How the Psychoactive Substances Act ushered in a new era of prohibition

In May 2016, a blanket-ban on all mind-altering substances was introduced by then-Home Secretary Theresa May.

Photo by JOSHUA COLEMAN on Unsplash

The Psychoactive Substances Act, which became law in 2016, was supposedly created to combat the rise of “legal highs” in the UK. Laboratories design and manufacture new substances, intended for use in research, which can often have similar effects to existing drugs: 1P-LSD, for example, has similar hallucinogenic effects to the Class A drug LSD. However, since it is a different substance, it was legal to produce, sell, and possess.

Synthetic cannabinoids, usually known as ‘spice’, came about in the same way. These drugs were originally sold as a legal alternative to cannabis because they were very similar to THC, the molecule in cannabis responsible for its psychoactive effects. As the first wave of synthetic cannabinoids — which were developed for legitimate research — were criminalised, newer, more powerful ones took their place, and as this process repeated the spice sold in shops deviated further and further from THC.

Before 2016, legal highs — also known as novel psychoactive substances (NPS) — weren’t too hard to find. As well as being available via the same routes as illicit drugs, the internet and street dealers, they were also sold in headshops. But a government report in 2014 found that the people using NPS were mostly the same people using traditional drugs that were already illegal.

Theresa May’s solution was to introduce this new legislation, making the production, sale, import or export of “psychoactive substances” a criminal offence.

The Psychoactive Substances Act doesn’t ban a list of substances — it bans every psychoactive substance, which it vaguely defines as a substance which affects the brain, with a few specific exemptions. These exemptions include alcohol (responsible for 8000 deaths per year in the UK) and nicotine (tobacco is responsible for 100,000 deaths per year). Legal highs, on the other hand, were responsible for about 60 deaths in England and Wales in 2013.

“For the purposes of this 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” (source)

The problems with this legislation are vast. Banning the production of substances which affect the brain will have a huge impact on psychiatric medicine — we’re already 60 years behind where we should be due to the draconian criminalisation of MDMA, psychedelics, and other drugs with unprecedented potential for treating mental illness.

A blanket ban is near impossible to enforce — nobody really knows what a “psychoactive substance” is because the definition is so vague — and it bans dozens, if not hundreds, of safe, useful substances, many of which don’t even exist yet.

Even gas used for whipping cream, nitrous oxide, is covered by the act: it’s sometimes used recreationally because it causes euphoria and other effects when inhaled. Under the Psychoactive Substances Act, retailers are expected to refuse to sell nitrous oxide to customers if they suspect they intend to use it as a drug, and they can be prosecuted if they fail to do this. The government’s official guidance for retailers presents a ‘case study’ in which a customer attempts to buy whipped cream canisters:

A customer who looks over 25 attempts to buy several containers of whipped cream canisters containing nitrous oxide from a shop at 11pm. They are not buying anything else. The cashier asks the customer why they’re buying whipped cream. The customer hesitates in replying and when they do they seem intoxicated, slurring their words. In this scenario the cashier should consider not selling the goods. (source)

The guidance explains that the time of day, the age of the customer, what else they’re buying and whether they seem intoxicated should be considered when deciding whether to sell an item. Not only is it easy enough for people buying these drugs for their psychoactive effects to avoid raising suspicion, but people buying items for legitimate purposes may find themselves discriminated against and refused sale.

These problems are insignificant, though, compared to the glaring flaw that should have stopped this legislation in its tracks: it doesn’t work.

Prohibition has always been controversial. We’ve been trying to prohibit various drugs for the last half a century, and yet mortality rates in 2014 were the highest ever recorded. An overwhelming amount of recent research, and real-world examples such as Portugal and the Czech Republic where possession of all drugs were decriminalised, has demonstrated categorically that banning substances leads to more addiction, more deaths, more violent and organised crime, and actually has little to no effect on how many people use these drugs.

But we don’t even need to look as far as Portugal. Ireland, in 2010, introduced their own Psychoactive Substances Act, which the British Act is based upon. Deaths from the newly banned substances increased by 200% between 2009 and 2013. The number of people using them also increased dramatically: from 16% of the population in 2011 to 22% in 2014. Ireland now has the highest proportion of psychoactive substance users in the EU, by a significant margin.

While the banning of legal highs in Ireland shut down the shops selling them, it didn’t stop them from being sold — the production and supply of the drugs just shifted from the hands of legitimate businesses to criminal organisations and street dealers. This also had the predictable effect of making it impossible to regulate what was being sold. Legal headshops were easily identifiable, could have their products tested, and products they sold could be traced back to them.

Since street dealers operate illegally and secretly, they can’t be held accountable for the quality of their products — meaning they can get away with cutting their drugs with other, possibly more dangerous substances to increase the weight (and the price). They could even sell one drug while claiming it’s a different drug. People buying from illicit suppliers have no way to really know what they’re taking, which puts their health at much greater risk.

Two years on…

A Home Office review of the Psychoactive Substances Act, carried out in 2018, found that the use of Novel Psychoactive Substances (which were previously known as legal highs) has decreased overall, but in some groups it has increased, especially among vulnerable groups and in prisons.

The review also found that overall drug use has stayed the same and use of Class A drugs has increased since the act was introduced, indicating that many users may have switched from using NPS to using traditional drugs. Testing of patients presenting with drug toxicity in 22 UK hospitals found that the percentage of patients who had consumed NPS decreased after the Act came into law, but that the percentage who had consumed conventional illicit drugs increased by almost the same amount, which again suggests that people simply switched from NPS to traditional drugs.

More importantly, the review found that the potency — and the danger — of available drugs has increased. A test of NPS purchased in Manchester found that “these samples were up to 700 times stronger than what had previously been sold in head shops”. While there may be fewer people using these drugs, they are much more dangerous.

This result is counter-intuitive. It makes sense that banning drugs should reduce harm. But this idea depends entirely on the assumption that people stop using drugs when they’re banned. As 50 years of drug prohibition has proved over and over again, they don’t. When drugs are banned people keep using them, and the harms and problems associated with drug use grow significantly.

Going forward

Approaches to drugs across the world are changing as people begin to accept that the War on Drugs can’t be won. Canada fully legalised non-medical cannabis use in 2018, joining Uruguay and several U.S. states. Colorado legalised cannabis alongside Washington in November 2012 and has collected almost $1 billion in tax and licensing revenue from the cannabis market since 2014, while the harms predicted by prohibitionists have failed to materialise. And in November 2016, three months after the UK introduced the Psychoactive Substances Act, Proposition 64 passed in California, a voter initiative resulting in the legalisation of non-medical cannabis.

Opposition to prohibition from the scientific and medical communities is growing rapidly. In 2016, both the Royal Society for Public Health and the Faculty for Public Health condemned our system of prohibition and called for decriminalisation of all drugs. This was jointly echoed by the United Nations and the World Health Organisation in 2017.

Harm reduction policies, which aim to reduce the harms of drug use by encouraging and enabling safer use rather than attempting to prohibit drugs entirely, were popular in the 1980s but were mostly abandoned due to political and legal pressure. But the harm reduction approach is gaining favour once again in many countries in the form of supervised drug consumption facilities where drug users are prescribed clean heroin and supervised by medical professionals; realistic drug education which acknowledges that young people will use drugs and teaches them how to stay safe, similarly to the shift in sex education focusing on safe sex instead of abstinence-only; and syringe exchange programs, which are criminalised in much of the U.S., are reducing transmission rates of diseases like HIV and hepatitis by reducing sharing and re-use of needles.

But for the UK, where the architect of the Psychoactive Substances Act is now Prime Minister, there’s no end in sight. How much more harm will be done before we accept that we’ve lost the War on Drugs?