The number and diversity of new psychoactive substances (NPS) reported in Europe in recent years represent a major challenge for Europe’s policymakers. In 2013, 81 NPS were notified to the EU early-warning system (EU–EWS),¹ bringing the number of substances monitored to more than 350. As part of its Perspectives on Drugs (POD) series (see separate report on POD elsewhere in this issue), the European Monitoring Centre on Drugs and Drug Addiction (EMCDDA) has published an online and interactive analysis of the policy and legal challenges posed by NPS for European legal systems.² This article summarises the key points arising out of this POD analysis.

The diversity of new substances and the speed with which they have been appearing provides a challenge for the criminal law which, in keeping with the fundamental principle of legal certainty,³ must be specific when defining an offence. In practice, this means that the drug law must clearly list all substances under its control: ‘The traditional response to the discovery of a new “drug”, established at a time when such a discovery was a relatively rare event, was to assess the risk to public health and add it to the national list of controlled substances’ (p. 1). However, the emergence of many new substances with limited evidence of health risks ‘both challenges existing process and potentially stretches the credibility of control systems’. In some countries criminal laws must be agreed by parliament, and updating the law can be time consuming, and even where an NPS is identified and controlled, it is quickly replaced in the drug market.

In response to this challenge, a number of innovative legal responses have been developed throughout Europe. In general, three broad, sometimes overlapping, approaches have been adopted.

Controls using consumer safety or medicines legislation

Consumer safety laws were used in Poland and these led to ‘mass “headshop” closures’ (p. 2). In Italy, regulations requiring goods or food for sale to be accurately labelled as to their expected use were employed to confiscate Spice (i.e. synthetic cannabinoid) products that were not labelled in Italian. In the UK, a similar approach was used to prevent the sale of mephedrone that was labelled as bath salts and plant food. In at least eight countries, medicines laws have been used to control NPS. By classifying an NPS as a medicinal product, a national medicines agency can demand a licence for importation, marketing or distribution. This can also have the effect of avoiding the criminalisation of users.

Extending and adapting existing laws and processes

Some countries have introduced ‘temporary control regimes’ in order to accelerate legal processes and allow time for NPS to be investigated for possible legal control. In the UK, a procedure was introduced in 2011 allowing for the temporary control of named substances for up to one year. Similar approaches were adopted in Latvia, Slovakia and Hungary. Some countries have chosen to extend the coverage of existing drug laws by listing defined groups of substances rather than individual drugs as was done previously. A generic group system, which includes a precise definition of a family of substances, has been the approach traditionally taken in Ireland and the UK. Other countries such as Latvia and Bulgaria use a broader ‘analogue’ approach, which includes a more general definition of ‘similarity in pharmacological activity’, as well as ‘similarity in chemical structure’. Group definitions are now being adopted by many countries (Luxembourg, Italy, Cyprus, Lithuania, Denmark, France and Norway). Germany is considering adopting such a group system while the Netherlands has recently rejected such an approach owing to the ‘complexity of targeting some substances while not restricting others that may have legitimate uses’ (p. 3).

New laws to manage the unauthorised distribution of NPS

Ireland’s Criminal Justice (Psychoactive Substances) Act 2010 is an example of a new law. A similar approach has been adopted in Austria, Portugal and Romania, although precise legal definitions, the nature of the threat posed by NPS and the possible penalties that can be imposed differ between countries.

Common trends

Although different approaches have been adopted throughout Europe to NPS, two common trends are identifiable: ‘[First] there appears to be a general move towards the use of the threat of prison to deter suppliers; and, second,… countries are choosing not to use criminal sanctions for those possessing a new substance for personal use’ (p. 3).

1. When a new psychoactive substance is detected on the European market, EU member states ensure that information on the manufacture, traffic and use of the drug is transmitted to the EMCDDA and Europol via their national networks (the Reitox national focal points and the Europol national units). This information exchange mechanism is the EU-EWS on NPS.
2. EMCDDA (2013) Controlling new psychoactive substances. See online edition with interactive features at http://www.emcdda.europa.eu/topics-a-z  
3. In the common law tradition, legal certainty is often explained in terms of citizens' need to be able to organise their affairs in such a way that they do not break the law.