Deterring the Rise of “New Psychoactive Substances”

Legal drugs

"While new harmful substances have been emerging with unfailing regularity on the drug scene, the international drug control system is floundering, for the first time, under the speed and creativity of the phenomenon known as new psychoactive substances (NPS). The number of NPS reported by Member States to UNODC rose from 166 at the end of 2009 to 251 by mid-2012, an increase of more than 50 per cent. For the first time, the number of NPS actually exceeded the total number of substances under international control (234)." UNODC World Drug Report 2013

As outlined by UNODC, the term "New Psychoactive Substance" coined to describe these seemingly new concoctions is rather misleading because most of them are all but new. Since the international drug control system was first implemented, a vast number of substances have been created and legally marketed each year thanks to regulatory loopholes. Although most of these substances were initially synthesized years ago, their chemistry has been slightly modified not only to mimic the effects of the original substances, but also to avoid being in the list of the 234 controlled drugs. These drugs may accordingly be marketed legally and to top it all off, due to their different chemical structure these so-called "analogs" may sometimes be much more harmful than the original substances.    

"Of the approximately 20,000 new substances that are produced annually in the pharmaceutical-chemical research laboratories of the world, the overwhelming majority are modification products of proportionally few types of active compounds. The discovery of a really new type of active substance – new with regard to chemical structure and pharmacological effect – is a rare stroke of luck. Albert Hofmann, first chemist to synthesize LSD

One may argue that we only have to add these drugs to the list of prohibited substances, and voila. The only thing is new psychoactive substances come onto the market much more quickly than existing substances can be banned. And it is all the more absurd that prohibiting a drug at the international level is a rather lengthy and complex process (that we shall not detail here).

What's really new about NPS, is their remarkable availability, especially through the Dark Web's online pharmacies. According to UNODC world report, 88 per cent of countries responding to the survey said that the Internet served as a key source for the supply in their markets.

What response can we give?

UN Member States or the European Union have a say on the issue and do not hesitate in banning substances deemed harmful or dangerous – but the process of doing so is hardly less cumbersome. Almost all analogs will therefore remain legal. More or less actually.  The United States have been among the first to try to put an end to this cat-and-mouse game between governments and the "legal industry" with the Federal Analog Act. Instead of promulgating a rule banning each chemical as it emerges on the black market, the Federal Analog Act automatically prohibits a chemical if it is "substantially similar in structure" to an already-prohibited substance.

This relatively old response (1986) is far from perfect alas. First of all because determining whether a substance is "substantially similar in structure" to another requires adversarial debates which may result somewhat tedious and costly. Secondly, because banning a whole class of substances poses a serious threat to pharmaceutical research and other innocent actors. And lastly, because traffickers were not long to find an appropriate response to the response, slipping under the radar by falsely naming their products: 'bath salts', 'research chemicals', 'spices' or 'herbal highs'.

We Need a Different System

The current explosion of NPS can have serious consequences for the health and safety of people, especially because often combined with each other or with alcohol, they affect young people primarily. The responses by the authorities do not suffice to counteract trafficking due to their slowness and the emergence of new substances nearly every week. The experience gained by US authorities with the Federal Analog Act, despite its flaws, could be mended and serve as a basis to develop a hybrid system capable of maximizing deterrence of criminal activity while avoiding collateral damages to legitimate medical and pharmaceutical researches.