The UK Has Banned Drugs That Don’t Even Exist Yet
Scientists and policy experts have raised concerns about the UK government’s broad ban on “psychoactive substances.”
Image: Michael Segalov
Legal highs, designer drugs, research chemicals—whatever you call them, they're all now banned in the UK. All of them. Even the ones we don't know about. Even the ones that don't exist yet.
The Psychoactive Substances Act came into effect on Thursday and is essentially a blanket ban on the production, supply, import and export of any substance that has an effect on the brain. (It does not cover possession, unless it's with the intent to supply, or you're in a prison or a young offender institution.)
If you think that sounds a bit broad, you're not alone. The law has attracted criticism from scientists and campaigners for its imprecise definitions, questions over enforcement, and general lack of scientific grounding.
"Never in the history of the world has the government banned substances that don't exist," David Nutt, a professor of neuropsychopharmacology at Imperial College in London and president of the European Brain Council, told me in a phone interview. "This says any substance that affects your brain will be illegal by definition, by default. That has to be anti-scientific.
Nutt, who is outspoken on the issue, said the law was "unnecessary," "a sledgehammer to crack a nut," and "flawed at every level."
A blanket ban
The main idea behind the Psychoactive Substances Act is to tackle the sale of so-called legal highs or "new psychoactive substances" sold in head shops and online, such as synthetic cannabinoids like "spice" and the pills and powders often marketed as substitutes for illegal drugs.
In the past, these substances would be classified individually under the Misuse of Drugs Act, as happened with stimulant mephedrone in 2010. But this approach leads to an inevitable game of prohibition cat-and-mouse: As soon as one substance is added to the list of classified substances, makers could just tweak the chemical compound to create a different drug with similar touted effects. The UK government's answer? Make everything illegal, even if it hasn't been created yet.
"It implies that any substance, other than those exempted, has at least the risk of causing harm"
The result is a sweeping ban, and its scope is much broader than these types of legal high. The law covers any substance that "is capable of producing a psychoactive effect in a person who consumes it," the vague nature of which is exemplified by the list of substances the government has had to explicitly exempt: alcohol, nicotine, tobacco, caffeine, food, medicine.
After some wrangling, ministers clarified that "poppers" (alkyl nitrites) would be excluded from the ban, not as an exempted substance but on the basis that psychoactive effects from this drug were "indirect"—a specification that doesn't appear in the law's definition.
In a paper published in the journal Addiction this week, policy experts Peter Reuter and Bryce Pardo from the University of Maryland also take issue with the "overly broad" definition of psychoactive substances in the Act, and note that it doesn't differentiate between the potential harms of different drugs.
"It implies that any substance, other than those exempted, has at least the risk of causing harm," they write. "Not only does it include new substances about which next to nothing is known, but also some substances which are known to be of minimal to moderate harm."
The authors give the example that laughing gas (nitrous oxide) is included under the Act, even though it's not new—and even though the Advisory Council on the Misuse of Drugs (ACMD) previously decided its harms weren't enough for it to be scheduled under the Misuse of Drugs Act. In the case of NPSs, we often don't know how harmful they are because the research simply hasn't been done.
Meanwhile, of course, the harms of exempted and legal psychoactive substances such as tobacco and alcohol are well documented.
"Why would anyone work in this field if the drug you make is illegal before you get to make it?"
Nutt said the blanket ban on psychoactive substances could even deter researchers from developing potentially helpful compounds, such as safer alternatives to existing drugs.
He's been working on an "alcohol substitute"—a pill that would have a similar effect to booze without the associated health risks. But substances aimed at this kind of harm reduction could presumably be illegal under the law unless exempted. Even though the law does allow research with psychoactive substances, Nutt suggested it could deter researchers and funders from pursuing work in this area.
"Why would anyone work in this field if the drug you make is illegal before you get to make it?" he said. "It'll completely stop innovation."
In regard to his "alcosynth" drug, he said, "It's clearly affected people's interest in investing, because how can you say it's going to be legal?"
He's actually unsure of whether his drug would be legal or illegal under the Act, because of the vague definitions it uses. Though he thinks it could be legal, he said he hasn't decided how he will continue with his research and that he could consider working in less restrictive countries, "because Britain is becoming medieval—we're becoming like an Islamic state, where all drugs were banned with the exception of caffeine and tobacco."
Given confusion over the law's scope, questions have also been raised about how it will be enforced.
"The question in front of any enforcement agency is: How do we establish whether this is a psychoactive drug?" explained Reuter, one of the authors of the Addiction paper, in a phone interview.
The problem is that there is no "litmus test" for psychoactivity. You can't put an unknown substance in a test tube and do a simple experiment that tells you if it's psychoactive in humans or not.
"And so what exactly is a police officer's next steps?" said Reuter. He gave the example of an officer finding an unidentified white powder deemed to be suspicious. "It's tested, does not show up as any of the known substances—it's a new substance. Where does the court go for evidence that this is in fact psychoactive?"
The Home Office gives suggestions for testing in guidance aimed at law enforcement agencies and prosecutors. One way to test a substance, for example, is to see if it binds to a specific receptor already known to be activated by psychoactive drugs. For instance, a synthetic cannabinoid could bind to the CB-1 receptor, like cannabis.
The Home Office explains that it has contracted a supplier to test a range of substances "detected in the UK in the last year." If these samples are considered psychoactive, then in the future law enforcement will only have to identify a substance chemically and, bingo, if it matches one of the tested substances, it's psychoactive. The Home Office states they can do this "reactively" if law enforcement encounters a new substance for the first time.
But while these tests may spot many common types of NPS—cannabinoids, opioids, benzodiazepines, etc—based on the receptors they're known to act on, they're not necessarily a catch-all for psychoactivity. Reuter said that you'd probably have to do human testing to find out if a truly novel substance was psychoactive in humans.
Critics suggest that the enforcement of the law could in practice work around a more specific definition of psychoactive substances than the law itself contains, largely targeting substances that mimic already-illegal drugs. Ian Dunt at Politics.co.uk points out that guidance to law enforcement is more explicit in this regard—but the definition in the law itself remains the same.
The guidance quotes an amended definition from the ACMD which defines a psychoactive substance under the Act, "A substance 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; as measured by the production of a pharmacological response on the central nervous system or which produces a response in in-vitro tests qualitatively identical to substances controlled under the Misuse of Drugs Act 1971."
But, confusingly, this amendment was not accepted into the Bill itself by the Home Office. In the law, the wording remains broader and just reads, "A substance 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."
This raises questions over how practical enforcement will measure up with the theory, and how this could change over time.
In an email, the Home Office said it had "put in place a world-leading testing programme to determine whether a substance is capable of having a psychoactive effect."
"The test results will be available to law enforcement agencies and prosecutors, giving them evidence to support their actions under the Act. We are confident that psychoactivity can be established under the definition in the Act through this in-vitro test," it said.
The Home Office did not respond directly to a question asking if there could be drugs covered by the Psychoactive Substances Act that couldn't be tested.
A key question over the law is whether it'll be effective or not. It's pretty clear already that it will likely stop sales through visible head shops.
But drug policy reformer Amanda Feilding, who has worked with Nutt and whose Beckley Foundation released a report on New Psychoactive Substances to coincide with the law coming into effect, said the ban would only drive the market for these drugs further underground.
"It's a very badly thought-out act, because where there is a demand, there's always going to be someone prepared to fulfil the demand, " she said. "That is something the government just doesn't seem to learn. It'd be much safer to look after the health of young people by regulating the safest available means by which people can alter their consciousness."
Feilding advocates for decriminalising and regulating classified drugs such as cannabis and MDMA, suggesting that the demand for NPSs arose largely as a result of these more classic substances being prohibited in the first place. She suggested that NPSs could be regulated in a way by which suppliers are liable for testing the risks of their substances.
Reuter said the law could at least get rid of the previous "ritual" of classifying drugs one by one based on little evidence and could limit the number of NPSs making it to the market, but added that he was concerned it could be enforced discriminatively owing to the amount of discretion left to law enforcement.
Overall, he would have liked to see more systematic research before the blanket ban was introduced—for example, a more in-depth look at Ireland, which has a similar law.
"Such a basic reformulation of drug policy surely should reflect a much deeper analysis of what has been the experience with this particular approach," he said.