New Zealand Law Society - “Legal High” Act failing to meet objectives - Review of the Psychoactive Substances Act 2013

“Legal High” Act failing to meet objectives - Review of the Psychoactive Substances Act 2013

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The Psychoactive Substances Act 2013 commenced in July 2013 and was amended in May 2014. Its purpose is to make low risk products that contain psychoactive substances available through a regulated market. Psychoactive substances are illegal if they are not approved products.

The Ministry of Health has published its review of the “legal high” law.

The review concludes that the Psychoactive Substances Act 2013 has not achieved its purpose of protecting health and minimising harm.

  • Available data shows that there have been no approved products yet and no licence applications have been received for retailing, manufacturing or wholesaling psychoactive products.
  • Convictions have increased for offences under the Act from seven in 2013 to 172 in 2017. Māori are overrepresented in the number of convictions – 99 compared to 49 Europeans, 19 Pacific peoples and five “other”.
  • The number of seized products has increased since the Act was introduced. The frequency of synthetic cannabis and cannabinoids customs and police seizures have increased from 105 in 2014 to 501 in 2017.

Obstacles impacting on the implementation of the Act

Animal testing: Following a petition in mid-2014, a 2014 amendment to the Act provided that the Psychoactive Advisory Committee can only consider the evidence from animal testing to ban a product, not to approve it. Therefore, a product can only be approved and licensed where an alternative to animal testing is available.

Environment change: Since the implementation of the Act some psychoactive substances are now available that are even more risky and prevalent.

Border control: This is a challenge to the NZ Police and Customs Service due to the large volumes of different and new substances being encountered.

Prior to the Act some psychoactive substances were regulated under the Misuse of Drugs Act 1975 and others were not regulated at all. There were between 200 and 300 unregulated substances by 2013 and there was increasing community concern about these products. Party pills, designer drugs and legal highs were sold in dairies and bottle stores and the reports of negative side-effects were a growing concern.

After the commencement of the Act a strong market has developed for unapproved (therefore illicit) psychoactive products.

Because the market has been driven underground there is limited ability to manage risks to health of users, which according to Coroner reports has been significant. Between 40 and 45 deaths have been provisionally attributed to psychoactive substances.

The reviewers considered that the penalties and offences may be out of step with the actual risk of harm posed by the increasing availability of high-risk products.

The result of the pending referendum about cannabis law reform will potentially influence changes to offences and penalties for cannabis related offences and when this happens it is expected that penalties and offences for other drugs and psychoactive substances will also be considered.