Background and Effects of the German New Psychoactive Substances Act

Background and Effects of the German New Psychoactive Substances Act Regina Kühnl 1 & Ludwig Kraus 1, 2, 3 1 IFT, 2 Department of Public Health Sciences, Stockholm University, Stockholm 3 Institute of Psychology, ELTE Eötvös Loránd University, Budapest ESSD European Society for Social Drug Research 29 th Annual Conference 04-06 October 2018, Budapest, Hungary

Content I. New psychoactive substances (NPS) II. III. IV. Legal Responses in Europe German New Psychoactive Substances Act (NpSG) Evaluation of the Impact of the New Psychoactive Substances Act (Eva NpSG) Methods Selected preliminary results 2

I. New psychoactive substances (NPS) are not controlled by the United Nations drug conventions, but may pose a public health threat comparable to that posed by substances listed in these conventions include synthetic and naturally occurring substances as well as their derivates Form of appearance in pure form in a preparation (in many cases misleadingly declared as herbal mixtures, bath salts, etc.) 4

I. New psychoactive substances (NPS) Specific challenges associated with NPS NPS often specially produced to imitate drugs like cannabis, MDMA, or speed wide diversity of substances: Graphic source: United Nations Office on Drugs and Crime, Early Warning Advisory on NPS, 2017 5

I. New psychoactive substances (NPS) Specific challenges associated with NPS (diversity of substances) novelty of some substances at least initially, limited evidence of public health risks dynamic drug market Graphic source: EMCDDA Europol, Annual Report, 2016 6

I. New psychoactive substances (NPS) Specific challenges associated with NPS attempts of manufacturers to circumvent legislation (+ law updating process can be time-consuming) limited technical and financial resources to prove NPS-related offences 7

II. Legal Responses in Europe using or amending existing legislation Consumer safety and medicines laws Drug laws Innovative legal responses 9

II. Legal Responses in Europe Innovative legal responses listing mechanisms that reduce the time needed to control NPS levels of punishment relate mainly to the supply of NPS (manufacture, import, sale, distribution) usually two of the following three criteria to determine which substances qualify as NPS 10

II. Legal Responses in Europe Innovative legal responses Graphic source: EMCDDA Eurojust, Joint Publication, 2016 11

II. Legal Responses (in Europe) Innovative legal responses New Zealand (not in Europe, of course) Psychoactive Substance Act (2013) Pre-market approval regime: manufacturers need to prove the low risk of harm of substances prior to their legal manufacture and sale (risk assessment analog to medical substances) 12

III. German New Psychoactive Substances Act (NpSG) Situation in Germany before the NpSG entering into force Any drug-related criminal offences that had not been explicitly included by Schedules I to II of the Federal Narcotics Act (BtMG) were commonly classified according to the Medicines Act CJEU ruling (in July 2014): Substances are not medicinal products if they do not have beneficial effects on human health Legal gap: NPS no longer restricted sufficiently New legal regulation necessary 14

III. German New Psychoactive Substances Act (NpSG) New Psychoactive Substances Act entered into force in November 2016 Generic control over 2 NPS groups: The NpSG Synthetic cannabinoids + compounds derived from 2-phenethylamine does not apply to substances controlled under the BtMG (already + in future) explicitly allows accepted use for commercial, industrial and research purposes 15

III. German New Psychoactive Substances Act (NpSG) The NpSG law content (1) Administrative prohibition of handling NPS own final consumption should not give rise to criminal court proceedings (acquisition + possession of NPS prohibited but no legal consequences) (2) Criminal prohibition of trafficking, import, export, transit, putting into circulation, passing on and manufacturing of NPS sanctioned by a term of imprisonment of up to 3 years (up to 10 years in certain aggravating circumstances) or a fine, cf. NpSG, 4(2) 16

III. German New Psychoactive Substances Act (NpSG) The NpSG intentions (1) Preventing criminal liability of consumers by law enforcement authorities decriminalization of consumers (2) Reducing the distribution of NPS through criminalization of trafficking and its preparatory acts medium- to long-term reduction of the prevalence of NPS use public health protection 17

IV. Evaluation of the Impact of the New Psychoactive Substances Act (Eva NpSG) project duration until July 2019 Cooperation partners Aim Drawing of conclusions that give guidance regarding the functioning of the law and allow recommendations concerning legal and political aspects 19

IV. Eva NpSG: Methods Primary qualitative assessment of the effects of the NpSG guided narrative interviews (by telephone or face to face) with representatives of different groups of persons affected by the law NPS users staff of drug treatment facilities members of law enforcement authorities (police, customs, prosecution) + Interviews in forensic institutes + Interviews with medical staff in clinics concerning cases of intoxication 20

IV. Eva NpSG: Methods Consumers Drug treatment Collection and analysis of additional data Law enforcement & justice Toxicological analyses Monitoring 21

IV. Eva NpSG: Methods Recruitment of NPS users within different settings Internet, esp. Facebook & relevant forums Drug treatment facilities + Medical Center of the University of Munich Distributing flyers with the help of prevention projects active in the party scene 22

IV. Eva NpSG: Methods NPS users (est. n = 120 interviews) Inclusion criteria: NPS use within the last 12 months; 18 years old Preceding (online) questionnaire (approx. 10 15 min.) Subject of the interview (approx. 30 45 min.) NPS use: Consumption motives, experiences, etc. perceived changes within the last 12 months, e.g. in (NPS) consumption patterns, accessibility, market situation, mode of action and quality of NPS opinions and expectations concerning the NpSG 23

IV. Eva NpSG: Methods Staff of drug treatment facilities (est. n = 40 (partially follow-up) interviews) Subject of the interview (approx. 45 min.) experiences in dealing with NPS clients perceived changes within the last 12 months, e.g. in (NPS) consumption patterns of clients opinions and expectations concerning the NpSG Members of law enforcement authorities (est. n = 71 (partially follow-up) interviews) Subject of the interview (approx. 45 min.) legal and criminal policy issues in particular Inclusion criteria: certain amount of knowledge 24

IV. Eva NpSG: Selected preliminary results Opinions on the NpSG + the idea behind the NpSG is quite progressive - in practice nothing has changed for consumers The NpSG in practice to avert an imminent danger, substances are usually seized there is always an initial suspicion regarding a BtM offence institution of a BtM proceeding - still much (legal) uncertainty among members of law enforcement authorities and lack of guidelines/precedents The NpSG in practice e.g. it is not clear how the term trafficking will be interpreted 25

IV. Eva NpSG: Selected preliminary results Opinions on the NpSG According to the interviewees, the decriminalization of cannabis should be considered first (the NpSG may be one step ahead) the penalty ratio between the BtMG and the NpSG should be rethought (BtMG: higher level of penalties) it may send the wrong signal, as it is currently determined 26

IV. Eva NpSG: Selected preliminary conclusions NpSG not received by everybody affected yet evaluation too early NPS seem to be distributed nationwide raising awareness among staff of drug treatment facilities throughout Germany (uniform) guidelines, communication of information It appears to be reasonable to take different types of NPS users more into account in the implementation of preventive measures 27

References European Monitoring Centre for Drugs and Drug Addiction (2016). Legal approaches to controlling new psychoactive substances. EMCDDA perspectives on drugs. Luxembourg: Publications Office of the European Union. European Monitoring Centre for Drugs and Drug Addiction & Eurojust (2016). New psychoactive substances in Europe: Legislation and prosecution current challenges and solutions. EMCDDA Eurojust joint publication. Luxembourg: Publications Office of the European Union. Gerichtshof der Europäischen Union (2014). Rechtsprechung des Gerichtshofs. Abgerufen am 1. Oktober 2018 von http://curia.europa.eu/juris/document/document.jsf?text=&docid=154827&pageindex=0 &doclang=de&mode=req&dir=&occ=first&part=1 Neue-psychoaktive-Stoffe-Gesetz (NpSG) vom 21.11.2016 (BGBl. I S. 2615). Zuletzt geändert durch Artikel 6 Absatz 8 des Gesetzes vom 13.04.2017 (BGBl. I S. 872). Patzak (2017). Das Neue-psychoaktive-Stoffe-Gesetz (NpSG). Neue Zeitschrift für Strafrecht, 5, 263-266. UNODC (2015). Global SMART Update Volume 13.

Thank you for your attention Regina Kühnl IFT Leopoldstraße. 175, D-80804 Munich, Germany email kuehnl@ift.de phone +49 (0) 89 360804 35