What’s wrong with the
Psychoactive Substances Bill?

by Carl Gardner on June 3, 2015

mzuckerm | Creative CommonsAll kinds of sensory experiences can affect thinking and impair judgement. Drinking, obviously; the inhalation of cannabis; and perhaps even the sight of a new Home Office bill.

The Psychoactive Substances Bill is intended to bring in a very broad ban on “new psychoactive substances”, otherwise known (for now) as “legal highs”. The idea is to clamp down for instance on new sorts of cannabinoids (which mimic the effect of cannabis) and cathinones (a type of stimulant which can mimic the effect of ecstasy) even before they’re invented, so the law doesn’t have to keep playing catch-up. But since it was published, claims have been made that the bill will also ban all sort of familiar things like incense, air fresheners, perfume and even flowers.

Ian Dunt wrote at politics.co.uk that the bill “seems to criminalise the majority of households in the UK”. And as Matthew Scott has written in the Telegraph (arguing that “Theresa May now wants to ban things because they cause pleasure”)

It has even been suggested by the one of the country’s best known legal bloggers, David Allen Green, that the delight produced by the scent of flowers could be enough to engage the provisions of the Bill, and what’s more he is right.

Being no scientist, I’m well aware my ignorance of how substances interact with the brain could easily lead me into error. If others with more knowledge can correct me, I’ll welcome it. But suggestions that the bill will “ban everything” seem to me exaggerated. There may indeed be some problems with the way the bill is drafted – but I don’t think this is one of them.

The definition of a psychoactive substance is in clause 2 of the bill:

(1) In this Act “psychoactive substance” means 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.

Notice that under subsection (2) a substance is caught only if it affects thought or feelings by stimulating or depressing the central nervous system. This is the point I think Ian Dunt overlooks when he writes that

The brain is part of the central nervous system and emotions are felt in the brain. Therefore anything you put inside you which changes your emotional or intellectual state satisfies this definition.

A substance is not “psychoactive” under clause 2 just because it stimulates the brain and affects a person’s feelings. It must stimulate the brain and affect your thoughts or feelings by that mechanism.

Music (which I do realise isn’t a substance) stimulates a part of the brain related to hearing – as any sensory experience I think sends a signal which is received in the brain. Music can also lift your mood or depress you, depending on whether it’s Brahms or Boulez. Seeing a bright blue sky stimulates parts of the brain connected with vision, and can cheer you up. Hitting your thumb with a hammer stimulates something in the brain to do with pain, and tends to depress. But none of these things achieves its emotional effect by means of any physical or pharmacological action on the brain itself. Their effect is psychological, achieved I think (I’m open to be persuaded by those who know better) by our learned associations with the brain’s recognition of harmony, clear skies and pain in the thumb.

Lots of things affect our mood in this induced, secondary, non-pharmacological way. Nice smells stimulate the olfactory bulb, which I understand is part of the central nervous system. But nice smells don’t change your mood by the mechanism of stimulating or depressing your central nervous system. They are not in this respect like coffee, cigarettes or wine, whose ingredients really do cross the blood-brain barrier, and whose molecules really do affect us by interacting directly with brain tissue. Coffee, tobacco and alcoholic drinks enjoy specific exemptions under Schedule 1.

Indeed, Matthew Scott himself accepts that not all substances taken into the body act on the brain, when he ridicules the bill’s exemption for “homoeopathic medicinal products”:

A pointless exemption has been given to homoeopathic preparations, even though there is no chance whatever that the silly little pills of nothingness and quackery would have any effect on your brain anyway, except as a placebo.

This reveals that even Matthew cannot think every nice thing falls within clause 2. Water tastes good, and can certainly cheer you up. It has the same sort of secondary emotional effects as the smell of flowers. But once you accept that water (or any other “inactive” ingredient or placebo) is not psychoactive because incapable of having any effect on the brain except by a psychological mode of action, you have already stepped back from the strong claim that the bill “bans pleasure”. If everything pleasant really were banned under clause 2, then an exemption for homoeopathic products consisting entirely of water would not be pointless at all. Matthew himself identifies the distinction that undermines his argument.

It’s not right, then, simply to say clause 2 catches everything that smells nice and lifts your mood, like flowers or everyday perfume.

To be clear, I am not arguing that perfumes or plants are “exempt” from the bill. An offence could be committed under the bill if some new psychoactive substance contained in perfume were capable of being delivered to the brain through the nose, and acting on it. And an offence could conceivably be committed by supplying a plant with a fragrance that acted in the same way. My point is that clause 2 of the bill does not simply cover every nice-smelling thing behind the perfume counter or at the local florist.

You might argue that the current wording of the bill does not adequately target the distinction I’m making between substances that act physically on the brain, and those whose effects are secondary. But clause 2, which covers only substances that affect mental functioning or emotional state by stimulating or depressing the central nervous system, arguably does the job well enough; and I think courts are likely to interpret it as doing so.

But there’s another reason why, even if something really does act on the central nervous system, it’s still not necessarily “banned”. For one thing, the bill will not criminalise its possession or use at all. What’s more, not even its production or supply will necessarily be prohibited.

There’s an offence of supplying a psychoactive substance, under clause 5(1):

A person commits an offence if—

(a) the person intentionally supplies a substance to another person,
(b) the substance is a psychoactive substance,
(c) the person knows or suspects, or ought to know or suspect, that the substance is a psychoactive substance, and
(d) the person knows, or is reckless as to whether, the psychoactive substance is likely to be consumed by the person to whom it is supplied, or by some other person, for its psychoactive effects.

Let’s take as our example products containing frankincense, which I understand (I’m grateful to Nelson Jones for telling me) has been shown to have psychoactive effects. If you buy a product containing frankincense, the retailer will have intentionally supplied a substance to you, so satisfying subsection (a); and it, or the frankincense in it, will be a psychoactive substance, so satisfying subsection (b).

It’s not quite so clear that the retailer ought to know or suspect frankincense has psychoactive effects, so satisfying subsection (c). But even supposing he or she ought to suspect this, subsection (d) would still present a serious problem for any prosecution.

While some customers might know frankincense has potential antidepressant effects and buy it precisely for that reason, that’s not actually why most people buy incense. Most of us buy incense simply because we think it smells nice, or perhaps as an aid to meditation. Even if we think it may have psychoactive effects (as I suppose I do, now), we don’t buy it for those effects. So we can’t say the retailer knows we’re likely to want it because of them.

That leaves recklessness. Admittedly, if the retailer does happen to know the incense is psychoactive, he or she will be aware we might want it for its psychoactivity and may even think it likely that we do (which I think is what “recklessness as to likelihood” in subsection (d) requires). But it still doesn’t follow that supplying us with the incense would be reckless.

Recklessness in law is not simply doing something that you’re aware involves risk. It’s accepting a risk unreasonably. As Lord Bingham explained in the House of Lords in 2003 in R v G (see para. 41)

A person acts recklessly … with respect to –
(i)  a circumstance when he is aware of a risk that it exists or will exist;
(ii)  a result when he is aware of a risk that it will occur;
and it is, in the circumstances known to him, unreasonable to take the risk.

Here, I think we’re talking about recklessness as to the circumstance that a substance is “likely to be consumed … for its psychoactive effects”.

So even if a retailer really did suspect us of wanting to fill our lounge with incense in the hope of easing depression, selling it to us wouldn’t be reckless in respect of that likelihood. The retailer knows incense is burned and its smoke inhaled all over the world without ill effects, by and large. It’s therefore reasonable to sell it in spite of the likelihood we’ll try using it as an ambient anti-depressant.

It might be argued (as Professor James Chalmers has suggested on Twitter) that what I’m doing here is reading in to the bill a “harm test” that simply isn’t there. But I disagree. Any alternative interpretation, dropping the requirement for risk-taking to be unreasonable, would be a strange approach to recklessness. On that approach major surgery and motorway driving would always be reckless, since they involve knowingly running serious risks. I’m not reading in a “harm test”: my approach is an orthodox application of the recklessness test explicitly written in to the bill.

If I’m correct then even if they really were psychoactive (I think not), and even if it were suspected a customer was likely to try getting high on them (surely a rare suspicion), selling flowers or Chanel No. 5 would be reasonable and therefore lawful.

Having poured cold water on some of the claims made about the bill, let me turn to some concerns I think may be real. They relate to how, on its face, the bill treats two particular types of psychoactive substance.

The first are substances that aren’t risky, but which seem to have demonstrable psychoactive effects and are typically used because of our belief in them. Lavender oil may be a good example. As I understand it there is some evidence that linalool, which is contained in lavender, has anaesthetic, depressant effects. And of course many people do buy lavender precisely because they think it will be calming – helping them go to sleep if they put a few drops on their pillow, for example.

A retailer selling lavender oil – at least when marketed in the context of aromatherapy rather than as (say) a moth repellent – surely knows most customers are using it for what they think are its calming effects. Indeed, Boots’ packaging of lavender oil says it’s “to help relax and soothe”. In these circumstances, the fact that it may actually have demonstrable psychoactive effects means all elements of the clause 5(1) offence are potentially satisfied. The retailer may be supplying a psychoactive substance and ought perhaps to suspect it to be psychoactive; and he or she knows the customer wants it for that very reason. A typical retail supply of lavender oil would indeed appear to be unlawful on the face of the bill. And depending on the scientific evidence, Matthew Scott may have a point about hop pillows.

The other type of substance I’m concerned about is those that have legitimate household uses but are known sometimes to be used for their psychoactive effects, and to be risky. Glue and solvents are the obvious examples.

I don’t think a retailer selling a glue or solvent would ordinarily commit an offence under clause 5(1) as it’s drafted. Yes, the retailer would intentionally supply a psychoactive substance knowing it to be psychoactive. But the retailer would not know the customer wanted it for that effect (unless the customer said so); nor would the retailer be reckless in most cases. The requirement of recklessness

as to whether the psychoactive substance is likely to be consumed … for its psychoactive effects

means in my view that the supplier must suspect that the glue or solvent is likely being bought for sniffing. If that’s right, the retailer could only sell recklessly if it seemed the particular customer at the counter might well be buying the product for that reason. That would obviously be a minority of cases. So, while an individual sale could indeed amount to the clause 5(1) offence, sales of glue would not in any general sense be “banned”.

But manufacturers, importers and wholesale suppliers of glue and solvents are in a more problematic position. They knowingly sell psychoactive substances to other businesses. And while their trade customers (Sainsbury’s, for instance) aren’t the sort of “person” who’s even capable of sniffing glue, manufactures and wholesalers must know there’s a risk that a part of any large order is eventually

likely to be consumed … by some other person for its psychoactive effects

to quote section 5(1)(d). The greater the quantity they sold to a trade customer in fulfilment of any order, the more obvious this risk would be.

The only ways of escaping liability would be either an argument that no order fulfilled was so big that any single unit was likely to be sniffed by an end user; or an argument that knowingly engaging in wholesale supply was reasonable so not reckless, given that glue and solvents are overwhelmingly used properly and given the “downstream” safeguard of retailers’ duty not to sell recklessly. Those arguments might work; but I can imagine manufacturers and wholesalers being slightly worried by the bill.

A similar problem may apply to wholesalers of lavender oil, and manufacturers of both types of product may risk committing the clause 4 offence of producing a psychoactive substance.

I’m not sure what I think about drugs policy. I have sympathy for the view that we should legalise and regulate at least some drugs, and focus on tackling the health problems they cause. At the same time I doubt that would be a panacea, and understand why legal prohibitions may be indispensable. It’s not obvious to me that this bill is stupid, and something like it seems to have been working acceptably in Ireland.

There may be problems on the face of the bill, which will benefit from close scrutiny. We need to know whether or not ministers intend to affect trade in products like glue and lavender oil, and if not how they can reassure the industries affected. One way might be to make businesses like these exempted activities, in regulations made under clause 10.

But I really don’t think the bill bans perfume, incense or flowers.

{ 13 comments… read them below or add one }

1 Hydroxide June 3, 2015 at 15:46

Sorry, but the argument regarding homeopathy, water etc. doesn’t hold water.

An olfactory agent docks with a receptor in our nose and thereby triggers a nerve signal, which then causes us to perceive the scent, which then triggers other effects, such as the brain’s reward system. The latter is a consequence of the former.

That is not the case when we take up water, homeopathic agents etc. That is precisely the point why we speak of a placebo effect – it is NOT triggered by an agent but by our experiencing the take up, totally independently of what it actually is. One reaction is specific, the other is not.

The mechanism of the placebo effect is still largely unknown, but the very reason that we know about it is precisely that we can distinguish active from inactive substances.

2 Adam Jacobs June 3, 2015 at 15:53

OK, I’m a scientist, so I’ll have a go. That said, I’m just a humble medical statistician, not a neuroscientist, so I may not be the best person to comment on effects on the brain, but with that caveat, here goes.

I think you make a reasonable point that there is a distinction between substances that cross the blood-brain barrier and act directly on the brain, and substances that stimulate the brain via, say, their effects on the olfactory system.

And if that distinction were written into the bill, perhaps it would be an improvement. But I don’t think it is at the moment. It just says “by stimulating or depressing the central nervous system”. It doesn’t say it has to do that by crossing the blood-brain barrier and exerting a direct pharmacological effect on the brain. I don’t see how this would not cover something that stimulates the central nervous system indirectly via the olfactory system or indeed any other sensory mechanism.

Now, if the bill were to be changed to specify a direct pharmacological effect on the brain, you would then be left with the rather tricky job of proving what the mechanism of action is for substances that are new to science. No easy feat, I suspect.

3 James Medhurst June 3, 2015 at 18:59

This is the most sober and sensible analysis of the legislation that I have seen so far. You clearly have not consumed any psychoactive substances. However, I am not sure that I agree about recklessness.

You seem to be saying that it is not reckless to sell incense because, even if it is used for its psychoactive effects, there are unlikely to be any ill effects. What you are doing is asking whether the seller is reckless as to the health risks of the product that he is selling.

However, what the test surely requires is to ask whether the seller is reckless as to whether the incense is used for its psychoactive effects. We have to ask whether it is unreasonable to take the risk that the product will be used in that way, rather than whether it is unreasonable to take the risk that the product is harmful to health.

If a seller strongly suspects that a person intends to use incense to relax but sells it anyway, he is reckless because it is unreasonable to think that it is not going to be used for its psychoactive effecrs.

I had better get in as many yoga classes as I can before the ban.

4 Jaya June 4, 2015 at 12:00

What about things like laughing gas, which have legitimate domestic uses (something to do with making cakes?) but are almost always in reality not used for this purpose? Do you think knowledge (or the assertion that you ought to have knowledge of that) makes it reckless?

5 Carl Gardner June 4, 2015 at 14:19

Hydroxide,

You say

we can distinguish active from inactive substances.

This is the whole point I’m making.

6 Hydroxide June 4, 2015 at 14:35

No, that’s not the point you are making, because scents are active substances, not inactive ones.

7 Carl Gardner June 4, 2015 at 14:44

Jaya,

I don’t know enough about laughing gas, I’m afraid. But if it’s known to be genuinely psychoactive (and I do know just enough to think that’s likely to be right) and you think the person you’re selling it to is likely to get high on it, then yes – supplying it may be an offence.

Whether the “recklessness” point I made about incense works depends on what’s generally known about laughing gas. Is it as obvious as with incense that taking it home and trying to get high on it will involve little if any risk? If not, the sale may well be reckless.

8 Carl Gardner June 4, 2015 at 15:09

James,

You say

If a seller strongly suspects that a person intends to use incense to relax but sells it anyway, he is reckless because it is unreasonable to think that it is not going to be used for its psychoactive effects.

This is a really interesting point about how the concept of “recklessness” works in this provision, which I agree isn’t easy to be clear about. But I don’t think you’re right.

What you’re suggesting that a supplier is reckless whenever s/he (a) realises it’s likely the customer wants to get high on the item being sold but (b) decides to run that risk anyway.

But as I argued in my post, recklessness is not simply being aware of a risk, and running it anyway. If that were what recklessness meant, then all motorway driving would reckless, and all supply of strong medicines with serious potential side-effects would be reckless, too. The reason they’re not is that you can reasonably decide to run a risk.

For instance if someone’s dying of cancer, it may well be reasonable (and therefore not reckless) to give them drugs which are likely to harm them in another way. It would indeed be reckless to give the same drugs to a healthy person – although the risk you’d be running would be exactly the same. I don’t think your approach to recklessness accounts for the difference. On your model, (a) the doctor realises it’s likely the patient will be harmed by the drug but (b) decides to run that risk anyway. So in both cases, the doctor would act recklessly. There has to be something wrong with that.

I’m not arguing that this is recklessness as to harm. I’m arguing that it’s the full, orthodox concept of recklessness as to whether the substance will be used for its psychoactive effects. It’s precisely as you yourself put it:

We have to ask whether it is unreasonable to take the risk that the product will be used in that way …

In the circumstances of what we generally know about incense, I doubt it can be reckless to sell it to someone you think believes it will act as an ambient anti-depressant when smelled.

I think the provision would work as you say if it simply required knowledge or belief that the customer would use the substance for its psychoactive effect.

9 James Medhurst June 4, 2015 at 16:09

I agree that it can be reasonable to take a risk but the key question is “a risk as to what?” Say that a person sets fire to a building in an insurance claim not knowing that somebody is inside. His mens rea for the death is recklessness but his mens rea for the offence of arson is intent, not recklessness. The mens rea for a set of facts depends on which offence is being charged in the particular case.

Now say that he sells incense to a hippie but it is a dodgy batch. The hippie smokes the incense and drops down dead. With regard to the death of the hippie, the seller has not been reckless. Even if he knew that there was a chance that the batch was dodgy, the risk was small and so it was reasonable to take it. However, for the offence of supplying a psychoactive substance, he has been reckless. The risk there is not that the hippie would die but that he would use it for the purpose of getting high. As he is a hippie, the risk is high and there is no positive reason to let him get his hands on the incense which would render it reasonable for the seller to take the risk.

There may be instances where it is reasonable to take the risk of somebody using a substance for the wrong purpose. For example, for a glue wholesaler, the risk of some of the product being sniffed is high but this is offset by the fact that there are many people who want to use the product as glue, making the risk reasonable to take. But the key point here is not that the glue is harmless – in fact, we know it is not. The key point is that is has another socially useful function which outweighs the risk of sniffing. Incense does not.

10 Simon Carne June 8, 2015 at 11:45

I am unpersuaded by James Medhurst’s suggestion that it is not reckless to sell a batch of incense, knowing it to be “dodgy” (ie potentially lethal in James’ example), simply because the probability is small. Suppose it was a supermarket selling sandwiches, knowing that it had a batch which were potentially fatal. It would certainly not be considered reasonable to put them out on the shelves along with other sandwiches.

All food and drink carries a risk of harm – and not eating or drinking carries an even bigger risk of harm (indeed, a certainty) – but when the risk has been materially elevated by the knowledge that a batch contains potentially lethal elements, it becomes unreasonable to proceed to sell it as normal.

The same goes for dodgy incence.

11 James Medhurst June 10, 2015 at 09:25

Hi Simon

This is something of a side argument to my main point so perhaps I did not spell it out clearly enough. All that I mean it that there is always a risk that incense might be contaminated just as there is always a risk that a sandwich might give you food poisoning, but nobody is going to ban the sale of sandwiches. It is different if the seller has specific information that the risk is higher than it usual.

12 Jonathan July 6, 2015 at 14:40

What about all the substances that are not active in themselves but that are metabolised (production of a controlled substance by our bodies?) into psychoactive substances that subsequently cross the blood brain barrier?

13 James October 24, 2015 at 01:32

“Water tastes good, and can certainly cheer you up. It has the same sort of secondary emotional effects as the smell of flowers. But once you accept that water (or any other “inactive” ingredient or placebo) is not psychoactive because incapable of having any effect on the brain except by a psychological mode of action, you have already stepped back from the strong claim that the bill “bans pleasure””

This is a dualist perspective – you’re implying that we can distinguish between the mind and the brain in an empirical sense, but by and large we have no such ability. You can put someone in an fMRI machine and watch as areas of the brain light up (from increased blood flow – stimulation in other words) when they smell a flower. You suggest these are secondary effects, but doesn’t this just push the problem around to a different part of the brain? At a fundamental level, a chemical of some kind is sensed by some part of the central nervous system and as a consequence the nervous system is further depressed or stimulated.

To put it another way, If I were to invent a drug that induced perceptions of pleasant sensations would that be captured by the bill’s definition? That certainly sounds like a psychoactive effect. How could we distinguish it from the volatile chemicals given off by a flower which induce a similar response?

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