Written evidence submitted by the Home Office

1.     This evidence is divided into three sections:

• section 1 – information about the problem of psychoactive substances in the UK
• section 2 - the Psychoactive Substances Bill
• section 3 - the Home Office’s response to the inquiry’s questions

SECTION 1 – PSYCHOACTIVE SUBSTANCES

NPS use in the UK

2. According to the New Psychoactive Substances Review Expert Panel, “after years of stable and declining drug use, the emergence of NPS has been a ‘game changer”[1]. Since 2008/09, the UK has seen the emergence of new substances or products that are intended to mimic the effects of traditional drugs that are controlled under the Misuse of Drugs Act 1971 ("the 1971 Act") such as cannabis, cocaine, amphetamine, MDMA (ecstasy) and, more recently, opioids –these are collectively known as new psychoactive substances ("NPS"). While the emergence of new drugs is not in itself a new phenomenon, the speed and scale at which substances are now emerging distinguishes the current situation from previous years in which the drugs market was relatively stable. According to the European Monitoring Centre for Drugs and Drug Addiction[2], 101 new substances were identified in the European Union in 2014, continuing a five year upward trend, from 24 in 2009. Only a low number of these substances reach the UK with 11 new substances identified in the UK in 2013[3].

3. One of the dangers of NPS is that often you do not know what you are buying. The Home Office’s Forensic Early Warning System tested 968 samples of NPS in 2013/14, of which, 19.2% contained controlled drugs. And there are anecdotal examples where products with the same brand name (like "Black Mamba" or "Sparklee") purchased from the same supplier differed. Products are labelled "not for human consumption" and advertised as "research chemicals" to evade existing consumer protection laws.

4. The recently published “Drug Misuse: Findings from the Crime Survey for England and Wales 2014/15”[4] examined the extent of illicit drug use and, for the first time, generic NPS. The report’s findings for NPS are listed at Annex A. Of note, 279,000 adults in England and Wales aged 16 to 59 are estimated to have taken a NPS in the last year. Use is concentrated among young adults aged 16 to 24 with around 1 in 40 (2.8%) young adults aged 16 to 24 taking a NPS compared with 0.9% of 16 to 59 year olds.

5. As drafted, the definition of a psychoactive substance will include nitrous oxide. We do not know whether the respondents to the 2014/15 survey included nitrous oxide when answering if they had taken a NPS. However, if they did we would have expected to see a much higher figure for NPS as 7.6% of young adults admitted using nitrous oxide in the 2013/14 Drugs Misuse survey[5]. In 2013/14, nitrous oxide (7.6%) was the second most popular drug among young adults with use higher than powder cocaine (4.2%), ecstasy (3.9%) and amphetamines (1.6%), but lower than cannabis (15.1%).

6.     The harms of each NPS differ but they could cause unconsciousness, coma and death[6]. In 2013, there were 60 NPS-related deaths in England and Wales, and a further 60 deaths in Scotland where NPS were implicated in, or potentially contributed to the death[7]. Many NPS are only uncontrolled because their harms have not yet been assessed – not because they are inherently safe to use. Most substances have not been tested on either humans or animals, their purity is unknown and the substance is coming onto the market before a full understanding of their health and social harms are known.

7.     The Drug Misuse survey identified shops and social supply (from friends, neighbours and colleagues) as being the main sources for NPS. Head shops are the main high street outlet for NPS and the Home Office has estimated that there are around 335 head shops in the UK[8], but NPS can be purchased from other high street outlets such as newsagents, takeaways and tattoo parlours. Buying NPS from the internet is currently infrequent; however, the survey is not able to identify the extent to which drugs further up the supply chain may have been purchased online. The Home Office and enforcement organisations are alert to possible displacement once the Bill is enacted as high street outlets close.

Legal status

8.     The Misuse of Drugs Act 1971 provides the legislative framework for the regulation of dangerous or otherwise harmful drugs in the UK, controlling drugs based on their relative harms.

9.     The Home Office has controlled over 500 NPS by the 1971 Act since 2010, either on a substance by substance or group by group basis. Substances are controlled by the Government once the Advisory Council of the Misuse of Drugs (ACMD) has assessed their health and social harms and consider them to be over a high threshold. However, chemical structures can be modified to create a new substance falling outside existing drug controls and so the Government is continually playing catch up and controlling substances on a reactive basis.  For example, the ACMD has recently defined a ‘third generation’ of synthetic cannabinoids which fall outside the scope of existing controls with the possibility for further novel structures appearing in the future.

10. The Home Office, through the Police Reform and Social Responsibility Act 2011, amended the 1971 Act to add a further control mechanism – temporary class drug orders (TCDOs). These orders temporarily control a substance, or substances, for up to 12 months on the advice of the ACMD where it appears that the drug is one that is being, or is likely to be, misused, and that misuse is having, or is capable of having, harmful effects. An order places a restriction on the importation, exportation, production and supply of that substance whilst an assessment of its harms by the ACMD can be completed to consider whether further control is necessary. It is not an offence to have a temporary class drug on a person’s possession unless that possession is in connection with an offence or prohibition under other provisions of the 1971 Act. Four TCDO’s have been issued since 2011.

The NPS Review Expert Panel

11. Against this background, the Government appointed an Expert Panel in December 2013 to undertake a review into NPS and look at whether, and if so how, the UK’s legislative framework for responding to these new drugs could be enhanced beyond current legislation[9]. The Expert Panel’s Terms of Reference is at Annex B. In its report published in September 2014[10], the Expert Panel concluded that:

• the current UK legislative approach was unlikely to get ahead of developments in the NPS market, its inherently reactive and at worst is driving new products;
• the control process for substances under the 1971 Act was now a repetitive advisory parliamentary process with significant resource implications and an inevitable time lag between a NPS coming onto the market and a response under the 1971 Act;
• whilst TCDOs have afforded the Government an additional legislative tool where there is a pressing need to legislate fast, they were not designed to deal with the volume of NPS that continue to be identified;
• consumer protection legislation has not provided a complete solution to tackle availability as it was not designed to deal with the particular issues that are associated with NPS;
• following a review of different legislative options, the Government should take forward an approach to prohibit the distribution of all non-controlled NPS. Ireland was cited as a good model; and
• further work is needed to enhance the response to intervention and treatment, prevention and education and information sharing.

12. In its response, the Government accepted the Expert Panel’s recommendations and said it would look into the feasibility of legislating to create a blanket ban. The Government also agreed to implement a comprehensive action plan covering non-legislative activities[11].

13. Similar reviews reaching the same legislative conclusion recently reported in Scotland and Wales.

1. The Scottish Government appointed its own Expert Review Group in June 2014 to review the current legal framework available to govern the sale and supply of NPS. The Group reported in February 2015[12] and concluded that there were a number of benefits to the Irish model which could strengthen the tools that are currently available and being used by agencies to tackle the supply of NPS in Scotland. The Review Group recommended that the Scottish Government and the Home Office work in partnership to create new legislation that will be effective in Scotland. 

2. The National Assembly for Wales’ Health and Social Care Committee launched an inquiry into NPS in June 2014 and reported in March 2015[13]. The Committee welcomed the Home Office's Expert Panel's recommendation to create a blanket ban on the supply of NPS in the UK similar to the approach introduced in Ireland. The Committee recommended that the Minister for Health and Social Services work closely with the UK Government to ensure early action is taken to progress the Expert Panel's recommendation.

The global response

14. The harms of NPS are a global issue. By December 2014, 95 countries, including countries from every continent, had reported the presence of NPS within their domestic drug market to the United Nations Office on Drugs and Crime[14].  Analysis by the United Nations suggests that the primary source countries for NPS are China and India[15], although supply routes continue to diversify and Europol have highlighted evidence of Organised Criminal Groups producing NPS within the EU[16].

15. The United Kingdom is the leading country in shaping the global response to NPS.  We have worked with our international partners, including the United Nations, the G7 and the EU, to develop a balanced and evidence-based international response.  Among our successes, we have secured international controls on Mephedrone - the first NPS to be banned at an international level.  We are funding and supporting the United Nation’s Global Early Warning Advisory and the European Monitoring Centre for Drugs and Drug Addiction to collate and disseminate the latest forensic and public health evidence.  We are working in partnership with the United Nations and the World Health Organisation to ensure the international scheduling system is capable of meeting the complex challenge of assessing and controlling the most prevalent, persistent and harmful NPS.  We are catalysing international law enforcement cooperation, and maintain a robust dialogue with source and transit countries on the need for enhanced action.  We also continue to share our domestic experience, including the lessons we have learnt from delivering targeted prevention campaigns, and of supporting clinicians to identify and treat NPS.

16. In the absence of international controls there is a variety of different domestic legislation to tackle NPS, none of which has been formally evaluated. The Republic of Ireland’s blanket ban, the Irish Criminal Justice (Psychoactive Substances) Act 2010, was cited by the Expert Panel as a model the UK should consider. The Irish legislation, and other domestic legislative responses, is outlined in Annex C.

The non-legislative response

17. The Government recognises that legislation alone is not a silver bullet to tackle NPS use. As with other drugs, through the 2010 Drug Strategy, the Government continues to take a balanced approach across three key themes: reducing the demand for drugs; restricting the supply of drugs and supporting individuals to recover from dependence.

18. The Government takes a broad approach to prevention in line with international evidence and recent evidence provided by the ACMD, combining universal action with targeted action for those most at risk or already misusing drugs. For example the Government launched a new online resilience building resource, ‘Rise Above’, aimed at 11- to 16-year-olds, to help develop skills to make positive choices for their health, including avoiding drug misuse. It also developed the role of Public Health England to support local areas: sharing evidence to support commissioning and the delivery of effective drug prevention activities. The Government has also invested in a range of resources to support schools. For example, Mentor UK runs the Alcohol and Drug Education and Prevention Information Service which provides practical advice and tools based on the best international evidence, including briefing sheets for teachers.

19. The Home Office’s Forensic Early Warning System was created in 2011 to bring together expertise from operational forensic laboratories, chemical standard suppliers and law enforcement agencies to identify NPS more promptly and effectively so as to inform the ACMD’s considerations and the Government’s wider response through UK health and other warning systems.

20. Effective intervention and treatment is at the heart of the Drug Strategy and is essential in supporting individuals to overcome their drug misuse. High quality treatment is fundamental to helping people recover from their dependency. We have a well-embedded and comprehensive drug treatment system and within this there are a range of services responding to the challenges and harms posed by

NPS.  With partners, the Government has already:

• published a toolkit, supported with regional events, that provides local areas with advice and resources to  prevent and respond to the use of NPS;
• developed through “Project NEPTUNE” the first set of internationally evidenced-based clinical guidelines to treat NPS. This is aimed at clinicians working in a range of frontline settings, such as hospitals, primary care and drug treatment services; and
• established a clinical network to look at the feasibility of sharing intelligence on NPS and drug-related adverse reactions and harms.

21. Further action to enhance our approach includes:

• project NEPTUNE moving to Phase II to develop on-line learning and clinical tools, as well as exploring how the NPS clinical guidance might be adapted for staff working in non-medical settings; and
• Public Health England taking forward work on supporting effective brief interventions for NPS use and enhancing how we share information, including ensuring that drug alerts are more effective and reach the right audiences.

SECTION 2 – THE PSYCHOACTIVE SUBSTANCES BILL

22. The Conservative Government was elected in 2015 with a manifesto commitment to "create a blanket ban on all new psychoactive substances, protecting young people from exposure to so-called legal highs”. The Psychoactive Substances Bill gives effect to that commitment and to the Expert Panel’s legislative recommendation. The Bill’s main components are outlined below.

Definition of a “psychoactive substance”

23. Clause 2 defines a "psychoactive substance" as:

“any substance which—

(a) is capable of producing a psychoactive effect in a person who consumes it, and

(b) is not an exempted substance.

(2) For the purposes of this Act a substance produces a psychoactive effect in a person if, by stimulating or depressing the person’s central nervous system, it affects the person’s mental functioning or emotional state; and references to a substance’s psychoactive effects are to be read accordingly.

(3) For the purposes of this Act a person consumes a substance if the person causes or allows the substance, or fumes given off by the substance, to enter the person’s body in any way.”

24. The Bill’s definition is based upon the definition in Ireland’s Criminal Justice (Psychoactive Substances) Act 2010. Whilst core elements of that definition remain, following legal and scientific advice, the Home Office has made three broad changes in an attempt to strengthen it by removing:

1. unnecessary levels of detail – for example, listing different types of substances and providing a partial illustrative list of behaviour changes;
2. the element of subjectivity inherent in the use of the word ‘significant’; and
3. perceived duplication to describe what is a ‘psychoactive effect’.

25. Whilst the immediate concern is the availability of new psychoactive substances – those manufactured to mimic traditional drugs such as cocaine and cannabis - there are substances available that are neither ‘new’ nor synthetic, namely natural or organic products including fungi and plant material.  Some of these substances are of concern (e.g. nitrous oxide and salvia) but their harms have not previously been judged significant enough to warrant control under the 1971 Act. These substances are caught within this definition.

26. Following correspondence between the Home Secretary and the ACMD (most recently the ACMD’s letter of 17 August), Home Office officials are working with the ACMD to identify whether, and if so how, the definition could be strengthened.

27. The scope of the Bill is restricted by the list of exemptions and criminal offences – exempted substances and psychoactive substances supplied for any other reason than consumption for their psychoactive effects would not be caught.

Exemptions list

28. Replicating the approach taken by Ireland, New Zealand and Australia, alongside a broad definition is a list of exemptions. The exemption list at Schedule 1 to the Bill covers: controlled drugs, medicinal products, alcohol, nicotine and tobacco products, caffeine and food. These substances are regulated by different legislation and are exempted because the Government did not wish to create duplicating regulatory regimes, not because they are harm free. Whilst the intention is for the list to remain stable, the Secretary of State, following consultation with the ACMD and other appropriate persons, has the power to add or vary the list if required. The Government is committed to tabling amendments at Commons Committee to ensure all lawful medicinal products and bona fide medical and scientific research is exempted.

Criminal offences

29. In line with the Expert Panel’s recommendation to focus on the supply of NPS, clauses 4 to 9 provide criminal offences covering the production, supply, offer to supply, possession with intent to supply, importation or exportation of a psychoactive substance.

30. As substances caught by this Bill either have not had their harms assessed or have had them assessed at being beneath the high threshold for control under the 1971 Act, personal possession is not an offence and the maximum sentence – seven years – is beneath the level for offences in the 1971 Act.

Civil sanctions 

31. Another difference from the 1971 Act is the availability of civil sanctions. These sanctions provide a scalable and proportionate sanction that can be tailored to the particular offence. Clauses 11 to 34 provide four civil sanctions: prohibition notices, premises notices, prohibition orders and premises orders. There is no direct sanction for failure to comply with a notice (although failure to comply could lead to an application to a court for an order), but breach of either of the two orders is a criminal offence.

Enforcement powers

32. The Bill provides bespoke enforcement powers to police forces, Border Force and local authority officials to enforce the offences contained in the Bill. The powers are consistent with Police and Criminal Evidence Act 1984 safeguards and include powers to stop and search persons, vehicles and vessels, to enter and search premises (under warrant) and to forfeit seized psychoactive substances and other items. Operational guidance will be issued prior to commencement.

SECTION 3 – THE HOME OFFICE’S RESPONSE TO THE INQUIRY’S QUESTIONS

Question 1 - Which groups will be particularly affected by a ban on psychoactive substances? What steps can the Government take to educate these groups about the dangers of psychoactive substances? How will the

Government explain the change in the legal status of these substances?

33. Findings from “Drug Misuse: Findings from the Crime Survey for England and Wales 2014/15”[17] identified that NPS use appears to be concentrated among young men aged 16 to 24 with four per cent (around 128,000) using NPS in the last year - almost half (279,000) of all people using NPS last year. As outlined in paragraph 5, more individuals may also be consuming nitrous oxide. Both the Drugs Misuse statistics and the Home Office’s “New Psychoactive Substances in England - A review of the evidence”[18] additionally identified relatively high levels of NPS use in specific subgroups: clubbers and homosexual men. According to the Crime Survey, 33 per cent of homosexual men reported using any drug during the reporting period, three times higher than heterosexual men (11.1%).[19] One motivation of NPS use may be a desire to get a psychoactive experience without the negative implications of a positive drug test as most drug tests cannot detect NPS use. This finding is mostly anecdotal, but is thought to be a reason for the growth of NPS use in prisons.

34. The Home Office is developing a comprehensive, targeted, communications plan focusing on NPS users and sellers. Communications will be delivered through appropriate press features, owned and partner channels and FRANK (and FRANK’s national equivalents).  For users, key messages will include informing them of the changing legal status of these substances, what the health harms of NPS can be, that you can never be sure exactly what substances you are taking, ways to build personal resilience and make informed choices and where further health advice including from FRANK and local drug treatment centres can be found. The Home Office has already published an NPS resource pack for frontline practitioners which will be updated and re-issued.

35. With NPS mainly supplied through shops and family/friends, communications will focus on owners of retail premises. The national policing lead for NPS intends to write to all known NPS retailers to inform them of new legislation and we will ensure local authorities and other enforcement organisations have appropriate messaging should they wish to engage with local markets. The Home Office will work with enforcement partners such as Trading Standards, Police and Public Health Teams, to produce sector specific operational guidance. The Home Office also intends to work with retailers and their trade bodies such as the Association of Convenience Stores and the British Retail Consortium to develop bespoke retailer guidance. Sellers will be targeted from autumn until the ban comes into effect. To reduce the risk of stockpiling, users will be targeted once the ban is implemented.

Question 2 - What specialist treatment do users of psychoactive substances require? Is there a danger that these users will seek to use controlled drugs once there is a ban?

37.           As NPS seek to mimic the effects of existing drug types, specialist drug treatment services can largely adapt current approaches and interventions. For example, many NPS are stimulant in nature (NPS users are likely to present with acute problems such as agitation, palpitations and seizures) and therefore the well-evidenced psycho-social interventions used to respond to wider stimulants (i.e. cocaine) are recommended as a core staple of NPS treatment. As with all drug types, key to effective treatment is ensuring the approach is personalised to an individual’s specific needs and tailored as they progress on their treatment journey. Through project NEPTUNE (Novel Psychoactive Treatment UK Network), we have convened a multidisciplinary group of experts in the treatment of harms resulting from the use of NPS. The group has published treatment guidance for a range of clinical settings including: drug treatment services; emergency departments; general practice; and sexual health clinics. The guidance aims to increase the skills and competence of clinicians in the detection, assessment and management of the harms caused by NPS. To complement the guidance, NEPTUNE is now developing clinical tools, including e-learning modules.

38.             Evidence from the Crime Survey 2014/15 suggests that NPS use is predominantly confined to existing traditional illicit drug users. It identified that the vast majority (83%) of 16 to 59 year olds who had used an NPS had also used another illicit drug in the last year. There also appears to be specific relationships between traditional illicit drugs and the NPS that are designed to imitate them, for example, cannabis and synthetic cannabinoids.  Whilst NPS therefore largely complements rather than replaces illicit drug use, the Government is alert to this issue and through prevention, education and treatment, will seek to tackle all drug use where possible.

Question 3 - Do the enforcement agencies have the necessary powers and resources to effectively enforce the proposed legislation?

39. The Home Office worked closely with enforcement organisations (e.g. national police leads, National Police Chiefs’ Council, the Crown Prosecution Service, Border Force, the National Crime Agency, Local Government Association and Trading Standards) throughout the drafting of the Bill and we are satisfied that the Bill’s powers are sufficient to adequately enforce the Bill’s offences. 

40. UK enforcement organisations already deliver a range of enforcement action to tackle unlawful behaviour by NPS retailers. With no bespoke legislation available, organisations are using a range of different powers – for example, consumer protection and anti-social behaviour legislation – to varying degrees of success. The Home Office issued guidance to local authorities in March 2015 to outline what powers are available[20]. Because resources are already deployed to tackle this issue, the Home Office has estimated that after an initial peak in enforcement activity, enforcement of this Bill should be cost neutral with possible cost savings over time once the NPS market has been tackled and detection/enforcement becomes business as usual. This Bill seeks to give bespoke, targeted and effective powers to tackle the NPS market which will allow enforcement organisations to take action where they have a local issue.

Conclusion

41. Unknown, untested and potentially lethal substances are being sold openly in communities across the UK. The time lag between their arrival and when they can be controlled by the Misuse of Drugs Act 1971 is exposing communities to this threat so the Psychoactive Substances Bill will stop for good the open sale of these substances. But the Government recognises that legislation alone is not the answer and so the Government alongside partners will continue to enhance its activities around prevention, education and health.

Home Office

September 2015
Annex A – Chapter 4, Drug Misuse: Findings from the Crime Survey for England and Wales 2014/15. Published July 2015.

introduction

This chapter covers the use of new psychoactive substances (NPS) among adults aged 16 to 59. The use of generic, rather than specific, new psychoactive substances has been measured by the 2014/15 Crime Survey for England and Wales (CSEW) for the first time. In this context ‘NPS’ refers to newly available drugs that mimic the effect of drugs such as cannabis, ecstasy and powder cocaine, and which may or may not be illegal to buy, but are sometimes referred to as ‘legal highs’.

Questions on the use of individual new psychoactive substances, or other substances not previously measured, have been included in some past surveys. These include salvia, nitrous oxide (‘laughing gas’), BZP (a stimulant similar to amphetamines), synthetic cannabinoids (‘spice’) and GHB/GBL. Findings on the use of these substances are shown in previous Drug Misuse bulletins.

Where NPS use is discussed in comparison with the use of ‘other illicit drugs’ in this chapter, this phrase refers to those drugs which are discussed in the previous chapters[21]. Estimates of NPS use among adults from the 2014/15 CSEW can be found in the data tables.

Key Findings

• Use of NPS in the last year appears to be concentrated among young adults aged 16 to 24. Around 1 in 40 (2.8%) young adults aged 16 to 24 took a new psychoactive substance in the last year, while fewer than 1 in 100 (0.9%) of 16 to 59 year olds had done so. This equates to around 174,000 young adults aged 16 to 24 and 279,000 adults aged 16 to 59.
• In particular, use of NPS in the last year was concentrated among young men aged 16 to 24. Four per cent of younger men aged 16 to 24 had used an NPS in the last year (around 128,000), accounting for almost half of all last year NPS users. They were also more likely to have used an NPS in the last year than young women aged 16 to 24 (1.5%, or 47,000).
• Eighty-four per cent of young adults aged 16 to 24 who had used an NPS, had also used another illicit drug in the last year. This proportion was similar (83.0%) for 16 to 59 year olds.
• Young adults aged 16 to 24 who had used another illicit drug in the last year were significantly more likely to have used an NPS in the last year (12.3%) than those who had not (0.6%). This difference is also statistically significant for the wider age group (16 to 59), and for most individual drug types.
• People who had visited a pub or a nightclub in the last month were significantly more likely to have used an NPS in the last year than those who had not. Among young adults aged 16 to 24, 3.6 per cent of those who had visited a pub and 4.9 per cent of those who had visited a nightclub in the last month had used an NPS in the last year, compared with 1.5 per cent and 1.6 per cent of those who had not, respectively. The same patterns are seen in the wider age group of 16 to 59 year olds, as NPS use is concentrated among 16 to 24 year olds.
• People who had consumed alcohol once or more in the last month were significantly more likely to have used an NPS in the last year, in both age groups. Among young adults aged 16 to 24, 4.0 per cent of those who had drunk alcohol in the last month had used an NPS, compared with 0.8 per cent of those who had not. Among all adults aged 16 to 59, the proportions were 1.1 per cent and 0.4 per cent, respectively.

4.1 extent of NPS use

Overall, the prevalence of NPS use among adults aged 16 to 59, whether in the last year or in their lifetime, is generally low, compared with the prevalence of well established drugs such as cannabis, powder cocaine and ecstasy (see Chapter 1). When asked whether they had ever used an NPS, 4.7[22] per cent of adults aged 16 to 59 said that they had never heard of NPS, or ‘legal highs’, even after an explanation of what they were.

The 2014/15 CSEW estimated that 0.9 per cent of adults aged 16 to 59 had used an NPS in the last year. This equates to 279,000 people. Younger adults were more likely to have used an NPS, with 2.8 per cent of 16 to 24 year olds (174,000 people) having used an NPS in the last year. The younger age group accounts for almost two-thirds of all last-year users of NPS.

Men (1.3%) were significantly more likely to have used an NPS than women (0.4%) – 214,000 men, compared with 66,000 women. In particular, young men aged 16 to 24 were around four times more likely (4.0%) to have used an NPS than all adults aged 16 to 59 (0.9%). Young men were also significantly more likely than young women (1.5%) to have used an NPS in the last year. Around 128,000 young men aged 16 to 24 had taken an NPS in the last year, compared with 47,000 young women.

Figure 4.1: Prevalence of NPS use ever and in the last year, by sex, 16 to 59 and 16 to 24 year olds, 2014/15 CSEW 

Source: Home Office Table 4.01.

Overall, 2.9 per cent of adults aged 16 to 59 had used an NPS in their lifetime (937,000 people).  Compared with those who had used an NPS in the last year, similar relationships with age and sex can be seen among those who had used an NPS in their lifetime; men were around twice as likely (3.9%) as women (1.9%) to have used an NPS, and young adults aged 16 to 24 were around twice as likely (6.1%) to have used an NPS as those in the wider 16 to 59 age group (2.9%). Among those who had used an NPS in their lifetime, younger men (8.0%) and younger women (4.2%) were both more likely to have used an NPS than all adults aged 16 to 59. This is likely to be due to the fact that these substances are relatively new, and the picture of use of these substances ever will change as time goes on and the population ages. (Table 4.01)

It is possible that the CSEW underestimates the use of NPS, because it may be more concentrated in specific subgroups of the population, which are difficult to access using a household survey. For example, anecdotal evidence suggests that those in prisons, young people aged under 16, and those subject to drug testing at work, or in professional roles, may be more likely to use NPS.

4.2 use of nps by lifestyle factors

The 2014/15 CSEW revealed that some behaviours make it significantly more likely that an individual will have used an NPS in the last year. Factors investigated were whether individuals had consumed alcohol, visited a pub or visited a nightclub in the last month, and whether individuals had taken another illicit drug in the last year (Table 4.02).

Other illicit drug use in the last year

Those adults aged 16 to 59 who had taken another illicit drug in the last year were more likely to have also used an NPS in the last year: 8.4 per cent compared with only 0.2 per cent of those who had not used any other illicit drugs. Among young adults aged 16 to 24, 12.3 per cent of those who had taken another illicit drug had also used an NPS, compared with only 0.6 per cent of those who had not taken any other illicit drugs.

A similar analysis of other individual illicit drug use in the last year[23] revealed that people in both age groups were significantly more likely to have used an NPS in the last year if they had taken almost any of the other illicit drug types in the last year. The exceptions were heroin and methadone among adults aged 16 to 59, and crack cocaine and anabolic steroids among young adults aged 16 to 24, for which there was no statistically significant differences; this may have been due to the small numbers of respondents who said that they had taken these drug types in the last year. 

Table 2: NPS use in the last year by use of an illicit drug in the last year, 16 to 59 and 16 to 24 year olds, 2014/15 CSEW

Source: Home Office, Table 4.02.

Approaching the comparison from a different perspective, adults aged 16 to 59 who had used an NPS in the last year were likely to have taken another illicit drug in the last year: 83.0 per cent of those who had taken an NPS in the last year also reported having taken another illicit drug. Among 16 to 24 year olds this proportion was similar: 84.2 per cent. (These figures are not shown in tables.) Overall, the comparison of NPS use and other illicit drug use suggests that adults who used a psychoactive substance in the last year (new or well-established) are likely to have also used another (or other) illicit drug(s) in the last year[24].

Visits to a nightclub or disco in the last month

People who had visited a nightclub or disco in the last month were significantly more likely to have used an NPS in the last year than those who had not. Of those adults aged 16 to 59 who had visited a nightclub or disco in the last month, 3.0 per cent had used an NPS in the last year, compared with 0.5 per cent of those who had not. Among young adults aged 16 to 24, these figures were 4.9 per cent and 1.6 per cent, respectively.

Table 3: NPS use in the last year by frequency of visits to a nightclub or disco in the last month, 16 to 59 and 16 to 24 year olds, 2014/15 CSEW

Source: Home Office, Table 4.02.

Visits to a pub or wine bar in the last month

People who had visited a pub or wine bar in the last month were also significantly more likely to have used an NPS. Of those adults aged 16 to 59 who had visited a pub or a wine bar in the last month, 1.1 per cent had used an NPS in the last year, compared with 0.5 per cent of those who had not. Among young adults aged 16 to 24, these figures were 3.6 per cent and 1.5 per cent respectively.

Table 4: NPS use in the last year by frequency of visits to a pub or wine bar in the last month 16 to 59 and 16 to 24 year olds, 2014/15 CSEW

Source: Home Office, Table 4.02.

Alcohol consumption

People who had consumed alcohol once or more in the last month were significantly more likely to have used an NPS in the last year. Of those adults aged 16 to 59 who had consumed alcohol once or more in the last month, 1.1 per cent had used an NPS in the last year, compared with 0.4 per cent of those who had not consumed alcohol in the last month. Similarly, among young adults aged 16 to 24 who had consumed alcohol once or more in the last month, 4.0 per cent had also used an NPS, compared with only 0.8 per cent of those who had not had any alcohol.
Table 5: NPS use in the last year by frequency of alcohol consumption in the last month 16 to 59 and 16 to 24 year olds, 2014/15 CSEW

Source: Home Office, Table 4.02.

4.3 Other findings

The 2014/15 CSEW also asked about the last occasion on which an individual had used an NPS. Specifically, the survey asked what type of substance had been used and where it had been obtained on that occasion.

Herbal smoking mixtures were most commonly used (61% of last year users aged 16 to 59, 64% of users aged 16 to 24). The next most frequently used substances were powders, crystals, tablets and other substances, while the least commonly used form of substance were liquids (4% of users aged 16 to 59, 6% of users aged 16 to 24).

Adults aged 16 to 59 typically obtained NPS from a shop (34%), a friend, neighbour or colleague (34%), or a known dealer (9%). For young adults aged 16 to 24 these were also the most popular sources of NPS (39%, 37% and 12%, respectively).  Of all adults aged 16 to 59, six per cent bought the NPS on the Internet, while only one per cent of younger people did so (Table 4.03).

There is a similarity to the most common source of other illicit drugs, as they were also frequently obtained from a friend, neighbour or colleague (42% of 16 to 59 year olds who had used illicit drugs in the last year), or from a known dealer (11%). There is a contrast, as a much smaller proportion of other illicit drugs had been bought from a shop (5%) and almost none came from the Internet (0%).

Figure 4.2: Sources of NPS and other illicit drugs on the last occasion they were used by adults aged 16 to 59, who had used NPS or other illicit drugs in the last year, 2014/15 CSEW

Source: Home Office, Tables 1.09 and 4.03.
Annex B - The NPS Review Expert Panel

i) Terms of Reference

• analyse the problem to address and consider:
• the nature of the NPS market;
• the effectiveness and issues of the UK’s current legislative and operational response;
• identify legislative options for enhancing this approach;
• consider the opportunities and risks of each of these approaches, informed by international and other evidence; and
• make a clear recommendation for an effective and sustainable UK‐wide legislative response to NPS.

In addition, the Panel was asked to consider education and prevention, information sharing and the treatment response to NPS and to make recommendations.

ii) Guiding Principles

The Panel used the following guiding principles to inform its assessment and recommendations. The Panel agreed that an effective approach to tackling NPS would:

• Align with the Government’s 2010 Drug Strategy ‘Reducing demand, restricting supply, building recovery: supporting people to live a drug‐free life’ which balances three key themes – reducing the demand for drugs; restricting the supply of drugs; and supporting individuals to recover from dependence. This includes, but is not limited to, legislation.
• Reduce harms through early warning, prevention, early intervention, treatment and knowledge sharing, clear communications and legislation.
• Protect individuals from the risks posed by untested, unknown and potentially harmful substances.
• Provide a proportionate response supported by the evidence base which also minimises unintended negative consequences including legitimate development of medicines and other products.
• Tackle the NPS market by:
• responding to the ease of availability which portrays the message that drug use is acceptable and can undermine public confidence:
• in an everyday high street or retail environment;
• internet sites advertising and sale;
• maximising opportunities for compliance by the NPS retail market;
• increasing the risk and lowering the reward in the market;
• increasing successful outcomes of enforcement and prosecution actions; and
• limiting the involvement of organised crime and the interaction with the illicit drugs market.
• Maintain/develop an effective and dynamic drug control mechanism by:
• utilising the existing framework for controlling harmful drugs informed by advice from the ACMD through individual drug listings, broad (generic) definitions for families of NPS and, where required, rapid (temporary class drug order bans) responses;
• removing the risk that the legislative response drives the evolution of the NPS market, particularly to more potent substances and reduces the pressures on the advisory and control processes under the Misuse of Drugs Act 1971;
• minimising the risk of successful legal challenge; and
• minimising overall costs and complexity to enforcement agencies and others.
• Develop the evidence base, especially where knowledge gaps need to be addressed to inform future policy responses, develop technical capability (for example, forensic science) and improve the approach to information sharing.

Annex C – Domestic legislation to tackle NPS use

In the absence of international control except for the most prevalent, persistent and harmful NPS, countries have legislated domestically to tackle NPS. Some examples include:

1. USA – Controlled Substance Analogue Enforcement Act of 1986 – federal legislation which uses an analogue approach to control substances which are chemically similar to a drug already controlled. For a conviction, the following elements of proof are necessary: (1) that the chemical structure is substantially similar to the chemical structure of a controlled substance, and either (2) that the stimulant, depressant, or hallucinogenic effect on the central nervous system (CNS) is substantially similar to or greater than that of a controlled substance, or (3) the government may prove that in a particular case, the defendant intended or represented that the substance has a similar or greater effect on the CNS as a controlled substance. An additional element of proof is that the substance was intended for human consumption. Juries must consider whether they believe the substance is ‘substantially similar’ to a controlled substance, based upon expert evidence. Despite the Drugs Enforcement Agency being significantly resourced, successful prosecutions have proved challenging due to cases involving battle of the experts giving different expert testimonies.
2. Poland – introduced a blanket ban in 2010. Intensive enforcement action against head-shops closed 900 of the country’s 1,000 shops alongside the ban. No formal evaluation has been conducted; however, the ban was associated with a fall in poisonings in the short term, from 258 cases in October 2010 to 60 the following month.[25]
3. New Zealand - Psychoactive Substances Act 2013 - established a full regulatory regime around the production, supply and sale of all NPS, requiring manufacturers to prove that their NPS product(s) is low harm. The proposed regulatory regime, administered by the new Psychoactive Substances Regulatory Authority, will require the NPS market to be individually licensed and NPS products to have a product approval based on evidence that they pose no more than a low risk of harm. An interim licensing regime for NPS products was developed covering products that had been on sale six months previously which had not demonstrated any harm to users. The initial impact was that the number of NPS retail outlets fell from 3,000–4,000 (which were mainly convenience stores) to 156 specialist stores, and the number of legally available NPS products fell from 200 to 47. In April 2014, all of these temporary licences were revoked by the Ministry of Health following reports of adverse effects from approved products and nuisance and crime around retail stores. This regime has faced difficulties, essentially resulting in a prohibition model whilst the regulatory regime is developed, due to uncertainty over what criteria substances should be assessed against. A separate ban on animal testing across New Zealand only exacerbated the problem, making assessing NPS products near on impossible. At present, no NPS products can be legally sold in New Zealand until the regulations for the full testing process are in place and products can prove their low harm. Until this regime can be implemented, New Zealand now has a de facto blanket ban.
4. Australia - Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Act 2015 - creates a criminal offence to import NPS into Australia. Legislation to tackle NPS has also been passed at State and Territory level, for example, New South Wales legislated in 2013 to prohibit the supply of NPS.
5. Republic of Ireland – Criminal Justice (Psychoactive Substances) Act 2010 - makes it a criminal offence to advertise, sell, supply, import or export a psychoactive substance (not otherwise excluded), knowing or being reckless that it is for human consumption. The Act codifies a blanket ban on the trade of NPS, and resulted in the closure of all 102 head-shops and all Irish-based domain websites supplying NPS. No formal evaluation of the impact of the legislation has been undertaken. Ireland prevalence data for 2014/15 (publication date tbc) will allow for comparisons of trends in NPS use since 2010/11, albeit any changes cannot be solely contributed to the legislation. It is understood Ireland has prosecuted 5 individuals for an offence under the Act since 2010.

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