EURAD attends 2nd European Commission Expert Seminar on Psychoactive Substances

On 1st March 2012, EURAD attended a second seminar concerning the revision of the existing EC legislation on psychoactive substances.

Following on the from the psychoactive substance (PS) workshop facilitated by the European Commission before Christmas, this second workshop was arranged to further discuss the preparatory study for an impact assessment on a new instrument to replace the existing Council Decision 2005/387/JHA.

During the workshop, participants reviewed and assessed selected policy options which the European Commission could take, with the aims of :

  • Effectively anticipating, tackling and responding to the potential risks to health of harmful new psychoactive substances

  • Preventing or reducing the potential risks to health of harmful new PS's

  • Reducing the economic, health and social costs generated by new PS's

  • Accounting or regulating the market dynamics of new PS's

  • Avoiding or reducing any unintended effects caused by different approaches to new psychoactive substances between Member States

  • Eliminating regulatory grey zones

What stage are the European Commission currently at?

The Commission is in the process of revising legislation on psychoactive substances, which they first embarked on last year. The timetable has now been advanced and the Commission are being asked to complete the study of impact assessment before this summer, ahead of November, as originally planned. This may then go to a co-decision procedure in Autumn or early 2013, where the European Parliament and Council will jointly approve the legal instrument.

What needs to be considered?

Amongst many other considerations, the below should be taken into account:

  • Impact and harm of psychoactive substances

  • The pace of new substances coming to the market

  • The interplay between, what you might refer to as, the "licit" (i.e. regulatory grey zone retail outlets) and "illicit" markets (i.e. new psychoactive substances being sold alongside controlled substances)

  • Cross border issues (i.e. markets moving to neighbouring/bordering countries, trafficking, online sales)

  • Competence of the EU to take action and the role of Member States to take appropriate action in their own countries

  • The question of when to take action and what this decision making is based on (i.e. perceived harm of a substance, prevalence of use)

  • Unintended consequences of taking different actions

  • Unintended consequences of not taking action (particularly, looking at the concerns of a two-tier system where some substances are controlled but others, which may be just as harmful, are not controlled)

  • The implementation of EU action (i.e. licensing or product safety may not be as likely to receive substantial enforcement capacity compared to criminal law)

  • The impact on neighbouring non-EU countries and communication with them (to avoid consequences on them)

What could the outcome be?

The Commission may decide to recommend a split legal instrument, one that tackles public health and the other that looks at internal market. One risk, is that they might come up with something which has little enforcement capacity behind it (i.e. under consumer safety legislation compared to criminal law), which may be required to deal with future threats. There is also a choice whether the legal instrument would be a "decision" or a "recommendation". A "decision" would be better complied with by Member States than a "recommendation", but an instrument which allows the European Union to introduce both of these options might be the most favourable way forward.

As civil society, what we can we do?

The Commission is still in the process of working up a draft impact assessment. Studies about the effectiveness of tackling psychoactive substances are welcomed at this stage by the Commission. If you have any studies from your country which show the impact of regulatory measures on psychoactive substances, please feel free to upload them here or e-mail them to us at eurad@eurad.net and we will forward them on your behalf to the Commission.

What are Member States doing to tackle psychoactive substances?

Laws which make distributing or advertising new psychoactive substances a criminal offence have been passed in a number of European countries in recent years (e.g. Ireland and Poland in 2010). Meanwhile, other Member States (e.g. Italy, Finland) have used existing consumer safety or medicines legislation to prevent their open sale. A briefing paper by the EMCDDA on "Responding to new psychoactive substances" describes the actions being taken by governments across the EU.