It has been over six months since the enactment of the Misuse of Drugs Amendment Act (No 2) 2011, which amended the Misuse of Drugs Act 1975 to give the Minister of Health the power to issue temporary class drug notices banning substances from sale for up to 24 months. Since then, five such notices have been issued by the Associate Minister of Health, the Honourable Peter Dunne, removing a total of 24 substances from the market, including most recently the popular stimulant DMAA. Why was this legislation enacted, what have the effects been, and where is the regulation of new drugs going in the future?
The lead-up to the new regulation
Designer drugs have been available in one form or another since the 1960s, but they rose to prominence in New Zealand and around the world in the late 1990s and early 2000s. The main appeal of such substances to consumers has always been that they replicate the effect of illegal drugs, such as ecstasy or cannabis, without the risk of a criminal conviction. Before 2005, like most of the rest of the world, New Zealand’s only available response to the appearance of new drugs was to add them one at a time to the schedules to the Misuse of Drugs Act – an essentially reactive process that was increasingly outpaced by the ingenuity of grey-market chemists overseas.
That changed in 2005 with the enactment of the Misuse of Drugs Amendment Act 2005. That Act made provision for substances to be added to a new schedule of “restricted” substances on the recommendation of the Expert Advisory Committee on Drugs (EACD). In essence, a restricted substance is one in respect of which there is a risk of harm, but that risk of harm does not warrant a full ban. A restricted substance may not be sold or supplied to persons under the age of 18, and is subject to restrictions on how it is advertised. Other restrictions can be (and now have been) imposed by regulations.
Only one substance has ever been made a restricted substance – the stimulant BZP was a restricted substance between 22 June 2005 and 31 March 2008, when it was reclassified as a Class C controlled drug by the Misuse of Drugs (Classification of BZP) Amendment Act 2008. Surprisingly, no regulations were made under the Misuse of Drugs Amendment Act 2005 during this period, so many of the potential restrictions on restricted substances never applied to BZP. The Misuse of Drugs (Restricted Substances) Regulations 2008 were not promulgated until 6 August 2008.
Subsequently, the Ministry of Health received fresh legal advice which pointed out a serious defect in the drafting of the Misuse of Drugs Amendment Act 2005 – any substance which was a hazardous substance in terms of the Hazardous Substances and New Organisms Act 1996 could not be made a restricted substance. In effect, this meant that no new substances could be made restricted substances until the law was changed.
As a result, various recommendations from the EACD to make substances restricted substances were not actioned – including the hallucinogen salvia divinorum, the stimulant DMAA, and the synthetic cannabinoids JWH-018 and JWH-073, although the Government accepted the EACD’s recommendations. Amending legislation was not introduced until 22 April 2010 and was not reported back by the Health Select Committee until 29 November 2011, by which time it had increasingly been overtaken by two significant developments.
The first was the release of the Law Commission’s report, Controlling and Regulating Drugs: A Review of the Misuse of Drugs Act 1975 (NZLC R122, 3 May 2011). As well as recommending reform of the increasingly antiquated Act as a whole, the Law Commission recommended an entirely new regulatory model for designer drugs (or as the Commission referred to them, ‘new psychoactives’) in which new substances would have to obtain approval from a regulator before they could be sold.
The second development was the appearance in New Zealand of synthetic cannabinoids in large volumes. Early cannabinoids, such as CP 47497, were easily removed from sale once it was demonstrated that they were structurally similar to tetrahydrocannabinol, the active ingredient in cannabis, and therefore covered by the ban on drug analogues under the Misuse of Drugs Act 1975. But subsequent products used cannabinoids that were not covered, and could therefore be sold without any regulation at all.
The Government originally proposed to make JWH-018 and JWH-073, the two most popular synthetic cannabinoids, restricted substances once the legislation repairing the Misuse of Drugs Amendment Act 2005 had been enacted. But in the end, public pressure was such that the provisions creating the temporary class drug notice regime were added to the Misuse of Drugs Amendment Bill by Supplementary Order Paper on 2 August 2011, and the legislation was enacted on 8 August. The first temporary class drug notices were issued shortly after.
How do temporary class drug notices work?
Section 4C(1) of the Misuse of Drugs Act now empowers the Minister of Health to specify any substance, preparation, mixture, or article as a temporary class drug, if the Minister is satisfied that the substance, preparation, mixture, or article specified in the notice poses, or may pose, a risk of harm to individuals, or to society. The Minister accordingly has very broad discretion to issue temporary class drug notices. Such notices also are not subject to the Regulations (Disallowance) Act 1989.
Section 4C(6) requires there to be a period of at least seven days between the issuing of the notice and its coming into force. To date, most of the notices issued have come into force as soon as possible – the exception is the most recent notice in respect of the stimulant DMAA, which took 30 days to come into force and reflects the widespread popularity and use of that compound.
The effect of a temporary class drug notice as set out in section 4D is that the substance subject to the notice is treated as though it was a class C controlled drug for the purpose of the Misuse of Drugs Act, except that:
it is not an offence for a person to possess or use such a substance (unless that possession is for the purposes of supply – deemed to be the possession of more than 56 grams);
- no substance is to be treated as a controlled drug analogue merely because it is structurally similar to such a substance;
- the substance may not be placed on one of the Schedules of the Misuse of Drugs Act 1975 except by Act of Parliament; and
- the Minister must seek advice on whether the substance should in fact be classified.
Temporary class drug notices expire one year after they are made, or once a decision has been made about how the substance should be classified. The Minister may renew the notice once only, for the purposes of taking advice about the classification of the substance.
On its face, the temporary class drug notice regime is a draconian response to the appearance of new designer drugs. But conceptually, it was not a significant change to the status quo – it represented an essentially reactive, rather than proactive, response to the challenge of new designer drugs. The Government recognised this issue, and accepted the Law Commission’s recommendations regarding a regulatory model for new designer drugs.
Where to from here for designer drugs?
Dunne has stated that legislation to introduce a new regulatory regime for designer drugs will be in Parliament by the end of this year.
The most important feature of the proposed new regulatory model for designer drugs will be a reversal of the onus of proof. The current position is, in effect, that a psychoactive substance can be sold, regardless of the risk to the consumer, until it is made subject to legal control. For low-profile substances, this may well never happen. Even for high-profile substances such as synthetic cannabinoids, it can take some time. Further the ongoing availability of various designer drugs illustrates the difficulty for a regulator in trying to keep up with computer-aided drug designers overseas.
However, the Law Commission’s proposal would introduce a regime akin to that of medicines under the Medicines Act 1981, where a psychoactive substance could not be sold unless it has obtained approval from a regulator. One of the significant challenges in the design of the new regulatory model will be to ensure that the criteria for approval are set such that public safety is protected, while also ensuring that low-risk designer drugs are able to obtain approval. The use of regulated, safety-tested designer drugs is clearly preferable to the use of their illegal counterparts, which is the most likely alternative scenario.
The development of a regulatory regime for designer drugs is the latest chapter in a long series of developments driven by a range of factors. This illustrates that the path to law reform is never smooth – it is important to have a full understanding of the history and context to every legislative initiative.
Chen Palmer New Zealand Public and Employment Law Specialists advises distributors of designer drugs.