New Zealand’s rushed law to create world’s first regulated legal market for ‘legal highs’ has implications if regulating cannabis is to follow, found a PhD research project.

Dr Marta Rychert, who works for Massey University’s SHORE & Whāriki research centres, recently graduated with her PhD looking into the policy process leading to the groundbreaking Psychoactive Substances Act 2013.

Rychert said the novel law received significant international attention as an innovative, bold and balanced response, yet the implementation process turned out to be problematic. She said the Act (known as the PSA) was also an important piece of law with implications if the Government looked to go down the path of legalising cannabis.

“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,” said Rychert.

“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, said Rychert.

She said 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. But 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,” she said.

The original legislation had 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,“ said Rychert.

She said there were a number of problems, both in terms of how the law was designed and implemented. For example 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 said her 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 paper based on her studies – A critical analysis of the implementation of a legal regulated market for psychoactive substances (“legal highs”) in New Zealand, that she co-authored with Associate Professor Chris Wilkins, was recently published in the International Journal of Drug Policy. She 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.

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  1. PSA threw the baby out with the bathwater.

    It appears this paper has considered PSA without acknowledging why it was unworkable from the get-go (it failed to deal with or resolve cannabis, its prevalence, culture and current business practices, both black, grey and evolving legal use) or benchmark where we are now (prohibition-related harms). The reason the law was rushed was not explored either. (an election that saw the “Restricted Substances Regulations 2008” gazetted and come into force, notably by ‘Order in Council’ – just as this writer told the Select Committee how to do it, and that it embodied all that was needed to reduce the impact of synthetics/emerging alternatives.) National, and more specifically Hon Peter Dunne sold us a pup that wouldn’t hunt. Yet RSR2008 was NEVER FOUND WANTING.

    Professor David Nutt said of RSR2008 and its enabler, the 2005 amendments to the MoDA1975, “world class”. (it was that comment Nutt made at an earlier Te Papa event organised by the MoH that Dunne, it seemed purloined as speaking of ‘his’ PSA) going onto say the RSR rules were so good “he wished he had thought of them himself” (in answer to question posited at his ChCh lecture, Rolleston Theatre, Otago School of Medicine.)

    The explanatory note is instructive and the core reason why David Nutt, when asked about RSR’s suitability for embracing Cannabis, his retort “Emphatically Yes” resonated with this non-PhD policy wonk!

    So important, that RSR2008’s Class D innnovation was silenced and not spoken of again, the advocates and architects of PSA colluded with Police (in particular NHQ, Drug Intelligence) to ban any questions or support for it, or critique of the processes that saw it devolve into the waste bin by issuing a trespass order on the writer, in Wellington to attend the ‘public invitation’ to the MoH funded symposium, also attended by UNODC officials, with the verbal threat from two senior Police officers ‘to get the boys down’ to Te Papa’s venue.It was the newly anointed Dunne’s first significant foray into, and pronouncements on PSA (for which there was to be no public input via Select Committee and thus could have avoided the animal testing ), noting that the executive of the NZ Drug Foundation was complicit in aiding this anomaly.

    PSA is an empty vessel. RSR2008’s “concise, erudite and utterly workable” [Senator Roger Goodman, Washington, Dem] rules could have ‘lead the world’.

    [The writer notes that, despite earnest batting, the Chief Executive of the Community and Public Health, Canterbury District Health Board, saw fit to have the writer ‘tossed out’ of Healthy Christchurch, arguing that cannabis is illegal, it is inconsistent with sponsor aspirations and there was no need for advocacy at the table. Just whose balls are being tampered with ?]


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