Controlling and Regulating Drugs – A Review of the Misuse of Drugs Act 1975

The Law Commission is recommending an end to the sale of new psychoactive substances until such products have been assessed and approved by a new drug regulator.

Currently the sale of synthetic psychoactive substances such as “Kronic” and “Puff” is completely unregulated creating what the Commission believes is an “unacceptable level of risk to the public.”

Law Commission President, Justice Grant Hammond, said the 35-year-old Misuse of Drugs Act has not kept pace with the rapidly evolving market in these new psychoactive substances. Drug manufacturers and sellers are currently able to evade the law by ensuring the chemical structure of their products differs slightly from that of prohibited drugs covered by the Act. Restrictions on sale can only be imposed retrospectively once authorities have gathered sufficient evidence to determine the level of risk to users, as happened with the stimulant BZP, or “party pills” in 2005.

Under the new regime proposed by the Law Commission in its latest report, Controlling and Regulating Drugs – A Review of the Misuse of Drugs Act 1975, manufacturers and importers of a new substance would have to obtain prior approval from a new regulatory authority before marketing and selling any psychoactive substance. They would also have to provide all available information about the safety of the substance, both in the application for approval and on an ongoing basis. 2

If the regulator judged there were unacceptable risks associated with a product, they could refer it for classification as a prohibited substance.

Any new product that met the regulator’s safety threshold would be automatically subject to a set of minimum restrictions similar to those applying to the sale of alcohol and tobacco. The same age restrictions applying to the sale of off-licence alcohol would apply to the sale of any approved product and manufacturers and retailers would be prohibited from promoting and marketing the products in all media, including online.

As well as considering how best to control new psychoactive substances the Law Commission was also asked to address the efficacy of the Misuse of Drugs Act in reducing the demand for, and supply of, drugs prohibited under the International Drug Conventions.1

1 These conventions prohibit the manufacture, import, export, sale and supply of a wide range of psychoactive substances specified in the Conventions.

The Commission has recommended the existing Act be repealed and replaced by a new Act administered by the Ministry of Health.

Justice Hammond said the thrust of the proposed new Act is to facilitate a more effective interface between the criminal justice and health sectors: “We need to recognise that the abuse of drugs is both a health and a criminal public policy problem.”

Justice Hammond said while the law must continue to impose heavy penalties on those who profit from the manufacture and sale of illicit drugs, there are compelling arguments for adopting a more holistic approach to individual drug offending, particularly when it is driven by addiction.

“There is clear evidence that treatment can be cost effective. Some studies estimate that for every $1 spent on addiction treatment, there is a $4 to $7 reduction in the cost associated with drug-related crimes.”

Among the key proposals contained in the report are:

• A mandatory cautioning scheme for all personal possession and use offences that come to the attention of the police, removing minor drug offenders from the criminal justice system and providing greater opportunities for those in need of treatment to access it.

• A full scale review of the current drug classification system which is used to determine restrictiveness of controls and severity of penalties, addressing

existing inconsistencies and focusing solely on assessing a drug’s risk of harm, including social harm.

• Making separate funding available for the treatment of offenders through the justice sector to support courts when they impose rehabilitative sentences to address alcohol and drug dependence problems;

• Consideration of a pilot drug court, allowing the government to evaluate the cost-effectiveness of deferring sentencing of some offenders until they had undergone court-imposed alcohol and/or drug treatment;

The Commission’s report was tabled in Parliament today.

NZLC R122- Part 1 Controlling and Regulating Drugs: A Review of the Misuse of Drugs Act 1975
NZLC R122 - Part 2 Controlling and Regulating Drugs: A Review of the Misuse of Drugs Act 1975