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The highs and lows of the Psychoactive Substances Act

The highs and lows of the Psychoactive Substances Act

In July 2013, the Government implemented the Psychoactive Substances Act (PSA) in response to the prolific use of so-called “legal highs” in New Zealand.

The implementation of this law was not without its challenges, making it a fascinating thesis topic for 28-year-old Dr Marta Rychert.

“The PSA established the world’s first regulated legal market for ‘new drugs’. It received significant international attention as an innovative, bold and balanced response, yet the implementation process turned out to be problematic,” she says.

The PSA is also an important piece of law that could have implications for how the legalisation of cannabis could be rolled out, should the Government go down that path.

“My research shows that a rushed policy process, without thorough consultation with communities or key stakeholders, may have dramatic implications for the success of the law change. The debate about how we want to move away from prohibition should start now, not in the days or weeks leading up to the referendum,” Dr Rychert says.

“Cannabis and ‘legal highs’ are not ordinary commodities – they are risky products. When we move away from prohibition, we need to consider what safeguards should be put in place to protect our communities. Taxation, strict regulation of retail sales and product quality standards are important elements, and so is the implementation process,” she says.

Rather than criminalising the market and banning products, the PSA aimed to regulate synthetic drug manufacturers who had to prove their products were safe. Of the 350 different synthetic drugs on sale in New Zealand at the time, around 41 were allowed to stay on shop shelves as they were deemed safe enough for an interim exemption. Those products were later banned after public outcry.

“The ban inadvertently pushed synthetic drugs underground and handed power over to a black market. Sadly, in recent months, more than 20 people have died, most probably due to the use of illegal synthetic cannabis,” Dr Rychert says.

“The original legislation aimed to prevent this type of situation by putting in place manufacturing and quality standards and retail regulations. My PhD explored why the innovative response to synthetic highs didn‘t proceed as planned. There were a number of problems, both in terms of how the law was designed and implemented.”

Dr Rychert says the law did not include any price control provisions, such as excise tax, and this facilitated “price wars” among operators. “As the market commercialised, the industry used strategies previously observed in research on alcohol and tobacco sectors – for example the promotion of products targeting vulnerable, younger customers. This has important implications for public health. The time, resources and planning required to successfully implement the Psychoactive Substances Act also appeared to be underestimated.”

Public submissions are currently underway for the Psychoactive Substances (Increasing Penalty for Supply and Distribution) Amendment Bill. The bill proposes to increase the maximum penalty for people who illegally supply psychoactive substances from two years to eight years. It recently passed its first reading in Parliament in a 65 to 55 vote. Labour and the Greens opposed increasing jail time for suppliers of synthetic drugs, but National and New Zealand First voted in favour of the change.

Dr Rychert’s research could help shape future discussions around legalising cannabis in New Zealand.

“In the last five years or so, parts of the United States, Canada and Uruguay have legalised cannabis for recreational use and it’s anticipated that more countries will follow, including New Zealand which is due to have a referendum on cannabis law reform by 2020. If policy change follows, we need to make sure the regime we implement will best serve the benefits of legalisation and, at the same time, prevent an increase in substance dependence.”.

A critical analysis of the implementation of a legal regulated market for psychoactive substances (“legal highs”) in New Zealand, co-authored by Dr Marta Rychert and Associate Professor Chris Wilkins, was recently published in the International Journal of Drug Policy. Dr Rychert published five further papers from her doctoral thesis and is now continuing her research as a post-doctoral fellow at Massey’s SHORE and Whāriki Research Centre in central Auckland.

Dr Rychert holds a master’s degree in law from the University of Warsaw, Poland, which is her home country. During her legal studies she also spent several years as an exchange student and a visiting researcher in Portugal at the University of Lisbon and the University of Porto.

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