British drug policy fundamentally changed in 2016 with the Psychoactive Substances Act – what happened and why?

Traditionally, restricting the production, supply, and possession of a drug involves specifically naming the substance in a piece of legislation. Sometimes lawmakers go a step further, even detailing which isomer of a molecule will land you in prison.

The UK government found themselves in hot water in 2009, thanks to the increasingly popular synthetic stimulant mephedrone. The drug was the target of multiple scare stories, and pressure was mounting on the Labour Cabinet to do something in response. In a blunder one can only fault to a rapidly approaching General Election (and the incompetence of policymakers), the inactive enantiomer of mephedrone was made a class B drug.

In the time it took to finally close the legal loophole – almost an entire year after the initial legislation – Conservative MP David Cameron was elected Prime Minister. For prohibitionist governments, novel psychoactive substances like mephedrone posed a challenge. Drug manufacturers across the globe took advantage of the specificity of international policy, leading to the market being saturated with cheap alternatives to popular substances, that were yet to be banned: legal highs.

Politicians love to be tough on drugs. It’s a pissing match, and if the urinal represents our civil liberties, then the subsequent flush is the sea of voters flooding to the polls. And you best believe there’s cleaning up to do.

It became evident that continuously naming and banning substances as they emerged was not sustainable. It’s hard to appear as though you’re actually “solving” the drug “problem” when as soon as one high’s banned, there’s a dozen others ready to take its spot. A different approach was needed. 

Previously, The Misuse of Drugs Act had been amended to introduce ‘catch-all’ clauses, covering frequently substituted frameworks like tryptamines and phenethylamines. It’s an appealing strategy for prohibitionists, as it theoretically bans analogues of drugs that haven’t even been invented yet. Similar amendments to the act were further introduced, but the same issues arose.

Catch-all clauses weren’t enough. Firstly, it takes precious time to draft and pass such amendments. Secondly, substances are only banned after attention is bought to them. Each new headline about the next legal high only damages the government’s reputation regarding their stance on drugs.

British drug policy fundamentally changed in 2016, through the Psychoactive Substances Act. The act makes it a criminal offense to produce, supply, offer to supply, import, and export any psychoactive substance. Foods, alcohol, nicotine, caffeine, medicinal drugs, and drugs already controlled by The Misuse of Drugs Act 1971 are excluded from the legislation. 

Possession of a psychoactive substance is not an offense under the act unless you are caught with a psychoactive substance on custodial premises. Unlike other previous legislation, it targets only the supply of drugs, and turns a blind eye to the possibility of somebody possessing such a substance!

In theory, it seems fairly apparent what’s meant by “psychoactive substance”, but on paper, it’s more complicated than that. The act defines a psychoactive substance as a substance that “produces a psychoactive effect in a person if, by stimulating or depressing the person’s central nervous system, it affects the person’s mental functioning or emotional state.”

If you thought that definition seemed ambiguously broad, you’re not alone. The Home Office even had to write to the Roman Catholic Church and the Church of England to assure them that incense would not be banned under the act.

So, what is a psychoactive substance? Scented candles could influence a person’s emotional state, but they’re not banned. Is enjoying your hobby now a crime? Is my herbal tea illegal? How about poppers? Actually, as it turns out, for a substance to be covered under the jurisdiction of the act, it has to interact directly with the central nervous system. Scented candles, hobbies, herbal teas and poppers aren’t unlawful because they do not interact directly with the central nervous system, according to the Advisory Council on the Misuse of Drugs.

Alright, so a substance must directly interact with the central nervous system for it to be considered psychoactive. This, however, raises more questions. Some “drugs” aren’t active molecules at all and must be metabolised into an active compound. These are called prodrugs, a common example being codeine, which primarily digests into morphine.

Picture a theoretical molecule, A, which in itself is not psychoactive, but it metabolises into cocaine. Assuming it’s not banned under any previous legislation, would A be banned under the Psychoactive Substances Act? doesn’t directly interact with the central nervous system, so it could be assumed that the ACMD’s recommendations also apply here.

There is no mention of prodrugs in the Psychoactive Substance Act 2016, and as far as I can tell, there have been no court hearings regarding the matter. In reality, as it stands, prodrugs of psychoactive substances are assumed to be banned under the act, though one could argue that there is no legal basis for this. Please note, this is not legal advice, and should be taken as a probe into the full jurisdiction of the law.

The act is explicit in its exception of food products. Food is defined as “any substance which is ordinarily consumed as food, and does not contain a prohibited ingredient.” This includes beverages. According to the act, a prohibited ingredient is “any psychoactive substance which is not naturally occurring in the substance, and the use of which in or on food is not authorised by an EU instrument.” Logically, a psychoactive food or drink is not banned if it is “ordinarily consumed as food” and the psychoactive component(s) are natural.

Obviously, this is somewhat ambiguous; who gets to decide what’s ordinarily consumed as a food or drink? Some cases may be more clear-cut than others. For example, chocolate, which contains theobromine, is not banned because it evidently is ordinarily eaten as a food. Where do we draw the line? I ask, what about Amanita muscariamushrooms?

A. muscaria mushrooms naturally contain several psychoactive compounds, most notably muscimol. Most literature considers it banned under the Psychoactive Substances Act. But how easy would it be to argue that it is ordinarily consumed as a food? Records from almost 200 years ago detail how to prepare the mushroom for culinary use. One source explores how A. muscaria is considered a delicacy in a region of Japan. Is that enough to justify excluding it as a food?

The contents of this article should not be taken as a thorough investigation of the law. Instead, it poses to explore the edge cases of the Psychoactive Substances Act 2016. Either way, it stimulates one to question the ambiguity of this transformative legislation. 

This piece was written by Jack Jones. Jack is an aspiring independent drug reform campaigner with a background and interest in pharmacology and British drug policy. Follow him at @DrugsenseJack on Twitter.

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