No quick fix for legal highs


As a retired Trading Standards Officer I was interested to read the recent article by Brendan Hughes and Adam Winstock [1].

There may well be a need for a new approach to the sale of psychoactive substances, but I'm afraid existing European Union (EU) consumer legislation will not provide it.

Where there is ‘a paucity of good quality basic scientific and human experience data’, to quote the article, ‘rapid control’ of legal highs is unlikely to be possible. Under criminal law, the accused is innocent until proved guilty and with little in the way of evidence about the substance there is a real possibility of a disputed case and possible delays lasting a year or more before the legal process is exhausted.

Unless a court were to hold that being psychoactive was in itself sufficient for a substance to fail to comply with the General Product Safety Regulations—which would cause consternation to the producers of a large number of well-known products—prosecutors would need evidence that proved, beyond all reasonable doubt, that the product was sufficiently harmful for it to fail the General Safety Requirement [2]. The definition is worded carefully so that intrinsically unsafe products can be sold; otherwise, it would be illegal to sell, for example, carving knives. If ecstasy is, as has been suggested, no more dangerous than horse riding [3], it is possible that it would comply with these Regulations if appropriate warnings and advice were provided. A court needs facts to judge whether such warnings are needed or inadequate. How can it do this for a substance having ‘little or no public health data associated with it?’.

Another suggestion by the authors was that legislation controlling incorrect descriptions could be used, for example mephedrone being labelled as bath salts. However, a false description is not in itself a breach of the Regulations. It must make the ‘average consumer’ (presumably the average consumer who goes to a head shop) take a ‘transactional decision’ he/she would not have otherwise done [4]. Or, in plain English, either a customer in a head shop was genuinely misled into thinking he or she had bought bath salts and was disappointed when the bath water didn't smell nice, or he/she didn't buy the pack because it said ‘bath salts’ when he/she was looking for mephedrone. Good luck arguing that with a semi-competent barrister. (The likely offence is under Regulation 5, and Regulation 2 defines ‘average consumer.’ If selling a product is illegal under other legislation, describing it as another, legal product is probably an offence without the need to prove a distorted transactional action—see Regulation 3 (4) and Schedule 1 para 9.)

Once a substance has been banned under other legislation, EU consumer legislation can, to some extent, be used to control it, but it cannot be used to control substances in a precautionary manner. It may be that new national legislation, like that in Poland [5], might give Trading Standards a role in controlling psychoactive substances at retail level. However, existing consumer legislation was not intended to do this and is manifestly unsuitable. Trading Standards authorities have a good record of trying to act in the public interest. They deserve better than to be begged, bullied and bribed into inappropriate enforcement action.

Declarations of interest