Is banning legal highs effective?

Learning from the Hungarian experience
Peter Sarosi
Thursday, January 19, 2012

New psychoactive substances (commonly known as legal highs) are spreading across Europe with growing speed. Between 1997 and 2010 the early-warning system of the European Monitoring Agency on Drugs and Drug Addiction (EMCDDA) identified more than 150 legal highs, 65 in the past two years (24 in 2009 and 41 in 2010). These drugs pose a significant challenge to service providers, policy makers and law enforcement officials – and to the whole drug control system in general. It seems we need more than supply reduction and law enforcement to stop the flow of cheap research chemicals from China and India - an HCLU report on legal highs in Hungary.

The emergence of this new market in itself shows the inefectiveness of drug prohibition. This current epidemic of legal highs was partly caused by the collapse of the European Ecstasy (MDMA) market in 2008. That is, the (at least temporarily) succesful efforts of our politicians to prevent the large scale production of MDMA led to the rise of new legal substitutes to fill the gap in the recreational stimulant market. So now, instead of one relatively less harmful substance (MDMA) dominating the night life we have many new substances with unknown risks and harms. Governments try to respond the crisis of prohibition with more prohibition: restrict drug legislation and prohibit new substances as fast as they can.

Hungary follows the European trends. In 2008 the proportion of Ecstasy pill containing MDMA dropped to almost zero in a few months, at the same time, new substances appeared that have never seen before. In 2009 mephedrone (with a street name “Kati”) conquered the dance scene in the country, sold by online shops and disco dealers as plant food with huge profits. While in most European countries mephedrone spread mainly among party goers, in Hungary a significant proportion of injecting drug users turned to use this substance instead of heroin or amphetamine. The public health consequences were enormous: heroin is injected 3-4 times a day but mephedrone is injected 10-20 times more. This leads to an increased sharing of needles and syringes and an increased risk of injections. Service providers did not know anything about the short and long term effects of mephedrone and they were puzzled how to tackle the new psychiatric and physical complications. Actually they did not even know what are the drugs their clients use because in Hungary there is no anonimous drug testing system. Professionals are worrying that the closure of needle exchange sites and the spread of designer drug injection will lead to an HIV epidemic among IDUs like in Romania.

Until recently, the Hungarian government did not have a coordinated response to the emergence of new psychoactive substances. When BZP (a stimulant drug in the group of piperazines) appeared in Hungary, the government simply put this substance to the list of illicit drugs without any formal risk assessment or consultation procedures. What is more, the Hungarian Civil Liberties Union (HCLU) pointed out that the drug was sold in smart shops even three months after the ban came into effect because the government did not lay any emphasis to educate the public or even law enforcement officials. Responding to criticisms the government created a new commission on listing new psychoactive substance, this is a sub-commission of the Drug Coordination Commission (KKB), the major advisory body of the Hungarian government on drugs. The KKB has four representative biannualy elected by civil society organizations – I am one of them and as an NGO expert I became the member of the sub-commission too. I had an opportunity to closely follow policy making in this field.

In Hungary there are nine Schedules of illicit drugs, seven of them are simply copy-pasted from the 1961 and the 1971 UN drug conventions. The last two Schedules list the illicit substances that are not contained in the UN drug lists. List A is for substances with no recognized medical use while List B is for the substances with legal medical use. The government adds most legal highs to List A – mephedrone was added on January 1, 2011. In 2010 the police identified 18 new substances, among them, two were first observed in Hungary. After mephedrone was banned new substances appeared in the market: the most popular were synthetic cannabinoids from the JWH family solde as “spice” or “potpurri”, amphetamine type stimulant like 4-FA and cathinones like methylone and MDPV. Probably the most problemtic drug was MDPV because it is much more potent than mephedrone so injecting drug users who used to the same dosage as with mephedrone often overdosed on it. From January 1, 2012 nine new substances were banned: JWH-018, JWH-073, JWH-081, JWH-122, JWH-210, methylone, MDPV, 4-FA, 4-MEC. The distributors were ready with the answer and now we are learning strange new names like flephedrone or pentylone.

The government bans substance after substance just to let the distributors to introduce a banch of new drugs - is this a Sisyphus fight? The Hungarian government says it sees the end of the tunnel. It claims to have a silver bullet to end the rise of legal highs: the so called generic legislation. It means that from now on not only individual drugs but groups of drugs - not mephedrone or MDPV but all cathinone derivatives – can be banned. A new temporary list – List C – will be created for “new psychoactive substances” – or groups of substances. This list can be updated by the government with a simple decree within a very short period of time and the government will have one year to assess its risks and place it to an other list. The distribution or trafficking of List C substances will constitute a criminal offence, punishable with imprisonment. The simple possession for personal use will not be a crime.

This new legislation, says our government, will prevent traffickers from creating new legal substitutes of prohibited substances with modifying their molecular chain. NGOs like the HCLU are skeptical about the magic solution of generic legislation though. Hungary is not the first country to introduce generic legislation: the UK has done so years ago, and still, it has a growing problem of legal highs. It seems we need more than supply reduction and law enforcement to stop the flow of cheap research chemicals from China and India – the market is re-generated by constant demand. The HCLU submitted a proposal to the government in which we urge decision makers to follow a multidisciplinar and comprehensive approach and pay more attention on demand and harm reduction. We proposed to create an anonimous drug testing system and to allow drug users to test their drugs with the help of service providers. The government agreed to follow our advice and promised to provide funds for a drug testing scheme.

We have constitutional concerns with generic legislation too: the constitution requires the clarity of law. If a criminal norm does not define which substances are banned exactly but it gives a vague definition that can include substance never synthetized yet it is not a clear norm at all. How can you assess the risks of a substance which actually does not exist? Not to mention that the quality of risk assessment is very poor with existing substances too: without research data we do not have any evidence to support the prohibition of a new substance. We can say these substanes are too risky to distribute them freely but there is no evidence to imprison people for using or distributing them. So we propose that the temporary lists should only block the trafficking of designer drugs by making it an administrative but not a criminal offence. This can allow police to close down online shops or seize the substance without the use of criminal laws. Luckily even the government does not aim to criminalize the users but only the distributors of new psychoactive substances. We think all legislations should protect the consumers instead of criminalizing them.

One thing is sure: drugs, legal or illegal, will not disappear with criminalization. The most we can achieve is to substitute one substance with another. Maybe we should give up the zero-tolerance approach and explore alternative regulatory schemes to deal with drugs and drug users.

Peter Sarosi is the drug policy program coordinator of the Hungarian Civil Liberties Union (HCLU)

See also: 'Legal highs': The challenge of new psychoactive substances, by Adam Winstock and Chris Wilkins, TNI-IDPC Series on Legislative Reform of Drug Policies Nr. 16, October 2011