Policy analysisAssessing the ‘added value’ of European policy on new psychoactive substances
Introduction
The latest phenomenon to catch the attention of drug policy makers and practitioners around the globe has been the rise in the popularity, availability and use of new psychoactive substances (NPS)—a catch all term for chemical compounds that have been modified and developed to mimic the effects of drugs that are already prohibited. Some NPS have already been regulated in many countries (e.g. mephedrone, synthetic cannabinoid agonists), but, given the ease of slightly tweaking chemical structures to create new substances, many remain outside the confines of national and international regulations. This is not a new problem per se, but the last decade has seen an increase in their “range, potency, profile and availability” (Winstock & Ramsey, 2010, p. 1685). Existing national and international illicit drug legislation has been generally reactive in its response to controlled drugs; a new substance is developed, marketed, gains in popularity, comes to the attention of the authorities and, where warranted, is eventually added to the list of controlled substances. NPS, however, may present a new kind of drug market where substances are emerging and evolving rapidly, within which new provisions are needed to keep pace with the capacities of developers to create new substances.
Latest figures from the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA) indicate that more than 450 potentially harmful new psychoactive substances (NPS) are now being monitored in Europe (EMCDDA, 2015a), and the European Commission has claimed that NPS “are emerging at an unprecedented rate” (European Commission, 2011a). On a global scale, the International Narcotics Control Board (INCB) has declared that this situation is causing “increasing concern” (INCB, 2011, p. 97) and the United Nations Office on Drugs and Crime (UNODC) has recently developed its own early warning advisory (EWA) to share information on NPS on a global scale. There is clear evidence that the issue of NPS is one that is being prioritised, yet, while most regions in the world confirm the appearance of NPS within their internal drug markets (UNODC, 2013), the limited information that is available on prevalence rates suggests that they remain relatively low, with about 8% of the youth population reporting use across Europe (EMCDDA, 2015a). Furthermore, various academics have questioned the dominant discourse in this area. For example, Reuter (2011, p. 4) has described the problem as “modest and localised” with
“no major disasters (large numbers of deaths or serious injuries/infections on the one hand; large and violent illegal markets on the other) associated with new substances in recent years” (Reuter, 2011, p. 27).
Birdwell, Chapman, and Singleton (2011), further elaborate that it is unusual for an NPS to cause widespread and significant problems (e.g. mephedrone in the UK and BZP in New Zealand) and van Amsterdam, Nutt, and van den Brink (2013, p. 317) confirm that 98% of NPS are little more than “one-night wonders”.
Nevertheless, NPS have become a driver for changing drug policy landscapes. Traditionally, drug legislation lists individual substances which are to be controlled, but systems have also been developed which allow chemical compounds that are structurally similar (generic model) or which are perceived to have similar effects (analogue model) to existing controlled substances to be automatically controlled at any one time. These alternative systems can be useful in responding more proactively to the development of NPS and have been employed in many individual countries. Other countries have also responded to NPS by introducing emergency legislation that allows a substance to be immediately banned for a specific time period without undertaking the lengthy and time consuming legislative procedures necessary to bring a substance under permanent control. Finally, a handful of countries have established a system whereby any substance meeting certain criteria (e.g. psychoactivity) will be subjected to a total ban. This system has been adopted in Ireland, Poland and Romania, and the UK (EMCDDA, 2015b).
There has also been some experimentation with regulation via the frameworks that govern foodstuffs, medicines and specific commodities such as alcohol and tobacco (Reuter, 2011). Medicines laws have been utilised in at least 8 European countries and different types of consumer safety laws have been employed in Italy, Poland, Portugal and the UK (EMCDDA, 2012), although efforts have been somewhat sidestepped by the marketers of NPS declaring them ‘not for human consumption’. The most radical example of alternative regulation, however, was proposed in 2013 under New Zealand’s Psychoactive Substances Act. This legislation aimed to shift the burden of responsibility for determining the potential harms of an NPS to the vendor: if substances passed the extensive and expensive tests (funded by the vendors and expected to cost between 1–2 million NZ$) and were deemed to be of low risk of harm, then they would have been licensed for sale in restricted outlets and subjected to constrictions on age of purchase, promotion, and advertising. The Act, however, hit a stumbling block when a government amendment cut off the licensing phase and halted the legal sale of all psychoactive substances making the likelihood of future approvals much more remote (Brown, 2015). The amendment also prohibited the use of animal testing in determining the safety of a product leading Brown (2015, p. 1) to suggest that an impasse has been reached as the legislation passing through the New Zealand parliament “cannot possibly approve or license any product”.
While national responses to NPS vary considerably, responding to this challenge has been identified as a priority at the European level. Europe has been at the forefront of NPS policy development since a 1997 Joint Action (European Council, 1997) on the control of new synthetic drugs established a mechanism for information exchange, risk assessment and control, which was later solidified in a 2005 Framework Decision (Council of the European Union, 2005). In 2011, the European Commission communicated its desire to produce stronger EU level regulations in this area (European Commission, 2011a), and in 2013 new proposals for a regulation and directive on the treatment of NPS in Europe were presented (European Commission, 2013). In April 2014, the European Parliament indicated its strong support for these proposals, but discussions among member states were stalled over the correct legal basis for the proposals. In April 2016, these discussions were resolved and the proposals were once again put forward on August 29th with a slightly amended legal basis. It is the aim of this article to consider whether legislative responses at the EU level provide added value over national responses, particularly considering the diverse cultural context of NPS use and the differences in legislative responses thus far.
Section snippets
Existing European policy on NPS
The control of NPS is an area of drug policy making where the EU is already relatively active. Within the EU, drug policy is an issue where the principle of subsidiarity has been applied, leaving decision making power in the hands of national governments. The EU itself can only intervene where it can be demonstrated that European intervention brings added value that national governments cannot achieve alone. This has meant that national drug policies within Europe tend to vary considerably,
The new EU proposal on NPS
The first steps towards strengthening EU policy in this area have been taken with the release in 2013 of a new EU proposal on the regulation of NPS within its borders (European Commission, 2013). Increased European action is officially justified on the basis that: “Member States alone cannot reduce the problems caused by the spread in the internal market of harmful new psychoactive substances” (European Commission, 2013, p. 7). The new proposal aims to improve existing legislation in a number
Evaluating the 2013 European proposal on new psychoactive substances
The following evaluation of the new proposals is based whether it can effectively address the three main critiques of existing legislation.
Discussion
The new EU proposal evaluated above clearly does bring some benefits. For example, under this proposal, the EU could react immediately to NPS that pose a serious threat. They will have a graduated range of responses available once a risk assessment has been conducted, which include the possibility of deeming a substance to be considered of a low enough risk to be allowed to enter the legitimate market, and have sought to protect trade in potentially harmful products for legitimate uses. They
Conclusion
There is little doubt that the new proposal would bring increased and more diverse regulatory powers at the European level, and allow for a faster response to emerging NPS. There is limited evidence, however, that this top-down, hard harmonisation oriented response will bring added value to policy that exists at the national level. Instead of continuing to focus solely on law enforcement options, the EU could also commit valuable resources to the development of initiatives to reduce the added
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