The Psychoactive Substances Act 2016 – Friend or Foe?

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The Psychoactive Substances Act 2016 has now been in force since May 2016. At the time of its introduction, it attracted much criticism. Opponents argued that it would fail to control the increasing problems of so called legal highs simply causing the market to go underground. We take a look at the Act and what it was intended to cover and whether, over six months on, its impact can really be measured.

By way of background, legal highs are mass produced synthetic drugs which became popular on the drug scene around 2008 containing substances which mimic the effects of illegal drugs such as cocaine, cannabis and ecstasy. Unlike those drugs however, they are much cheaper and readily available and have been linked to 444 deaths since 2010.

They are made all the more dangerous given that they are not produced or tested in line with any clinical guidelines and little is known about the effect the substances have.

In an attempt to curb the increasing use of these drugs, the government added nearly 500 known drugs to the Misuse of Drugs Act 1971 but as each drug was added to the list, the compound was tweaked to bring it outside the legislation.

To combat this problem, the government took a radical approach and while the tough proposed new measures had a turbulent passage through Parliament, the Psychoactive Substances Act 2016 (the Act) was, after a delayed introduction, brought into force. It provides a blanket ban on psychoactive substances and makes it an offence to produce, distribute, sell and supply the drugs. Surprisingly, it is not an offence to be in possession of a psychoactive substance. Offenders face up to seven years in prison.

The parameters of the Act

Prior to the Act coming into force, there was considerable debate about the definition of “psychoactive substances” and what it was intended to cover. Many opponents argued that the proposed definition was too wide and, as a result, would unwittingly encompass innocuous substances.

The definition of a psychoactive substance is “Any substance capable of producing a psychoactive effect in the person who consumes it, and it is not an exempted substance”. Substances create a psychoactive effect by stimulating or depressing the person’s central nervous system, affecting their mental functioning or emotional state. There are certain exceptions under the Act such as:

  1. Controlled drugs 
  2.  Medicinal products 
  3.  Nicotine and tobacco products 
  4.  Alcohol 
  5.  Caffeine 
  6.  Food (including drink)

The Act has been criticised in a variety of ways. The wide definition can present difficulties for enforcers in establishing whether any particular drug is psychoactive. Indeed the introduction of the legislation was delayed as there was concern that the definition was not enforceable by the police in that there was a difficulty in proving what a psychoactive substance is and medical evidence would be required in order to establish this.

Furthermore, scientists argue that the blanket ban could deter researchers from developing potentially helpful compounds which may prove vital in the fight against major diseases.

The Act so far

It is still too early to assess the impact of the legislation and whether the legislation will reduce the number of deaths from legal highs. Opponents believe that the legislation has served merely to drive the market underground. The Home Office however, has said it is encouraged that so many retailers have been denied the chance to profit from this reckless trade. They do acknowledge that there is a risk that some users have turned to the internet or organised criminals to obtain legal highs. Some may even turn to substances banned under the Misuse of Drugs Act 1971.

As against this risk however, the police have confirmed that they have been successful in removing legal highs from many shops since the ban was implemented. It certainly seems that the casual drug user may be put off but it is unlikely to have deterred those who are serious drug users.

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