Mephedrone and the ACMD: lessons from BZP and New Zealand's 'Class D' experiment?

Witnessing the media frenzy around mephedrone yesterday I was struck by the similarities with the situation that emerged around the last legal stimulant to achieve any real youth market penetration, namely BZP. BZP (Benzylpiperazine) was reviewd by the ACMD and, following their recommendation, brought within the Misuse of drugs Act just before last Christmas, but had been effectively removed from the 'legal high' market after the MRHA clarified that it was covered by the Medicines Act in 2007. There was never the level of media frenzy over BZP that we are now witnessing with mephedrone, probably because it was neither as popular nor (from the relatively little we know) as risky, and specifically was not directly linked to any deaths. Some journalists did their best to whisk up some hysteria (check out this joker in the Guardian for example), but it never really got any full blown drug-panic momentum.

But at the time the BZP issue was emerging (around 2006), Transform, aware that the drug would soon be under consideration, produced a briefing and submitted it to the ACMD. Central to that briefing was a consideration of New Zealand's policy on BZP, where a unique experiment was underway in which a new piece of legislation had been added to the conventional ABC system, in the form of a new 'restricted list' or  'Class D' as it came to be known, within which drugs would be legal for sale under certain conditions. This was, to our knowledge the first time that a non-medical stimulant drug widely used on the party scene, had been legally regulated for commercial sale anywhere in the world.

Since the briefing was written the situation in New Zealand has changed, and there are also obvious differences between the situation with Mephedrone and BZP. None the less, it was interesting to see David Nutt (who was sitting on the ACMD when we submitted our BZP briefing) suggesting the New Zealand Class D model in the Guardian CiF today. With all this in mind we thought it was worth revisiting the discussion and recommendations from the 2006 BZP briefing, as they seem pertinent to the current debate around mephedrone (not least since the ban on BZP arguably created the space in the market into which mephedrone emerged).

BZP as sold in 2006 

To note - the briefing was produced in October 2006, and some of the information is out of date (more up to date reviews of BZP have emerged). Also, whilst a Class D might be useful as a short term measure it  is not a long term solution and comes with its own problems (potentially further muddying public understanding of drug risks for example). If you want to know what Transform are advocating see here (it isn't prohibition, it isn't a Class D, and it certainly isn't powerful stimulants being sold without any regulation online as plant food).

The full 2006 BZP briefing, with references, is available here, the discussion and recommendations section is copied below:

Discussion:

Piperazines are psychoactive drugs and clearly not without risks. However, the assessments that have been done suggest that the risks are relatively low (see safety appendix), arguably on a par with or less than khat, another legal stimulant (in this case plant based) recently considered by the ACMD  - for which classification under the MDA was not recommended.

Whilst the demographic profile of khat use (largely limited to traditional use amongst the male Somali community) is very different to that of piperazines (mostly used in the party / club / dance music scene) some of the same conclusions apply.

Costs of prohibiting piperazines would include:

• Potential for the creation of an illegal market for drugs that have an established market and level of demand
• Profits being diverted from legitimate, taxed and legally liable producers/retailers into the hands criminal gangs and unregulated dealers
• Increased risks/harm to users from drugs of unknown strength and purity, sold without any health and safety information
• Removal of potential harm reduction gains achieved by diverting recreational users away from more dangerous illegal drugs such as amphetamines (including methamphetamine) and MDMA (ecstasy) and its analogues.
• Criminalisation of users, mostly young people
• An increase in enforcement costs to police, customs, courts, prisons and probation services

Are there potential benefits to prohibiting piperazines?

Benefits of such a move would seem to be primarily political (i.e. demonstrating ‘tough on drugs' credentials).

A deterrent effect from such a prohibition is possible, but doubtful given that there is already an established demand for these drugs, and those deterred would likely substitute back to other illegal equivalents. Such a deterrent effect is poorly supported by evidence. The Science and Technology Select Committee recently concluded that:

“We have found no solid evidence to support the existence of a deterrent effect, despite the fact that it appears to underpin the Government's policy on classification. In view of the importance of drugs policy and the amount spent on enforcing the penalties associated with the classification system, it is highly unsatisfactory that there is so little knowledge about the system's effectiveness.”

The Government presented no evidence in their response to contradict this position. Piperazines (primarily BZP) have been prohibited in a number of countries including the US and it would be useful to examine what effects this had on patterns of use, and knock on effects on the use of other drugs. Transform is not aware that any such research has been undertaken.

There would be no prospect of reduced crime and social disorder, since there is none currently associated with the use of piperazines. According to the New Zealand EACD:

“ there is no reported criminal behavior associated with the use of BZP & TFMPP, as they are moderately priced and have a lower dependence potential than illicit amphetamine” (page 6)

Can we leave the market to self regulate?

The third alternative is to leave the market as it is. This is clearly not a long term tenable situation, even if producers of UK products (from New Zealand) and UK retailers put in place a voluntary code of practice. Although current UK retailers seem to be acting more responsibly than in the past (with, for example, magic mushrooms), there is no guarantee this will be the case for all retailers, and experience with unregulated ‘legal high' markets in the past does not inspire confidence. The New Zealand EACD report states that:

“Because there are many new substances that could appear on the market in this way, the challenge for public health practitioners and regulators is how to respond to these new substances in a way that promotes the public health while protecting individual rights. They are generally of lower potency and price than of illicit amphetamines and methamphetamine, and they are commercially packaged, labeled with the major ingredients and their strengths. The distributors would argue that this is a responsible approach to a demonstrated demand for the effects given by these substances.

When first distributed, this was an approach that allowed users to exit the illicit market with its inherent risks and the often poor quality drugs. Substitution of illicit with Piperazine is occurring, mostly amongst users who are afraid of the damage to their lives that a conviction would bring and who also wish to normalise the transaction required to purchase their choice of recreational substance. However, being unregulated at this time, they are being promoted within the free market, which has the generation of profit as the driving force. This can as easily lead to market saturation as can the imperatives driving the black market. Unlike either novel foods or new medicines, these products are being marketed without adequate scientific safety assessments because there is no need for the distributor to seek regulatory pre-market approval from a regulatory agency.” (p.8)

What would be the benefits of introducing appropriate regulation of the market and licensing of producers and vendors?

The idea of having a ‘restricted list' separate from, or a ‘Class D' in addition to the main drugs legislation (i.e. the ABC classification system under the MDA 1971) has many advantages over the status quo:

• It would create an enforceable legal structure allowing effective state intervention and control of production, supply (availability), promotion and use. This is not possible under the minimally regulated existing market, any existing regulatory options (medicines Act, food supplement regulations), or under the unregulated criminal market that classification under the MDA would inevitably create.
• It allows for full risk assessment of each drug as the basis for tailored penalties/restrictions rather than as a part of the blunt and malfunctioning instrument that is the ABC classification system.
• This form of legislation is significantly more flexible than current arrangements under the Misuse of Drugs Act and would allow for restrictions to be changed rapidly in light of new research, emerging trends or changing conditions.
• It removes virtually all the risks inherent in criminal markets; separating consumers from the wider criminal market (which in the case of Dutch cannabis policy is suggested to have kept down levels of use of more dangerous drugs) and offering harm reduction benefits from the availability of drugs of known content, strength and purity, and supplied with health and safety information
• Harm reduction through diversion away from use of more dangerous drugs.
• Harm reduction in terms of reducing the risk of young people being branded with the stigma of a criminal record.

The wider debate over classification and prohibition / regulation

Inevitably perhaps, proposals for a ‘restricted list' and or ‘Class D' will be seen by some as a ‘back door to legalisation' of cannabis and perhaps other drugs, a sentiment aired during the policy debate in New Zealand. The NZ legislation passed, however, following an intelligent public and parliamentary debate and engagement with all the relevant parties.

Transform's position on the current prohibition of drugs is well documented. We believe the enforcement led approach has been spectacularly counterproductive – failing to deliver any of its stated policy goals, maximising harms associated with dug use, creating a crisis in the criminal justice system and fuelling crime at all scales, at home and in producer and transit countries. We believe that drug policy should be led by evidence of effectiveness, established harm reduction principles and public health science. This inevitably leads to the conclusion that regulated markets (with different regulatory models depending on the drug) offer better outcomes than absolute prohibitions, on all key policy indicators; crime, social nuisance, public health, welfare of young people and value for money expenditure.

We are not alone in this view of prohibition:

“Prohibition doesn't work, as the US found out many years ago.”

John Reid MP Labour (now Home Secretary in charge of drugs policy):

Jeremy Vine programme, BBC Radio 2, 11.11.04

…"we can prohibit, regulate or leave it to the market. Prohibition does not work - it drives the activity underground…”

“Only ideological extremists favour a free-for-all where only the laws of the market hold sway. So the third option is regulation - and regulation with as much emphasis on the quality of the debate as the policy outcome. 'Better regulation' has to mean government engaging people in the decisions that affect their lives and doing so in new and better ways”.

Tessa Jowell MP Labour: 'Grown up politics for an adult world' The Guardian 21.11.04

The Piperazine issue offers a real opportunity to do the right thing, not necessarily the politically expedient one. These are drugs that have yet to attract the attention of a media hungry for drug scare stories (although the first murmurings are beginning to be heard in Ireland), so currently there is little political capital to be made from a high profile crackdown. There is some breathing room in which to address this issue before it gets out of hand. Intelligently handled this need not be a political minefield, and sold as a pragmatic public health intervention to better control a potentially risky substance and keep criminals away from the trade, regulatory options need not be perceived as ‘soft' either.

Important lessons can be learnt from the recent UK experience with fresh magic mushrooms. Whilst there has been well founded criticism that class A is not the appropriate classification for magic mushrooms (or psychedelics more generally), the situation with magic mushrooms was considerably different from that which we are facing with piperazines. Fresh magic mushrooms were legal because of anomaly in the law, rather than because they were a new ‘legal high'. Furthermore they were potentially creating a new market and demand for psychedelics that did not already exist, whereas piperazines are entering, and potentially displacing, existing demand for illegal stimulants (amphetamines and ecstasy) on the party scene. The ban on fresh mushroom sales has been effective at closing down the retailers and returning the market to its previous position, with lower levels of use and production returning to informal harvesting and small scale illegal sales of naturally growing UK mushrooms, that are rarely prosecuted. If there has been a knock on effect in terms of users moving to other drugs (legal or otherwise) this is impossible to quantify, however likely. This ‘success' (at least from the Home Office's point of view) is far less likely to occur following a similar move with piperazines, as has been discussed above, and as was concluded by the NZ Expert Advisory Council.

Similarly lessons can be learnt form the different approach taken with khat, which was rather more pragmatically left unclassified following a thoughtful and thorough investigation and report from the ACMD (unlike magic mushrooms, where policy alternatives received only the most cursory of consideration).

Piperazines probably lie in a similar risk spectrum to these drugs and if we have a choice between prohibition under the Misuse of Drugs Act (magic mushrooms, ketamine, GHB), and leaving things as they are (khat), surely the option of regulatory models, which have demonstrable advantages over both, must now be seriously considered. This is likely to remain a live issue as new ‘legal' drugs continue to emerge into the recreational market but are not covered by the UN drug conventions (Kratom, Fly-agaric mushrooms, peyote cactus, salvia divinorum and nitrous-oxide all potentially warranting consideration).

The ongoing debate around the ABC drug classification system has been brought into sharp relief by the recent Science and Technology Select Committee report, which concluded there was a poor scientific basis in support of its efficacy as either a public health tool or criminal justice deterrent. Even though the Home Office has now reneged on its promise to have a thorough review of the classification system (despite the fact that this idea was welcomed by everyone in the drugs field including the ACMD, and specifically requested the Science and Technology Select Committee) it is hoped that possibilities for the classification system to include a ‘Class D' - offering the possibility of licensed sales of some lower risk drugs - will feature prominently in this ongoing discourse.

The recent ACMD report ‘Pathways to Problems' has recommended that alcohol and tobacco be specifically brought within the remit of the ACMD. Such a move will raise many difficult questions about the historical legal anomalies between legally regulated and totally prohibited drugs. There may well exist possibilities for including alcohol and tobacco in a new ‘restricted' category (which, in effect, they already inhabit, albeit under separate legislation), and also for moving other misclassified (e.g. some psychedelics) or unclassified drugs (e.g. khat) into the new regulatory system. Transform would welcome a debate on these ideas within the ACMD, given that they have now very publicly opened the door for such a discussion.

Transform welcomes the recent shift in approach to the drugs issue, away from heavy handed enforcement towards public health and harm reduction as the guiding principles, and the development of effective regulatory models for some of the less harmful drugs currently in a legal grey area is inevitably going to be an important part of this process. Piperazines, a fairly marginal issue from Transform's perspective, could offer a useful opportunity to experiment with regulation whilst the stakes remain low, rather than leaving the market to self regulate, or opting for another expensive and counterproductive crackdown.

Recommendations

• Initiate an official consultation as part of a formal engagement between the relevant Government agencies (including the Home Office, the Department of Health and the Treasury and key stakeholders including drug services, police and enforcement, NGOs, user groups, producers and retailers) to consider the three key choices for going forward regarding policy and legislation on recreational piperazines (status quo, regulation, prohibition). The possibility for a ‘Class D' or ‘restricted list' for lower risk drugs along the lines of the New Zealand model should specifically be included in the consultation.
• That the ACMD produce a report that considers the information available on piperazines, clarifies the legal status and knowledge on of the various substances in question, and makes recommendations on ways forward, in line with similar recent reports on cannabis, khat, methamphetamines etc.
• The ACMD should be specifically required to consider the models brought into New Zealand law, and make direct contact with colleagues on the New Zealand EACD, to discuss their findings and recommendations.
• In the short to medium Transform recommends the establishing in of a new ‘Class D' within the MDA to enable the licensed sale of certain drugs under the direction of the ACMD.