Options for regulating new psychoactive drugs: a review of recent experiences

This paper is intended to provide the basis for a discussion of policy options in dealing with new psychoactive substances that show signs of popularity and of harmfulness within a wider project being undertaken by the UK Drug Policy Commission and Demos, the outcomes of which are presented in Taking Drugs Seriously: a Demos and UK Drug Policy Commission report on legal highs (Birdwell et al., 2011).
The review considers the international context, current approaches to tackling new drugs with a main focus on the USA and Europe, and examines four specific examples of new drugs: BZP, Spice, mephedrone and naphyrone. It also looks at the possible learning from other regulatory frameworks, those for foodstuffs and for alcohol and tobacco.
When these drugs come to public attention, very little is known about the possible harms to users or whether they are complements or substitutes for other dangerous intoxicants. Literally nothing is known about the harms that might be generated by an illicit market if the drug were prohibited. The paper highlights the dilemmas associated with making regulatory decisions with such limited information. In recent years, great attention has been given to the “precautionary principle” as a guideline for policy making under uncertainty. However the complication here is that giving deference to only the possible harms faced by the individual user ignores the more subtle, but still real, harms that arise from the decision to prohibit. No consideration is currently given to any of the perceived benefits of use, which must play a part in an individual’s decision to use drugs. However, any kind of implicit legalization also may have unintended consequences, such as encouraging greater use.
The report concludes that there is considerable unease with the existing system for making decisions about newly emerging psychoactive substances. Of fundamental concern is the fact that there is an overriding bias in the decision-making process towards the prohibition of new psychoactive substances, but achieving a more balanced set of regulatory decisions is a major task. The existing system has worked well in the sense that no major problem has emerged from a decision to allow into commerce a drug that turns out to be dangerous, the burden of proof for creating an alternative system is thus a heavy one. A research effort to improve understanding of the substitution effects of new entities, as well as an examination of how prohibition of these entities creates market harms, would go a long way toward clarifying the issues.