New head-shop bill will cast net too wide
Firstly, I want to make my stand on head-shops and “legal highs” clear from the outset. I’m completely against any sort of artificial or “legal” high, and commend the government on the pace at which they’ve moved to legislate against these substances, but I feel that like most pieces of legislation which make it through the Oireachtas at break-neck pace, the new and proposed head-shop legislation could have been a bit better considered.
The Law: Misuse of Drugs (Exemption) (Amendment) Order
The first thing I wanted to do when I heard about the new “ban” on head-shop products, was to find out in exactly what terms the legislature had drafted the law, so as to get a feel for exactly what had – and what had not – been banned.
The first placed I checked – naturally – was the on-line version of our Statute Book, a compendium of all legislation which is in force and binding on the citizens of Ireland. Despite my best effort, though, I could find anything. Eventually, I did manage to locate the relevant statutory instrument: Misuse Of Drugs (Exemption) (Amendment) Order 2010 (S.I. No. 202 of 2010). This is a Statutory Instrument, rather than an Act (as has widely been misreported in the media). This is sort of like a toned-down version of a full blown act, in which – instead of going to the trouble of trying to push a full blown Statute through parliament – a Minister uses his/her power as a member of the Cabinet to make an Order under a parent Statute, in this case the Misuse of Drugs Act. The new Statutory Order is available on the Department of Health and Children’s website. In short synthetic cannibinoids, BZP Derivatives, Mephedrone & related Cathinones, GBL and 1,4 BD have all been banned. What this has done, in effect, is clear up the most commonly sold products at our national headshops. Synthetic cannibinoids covers all the products whose effects mimic real cannabis, and so on. What the Order doesn’t do, though, is comprehensively ban anything that a headshop could possibly sell that would be deleterious to one’s health.
[By the way, it's an absolute joke that the online version of our Statute Book shouldn't even be up to date! The Statute Book is one of the most basic things in a functioning democracy and not having our online one up-to-date is almost as bad as the online Dail site not having the most recent debates up]
Barrys' could be outlawed if the Authority sees it as coming within its "remit"
The Law to Come: Non-Medicinal Psychoactive Substances Bill 2010
This one, for me, poses a problem. The question is this: how can we ban substances which are bad for peoples’ health, and mimic getting high (so called “legal highs” – soon, of course, to be a misnomer) but still keep lawful legitimate herbal products. The proposed solution is this Bill.
Firstly, let’s consider what psychoactivity is. Well, there are really two important words: psychoactive and psychotropic. Something which is psychoactive affects the mind – in any way (the word is comprised of two parts: the suffix ‘psycho’, meaning the mind, and ‘active’, meaning to have an effect on the mind). Psychotropic means something that changes the state of the mind (‘psycho’, again, refers to the mind, ‘tropic’, means something which changes another thing). Therefore, calling a substance psychoactive or psychotropic means more or less the same thing.
The definitions section of the Bill sets out precisely what we mean by non-medicinal psychoactive substances:
“non-medicinal psychoactive substance” means any product or substance that has a psychoactive effect, that is recognised by the Authority as falling within its remit, and that is not covered under the Irish Medicines Board (Miscellaneous Provisions) Act 2006, the Pharmacy Act 2007, The Misuse of Drugs Acts 1977 and 1984 as amended or the Intoxicating Liquor Act 2003″
What kind of a message does it send out if our Statute Book is 52 Statutory Instruments out of date?!
OK, so let’s break that down a bit. We start out by defining a NMPS (my abbreviation) as anything that’s “psychoactive”. As I’ve just explained what psychoactive means, let’s be clear that at the moment we’re including: tobacco, alcohol, coffee, Difene, Nicorette, tea, as well as everything that’s sold in a headshop. Obviously we don’t want to ban tea or coffee, so we begin to include exceptions. Firstly we rule out stuff covered under the IMB Act, so that’s legitimate pharmaceuticals made legal; the Misuse of Drugs Acts 1977 excludes more conventional drugs, which were illegal anyway, the Intoxicating Liquor Act takes care of alcohol, by far the most commonly consumed psychoactive in Ireland. There’s one caveat, though: a “psychoactive substance”, for the purpose of the Act, must first “by recognised by the Authority [Non-Medicinal Psychoactive Substances Regulatory Authority] as falling within its remit.
Here are the problems so far: tobacco is technically illegal, at least until the NMPRSRA excludes it from its remit. This should already set off alarm bells about sloppy drafting. The same can be said for tea and coffee. Secondly, we’ve already set up a whole new Authority: the Non-Medicinal Psychoactive Substances Regulatory Authority. Besides the fact that it doesn’t exactly roll off the tongue, we have to wonder who the Authority will be comprised of, what criteria it will use to decide what falls within its “remit” (or doesn’t), as well as a whole host of other questions.
The real problem, I think, is going to be the decision as to what’s medicinal, and what’s non-medicinal. There are literally thousands of psychoactive substances in the world: tea is psychoactive because it contains L-Theanine, coffee because it contains caffeine, tobacco contains nicotine, but we don’t want to ban all of these. The real problem, though, won’t come from the everyday substances just mentioned (because they obviously won’t be banned) but from herbal medicines which could be unfairly and illegitimately banned by a heavy-handed “Authority” (to abbreviate).
Valerian: Natural sleeping aid could be illegalized if Authority sees it as coming within its "remit"
For instance, there are plenty of worthwhile psychoactive herbal medicines, but will they be considered to have a valid medical use and so pass the test of coming within the Authority’s remit?:
St John’s Wort: Psychoactive constituent hypericin, used to treat depression.
Valerian: Psychoactive constituent valerianic acid: used to treat nervous anxiety.
Kratom: Psychoactive constituent: many alkaloids, useful for depression, anxiety, stress.
Kava: Psychoactive constituent: kavain, plus many others: used medicinally for anxiety.
That’s just a tiny snapshot of the literally hundreds of medicinal herbs that aren’t legal highs but could be caught within the grip of the to-be-founded NMPRSRA if they’re not considered “medicinal” enough to be excluded.
The real problem, though, is that when we’re dealing with herbs we have two highly conflicting medical viewpoints: the allopathic viewpoint (that of conventional doctors) and the homeopathic/naturopathic viewpoint (that of herbal medicine practitioners). Conventional medics don’t view as “medicinal” herbal products which have not passed a series of rigorous clinical trials. Yet often they haven’t passed trials because of the prohibitive cost of clinical trials, and as herbal medicines aren’t billion dollar cash-cows (as pharmaceuticals are) there’s nobody to fund such trials.
This situation is made far worse by the planned composition of the Body. It will consist of ten members, none of which will have any background dealing with herbal medicine, expect from an inherently sceptical alleopathic background. The members will be: one from the Irish Medicines Board (notorious for their mistrust of herbal medicine after regulating St John’s Wort and banning kava), another from the Food Safety Authority, another from the Pharmaceutical Society of Ireland (same problem here), one member of the Gadai, one from the HSE, one from the National Advisory Committee on Drugs, as well as four nominated by the Authority based on their qualifications. The problem – theref0re – is that not even one of the ten members will likely be anything other than hostile to most herbal medicine, will probably view these useful herbs as no different to the harmful stuff that was being sold in head-shops, and we’ll all suffer as a result.
By Daniel O'Carroll
May 16 2010
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New head-shop bill will cast net too wide