Legal highs: He who controls the spice…

By Guest Author 20/04/2011

’He who control the spice, controls the universe!’ proclaims the villainous Baron Harkonnen, speaking of a mystical,  exotic drug in Frank Herbert’s Sci-Fi novel, Dune.

Another drug, named after the narcotic described in Dune, is causing more than a little frustration for kiwi lawmakers.  John Kerr, a recent graduate of the Science Communication Course at Otago University, looks at the difficulties presented by the popular kiwi legal high, Spice.


When it comes to controlling the legal synthetic cannabis dubbed spice in New Zealand, Associate Health Minister Peter Dunne certainly does not control the universe. However, Dunne has announced his plans to introduce regulations on the drug. If he is going to regulate the sale of spice, he had better do it right. Ideally he should also do it quickly, but for reasons described below that is unlikely to happen.

I’m somewhat late of the mark on this one as it has already been a matter of weeks since Associate Health Minister Dunne’s initial press release on spice. Nevertheless, I’m throwing in my bit on the current legal highs issue. I recently completed a thesis looking at the topic of benzylpiperazine (BZP), the stimulant drug in ’party pills’.  BZP was the drug that prompted the government to create the laws they now plan to use to control spice.

How did that come about? The Misuse of Drugs Amendment Act 2005 created the restricted substances schedule – AKA Class D – which was a new class of legal low risk psychoactive drugs (as opposed to the illegal Class A, B & C drugs). The amendment act also added BZP to the schedule – so far the only substance to have had the honor. While this law change aimed to regulate the sale of BZP, it was thoroughly under-utilised.

‘Lip service’ regulation

The Class D classification meant BZP could only be sold to adults, and retailers were prevented from advertising or giving the drug away as a promotion. However, the legislation also made provision for many other regulations to be introduced. The government could enact controls on labelling, dosage, signage, sale locations, manufacturing and many other factors around the production and sale of BZP party pills. The law even allowed for the creation of enforcement officers, a kind of ‘party pill police’ who could go from shop to shop checking that, regulations were adhered to.

While it was possible for the government to do so, none of these potential regulations were ever put in place to control BZP (I should note that few have been stipulated recently). In the absence of reasonable controls and facing growing popularity, the BZP market spun out of control, party pill doses escalated, shonky backyard retailers sprung up and hospitalisations increased. Ross Bell, Executive Director of the New Zealand Drug Foundation, explained the situation to the Press in 2006:

“Bell said the ministry had “either dropped the ball or just put it down” over the regulations.   It was preferable for reputable manufacturers with high hygiene standards to make the pills, rather than “cowboys” packaging up unknown ingredients in unknown quantities”.

The Expert Advisory Committee on Drugs (EACD) eventually recommended prohibiting BZP in 2007. The decision, however, wasn’t unanimous and there were concerns raised over the evidence they had considered in the decision (a story for another day perhaps).

In 2008 BZP was banned. When considering the prohibition bill, the Health Select Committee explicitly stated that proper use of the regulations might have avoided the need to criminalise BZP sale and possession:

’We consider that insufficient resources appear to have been put into enforcing the existing regulation of BZP, which a majority of us think may have resulted in a situation where legislative action was seen to be needed.’

(Law Professor Kevin Dawkins vehemently argued this point to then-Associate Health Minister Jim Anderton, during a NORML debate in 2008, which you can see here).

Brain DaMAAge

The real need for dosage controls on legal highs was highlighted late last year when a young man took pills containing DMAA, a stimulant used in a new generation of party pills that instantly replaced BZP following the 2008 ban. The individual in question suffered a cerebral haemorrhage after taking two pills and the doctors who treated him concluded that DMAA was the culprit. The brand of pills taken by this particular man contained 278 mg DMAA per pill.  According to some retailers, the recommended dose is 25mg, meaning that in swallowing a 2 pillcouple of pills, our subject had unwittingly taken 22 times the recommended dosage. Ignoring the question of why a retailer would even put that much in a pill, the situation shows what can happen without regulation. The perhaps the most frustrating part of the whole scenario was that a over year earlier (Nov 2009), Dunne had said he was going to make DMAA a restricted substance (still yet to happen). Had those regulations been in place, perhaps the situation could have been avoided.

The moral? If spice is added to the Class D schedule more than just R18 sales should be used to ensure that retailers act responsibly with dosage strength and don’t engage in shoddy manufacturing processes to cut costs (e.g. using a poorly sourced, contaminated supply of active substances).

The Catch 22

Unfortunately even getting synthetic cannabis compounds into Class D requires quite a bit of legal wrangling – which explains why it is going to take so damn long to regulate spice. By Dunne’s own admission, regulations will likely not be put in place until April Fools Day 2012 (coincidentally the same date BZP was banned in 2008). If a year seems a long time, you might be surprised to know  that the Ministry of Health was speculating on regulating  spice over two years ago!

Why can’t Dunne act? A clash with other laws means that the 2005 restricted substance legislation is currently defunct. It breaks down like this (bear with me here): To be placed in Class D, a substance must be a little bit dangerous – otherwise why bother controlling it? But, if a substance is in anyway hazardous (even a little) it is technically considered to be a hazardous substance under the Hazardous Substances and New Organisms Act 1996 (HSNO). The Misuse of Drugs Amendment Act 2005 specifically states that a hazardous substance cannot be a restricted substance. Hence, nothing can be a restricted substance.

Explained in a review of the NZ drug legislation undertaken by the Law Commission:

’The problem stems largely from the broad and inclusive way ’hazardous substance’ is defined in section 2(1) of HSNO which captures all harmful substances that are not medicines or food. If any psychoactive substances exist that do not meet the minimum degree of hazard, they would be relatively harmless so that there would be no reason to regulate them as restricted substances. If the restricted substances regime is retained, this problem needs to be fixed.’

There is a bill currently before Parliament which does aim to fix this, but it has been bundled with other, shaky potential legislation aiming to broadly ban all cannabis utensils and will likely get bogged down in debate. John Key has already gone on record opposing the legislation and Labour and the Greens did not back it in a Health Select Committee report, so I imagine it will be a while before it gets sorted out.

Looking ahead

NZ PupillittleIn the meantime spice compounds can be sold with impunity to adults and children alike, anywhere and at any dose. Another worrying possibility is that oral dosing of spice compounds (mainly JWH-018) becomes common in New Zealand. I have heard anecdotal tales of bulk powder synthetic cannabinoids being sold around the country, and there doesn’t appear to be any restrictions preventing one from ordering a batch from the many, many online suppliers.

The final report of the law commission review – noted above – is due out next month and will likely lead to a much needed overhaul of the Misuse of Drugs Act 1975, which has become, by every ones admission, a patchwork of outdated legislation and amendments. The findings of the report will likely call for widespread changes to NZ drug legislation and overshadow any current plans to regulate spice. It has been aptly noted by commentator Russell Brown that Peter Dunne probably wont agree with the more liberal suggestions of the review.

The spice in Frank Herbert’s novel Dune was was a drug which allowed the user to see into the future. If the spice sold in New Zealand had the same property, perhaps Peter Dunne would be using it himself to see whether his distant plans to control the drug pan out…

[Note: I do not personally advocate the use of drugs and the views above are my own and do not necessarily  reflect those of any organisation I am affiliated with]

[Edit: corrected reference to Dunne on previous statements about spice in 2009 (wasn’t him but a Ministry of Health Spokesperson)]