New legal provisions aimed at banning legal highs continue to ignore the inevitable disastrous consequences for public health. The legislation, which came into force last month, raises several questions.
Complicated procedures, with questionable effects
The legal highs market started to grow in Romania sometime in 2007, when online shops started to sell substances “destined for ethno-botanical study” using a semantic loophole to sell unscheduled psychoactive substances.
Official data (National Report on Drugs, 2008-2011, National Anti-drug Agency) shows that in the space of just 4 years, the national drug market has almost tripled. Lifetime prevalence of drug use has increased from 1.7 percent in 2007 to 4.3 percent in 2010. The main component factor in this increase, has been a rapid growth in the popularity of legal highs among young people, ranging from children aged 10-14, to adults of 30-35 and older, all over the country.
From 2009 onwards, Romania looked for legal solutions to put an end to the success of legal highs trade. In February 2010, 36 substances were banned, and the list was later expanded, with the addition of 8 new substances. Some of these substances were research chemicals (mephedrone, WH-018, DOC, DOI), some were plants (ibogaine) and mushrooms (all known species af psylocybin).
In November 2011, a new law was passed, targeting products susceptible of having psychoactive effects. The new legislation introduced a new term – “substitute” – defined as “any substance or substance mixture, whether natural or synthetic, in any physical form, or any product, plant, mushroom or parts thereof, whose legal status is not regulated by other legal provisions, which has the capacity to cause psychoactive effects or can be used as a replacement for a concoction with psychotropic effects.
In April 2012, a new procedure governing operations involving potential “substitutes” was published in the Official Gazette, in order to specify the authorization methodology arising from law 194/2011.
Thus, in order to receive authorization to sell substances susceptible of having psychoactive effects, the operator (e.g. any person or registered business) that intends to conduct, or already conducts, operations involving such substances, has to follow an authorization protocol which involves a lot of time and related expense.
The National Authority for Veterinarian and Food Safety (NAVFS) is entitled to authorize the sale of a substance under suspicion, via the Institute for Controlling Biological Products and Veterinarian Drugs, if the substance has been proven not to be a “substitute” within the meaning of the new law.
This means the operator has to submit a request and a file in triplicate, specifying:
1. quality and quantity details of all components of the product, including their international designation;
2. an assessment of the product's potential psychoactive risks;
3. a description of the manufacturing method and industrial controls used by the producer;
4. the product's physical and chemical tests results;
5. a layout of the packaging and recommended usage method;
6. proof of payment of the authorization procedure fee;
7. any other relevant documents.
Any failure to comply with the protocol terms (which include various associated time limits) results in cancellation of the whole procedure, which means re-starting the whole procedure from scratch. In the end, after submitting the file in triplicate and paying the lab analysis costs, the operator can be granted permission to sell the product, or the authority can reject the request. The first option is not a winner, because it is hard to believe that the owner of a smart shop would be interested in selling a substance without any psychoactive effects. In the second case, however, the confirmed psychoactive effect leads to the scheduling of the substance involved. In addition, this procedure must be completed for every individual substance/product.
Criminalization is not a solution
It is hard to imagine that a large number of files will be submitted to the NAVFS for authorization. The number is expected to be low (if indeed there are any at all) as the smart shop business is based on selling new psychoactive substances. In addition to the stated aim – that of blocking present/future attempts to introduce new psychoactive drugs on the market – law 194/2011 and the authorization procedure provide a legal basis for closing down smart shops. Representatives of the Ministry of Health, the National Authority for Consumer Protection and NAVFS can enlist the help of law enforcement, in the event that they have reason to believe they have discovered an operation with psychoactive substances/substitutes.
Following the closure of smart shops, demand for new psychoactive substance is likely to continue unabated, thus attracting the interest of criminal organizations. In view of previous experience with prohibition policies, this means that the market won't disappear; it will only shrink, while product quality will come down and prices will go up.
Unforeseen consequences may occur in Bucharest, where a considerable number of heroin users have switched to synthetic stimulants (new psychoactive substances in powder form). The main consequence has been an increase (ranging from 3-5% for heroin, to 10-20% in the case of synthetic stimulants) in injection rates, resulting in a serious risk of HIV transmission among injecting drug users. Apart from wider availability and a lower dose-price, another reason for some former heroin users initially switching to synthetic stimulants, was the legal status of the substance. Following the criminalization of 44 substances in 2010, new products have emerged on the market. Possession for personal use in unlimited amounts was initially not punished and users no longer feared prosecution. The latest provisions, however, restore a policy of criminalization; as a result, heroin might come back into more widespread use.
Romanian Harm Reduction Network