From the rush to close the loophole which allowed stalls selling magic mushrooms to flourish in Camden Town in the early 2000s through the M-Cat (mephedrone) media circus of 2009 and the recent stories surrounding the dangers of long-term consumption of Spice (synthetic cannabis), it seems that the government have been embroiled a battle to control the supply of legal highs for most of the 21st century.
The emergence of ‘head shops’ and websites offering everything from synthetic cannabis to ‘fake cocaine’ in every town and corner of the internet suggest that the government have been losing the fight.
Initially the government’s policy was to add any harmful new legal highs (such as mephedrone) to the list of illegal drugs. So whilst mephedrone sits alongside amphetamine in class b of the list of illegal drugs, attempts to classify the myriad of synthetic cannabinoid receptor agonists which make up Spice in the same way have largely failed as the makers simply alter the chemical makeup of their product and dance around the existing legislation.
The government have reacted by introducing a new act of parliament specifically designed to stop the supply of all legal highs completely and forever. But what does it do, and will it work?
Ison Harrison explores the legislation in a little more detail and answers some frequently asked questions:
What is the new legislation?
The new act is called the Psychoactive Substances Act. It will introduce a number of laws designed to restrict the production, importation, sale and supply of legal highs.
When does it come into force?
The new law came into effect on 26 May 2016.
Which substances are banned by the new laws?
Oddly, nothing specific: Whereas the Misuse of Drugs Act individually lists every illegal drug and derivative thereof, the new legislation lists none at all.
This is to a degree an acknowledgement that the government’s drugs policy in the 21st century has failed to keep up with the development of designer drugs. Drugs producers have been able to avoid the law by slightly altering the chemical makeup of their product. In order to prevent a game of legal highs cat-and-mouse developing the legislators have defined a psychoactive substance as “any substance which is capable of producing a psychoactive effect” and prohibited all psychoactive substances.
A “psychoactive effect” is produced if the substance depresses or stimulates the central nervous system and affects the user’s mental functioning or emotional state.
What about caffeine, e-cigarettes, tobacco and alcohol?
They are specifically exempted from the act. Exempted substances include medicinal products, alcohol, nicotine products, caffeine and food.
What are the new offences created by the legislation?
There are five offences in total:
- Producing a psychoactive substance for your own use or supply to others
- Supplying, or offering to supply a psychoactive substance to another
- Possession of a psychoactive substance with intent to supply
- Importing or exporting a psychoactive substance
- Possessing a psychoactive substance in prison
What are the maximum penalties for committing any of the new offences?
For producing, supplying, intending to supply, importing or exporting a psychoactive substance the maximum sentence is 7 years imprisonment, or a fine, or both.
Where a person is convicted of possessing a psychoactive substance in prison they will face a prison sentence of up to two years.
I have a headshop or online business supplying a psychoactive substance, what should I do?
From 26 May 2016 the supply of psychoactive substances became illegal. You should consider closing the shop down and should not supply or export legal highs. If you replenish your stock levels by importing further legal highs from 26 May you could be committing an offence.
You should also consider destroying your stock in order to avoid any potential issues regarding an inference of possession with intent to supply.
Be aware, that some headshops and other businesses may be served with prohibited activity notices or premises notices. The new law defines producing, supplying, importing, exporting and offering to supply psychoactive substances as a prohibited activity. Councils and the police have the power to serve prohibition or premises notices on businesses and individuals who are carrying out prohibited activities.
There can be severe costs implications for non-compliance with a premises notice or prohibited activity notice and any person or business failing to comply can be sentenced to a fine or a prison sentence of up-to 12 months. If you have been served with a notice and require compliance advice please contact Ison Harrison.
I bought some legal highs but have not used them. Am I breaking the law if I keep them or take them?
No. Possession or consumption of a psychoactive substance is not an offence. It is legal to possess the substance and use it, but you must not supply, offer to supply, or take the item into prison.
If you have a large quantity of legal highs you should also consider whether to dispose of them in order to avoid any potential issues regarding an inference of possession with intent to supply.
The police have powers to seize legal highs and test them to see if they contain controlled drugs. All users should be aware that certain legal highs might contain illegal substances. Anyone attending a festival or club in possession of legal highs should expect to be ejected and have the substances confiscated. It is also likely that the police could be called to test the substances for the presence of illegal drugs.
What about medical use, or scientific research?
The act allows registered health care professionals to supply products which would otherwise be caught by the act to patients. It also allows approved scientific research to take place into any psychoactive substance.
What about poppers?
Amyl Nitrates / Poppers are not included in the ban. This appears at first to be incongruent with the remit of the legislation, however, the effect produced by poppers is a ‘peripheral effect’ on the brain, rather than the central nervous system so they are not caught by the act.