morning for my view on this issue and this is a summary of what I said:

The problem with banning is that banning is one of the major causes of this problem in the first place.

To take the example of cannabis, we currently prohibit the use of cannabis, although if someone is caught with personal use amounts of cannabis, they will either be fined or diverted for first offences across Australia. Even so, people know that it is illegal and that it is an offence. And many people care deeply about that. They want to be able to consume cannabis and not worry at all about being caught, to be able to do it legally, to know that they can enjoy a weekend spliff just like others enjoy a weekend beer, without having to worry about losing their job because a drug test is positive for past cannabis use.

So when these people are made aware of a new so-called legal weed, the synthetic cannabis products, they are interested. Maybe they can finally enjoy the cannabis like high without having to worry about the legality.

So you can see that prohibition of cannabis largely drives these people’s attraction to synthetic cannabis products.

Over the last couple of years we have seen some of the health harms that have arisen from people switching from natural to synthetic – including withdrawal, dependence, psychosis, seizures. Now, I’m not saying plant based cannabis is harmless, but it has been proven to have medicinal pain relieving qualities. At least we know a lot more about cannabis and its many constituents, we have been doing research for many decades and it has been used by humans for millenia. This is the opposite for the vast number of synthetic cannabinoids which we know very little about. Therefore, I think it is reasonable to conclude that if someone is going to use one product or the other, natural plant-based cannabis is a better choice, a healthier choice. Yet, our policies seem to be pushing people towards the lesser choice, the choice we know less about, and which appears to be associated with more harmful effects – that is, the synthetic cannabis products.

We need to ask: what is drug policy about? Is it about helping people to reduce drug harms, by nudging them towards less harmful options? Or is it about putting our head in the sand and thinking we can eliminate all drug use somehow, while at the same time, nudging people who consume drugs towards more harmful options? Or is it not about harms at all… but rather, about the appearance of doing something in the eyes of the voting public?

I think we need to have a serious discussion about what we want from our drug policies and what we value in Australia when it comes to drug use, something almost all of us do when you consider that alcohol, caffeine and pain medications are also psychoactive drugs.

I would suggest that Australia needs to join the global discussion about alternatives to the prohibition model. That doesn’t mean that we move to legalisation of all drugs – there are a lot of different models of regulation we could consider. But the very first step is to acknowledge that we have a problem and that we need to consider solutions. Until the Australian public and our governments and our other officials in police, justice, health and social sectors publicly acknowledge that the current system is broken, anyone who tries to start this discussion is labelled as radical. These issues are complex and they require strong leadership of a public discussion that opens up our assumptions to full scrutiny.

Australia’s newest response to emerging psychoactive drugs

Having followed this issue closely and recently published an article in The Conversation outlining the various policy responses Australia might consider in response to emerging psychoactive drugs, I was surprised to read about the passing of new commonwealth legislation amending the Criminal Code 1995 in The Age yesterday.

Link to new legislation

Link to explanatory document

Link to call for public comment

Link to parliamentary readings and timeline for passing of bill

From these documents, we see that the first reading of the bill occurred on 10 October, a period of public comment was available from 11 to 26 October, the bill was passed to Senate on 30 October. It was introduced to the Senate on 31 October and passed on 21 November.

While all this was happening, I was focusing on providing evidence to the NSW Inquiry into new synthetic drugs, with no idea of the development and public consultation period of this other important legislation. While clearly I need to be better informed, I also think the Commonwealth should consider increasing public awareness and the capacity for the public to input into this area, as the NSW Inquiry has done.

Moving onto the legislation…

While I’m not a lawyer and have only read the bill once (disclaimer: don’t rely on me for legal advice!), this is the bit I think is the most important to consider:

“301.13 Emergency determinations—serious drugs
(1) The Minister may, by legislative instrument, determine that:
(a) a substance, other than a growing plant, is a controlled drug or a border controlled drug; or
(b) a growing plant is a controlled plant or a border controlled plant.
(2) The Minister must not make a determination under subsection (1) unless he or she is satisfied:
(a) that there is an imminent and substantial risk that the substance or plant will be taken without appropriate medical supervision; and
(b) one or more of the following conditions is met:
(i) taking the substance or plant may create a risk of death or serious harm;
(ii) taking the substance or plant may have a physical or mental effect substantially similar to that caused by taking a listed serious drug;
(iii) there is limited or no known lawful use of the substance or plant in Australia, and the substance or plant has been found by a public official in the course of the performance of the official’s duties;
(iv) the substance or plant may pose a substantial risk to the health or safety of the public.
(3) The Minister must not make more than one determination under this section in relation to a particular substance or plant.”

Initial questions that arise after reading this paragraph for me are:
–    Are we now in Australia going to have new drugs controlled entirely at discretion of parliamentary ministers?
–    Section 2-b-ii If the new substance has an effect ‘substantially similar’ to that caused by a prohibited drug will be enough to ban it… even if it causes substantially less harm whilst still producing a similar psychoactive effect?
–    Section 2-b Only one of these conditions needs to be met?

“301.17 Emergency determinations—publication
(1) The Minister must, on or before the day on which a determination under this Subdivision is registered (within the meaning of the Legislative Instruments Act 2003):
(a) make a public announcement of the determination; and
(b) cause a copy of the announcement to be published:
(i) on the internet; and
(ii) in a newspaper circulating in each State, the Australian Capital Territory and the Northern Territory.”

My interpretation – folks will have absolutely no warning about said emergency determinations. No grace period for suppliers or users to remove these items from shelves or from their houses.

What I don’t understand is how will this legislative changes interact with State/Territory legislation. How will it be applied outside of federal jurisdictions? Any comments or thoughts on this issue would be appreciated.

Our federal response has gone in the opposite direction of our counterparts in New Zealand, who have proposed a regulatory model to deal with new psychoactive drugs.

While the NZ scheme would allow for the scenario of a lower risk alternative drug being legally available to use, the Australian response appears to assume that ANY substances that produces substantially similar effects to currently prohibited substances must be banned.

The problem is obvious to me. While there is no formal recognition of the functions and benefits of drugs that cannot be classed as formally ‘medical’ (that is, to get high, to enjoy oneself, to relax, to achieve personal insights, to explore altered conscious states), it is consistent to ban any substance with substantially similar effects to those currently prohibited.

Until our society can accept the critical importance of altering conscious states for human beings (and indeed many other animal species), we will fail* in our attempts to regulate emerging psychoactive substances.

* My definition of ‘fail’ may be different from yours or the government’s – I believe we have failed if our policies actually result in more rather than less drug-related harm.

Some would argue that if these new laws reduce access to emergent drugs, thereby reducing use, then less harm is produced. My hunch, however, is that access will continue, but our information about what is in these products and what we should advise people who choose to use them will be even more limited than it currently is. If my hunch is correct, we will be inducing more harm and providing less and less control.

We will also have to wait and see how these laws will play out in practice and when interacted with other legislative instruments.

I may be wrong on any of the above, so please correct me in the comments. Your input is greatly appreciated.

 

Synthetic cannabinoids in Australia: an update

Stephen Bright and I recently posted an update to our popular post from November 2011 on The Conversation. It is reprinted in full below:

Synthetic cannabis is a lab-made product that mimics the effects of cannabis to give users a high when smoked. It has been sold in Australia since 2011 under various brand names, with a range of chemical compositions.

The product presents a unique challenge for drug policymakers. Despite 18 months of legislative action intended to ban synthetic cannabis, people in some states claim [mp3] they can still walk into a sex store or tobacconist and purchase it. Clearly the legislative changes have not been totally effective.

Who uses synthetic cannabis in Australia?

Last month, we published findings from the first survey of synthetic cannabis users in Australia.

When we asked people why they had first used synthetic cannabis, its legal status was an important reason. While 39% stated that they first tried the product because it was legal, 23% mentioned its availability was important, and 8% mentioned its non-detection in drug testing as a key factor.

We also found that almost all synthetic cannabis users who participated in our study had previously or were currently using cannabis.

Furthermore, evidence from this study and from the wider literature (for example, by Christopher Hoyte and Maren Hermanns-Clausen) indicates that synthetic cannabis products may be as risky as or more risky than cannabis itself. This is due to the lack of information about the ingredients in synthetic cannabis products and the pharmacological profiles of different synthetic cannabis varieties. We have virtually no information about longer term effects of these drugs.

The current state of regulation

A year ago, we published a summary of the legal status of synthetic cannabinoids in Australia. Since then, the Therapeutic Goods Administration (TGA) enacted new laws that prohibited eight broad classes of synthetic cannabinoids as well as any drugs that mimic cannabis.

These laws were intended to capture synthetic cannabinoids that were yet to be identified or even synthesised, in order to put an end to the cat and mouse game, where manufacturers introduce a new product immediately after legislators prohibit an old one.

Despite the TGA laws being ratified six months ago, there does not appear to have been any prosecutions of manufacturers based on these laws to date.

While importation falls under federal legislation, most drug laws are state-based. And while the relevant legislation in some states such as Victoria refers to the TGA’s legislation, the drug laws in other states such as New South Wales do not.

Our advice from law enforcement representatives in these states suggests that prosecution using the TGA’s legislation can only occur in federal jurisdictions (such as border control) and requires involvement by federal agents.

Nonetheless, even in Victoria – where some stores have reportedly had their synthetic cannabis confiscated since the TGA’s laws were ratified – it is unclear whether charges will be laid. Until charges are laid and these cases tried, the impact of the new laws remains unclear.

In another development, Queensland moved to independently implement new legislation redefining a “dangerous drug” as anything intended to “have a substantially similar pharmacological effect” to a banned substance.

But this legislation was not ratified, which meant that Queensland police eventually dropped charges against a number of retailers whose synthetic cannabis was confiscated.

Assessing the regulatory options

Given the ambiguity regarding synthetic cannabis, a NSW parliamentary committee is assessing the regulatory options for newer synthetic drugs. Last month, the committee heard evidence from government officials, industry representatives and researchers.

We outlined the following five possible regulatory options for the committee, while also recognising that the evidence to guide decision-making is limited.

The first is to continue banning individual substances as they become known. This option results in legislation and services playing catch up to an ever increasing array of new substances. A risk is that it may contribute to more harm by driving newer and lesser known products onto the market.

The second regulatory option is to ban broad categories of substances, including ones that activate the same brain systems as currently prohibited substances. But these broader laws have so far not been successfully prosecuted. They also assume that drugs of a similar category or that act on similar parts of the brain have similar harm profiles, when this may or may not be the case.

The third is to use currently available laws for the regulation of medicinal or consumer products, as some experts recently suggested. While this option may have merit, it offers only limited control.

The fourth option is to follow New Zealand’s lead and implement a specific regulatory regime for new psychoactive substances. Under the proposed system, distributors will be required to establish the safety of their products at their own expense before they may be legally sold. This new regulatory regime offers an alternative policy response to mitigate against the harmful cycle of new, untested drugs being sold as “legal highs”, but its success is yet to be established.

The fifth option is to design a new legislative framework that regulates all psychoactive substances. This option is consistent with recent calls for drug law reform. However, the Gillard government has indicated that it will not consider this option, and we still know very little about what the supply, use and harms of synthetic cannabis would look like if cannabis were legally available.

Even though there is no clear evidence to guide policy making in this area, we do know that the emergence of newer synthetic drugs is a complex challenge that requires consideration of all available policy options. We await the recommendations from the NSW Inquiry, due in 2013, which are likely to guide the direction of both state and commonwealth policy reform.

Podcast with Tim Bingham of INEF

Tim Bingham conducted a Skype interview with me last week about the world of drugs, internet, social media, Silk Road, ‘legal highs’, stigma and drug policy. It was a lot of fun! I’d like to thank Tim for providing me with the opportunity to participate.

You can access the podcast here.

The internet poses unique challenges for drug prohibition

Following is my article published at The Conversation yesterday. It’s a summary of my current work based on my recent presentation which you can view on vimeo if you prefer audio-visual 🙂

The Australia21 report argues the “war on drugs” has failed and we should consider other options for controlling drugs, such as decriminalisation or regulation. In addition to these arguments, an important challenge for drug prohibition has been overlooked in the drugs debate so far: the internet.

While the internet has opened up new opportunities to buy drugs, it has also accelerated new drug trends. In the past year, we’ve seen the emergence of two key trends: synthetic cannabinoids (sold as Kronic, K2, Spice, among other names) and the anonymous online marketplace Silk Road.

What are synthetic cannabinoids?

Synthetic cannabinoids are drugs that mimic the effects of cannabis. They are typically sold as a smokeable herb mixture which has been sprayed with synthetic cannabinoid chemicals and then dried. They first appeared internationally around 2004 and became the focus of increased media and regulatory attention in Australia in 2011.

Research into the harms of these products is in its infancy, but early reports suggest some synthetic cannabinoids may be more likely to produce paranoia and adverse cardiovascular problems than cannabis itself.

The internet is used to sell these products, as Googling the word Kronic will show you. Nevertheless, preliminary results from our yet-to-be-published survey of 316 synthetic cannabinoid users found that only 22% bought from online stores. Most preferred to buy from bricks-and-mortar stores such as herbal high shops, adult shops and tobacconists.

Comparisons of Google search statistics with our survey data suggest a link between the discussion of synthetic cannabinoids in online news, online searches for synthetic cannabinoids, and reports from survey respondents of when they first tried the drug. Increased media coverage of synthetic cannabis seems to pique public and drug user interest in these substances, which leads to further media interest in an iterative cycle.

Policy responses under prohibition

Various Australian states and territories, as well as the federal Therapeutic Goods Administration, legislated against specific synthetic cannabinoids during 2011. In response, manufacturers have attempted to get around these laws by creating new blends which they claim are legal.

It is still too early to tell whether soon-to-be-enacted federal laws – prohibiting eight broad categories of synthetic cannabinoids and any drugs that claim to mimic cannabis – will effectively end this cat-and-mouse game.

Silk Road

Silk Road is like an eBay for illicit drugs. All kinds of substances are available, including heroin, ecstasy, methamphetamine and cannabis. Similarly to eBay, buyers rate sellers and provide comments about the quality of their products, how fast they ship, and their level of professionalism and discretion.

Silk Road is accessible only to people who are using Tor anonymising software. Tor uses encryption which aims to make it impossible for anyone to trace the internet user’s IP address. Buyers and sellers on Silk Road also use the encrypted currency Bitcoin, which is supposed to prevent the financial transactions from being traced.

Australian buyers may be concerned about the potential for customs to discover the illicit contents of the package they receive in the mail. But discussions in the Silk Road forum suggest that Australians are using Silk Road to buy from both overseas and Australian sellers.

There is a lot we don’t know about Silk Road and other similar marketplaces. My colleagues and I will soon begin a pilot study to better understand how Silk Road works.

Policy responses under prohibition

It’s unclear whether any policy responses to control Silk Road have been effective.

One approach is to try to regulate overseas internet content through the proposed internet filter. But I doubt it will have any effect on Silk Road because it operates in what is known as the “hidden web”.

The second approach is to ban the technologies that make Silk Road work: Tor and Bitcoin. This does not appear to be possible because both are peer-to-peer technologies and it’s hard to imagine how such a ban could be enforced.

The third is to increase scanning of posted letters and parcels. But while scanning of the parcel post has been increased over recent years, it’s not clear how effective such measures are and what impact they have on the speed of the postal system.

The fourth is for law enforcement to infiltrate Silk Road to gather intelligence. This is probably already occurring. We’re yet to see whether such law enforcement measures are capable of disrupting the Silk Road market.

It’s becoming increasingly clear that synthetic drugs and online anonymous drug marketplaces pose unique challenges for drug prohibition. Policy makers must keep these challenges in mind when considering alternative ways to control and regulate drugs.

Drug policy in a digitally networked world

I presented on this topic at the Drug Policy Modelling Program symposium held in Sydney on Friday 16 March. I elaborate on two examples of ways in which drug policy is challenged in an internet-saturated context: emerging psychoactive drugs (e.g., synthetic cannabinoids) and online anonymous drug marketplaces (e.g., Silk Road). The video is 20 minutes, best viewed in full screen 🙂

Thanks to DPMP for flying me to Sydney! Looking forward to presenting a version of these ideas again at the International Society for the Study of Drug Policy conference in Canterbury, Kent, UK, in May. An international perspective on this kind of work is critical.

kronicstudy.net

How do you think synthetic cannabis should be treated by the law?

You’re invited to participate in a study investigating the use of synthetic cannabis, otherwise known as Kronic, K2, Spice, Kaos, Northern Lights, Aussie Gold, Puff, Zeus, and many other brands…

You DO NOT need to be a past or current user of synthetic cannabis to be eligible for this study, and we are especially interested in hearing from people with no prior use of these drugs. However, you DO need to be at least 18 years of age and an Australian resident in
order to be eligible.

Participation in this study involves completing an online survey lasting 20 minutes. It is entirely voluntary, completely anonymous and no identifying information will be collected.

Visit the following URL to participate:
http://kronicstudy.net

For further information, contact me!
(email m.barratt@curtin.edu.au, twitter @monicabarratt, phone +61 407 778 938)

The irony of publicity on Kronic publicity

This blog managed to get into the Melbourne mX today in the story ‘Kronic case of publicity’ on p. 5. The irony is that the story is actually an example itself of what Stephen Bright and I were talking about in our earlier post: mentions of Kronic by mainstream media fuels public interest in Kronic as shown by Google Trends data, where spikes in searches for related terms match with the pattern of major news articles on the topic.

To any new readers who may have come here via mX, welcome. Feel free to take a look around 🙂

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.