On the 26th of May, the Psychoactive Substances Act will celebrate its first anniversary. It has been described variously as “the most draconian anti-drug law ever passed in Britain,” “arguably the worst piece of legislation in living memory,” and “the legislative equivalent of trying to fix a problem with your computer by sweeping everything off the desk and screaming.”
The Act was designed to restrict the proliferation of so-called ‘legal highs’ such as mephedrone and synthetic cannabis over the past decade. Alarmed at the sale of these unregulated substances online and in ‘head shops’ across the UK, the government introduced a blanket ban on any substance known to have a psychoactive effect. It is easy to understand the government’s panic in the face of the rapid growth of new and largely untested drugs, sold with ease over the Internet. It is harder to justify its response.
Twelve months on, the proliferation of increasingly potent synthetic cannabinoids—commonly known as Spice—is being decried as “one of the greatest drug threats facing the UK.” Drugs workers have described these substances as “worse than heroin.” The media increasingly refer to a “Spice epidemic” among the homeless and prison populations. Reports have emerged of users in “zombie-like” states in city centres such as Manchester, where health services are overwhelmed with the sheer scale of overdoses, rates of addiction, and drug-related deaths.
Drugs such as Spice and mephedrone began to emerge in the mid-to-late 2000s, and quickly sparked a cat-and-mouse game between manufacturers, largely based in Asia, and European authorities. Each time the active chemical in these ‘legal highs’ was identified, and subsequently banned, manufacturers would tweak the chemistry of their products, and a new generation of drugs was born.
As a result, manufacturers focussed intensely on creating chemicals with increased potency. It is axiomatic in the history of drug prohibition that, not only does banning a substance put its trade into the hands of criminal gangs, but it also favours the production of increasingly high strength, low volume substances. Just as, during alcohol prohibition in the US, bootleggers stopped selling beer and started brewing moonshine, successive waves of bans on ‘legal highs’ caused the market to be flooded with a range of ever-more obscure and potent chemicals.
To call Spice a drug, in the singular, is a misnomer. Initially sold in branded packages with a trademarked logo, Spice first emerged in 2006, advertised as a herbal cannabis alternative. It took two years for the active and unlisted ingredient to be identified as a synthetic cannabinoid—a chemical compound that acts on the same brain receptors as THC, the main psychoactive chemical in cannabis. The effects of the original Spice were reportedly mild, similar to that of herbal cannabis. Yet, once it was found to be more than a herbal blend, successive European governments rushed to ban Spice, and by 2009 it had been banned in the UK along with a number of legal highs.
Synthetic cannabis products began to circulate under different brands such as ‘Black Mamba’ or ‘Yucatan Fire’—sometimes containing the original Spice ingredients, but often based on different compounds that had not yet been covered by the new legislation. Hundreds of Spice-type products began to circulate under a variety of brands; with users having no information about the specific drug they were taking, its relative safety, or recommended dose—let alone the threshold for overdose. Even within the same brand, the active ingredient and strength could differ from one batch to the next. Successive waves of bans on these substances followed over the next few years, only for manufacturers to circumvent the legislation by synthesising new and increasingly dangerous chemicals.
Faced with an alarmingly unregulated and diversified black market, which is the direct and inevitable result of criminalisation, the government’s response was to ban, ban harder, and ban again. It has now banned drugs that do not yet exist, in case they might. It is unquestionable that many of the substances covered by the legislation cause harm to users, and pose a threat to public health. But these are not even the grounds upon which they have been banned.
Instead, the Psychoactive Substances Act bans substances upon the basis of their psychoactivity—defined as anything which “by stimulating or depressing the person’s central nervous system […] affects the person’s mental functioning or emotional state.” This is an appalling basis upon which to fight a war on drugs. It bears repeating: the government has legislated against thinking or feeling differently.
Special exemptions were given for alcohol and tobacco—manifestly the most destructive drugs in Britain—as well as caffeine, with no rationale given for why these mood-altering substances might merit special treatment. When asked to account for the distinction, the government cited historical and cultural precedent for the exemptions—and not a scientific assessment of risk or health impacts. Possibly the government does not consider these substances ‘proper’ drugs, because drugs are things that are bad because they are illegal, and illegal because they are bad.
Exemptions were granted, too, for food and medicine. But it is unforgivably childish to think that clean lines can be drawn in this way between what is and isn’t a drug. Nutmeg will get you high, if you eat enough of it, yet is exempted from the Act as it is “ordinarily consumed as a food.” Psychoactive betel nuts, widely used in South Asian cooking, can be legally supplied if the purchaser intends to consume it “as a meal,” but are illegal to supply if the person buying it is doing so specifically to get high. Presumably a provision is needed for those who purchase hash brownies for the taste.
So assiduous was the Home Office in its zeal to ban anything vaguely mood altering, that it attempted to ban poppers, which aren’t directly psychoactive, but seemed like they might be. The Advisory Council on the Misuse of Drugs (ACMD) had to intervene to inform the government that poppers did not fall within the remit of their own definition of psychoactivity, even as it critiqued the definition for being ludicrously all encompassing. A pointless exemption was given for homeopathic medicines, despite the fact that these hugely diluted preparations cannot conceivably contain anything psychoactive—unless one counts their effects as a placebo.
This is the strangest problem with the Psychoactive Substances Act: little effort was expended to pin down the definition of a psychoactive substance. This is because it is impossible. Quite literally everything consumable has the potential to change a person’s mental or emotional state. By the government’s own definition, anything from flowers to perfume to toads and salamanders could meet their criteria. The ACMD repeatedly warned the Home Office that its definition both would ban things it never intended to prohibit, and is so vague as to be unenforceable. Their advice was ignored.
It is a measure of the ridiculousness of the Act that churches had to ask for a special exemption to be granted for incense, so that priests might legally burn it without facing seven years in prison. Peers stood in the House of Lords to say things like “we have to be very careful that we do not unintentionally criminalise either priests or florists.” Should this not have been a sign to the government that something had gone very wrong in their framing of the legislation?
There is a paradoxical logic at work here. The war on drugs emerged from the reflex to deal with our fears about potentially harmful things by making them illegal. Time and again, drugs prohibition has failed to reduce these harms. Instead, prohibition makes drugs more harmful, by removing any market regulations that might mitigate the dangers of their consumption, and placing their trade in the hands of criminal gangs. Criminalising drugs wreaks immense harm both to users and wider communities. But, time and again, the emergence of a new drug is met with the same old reflex to ban.
In recent years, the proliferation of a seemingly endless number of new and potentially harmful substances has made the prohibition of drugs on a case-by-case basis practicably impossible. And yet, fearful of the potentially harmful nature of these substances, the government has legislated in such a way that utterly ignores harm as a factor in whether a substance should be banned or not. It has instead legislated against substances that might affect our mood, because that is easier than having an adult conversation about evidence-based drugs policies that might actually benefit society.
We need to talk about the Psychoactive Substances Act. Its roots lie in the impulse to make unpleasant things go away by banning them—something that flies in the face of a century of global drugs prohibition. Drugs can be dangerous and harmful, and that is why we need to regulate them—not bury our heads in the sand and hope that, if only people would just listen to the government and behave themselves, drugs would disappear.
The government must acknowledge that people do and will take drugs, whether or not they are illegal. By failing to regulate drugs, the government ensures that the harms it seeks to eradicate will continue. The biggest problem with the emergence of new psychoactive substances such as Spice is that people have no way of knowing what they are taking. It is simply not good enough to surrender any social or moral responsibility to care for your citizens the moment they break the law.
Lead photo from Flickr.