Home > Legal responses to new psychoactive substances in Europe.

Connolly, Johnny (2010) Legal responses to new psychoactive substances in Europe. Drugnet Ireland , Issue 34, Summer 2010 , pp. 19-20.

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The current controversy over so-called ‘head shops’ has highlighted the challenge to policy makers of controlling and regulating new psychoactive substances which emerge in the licit or illicit market.1 For public health reasons, legislators may need to bring new substances under control rapidly. A recent publication by the European Monitoring Centre for Drugs and Drug Addiction describes the systems and procedures available in the European Union, Norway and Croatia.2 

The comparative study finds that there is a variety of control methods available in the different countries, including the generic  and analogue systems (see below), as well as temporary emergency and rapid permanent scheduling procedures. The procedures may be effective immediately, within several days, or they may need up to a year to process. The risk assessment systems that are used to inform these procedures also vary widely, with some countries having no formal procedures while others include full consultation with independent scientists.
 
The ‘principle of legality’ is a core value which underpins the criminal law. This holds that, ‘no one shall be guilty of any criminal offence on account of an act or omission which did not constitute a criminal offence under national or international law at the time when it was committed’.3
 
Following this principle, controlled psychoactive substances need to be clearly identified in any legislation that makes their possession or supply a criminal offence. Substances are generally defined individually or in tightly defined groups. A challenge which can arise, however, is that illicit drug producers or traffickers can adjust a chemical compound so that it falls outside the definition of a controlled substance, or find a new substance that has similar psychoactive effects. The challenge then facing policy makers, as highlighted in this study, is that they will need to decide ‘if they need to bring this new substance under control – and in cases of immediate risk to public health, they will need to act quickly’ (p.4). Similarly, countries that are parties to the UN drug treaties or within the EU may be obliged to add substances to their lists within a certain deadline.
 
This study, an update of a similar study conducted by the EMCDDA in 2004,4 looks at the formal systems used by member states and by Norway and Croatia to control new psychoactive substances (synthetic and otherwise), the legal procedures involved and an estimate of the time such procedures might take. It also describes the risk assessments involved in the various procedures. The methodology used for the study involved a questionnaire sent to the ELDD’s Legal Correspondents Network and contributions from correspondents to the Early-Warning System.
 
Countries generally follow the individual listing system whereby national lists of controlled substances follow the UN Conventions, which may also extend the list to a substance’s ‘isomers, esters, ethers and salts’ (p.5). New substances may be added by means of an emergency procedure, which is an accelerated procedure whereby new substances are controlled for a limited period, or a rapid procedure where new controls on new substances are permanent.
 
In some countries, the individual list system may be supplemented by definitions of groups of substances under either a generic or an analogue system. A generic system is defined in the study as referring to the inclusion within the list of individual substances under control of a ‘precise definition of a group of substances’ sharing the same compounds or molecular structure (p.6).An example of such a definition might be ‘any compound structurally derived from fentanyl’ by modification in a number of ways, which are then described. An analogue system is based on more general aspects of similarity in the chemical structure of substances. An analogue definition of a compound might be ‘a substance – the chemical structure of which is substantially similar to the chemical structure of a controlled substance…which has a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than’ the effect of an already controlled substance (p.6).
 
The report then describes the national systems and procedures and the legal practice in each country. In Ireland, new substances are controlled both by individual listing and by a generic system. In practice, a memorandum is drafted and submitted to the relevant government departments for comment. A Declaration Order is then issued and the Minister for Health and Children sends a draft to the Cabinet. Once approved, the Order is signed by the Minister and then laid before both houses of the Oireachtas within 21 days, together with any regulations and exemption orders. Notification of the Order is then published in the Irish State Gazette (Iris Oifigiúil). The procedure can take approximately six weeks, but may take longer if there are drafting delays or if the Oireachtas is not in session. This procedure is the same regardless of the source of the instructions for placing a new substance under control (whether the UN or the EU). The study finds that all countries use the individual listing system, while Ireland and the UK use the generic system, and Latvia and Norway the analogue system.
 
The speed with which changes are introduced can be affected by the formalities involved in each jurisdiction.
The faster procedures are found to be those that require final approval of the legal text by one minister, rather than by an entire government, or those that shorten the duration of the consultations with experts.
 
The study also considers the risk assessment procedures available in different countries. Three questions are addressed in this review:
  • Is the risk assessment procedure part of the general legal procedures for bringing new substances under control?
  • Are the harm levels detected by the risk assessment effect the speed of the legal procedure?
  • Is the risk assessment performed by experts within the public administration or by independent scientific experts? 
In Ireland, although there is no legally-based requirement for risk assessment, the Early Warning and Emerging Trends sub-committee of the NACD was established to carry out risk assessments, as well as to contribute to risk assessments carried out at the European level. To date, no instances of risk assessment outside UN/EU proposed substances have been reported.
 
1. Long J (2010) Conference on psychoactive drugs sold in head shops and on line. Drugnet Ireland (33): 1–3.
2. Hughes B and Blidaru T (2009) Legal responses to new psychoactive substances in Europe. European Legal Database on Drugs. Lisbon: European Monitoring Centre for Drugs and Drug Addiction. http://eldd.emcdda.europa.eu/
3. European Convention on Human Rights, Art. 7(1)
Item Type:Article
Issue Title:Issue 34, Summer 2010
Date:2010
Page Range:pp. 19-20
Publisher:Health Research Board
Volume:Issue 34, Summer 2010
EndNote:View
Accession Number:HRB (Available)
Subjects:B Drugs and alcohol substances > Opioids (opiates) > Opioid product > Fentanyl
B Drugs and alcohol substances > New (novel) psychoactive substances
L Social psychology and related concepts > Legal availability or accessibility
VA Geographic area > Europe

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