BRITAIN and the European Commission are squabbling over how to regulate "legal highs", the troublesome laboratory-made narcotics that are too new to have yet been banned. Today Britain announced that it wants to opt out of a proposed new Europe-wide system to curb the drugs. The Commission’s proposals look fairly sensible at first glance, reducing the amount of time that it takes to ban new drugs from up to two years to just a few weeks. Britain objects on the basis that the new rules would allow a two-tier system of sorts: the Commission suggests that whereas the most dangerous legal highs should be banned altogether, those posing only “moderate” risk would be banned only from the consumer market (ie, they would still be available for industrial use and research). Those posing only “low” risk would not be banned at all, at least at European level. Any attempt to keep up with the legal-highs market faces an uphill struggle. Until a few years ago about ten new legal highs were reported to the European authorities every year. In 2012, more than 70 new drugs were reported (see chart, courtesy of the latest annual report from the European Monitoring Centre for Drugs and Drug Addiction). The real number of new highs entering the market is presumably higher still. Neither Britain nor the European Commission has much hope of keeping up with such an innovative market.

The game of catch-up creates two dangers. New drugs stay on the market for only a short time before being banned and replaced with slightly different potions, which means that drug users—who make up 36% of the population, as measured by lifetime use—have little time to get to grips with the strength and side-effects of different concoctions. Cocaine and cannabis have been around for long enough for most people to know that the former drug is far more dangerous, and so far fewer people take it. When legal highs are around for only a few months, people don’t get the chance to know their Triple Sod from their Yellow Bentines. Relatedly, the incentives are all wrong for the companies that make legal highs. If the drugs were traded freely, manufacturers would compete to come up with products that got the user high while doing him little damage. (Look at the success of “light” cigarettes, for instance—and consider the millions to be made by the company that invents hangover-free beer.) But under the current system, manufacturers’ main imperative is to tweak their existing product so that it no longer falls under a ban. After the tenth such iteration, a once-mild product may become something far more damaging.

Britain’s government is carrying out a review into legal highs, which is due to report back in the spring. One model it should take a close look at is the New Zealand regime, enacted last year, which we discuss here and here. Rather than banning drugs after they have been launched onto the market, as most of the world currently does, New Zealand proposes to test and license drugs before they are launched. The government will thus be ahead of the manufacturers, rather than continually catching up with them. Rather than bickering with Europe, Britain might want to have a look at what is happening over in the Pacific.