Psychoactive Substances Act 101

A world-leading piece of legislation has been passed in New Zealand to regulate new psychoactive substances. What is it all about, how does it work, and where do we go from here? We examine the Psychoactive Substances Bill.

Here at the Drug Foundation, we are just a little bit proud of New Zealand. Our Parliament recently passed the Psychoactive Substances Bill by 119 votes to one. This almost unanimous support for a Bill that regulates the ‘legal high’ industry represents a big step forward for New Zealand’s drug policy. The law is a pragmatic and evidence-based approach to recreational drug use, and health and harm reduction are clearly its main purpose.

The history

New Zealand is often considered the birth place of ‘legal highs’. As in many other western countries, our drug laws only banned specific substances. In the late 90s, some people cottoned on to the idea that a substance with effects similar to an illicit drug could be legally sold as long as it had not been specifically banned.

The substances that first came out, like benzylpiperazine (BZP), mimicked the effects of banned substances. People purchased them. Other people started to get worried about their effects. Media started doing stories about the drugs.

It was only a matter of time until government took notice, and in 2004, then Associate Minister of Health Jim Anderton noted that New Zealand’s drug law, a relic from the 70s, simply could not handle the rapid development and marketing of new drugs.

In 2007, the Labour-led government asked the Law Commission to conduct an independent review of New Zealand’s Misuse of Drugs Act (1975) (MODA). The detailed report the Law Commission released in 2011 supported Anderton’s conclusions and outlined a legislative response to the growing problem of emerging psychoactive substances.

Under a National-led government, Associate Minister of Health Peter Dunne brought the Psychoactive Substances Bill before Parliament where it was passed into law in early July 2013.

One reason we are so proud is that, from conception to enactment, this piece of law has had (for the most part) support from all the parties in Parliament, and very little political game playing has taken place. It is encouraging to think that drug policy can be worked out, and even improved, in this non-partisan fashion.

What does it do?

As we moved through the 2000s, it became obvious that, as one substance was banned, another one would pop up to take its place. Meanwhile, the ‘legal high’ industry was making millions of dollars from products that had no regulation around their manufacture, sale or safety –they sat in a legal grey area.

The Psychoactive Substances Act is an attempt to remove that grey and reverse the situation where substances can be sold without consideration to health and safety.

Put simply, the law sets up a legal framework for the testing, manufacture, sale and regulation of psychoactive products. It reverses the onus of proof so the people who want to sell the substances have to prove that they are ‘low risk’ before they can be sold.

This means each product has to go through a clinical testing process that will cost the manufacturer around $2 million. The clinical testing process will answer basic questions about each substance. Is it poisonous or addictive? Is it likely to cause cancer? Will it cause kidneys to shut down or cause psychosis? If the answer is yes to any of those questions, it is highly unlikely the product will make it to market.

This is because the purpose of the law is to “protect the health of, and minimise the harm to, individuals who use psychoactive substances”. An Authority is currently being set up that will produce guidelines around what constitutes ‘low risk’ and also administer the law and provide recommendations to government.

The results of clinical tests will be publicly available regardless of whether the substances pass the ‘low risk’ threshold. This means the public, health professionals and other countries looking on will have much better information on what’s in these products and what their effects might be.

There are specific restrictions in the law that mean licences will need to be obtained by any company wishing to import, export, manufacture or sell psychoactive substances. Dairies are specifically excluded from being able to sell, and communities will be able to have a say over if, and where, stores that sell psychoactive substances are allowed to open.

The law will apply some of the best harm reduction tools from tobacco and alcohol control to these products. Products will need to come with health warnings, lists of ingredients, contact information for the National Poisons Centre. Advertising or marketing of the products will not be allowed, and importantly, the age of purchase is pegged at 18 alongside alcohol and tobacco.

One key health measure in the law is the provision allowing the Authority to recall products that turn out to cause harm not detected in clinical trials. The Authority will be able to do this without any need for legislation – it will simply revoke the licence.

While there are a number of offences contained in this Bill, people who commit minor offences will not be criminalised.

Those caught with unapproved substances, or buying approved products while underage, will be subject to an infringement notice and fined. Unlike those caught with drugs scheduled under the MODA, they will not run the risk of having a criminal conviction on their record and cannot be jailed. The worst possible outcome is they don’t pay their fine and it gets bigger.

Where to from here?

A transitional period is now under way where products for sale in the three months prior to the Act coming into effect may be granted an interim licence for sale that will last until regulations come into effect. The producers of any of these products can apply for interim licences to continue selling until their products can be tested, and the Authority has produced guidelines.

Built into the legislation is a requirement that it be reviewed by Parliament within five years. This means that, if certain aspects of the law are not working, they can be fixed, and the focus remains on protecting health and minimising harm.

But the most exciting thing about the passing of this cutting-edge legislation is what it means for all of New Zealand’s drug law.

MODA – at almost 40 years old –is focused on punishing people who use drugs. By comparison, this new legislation is evidence-based and has health and harm reduction at its heart.

The Law Commission’s report provided a blueprint for this legislation but also for the reform of our drug laws as a whole. We reckon it’s time to roll up our sleeves and, with the same spirit in which this law was made, bring New Zealand’s drug law into the 21st century so it becomes sound, health-focused and modern.

But for now, the world is watching New Zealand to see how well this new model works. We are confident it will.

Find out more

Psychoactive Substances Act (2013) nzdrug.org/parliamentpsychoactive

Ministry of Health information about the Psychoactive Substances Regulatory Authority nzdrug.org/mohpsychoactive

New Zealand Drug Foundation page about Psychoactive Substances nzdrug.org/PSBsubmission

The law at a glance

• The Act sets up a legal framework for the testing, manufacture, sale and regulation of psychoactive products.
• Health and harm minimisation are included in the Act’s purpose.
• Products will no longer be sold in dairies, grocery stores etc. People and businesses will need a licence to sell these products.
• There will be restrictions on advertising, marketing and the purchase age (18+).
• As with alcohol, councils will have the option of developing local policies around where stores can be located.
• Products will undergo rigorous clinical testing to determine whether they are ‘low risk’.
• Clear rules around use of animal testing. Animal testing can only be used if there is no alternative.
• If a product is proven ‘low risk’, as long as a person meets certain criteria (e.g. person of good repute, New Zealand citizen), a three-year licence to sell that product can be granted.
• Products that appear to cause more harm than clinical testing showed can be pulled from the market.
• A register of all approved and unapproved products will be publicly available.
• A code of practice for manufacturing and retailers will be in place within six months.

Animal testing

The testing of psychoactive substances on animals was a controversial aspect of the legislation. Because of this, the final rules around animal testing are much more robust in protecting animal welfare.

Under the legislation, animal testing is a last resort. An alternative testing technique must be used if it exists. If alternatives to animal testing are not used, the Authority will disregard results. In circumstances where alternatives do not exist, animal testing can only go ahead if it meets the following criteria:

1. The trial is based on the relevant International Conference on Harmonisation Guidelines.
2. If the trial is undertaken in New Zealand it complies with the restrictions placed on the use of animals in research under the Animal Welfare Act 1999.
3. If a trial is undertaken overseas, it complies with the restrictions on the use of animals in research, testing or teaching that are equivalent to or exceed those in the Animal Welfare Act 1999.