Are you ready for the Psychoactive Substances Act to become law?

Scottish Drugs Forum will be keeping our members informed of the upcoming Act, with updates being posted under the hashtag #NPSActFact

After almost a year of debate since its initial proposal, the Psychoactive Substances Bill reached Royal Assent on the 28th of January 2016, and will become law on the 26th of May 2016.

It is essential that all staff at drug services, services supporting people who use unbanned new pyschoactive substances, and people who use drugs are aware of the law and what this new Act potentially means for them.

So what is the Act?

The Act will make it an offence to produce, supply or offer to supply any psychoactive substance if the substance is likely to be used for its psychoactive effects, regardless of its potential for harm. The only exemption from the Act are those substances already controlled by the Misuse of Drugs Act, nicotine, alcohol, caffeine and medicinal products. On the 22nd of March 2016, the Home Office stated that "Poppers" or alkyl nitrites will also be exempt from the Act.

What will happen to the existing laws?

The Act doesn’t replace the Misuse of Drugs Act (1971) so laws around existing illegal (controlled) drugs will remain the same. Temporary Class Drug Orders (TCDOs), which are rapidly implemented temporary bans, can still be applied and the Human Medicines Regulations (2012) will remain the same.

The Intoxicating Substances Supply Act (1985) will be scrapped, which made it an offence to sell volatile substances (e.g. glues, gases) to under 18s if it was believed they would be inhaled to cause intoxication.

At present a substance causing concern must be reviewed by the Advisory Council on the Misuse of Drugs (ACMD) to assess any potential harm. The ACMD then advise the government on a course of action. The government do not have to take this advice, but are bound to consult with the ACMD first. The ACMD will still have a role and a ‘new’ or emerging psychoactive substance can still be brought under the Misuse of Drugs Act, but this Act was introduced without fully consulting the ACMD and will fundamentally change drug legislation.  

Is it a criminal offence to possess a banned psychoactive substance?

Possession of a psychoactive substance will not be an offence, except in a ‘custodial institution’ (prison, young offender centre, removal centre etc.). Possession with intent to supply, importing or exporting a psychoactive substance will all become offences. 

What happens if a person is stopped and searched by the Police and they have a substance in their possession?

Police have powers to stop and search individuals and premises, however possession of psychoactive substances will not be an offence. Which substances are actually psychoactive is far from legally clear at present. Currently the Association of Chief Police Officers (ACPO) guidance states that a ‘legal high’ should be treated like a controlled drug until proven otherwise. There will presumably be further ACPO guidance issued in relation to the new Act.

Is it illegal to buy or import banned substances using a foreign website?

The importing of a psychoactive substance would include buying a psychoactive substance from a non-UK based website, which may lead to individuals being prosecuted. It is important that users understand this - especially if this is the means by which they currently buy substances.

What will happen to outlets which currently sell the substances?

The Act is intended to act against shops and websites supplying ’legal highs’. If the experience of similar legislation introduced in Ireland is repeated, the visible outlets or ‘head shops’ that sell the to-be-banned substances will most likely disappear. The Act is also quite specific in that the onus is on the sellers and producers of a substance to ensure it is not ‘likely’ to be consumed for its psychoactive effects.

It has been suggested previously by the ACMD that the Act will push the supply of these substances underground into the hands of criminals, which will inevitably lead to unknowns in purity, strengths and chemical makeup which can all present potential harms.

What are the penalties that can be imposed under the Act?

The penalties that can be imposed under the Psychoactive Substances Act are laid out below.

Offence Summary Indictment
Possession Not an offence Not an offence
Possession in a custodial institution Up to 12 months and/or a fine Up to 2 years and/or a fine
Possession with intent to supply Up to 12 months and/or a fine Up to 7 years and/or a fine
Supply/offer to supply Up to 12 months and/or a fine Up to 7 years and/or a fine
Production Up to 12 months and/or a fine Up to 7 years and/or a fine
Importation/exportation Up to 12 months and/or a fine Up to 7 years and/or a fine
Failure to comply with a Prohibition notice Up to 12 months and/or a fine Up to 2 years and/or a fine

Offences under the Psychoactive Substances Act would be considered ‘aggravated’ if they involved
supply to under 18s, were near a school or a children’s home (Local authority children’s homes etc).

Are there any psychoactive substances that are exempt?

Nicotine, alcohol and caffeine will be exempt from being classed as psychoactive substances. Medicinal products as defined by the Human Medicines Regulations (2012) and drugs already controlled by the Misuse of Drugs Act (1971), will also be exempt. Further exemptions can be made by the Secretary of State after consultation with the ACMD.

How will the law change according to poppers?

The Home Office has made an exemption to the upcoming Pscychoactive Substances Act for "Poppers" or Alkyl Nitrites, which will allow the substances to be continued to be sold and used. This change in preceedings was brought about after the ACMD provided a report on the 16th of March 2016, stating that they did not belive that poppers constitued being a pyschoactive substance. The government made the decision to exempt poppers from the Act on the 22nd of March 2016. Click here to read more information about this.

What will happen to nitrous oxide gas?

Nitrous oxide (when used as a propellant for whipped cream) would be exempt as a food preparation, but would be considered a psychoactive substance if it was sold with the likelihood of being used recreationally for a psychoactive effect. This is pretty much the situation at the moment, however the onus will be on the supplier to ensure the product was not intended for this purpose.

Scottish Drugs Forum will be keeping our members informed of the upcoming Act, with updates being posted under the hashtag #NPSActFact

This information was collated from ‘A Simple(ish) guide to the Psychoactive Substances Act’ by DrugWatch UK. Click here to read the document in full.

Other useful links:

On the 20th of May, the UK Government brought out communications on the matter that may be of use.

NPS Communication Pack for Enforcement Partners

Guidance for retailers

Guidance for researchers

Circular with additional detailed information

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