26 November 2013

Head-shops: Regulation or Prohibition

This is our chance to have a radical shift in drugs policy. But we're going to end up with more prohibition...again.

Recent legislative proposals and media coverage have pushed the subject of “head-shops” to the top of the drugs agenda. It has also been a recurring theme for me in recent workshops, hence this article, to explore head-shops more closely, especially in relation to the retail and regulation of Novel Psychoactive Compounds (NPCs).

Though no statutory figures exist, anecdotally there has been a significant increase in the number of head-shops in the UK. The Angelus Foundation[1], says that there are in excess of 250 in the UK, based on on-line research and liaison with trading standards. As they acknowledge, this may not be an accurate figure. Part of the problem in counting head-shops is that (a) there is no clear definition of what would constitute a “head-shop” and (b) there is no licensing or regulatory framework that would enable local authorities to keep track of such shops.

For the purpose of this article, I am going to consider a head-shop to be any retail outlet where a significant proportion of its sales includes NPCs or other psychoactive substances.

Head-shops have proliferated in step with a growing market for NPCs. The growing availability of un-regulated psychoactive compounds has coincided with cheap empty retail units in town-centre locations. There are a number of independent traders, and a smaller number of chains. The ambience, product range and willingness of outlets to ‘self-police’ vary massively.

Workshop observations: The issue of head-shops has cropped up repeatedly during recent workshops. In a number of different areas, participants have noted the sudden and significant impact that the arrival of a new head-shop has had on local drug patterns. This has included changes within night-time economy, impact on door-staff, presentations in custody and A+E, and demands on drug services.

Sadly, much of the reporting is anecdotal. There is no routine recording of NPC usage and its links to Hospital admission, drug service usage, or offending behaviour. As such, reports from agencies of local shifts in use and behaviour are hard to evidence. But the consistency and regularity of these reports in workshops makes them compelling and hard for me to ignore.

Head-shops v. On-line retailing: A key concern is that head-shops, rather than on-line retailers that provide the more ready access point to people under 18s. Most of the websites require some form of credit or debit-card payment and this, combined with the requirement to have things delivered to the home, acts to some extent as a barrier to younger purchasers.
Head-shops on the other hand are much more accessible and accept cash payments. They also remove any lingering misgivings about home deliveries or using cards online.

Head-shops also allow for more impulsive, less considered use. The process of ordering online, the selection process and the delayed delivery mitigate against impulsive use (to an extent.) Whilst a punter may purchase impulsively, they may be more considered than when buying in a shop. So the presence of a town-centre head-shop may provide a readily accessible point for the impulsive purchase of NPCs by younger people.

Conversely, a counter argument can be made FOR head-shops. Their products may be risky, but the same can be said for wholly unregulated street drugs. Does the presence of a head-shop undermine street drug markets, providing a less risky alternative? This argument has certainly been made by colleagues noting that in areas with easy access to unregulated NPCs they have seen less injection of mephedrone. But conversely some areas with easy access to legal white powder stimulants from head-shops have seen injecting of these compounds in place of street drugs.

At the very least some head-shops will at least try to ensure that they don’t sell to under-18s, through measures like checking ID. This at least provides a modicum of control which doesn’t exist in street settings.

The pressure for change: At present the media are building up a fine head of steam in relation to head-shops and politicians are not far behind. The odds are the present situation will not be allowed to continue. There are two courses of potential action – to regulate the industry or to clamp down on it.

The Angelus Foundation is pushing for such an approach, supporting an amendment to the Antisocial Behaviour, Crime and Policing Bill, [i] which says:

It is an offence for a person to supply, or offer to supply, a psychoactive substance, including but not restricted to-
(a) a powder;
(b) a pill;
(c) a liquid; or
(d) a herbal substance with the appearance of cannabis,

which  he knows, or has reasonable cause to believe, to be so acting, that the substance is likely to be consumed by a person for the purpose of causing intoxication.

This clause would require significant revision in order to be viable. At present it would probably make it illegal to sell tea and coffee, and the simple measure of dying a product like “Exodus Damnation” pink would get round the strictures of clause (d) in the proposal. As it stands it wouldn’t criminalise end users and doesn’t result in the closure of shops.

The response in Ireland has been subtly different and creates a system of Closure Notices and Closure Orders for head-shops selling intoxicated substances.[2] This piece of legislation importantly includes a “reverse burden of proof,” requiring retailers to prove to the court that a product was NOT sold for human consumption, irrespective of any wording on packaging.
Further, importantly, the legislation doesn’t criminalise end-users but does provide scope to close down retailers. The Mirror[3] claims that this legislation reduced the number of head-shops from “
from 100 to six in three months.”

In lieu of regulatory or prohibitive legislation, a variety of piece-meal responses have emerged. The use of the Intoxicating Substances (Supply) Act 1985 was successfully used in Leeds.[4] Attempts to use Trading Standards legislation failed in Chester due to a botched case.[5]
Police enforcement action against head-shops in Wales used more conventional approaches, including charges for drugs offences related to cannabis and charges for money-laundering.[6]

Elsewhere Police and Trading Standards have been more and more inventive, exploring other branches of legislation relating to cosmetics, chemical storage and fire safety to apply pressure to head-shops. There are many such avenues that could be explored. For example, synthetic cannabinoids, sold as “herbal incense” would need to be safe to use as instructed – when placed on a incense burner. As they would release toxic, intoxicating fumes if heated they would be an easy target for Trading Standards in their current form – they are not safe or fit for purpose as “incense” or “pot-pourri.” But this is a temporary measure – it would be easy to relabel the product to side-step this issue.
Another potential issue is the insurance of head-shops. It will be interesting to see how many shops are covered for building insurance if they cover significant amounts of chemicals on site, and if they have valid employer’s liability insurance given the chemicals on site.

All the interventions so far have been prohibitory and restrictive rather than regulatory. However, they haven’t resolved the issue of NPCs and prohibitive responses may have their own unintended consequences.

Sale of NPCs is not restricted just to head-shops. There is a thriving market in less typical retail outlets ranging from newsagents through to fast-food shops. This is an issue that has recently been highlighted by Max Daly in Drugscope.[7]  So restriction or banning of head-shops runs the risk of driving the products in to a range of other outlets which could be still harder to regulate.
We have already seen that as an existing product is prohibited they are firstly discounted massively on websites and post-prohibition sold via other outlets including car-boot sales, pubs and under the counter in head-shops. With no mechanism for regulating shops or reimbursing retailers post-prohibition, it is inevitable that prohibition will see residual products dumped on to the market.

Clamping down on head-shops does nothing to address on-line side of distribution which would persist even if head-shops were closed down. It’s worth noting that the primary distribution channel for mephedrone prior to it becoming a controlled drug were on-line suppliers, rather than head-shops.
And it’s also worth stressing that it easier to hold a shop-based retailer to account than a virtual one.

Regulation would require a significant step change in terms of drug strategy. It must be said that some of the current head-shops see themselves as having some moral and social values and endeavour not to supply to younger people. But the lack of a regulatory framework and the moral ‘flexibility’ of some outlets means that head-shops are certainly not “off-limits” to younger purchasers. One participant on training recently described how her existing older clients were up in arms about the behaviour of the local head-shop, as they saw children in school uniform queuing for NPCs.

The current legislative and regulatory framework is confusing and widely misunderstood. And in truth the current options for agreeing a regulatory framework are distinctly limited.

A key option would be to require “head-shops” to be licensed by a Local Authority. This could open up a range of control options including:

  • Vetting and training of staff
  •  Requirements to check ID in relation to age
  • Control over where shops can open and when they can trade
  • Capacity to remove licences in response to emergent problems.

Regulation requires licensed substances: At present there are some limited legal barriers to the sale of products that are NOT controlled drugs or medicines.
Whilst many of the NPCs currently sold carry “adults only” or “not for under 18s” badges there is limited legal basis for this. The rationale for such voluntary age-restriction is more politic than legal. By attempting to legal sales to “informed adults” retailers are slightly better protected from litigation. It may also have been intended to reduce political and media ire but is clearly becoming less effective in this regard. 
It is also intended to protect retailers from falling foul of the Intoxicating Substances Supply Act (1985) which makes it an offence to supply an inhalable product to a person under 18 where it is known that it will be used for intoxication. Originally intended to deter the sale of solvents, it has also been applied to the sale of some NPCs.

The key obstacle to regulation is the legislation relating to the sale of medicines. At present products are sold “not for human consumption,” and variously sold as “research chemicals” or other flags of convenience, so that they do not fall foul of the Medicines Act.

The greater the extent to which retailers acknowledge that their products are sold for the purpose of intoxication, the more the products are likely to fall within the scope of the Medicines Act. In itself, this doesn’t happen just because a retailer gives a customer advice about a substance.  So when for example the Daily Mirror says “Legal highs: Store worker flouts drug laws to dish out drug advice to customers[8]” this isn’t strictly accurate. The provision of advice on its own doesn’t put the retailer on the wrong side of legislation. But it DOES make it easier for the Borderline Products Team at the MHRA to conclude that the product in question is being sold for the purpose of ingestion and as such should be considered a medicine. However, to reach this stage, the MHRA would have to consider and reach such a decision and, until such a decision was reached, the substance in question would still not be subject to the strictures of the Medicines Act.

So whilst the provision of verbal advice about doses and choice of compound nudges retailers closer to restriction under the Medicines Act, it’s a long way from having a product or family of products labelled “medicines” by the MHRA.

Where the provision of advice about choices or usage does leave retailers more exposed is in the event of someone suing for damages – citing breach of Duty of Care.

At present retailers shelter behind the “Not for Human Consumption” claim which is often backed up by assertions that the product should not be ingested and medical help sought if taken. This wording is in part a defence against products being brought under the Medicines Act. But it is just as important as a defence against civil litigation.

If a product were sold as a “legal high,” and the user were harmed as a result of taking it, it should be possible to sue the supplier, or possibly the manufacturer. The retailer would have to demonstrate that they had taken “reasonable care” to avoid “actions or omissions” that they could “reasonably foresee” could cause harm to (for example) a purchaser.

In most legitimate retail settings, this “reasonable care” would involve ensuring that the products were as safe as possible, fit for purpose and packaged appropriately with information on how to use the product safely.

At present, with NPCs retailers attempt to side-step the risk of being sued by the wording on packaging. It may well be that anyone attempting to sue a retailer for harm arising from use would fail, because the retailer could reasonably argue that the products were not intended for consumption and were clearly labelled as such.

This defence could however be undermined if the retailer also gave advice about consumption. It would then be easier to demonstrate that the retailer was aware of the use to which the product was probably going to be put, irrespective of the wording on the package.

Ultimately such a decision would need to be made by a court. But herein lies our stumbling block.

If head-shops were somehow licensed or brought within the ‘harm-reduction’ fold, then they would no longer be able to shelter behind the “not for human consumption” dodge. The very act of describing how to use specific products more safely would hole the defence against negligent claims below the waterline.

So while on the one hand it may be desirable to encourage NPC retailers to work collaboratively with drug services to develop safer retail models, they would in turn need to ensure that their products were safe to consume – probably an insurmountable barrier for most retailers. It would also mean that the substances would likely fall under the purview of the Medicines Act.

In order to achieve licensed, regulated head-shops, we would also need products which could be licensed and regulated too, requiring changes to the Medicines Act, Misuse of Drugs Act, and a slew of other pieces of legislation. We would probably need to adopt an approach more like New Zealand, which allows for the sale of products whose safety has been adequately demonstrated.

Over the next few months, it seems more likely that the indirect methods of policing head-shops mentioned earlier will be replaced by prohibitive legislation. It would be really desirable if instead we could have a sensible discussion. Are we safer with regulated head-shops which can be licensed and vetted? Possibly. Can we achieve this unless we also licence some of the products that they sell? Probably not. And is the Government going to explore this as an option as part of their exploration of responses to NPCs? Well, never say never but there will be few people more astounded than me if they do.

[1] http://www.prnewswire.co.uk/news-releases/over-250-headshops-in-uk-are-selling-legal-highs-says-angelus-foundation-232476221.html
[2] http://www.attorneygeneral.ie/eAct/2010/a2210.pdf
[3] http://www.mirror.co.uk/news/uk-news/legal-highs-labour-looking-clamp-2715685
[4] http://www.westyorkshire.police.uk/news/men-charged-landmark-legal-highs-case
[5] http://www.chesterfirst.co.uk/news/122737/case-against-chester-legal-high-shop-owner-dismissed.aspx
[6] http://www.southwalesargus.co.uk/news/10765334.Five_released_on_bail_following_raids_in_Newport_and_Cwmbran/
[7] https://pressfolios-production.s3.amazonaws.com/uploads/story/story_pdf/50357/503571385371333l7hrMWTLRGE8jGSPOYMw.pdf
[8] http://www.mirror.co.uk/news/uk-news/legal-highs-uk-skunkworks-worker-2644152

[i] http://www.publications.parliament.uk/pa/cm201314/cmpublic/antisocialbehaviour/memo/asb52.htm


The Total Impostor said...

A very interesting article. Another problem with the Angelus Foundation's proposed amendment to the Antisocial Behaviour, Crime and Policing Bill, is that it would, if successful, make it an offence to supply alcohol (a liquid)!

KFx said...

indeed - saw your tweet on that and kicked myself for not mentioning in article. A thing that interests me is that Angelus lists a number of organisations as "partners" including Drugscope, CDC, Addaction and AdFam. I wonder, if as partners, they 'endorse' this proposal? i am never happy when one charity/support group/family achieves too-high a level of influence - the impact of the Debra Bell (TAC) on the cannabis debate was utterly disproportionate and i can see the same thing happening with Angelus now.

Peter Reynolds said...

Excellent work. Thank you. This is truly progressive and intelligent, constructive comment at the leading edge of this debate.