In this article, EDPI's Portuguese partner organization, APDES, argues against the recent ban on legal highs. They claim that prohibition will only drive the legal-highs trade underground, making it far harder to deal with.
On the 17th of April last year, Portugal implemented a law banning any commercial activity related to so-called New Psychoactive Substances (NPS). The regulations created an interim table, initially listing about 160 substances (phenethylamines, tryptamines, cathinones, synthetic cannabinoids and some plants). Within this legal framework, trading listed NPS is deemed to be a misdemeanor, with offenders subject to a fine. Listed substances, if proven toxic within a maximum period of 18 months, pass on to the definitive criminal table. During this time, fines can go up to € 3,740 in the case of individuals and € 44,890 in the case of legal persons.
Possession of substances for consumption comes under the same legal framework as other types of illegal substances, given that drug use is decriminalised in Portugal. To avoid the black market becoming the sole destination for the substances already in circulation, the government has announced a 15-day "amnesty": During this period, anyone can go to the nearest police station and hand in any substances they have, without fear of prosecution. Traders tried to get around this with marketing ploys: In the days leading up to the ban, the largest distribution chain of NPS in Portugal announced deals such as "two for the price of one”, in order to off-load stock.
Before the law was promulgated, APDES tried to put forward other models of legislation for parliamentary debate, stressing the failure of purely prohibitionist measures. In fact, the EMCDDA has calculated that new substances appear on the market at the rate of one per week. In this game of cat and mouse, the mouse is destined to win. Two days after the law came into force, Dr. João Goulão, director of SICAD (Service of Intervention in Addictive Behaviors and Dependencies) stated, “Since the law [came into force] I have received notification of a half dozen [new substances], and so we are on alert" – acknowledging that these substances are constantly emerging and the list "keeps growing”. He added that “The other [illegal substances] are well known, but with these new ones, we're playing Russian roulette – things can go wrong at any time" (From a Portuguese Daily Newspaper).
The opinion of APDES is that prohibition only increases the pressure on producers to release onto the market new substances with the ability to circumvent the law, and that some of these may well be more toxic than those already circulating. Only by regulating the production and sale of certain substances with a safe profile could the pressure be reduced.
The government has prohibited any commercial activity related to these substances, but it hasn't implemented service responses focussed on NPSs, nor has it moved to assess, monitor and evaluate users and their behaviour, or provide support and health education. In party settings – where most of the use of NPS use takes place – the response in terms of prevention and harm reduction is almost inexistent in our country. As a result of austerity measures, the Portuguese Government has frozen state grants giving funding for things such as harm reduction and outreach projects. At the moment, there is no funding for outreach teams working specifically in this field, providing information about the risks and effects of such substances, issuing harm reduction materials, or doing counseling. The only Drug Checking service working in Portugal, promoted by APDES, faces constant financial uncertainty.
Drug Checking, besides being an essential tool to work with drug users – using specific strategies to reduce the harms from adulteration, overdose or misrepresentation – is one of the most effective methods, in partnership with an early warning system, of monitoring the market, detecting new substances and noting new consumption trends.
In spite of the fact that Portuguese drugs policy has been acclaimed as an example of good practice around the world, this new law feels like a step backwards from a more appropriate, pragmatic and effective drug policy.
Daniel Martins, APDES, Portugal