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Submission on Psychoactive Substances Bill, draft 1 - Tactical Ninja

Apr. 25th, 2013

03:37 pm - Submission on Psychoactive Substances Bill, draft 1

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I know only a couple of you are that interested, but I'd be keen for feedback. I have till next Wednesday to get it down.


To Whom it May Concern,

In principle I support this legislation as a step in the right direction for drug law in New Zealand. Having the Act be administered by the Ministry of Health is a commendable move in recognition of the reality of drug use and its effects in this country as a health issue rather than a criminal one. Additionally, it appears that the legislation is a genuine attempt to create a regulatory framework to address the safety of new synthetic substances. However, I have some reservations, listed as follows:

The Purpose of the Act (Clause 3) should include harm minimisation and the promotion of health in relation to the availability of psychoactive substances – this will bring the legislation in line with the stated aims of New Zealand's National Drug Policy.

In line with this purpose, Clause 4 should explicitly include harm minimisation and the promotion of health as mandatory considerations for persons or bodies exercising powers under the Act.

Additionally, the offence outlined in Clause 63 of personal possession should be removed. Criminalisation for personal possession increases harm in association with drugs, and is inconsistent with both current legislation (Section 4D of the Misuse of Drugs Amendment Act (No2) 2011), and with the recommendations made by the Law Commission's Report “Controlling and Regulating Drugs” 2011. The intention is to regulate the availability of substances, not to criminalise users, and the legislation should reflect this.

In Clause 11, it is stated that the Psychoactive Substances Expert Advisory Committee must comprise up to 6 members who must have expertise in pharmacology, toxicology, neurosciences, medicine, and “any other areas the Authority considers relevant”. This appears to bias the Committee's makeup towards the clinical assessment of a psychoactive substance. Given that the function of this Committee is to assess substances in relation to their potential harms and advise the authority on whether they should be available to the public along with increasing public awareness, this group should contain at least one expert in harm minimisation and one expert in drug policy. This would strengthen the Committee's competence to accurately assess issues of a non-clinical nature, for example the social impact of a substance's availablity to the wider public.

Related to this, the level of discretion given to the Minister in regard to stakeholder consultation is concerning. For example, Clause 27 mandates the Authority to produce a Code of Practice for manufacturing of psychoactive substances, however there is no provision for oversight as to who is consulted when producing the Code. The Clause states that the Authority must “consult with persons or organisations that the Authority considers to be representative of the interests of persons likely to be affected by the code or the proposed amendments to it.” I believe that this type of consultation should be informed by a minimum of a group of mandatory stakeholders, including experts on harm minimisation and the end users of the product, to ensure that consultation is sufficiently broad and inclusive. This requirement for consultation of a specified group of mandatory stakeholders should apply to the development of Regulations and approval processes as well.

Clause 41 requires the Authority to maintain a public register of approved products. In the interest of harm minimisation, the Authority should also be required to maintain a register of non-approved products, along with information as to the associated risk and types of harm that led to the refusal of approval by the Authority. This will improve transparency regarding the process of approval, and also help the general public identify potentially dangerous substances and therefore make safer choices.

Finally, applicants for approval of licences to manufacture or sell psychoactive substances are required within the Act to respond to requests for further information within 30 days or have their application lapse (see Clause 14, Clause 33). However, there is no requirement for the Authority to process applications in a timely manner. This allows for the possibility of extremely lengthy approval times, which are potentially expensive and obstructive to the development of the industry. A Clause should be included within Part 2, requiring the Authority to respond to applications within a reasonable timeframe.

In summary, this legislation represents a fairly robust framework for the regulation of legal psychoactive substances within New Zealand. The changes suggested above will improve the transparency of the Authority and increase the breadth of expertise that informs the process. In addition they will align the Act more closely with New Zealand's goal of harm minimisation in drug policy.

With the above changes included, I support the adoption of the Psychoactive Substance Bill.


The Bill in all its glory.

Comments:

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From:richdrich
Date:April 25th, 2013 04:13 am (UTC)
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I noticed a few things which I will probably submit on:
- the definition of a psychoactive substance is broad and encompasses many substances in common use (fuels, solvents) as well as many rarer lab chemicals. Will there be a huge list of such substances carved out under clause 81, or is it expected that the police will use their discretion not to prosecute a petrol station selling butane, or a catering supplier selling NOS? Which is never satisfactory.

There should be a clause excluding substances supplied or used for a purpose other than human consumption.

- there appears to be, unless I'm missing something, no legal framework for testing. a substance will obviously be unapproved when this commences,but will need to be manufactured/imported for testing purposes. There should be a process for a license to be granted for this purpose.

- substances that can be approved under the Act include analogues of controlled drugs but not anything specifically banned - e.g 2-CB could be approved but not MDMA. Ideally all substances could be considered, but the government probably doesn't want to go there?


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From:tatjna
Date:April 25th, 2013 04:33 am (UTC)
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It seems to me that the Act explicitly excludes any substance already covered by other legislation - so, the Medicines Act, HASNO, and the like. I am guessing that this manages to grab pretty much everything that's not specifically a legal high - but it does seem to provide a loophole for things to be sold as plant food, for example.

There isn't a framework for testing (could be pharmaceutical level or food level, you know?), and the Regulations around that are still to be developed - my reading took this as part of the mandate of the Authority and the Expert Advisory Committee. This is why my comments up there focus on the makeup of stakeholder and advisory groups - I think that set of criteria should include input from people who understand more than just the clinical side of safety.

There is a process for licencing of importation for testing in there somewhere. Clause 12 (1)c seems to cover it: "a licence to sell a psychoactive substance that is not an approved product." Further down (Clause 16) it talks about how those folks can't sell it to anyone who isn't a manufacturer, and the like. I'm not sure how to improve that, but maybe you have some ideas?

I think the govt doesn't want to include substances listed under the MoDA because of our UN obligations to prohibit certain things. I think it's a somewhat sad excuse given how easily we contravene some of our other ratified conventions (like rights of the child and the like), but in order to legalise and regulate many of the MoDA substances, we'd have to change a great deal of legislation. However, if you look at that interview with Dunne that's going round, he does qualify his statement about that with "Yet." This gives me hope that it's not completely off the cards.

PS 2C-B is a Schedule II drug under the UN conventions.

Edited at 2013-04-25 04:34 am (UTC)
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[User Picture]
From:richdrich
Date:April 25th, 2013 11:34 pm (UTC)
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I'm now confused:
- Clause 9 defines a 'psychoactive substance' as excluding 'controlled drugs' under MODA
- MODA s2 defines a 'controlled drug' as including a 'controlled drug analogue'
- the Bill excludes 'approved psychoactive substances' from 'controlled drug analogues' in MODA

So does that mean (as I think is intended) that controlled drug analogues can be approved? But how do you test them?

Also, while medicines, quack remedies, foods, alcohol and tobacco are included, substances regulated as hazardous are not (per se). So, for instance Xenon (which is an anesthetic and consequently (I would have thought) regarded as psychoactive, but is also used in (expensive) car headlights) would be illegal?
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From:tatjna
Date:April 26th, 2013 12:08 am (UTC)
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I was under the impression that things listed under HASNO were excluded as well.

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From:richdrich
Date:April 26th, 2013 12:40 am (UTC)
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I think not, see below.

The interaction with HASNO might be that if an approved substance is scheduled under HASNO, the Act might override it. The two laws address different things: HASNO is about inadvertent human exposure (as well as flammability, biohazard and so on).

does not include—
(i)a controlled drug specified or described in Schedule 1, 2, or 3 of the Misuse of Drugs Act 1975:
(ii)a precursor substance specified or described in Schedule 4 of the Misuse of Drugs Act 1975:
(iii)a medicine as defined in section 3 of the Medicines Act 1981 or a related product as defined in section 94 of that Act:
(iv)a herbal remedy (as defined in section 2(1) of the Medicines Act 1981):
(v)a dietary supplement (as defined in regulation 2A of the Dietary Supplements Regulations 1985):
(vi)any food (as defined in section 2 of the Food Act 1981):
(vii)any alcohol (as defined in section 5(1) of the Sale and Supply of Alcohol Act 2012) unless the alcohol contains a psychoactive substance within the meaning of paragraph (a) or (b) that is not alcohol:
(viii)any tobacco product (as defined in section 2(1) of the Smoke-free Environments Act 1990) unless the tobacco product contains a psychoactive substance within the meaning of paragraph (a) or (b) that is not tobacco:
(ix)a substance, mixture, preparation, article, device, or thing that is, or that is of a kind or belonging to a class that is, declared by the Governor-General by Order in Council made under section 81 not to be a psychoactive substance for the purposes of this Act.


and

85 Relationship with Hazardous Substances and New Organisms Act 1996
(1)This section applies to a psychoactive substance that is also a hazardous substance within the meaning of the Hazardous Substances and New Organisms Act 1996 (the HSNO Act).
(2)Nothing in this Act affects the application of the HSNO Act in relation to the psychoactive substance.
(3)However, in the event of any inconsistency—
(a)between the provisions of this Act and the provisions of the HSNO Act, the provisions of this Act prevail:
(b)between the provisions of regulations made under this Act and the provisions of regulations made under the HSNO Act, the provisions of regulations made under this Act prevail.
Compare: 1981 No 118 ss 5A, 110
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From:tatjna
Date:April 25th, 2013 07:35 pm (UTC)
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Yes. The NZCCL's lack of interest in drug-related CLs bothers me some. I don't know whether to put some effort in to changing that perspective, or just write it off and go about my business elsewhere. I was asked to submit an essay on the construction of drugs in our society, and I did so and it was completely ignored - it wasn't even acknowledged as having been received. That kind of put me off making any more effort tbh.

Meanwhile, thanks for your comments. I might add some letters after my name (now I have them!) to give it a bit more weight.

Also, chalking up that we agree! ;-)
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From:tieke
Date:April 25th, 2013 09:08 pm (UTC)
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Well, if all submissions were like yours, I'd not be refusing to ever do subs analysis again!

Re. the code of practice consultation - are there existing examples where the types of stakeholders to be consulted in developing a Code of Practice are described in the legislation? Might be worth referring to them if so - My concern around specifying CoP stakeholders in the legislation is that it could be overly specific and go out of date quickly, so it may be better to leave it open. But if there are existing examples, which are working, it would strengthen your case.
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From:tatjna
Date:April 25th, 2013 09:47 pm (UTC)
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I don't know about existing examples in legislation. I'm aware that the Authority that I deal with through my work requires consultation with mandatory stakeholders in its policy, but this is not required by legislation. However, it's good policy in terms of making sure certain stakeholders are included that might otherwise be overlooked. I'm aware it's a long shot putting that suggestion in there, but it's more of a go at planting the seed when it comes to writing policy guidelines.

Also, thanks! Listening to what you have to say about submissions, I've learned a bit about what not to do. ;-)
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From:tatjna
Date:April 25th, 2013 09:49 pm (UTC)
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Also, for the first time ever I put letters after my name! O.o
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From:c_maxx
Date:April 25th, 2013 11:28 pm (UTC)
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Look like good comments to me! The permittees I get to review should be so well informed. (excavation permits)
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