New Zealand to establish fit for purpose regulation for new psychoactive substances


Hughes & Winstock highlight a number of issues relating to controlling the availability of new psychoactive drugs [1]. They provide examples of current practices and options within Europe and discuss their implications. Importantly, they note that current ‘drug’ laws criminalize the user. The majority of users are likely to be young [2-4]. Consequently, regulations which increase the likelihood of young people being criminalized should be avoided.

The authors describe interventions utilizing existing legislation to control the emergence of new psychoactive substances. However, while convenient, the use of existing medicines or consumer-based legislation to regulate psychoactive substances is not entirely fit for purpose. Importantly, invoking medicines legislation brings into question the integrity of the law, which the authors are rightly concerned about. Declaring a new psychoactive substance a ‘medicinal product’ falsely labels substances, most of which are never claimed to have medicinal benefit. This process also fails to address the truth: i.e. most take the substances for enjoyment.

Also, while the measures described by Hughes & Winstock might lead to the immediate removal of new psychoactive substances from open commercial markets, this might have little effect on the illicit market and drive users to seek illegal supplies [5, 6] or potentially more harmful alternatives; nor does this approach address demand, and simply utilizes different methods to ensure prohibition. In addition suppliers, with demonstrated agility in adapting to reclassification, simply manufacture new products and adapt quickly to new requirements surrounding existing legislation. Hughes and Winstock have concluded that novel uses of existing non-‘drugs’ legislation ‘might be just as effective at protecting public health’. This leads to a perhaps incomplete discussion surrounding options for new, ‘made-to-measure’ legislation; nor will it offer a satisfactory resolution for critics of the existing laws, some of whom argue that the existing legislation surrounding psychoactive substances is based more on a political view of whether a drug is harmful to an individual or society at large, rather than on the basis of scientific evidence [7, 8].

Clearly, countries need to respond rapidly and effectively to limit potential harms from the use of new untested substances, and in this respect we note that the United Kingdom is currently legislating temporary drug class orders. New Zealand established provisions in 2011 for temporary bans under the Misuse of Drugs Act 1975 [9]. Five Temporary Class Drug Notices (TCDN) are currently operating, covering 27 synthetic cannabinoids and DMAA (1,3-dimethylamylamine). However, it is acknowledged that TCDNs are not entirely suitable, and will exist only until an enduring solution can be introduced [10].

In addition, there are problems globally with existing legislation surrounding the control of analogues which are classified automatically and therefore not assessed for harm or otherwise to users, and remain subject to criminal sanctions. New Zealand is currently proposing to rectify anomalies surrounding its drug analogue provisions, an issue not discussed by Hughes & Winstock. Under the proposed new regime, analogues will become ‘unapproved substances’ unless determined otherwise by an expert committee.

It is important to note that following the establishment of legislation to introduce the proposed regime in New Zealand, all psychoactive substances (other than those already covered by other legislation, e.g. alcohol, tobacco, etc.) will be either:

  • scheduled under United Nations (UN) conventions/Misuse of Drugs Act (as now); or
  • ‘unapproved substances’ under the new legislation—with proportionate offences and penalties; or
  • ‘approved psychoactive substances/products’ under the new legislation—with guidelines surrounding manufacture, dose, packaging, advertising, etc.

Upon establishment, non-regulated substances would become ‘unapproved’, with lesser penalties likely than those imposed by the existing Misuse of Drugs Act and without the criminalization of users. There will also be a framework for the approval of substances following a risk assessment carried out by a sponsor in conjunction with the regulator. Those applying for approval of a substance or product under the proposed regime would be subject to fees for application and risk assessment and the recovery of compliance, audit and monitoring costs by the New Zealand government.

The regime will require public acceptance that all psychoactive substances carry some risks and that there must be the facility for substances or products to reach the legal market. To avoid the introduction of yet another black market drug, it is important that the substance/product approval process and costs are not so onerous that sponsors/industry are deterred from applying for approval.

The regime proposes establishing an expert committee and a regulator at ‘arms length’ from government. Once the legislation is in place, decisions to approve psychoactive substances requiring independence from politicians will be consistent with the principle that it is preferable that decisions to classify and control drugs is based on evidence from expert findings.

New Zealand's proposed regime represents what Hughes & Winstock term the ‘rapid control’ of new substances, but this will be achieved under specifically designed legislation. Indeed, the authors' description of a utopic system having ‘efficiency in invocation, proportionality in its response to users and suppliers’ and effective in ‘removing the substance from supply until harms are properly assessed’ is a good description of the rationale for what New Zealand is trying to achieve under legislation.

Declarations of interest