Legal Highs and Moral Panics
In 2012, the International Journal of Drug Policy published a paper by a number of leading Australian experts entitled, “Kronic hysteria: Exploring the intersection between Australian synthetic cannabis legislation, the media, and drug-related harm.”
The researchers took a period of time in 2011 and analyzed the volume of media stories published online about ‘synthetic cannabis’ and specifically the brand ‘Kronic’. They also looked at self-reported awareness of the products and month of first use.
Their findings show that there is a strong correlation between the intensity of media stories on the topic and people seeking these substances. State governments first started prohibiting many of the substances in these products, based largely on reports in the media.
The intention of each piece of the over 40 separate pieces of prohibition legislation introduced since 2011 has been to reduce harm and protect the community, yet this pathway of prohibition has not been guided by evidence on harms nor has it been reflective of the unintentional harms that prohibition creates.
Over these years, the Eros Association has consistently argued that regulation, rather than prohibition, would create better outcomes for the individual and wider community. New Zealand’s Psychoactive Substances Act regulated the industry for a short time with some success.
Unfortunately, an election and moral panic lead to the regulation being overturned. The rising tide of prohibition has caused many problems.
Even industry self-regulation becomes difficult with legislation designed to attack an industry, rather than look after the community.
Discussion around New Psychoactive Substances (NPS) at the policy level has largely ignored the voice of consumers and industry. Both of these groups also want better outcomes and would prefer not to be made into criminals where once they hadn’t been.
The industry does not want to see people harmed by-products they purchase to enjoy. Consumers would like better information and better regulation, to stamp out irresponsible retailers or wholesalers and encourage a better market overall. Philip Jenkins’ 1999 book, Synthetic Panics: The Symbolic Politics of Designer Drugs traces America’s long history of drug panics and the many social problems that have been blamed on whichever substance is in the spotlight.
Jenkins’ book illuminates the often shrouded reality of these drug panics, including the role that mass media has in spreading this hysteria.
The reporting of the many apparent problems associated with a drug often reflects public concerns around social and cultural issues, rather than the actual physiological threats the drug may have.
Over the years we have seen many lurid accounts of people going mad on new drugs, going all the way back to the Reefer Madness days in the 1930’s and earlier panics surrounding race and drug use.
Professor Desmond Manderson of the Australian National University drew a parallel between the crime of drug possession and the sin of being possessed.
Manderson argues that the inquisition of the 16th century, which lead to the murder of anywhere between tens of thousands and millions of (mostly) women, shares a common logic with the drug laws. “The idea of devils appropriating the bodies of women was an extraordinarily powerful technology.
In the first place, women could be destroyed in the guise of a cure. We are not doing this to human beings, said the Inquisition; we are doing this only to the demons that have corrupted them.
Secondly, all challenges to established authority could be quelled while simultaneously denying that any such challenge ever existed.
Human beings are not resisting or arguing with us, said the Inquisition; the Devil made them do it and their continuing resistance is proof of it.
The attribution of all activity to the Devil and his subjects literally pacified – rendered passive – any challenge to the authority of the Church and the male order.”
Possessed: Drug Policy, Witchcraft, and Belief, Desmond Manderson, ANU College of Law; ANU College of Arts and Social Sciences; McGill University - Faculty of Law 2005 Compare this to the crime of possessing a drug, where no harm has been caused to anyone, yet there is an idea that merely possessing a drug represents a danger.
The message is that if you take that drug, then you too could turn into a mindless zombie, possessed by the sinister spirit of the drug. Media reporting around ‘synthetic cannabis’ and other ‘synthetic’ drugs in Australia over the past six years has taken much the same direction.
This focus has led many well-intentioned politicians to support the prohibition of these substances, despite prohibition failing to reduce harm or stop the trade of the substance. Laws are passed which are apparently intended to protect the public from the harms of drugs, despite growing calls from the experts to look at alternative policy options.
Prohibition doesn’t stop the trade of drugs, instead, it leads to the creation of black markets that operate more like a free market than a carefully regulated one. Significant criminal activity is required to maintain the markets, including the use of violence and other crimes against the person.
There is no intrinsic reason why governments should prohibit psychoactive substances. Many are already available to the public and though they still carry a range of risks, many of these can be more sensibly managed.
Professor David Nutt, former chief drugs adviser to the British government published a study that scored the harms of different drugs by a variety of measures, looking at both the user and wider society. Alcohol scored top of the list, while completely prohibited substances such as LSD and MDMA ranked as some of the least harmful.
Professor Nutt’s study shows that evidence relating to the proportional harms of different drugs is not the true focus of prohibition. Matt Bowden is a New Zealand man who has come to be known as the ‘Godfather of legal highs’.
In the early 2000s, his company produced a drug called BZP which was unscheduled in New Zealand and made available through various retailers. BZP proved immensely popular in New Zealand and Matt Bowden did not shy away from discussing this controversial emerging market with politicians and the media.
The fundamental thing that Matt Bowden understood is that there is a demand for psychoactive substances inherent in humanity.
There are more and less harmful substances out there and Matt Bowden’s intention was to create a substance that is safer than others while still giving people the experience they desire.
Rather than look into the evidence of the efficacy of prohibition in protecting the public, or the need to prohibit something in the first place, we have a policy that is largely written by politicians reacting to a small but vocal public movement, often driven by mass media.
Earlier in 2016, the UK introduced a blanket ban intended to stop the supply of all NPS by creating broad legislation which means that anything with a ‘psychoactive effect’ is immediately prohibited unless exempted under the legislation (alcohol, caffeine, nicotine, pharmaceuticals, etc). The UK’s legislation mirrors legislation introduced into Ireland in 2010, NSW in 2013, and WA in 2015.
There have been almost no prosecutions carried out anywhere with this legislation. The policy has been widely ridiculed by experts who note both the difficulty in prosecuting people and the lack of consistency in the legislation.
There was also some mockery in the UK toward the fact that the legislation was largely promoted by a small number of British tabloids.
One might like to speculate on the link between tabloid-driven policy here in Australia and over in the UK, especially considering the majority of tabloids are owned by the controversial Murdoch media empire.
Author: Nick Wallis
Social Tonics Researcher