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Charlene Sumnall

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Welcome to the 5PB Blog where you can find comments and thoughts on current legal topics.

A Sticky Situation - The Psychoactive Substances Act 2016

Throughout England and Wales, the control of drugs used to be covered solely by the Misuse of Drugs Act 1971. In short, if the substance was listed it was prohibited; if not, then – prima facie – the substance was legal for sale and consumption, unless caught by additional legislation.>

Industrious chemists sought to manipulate the chemical structures of various substances so that, if ingested or inhaled, they had a psychoactive effect upon the person taking them. As fast as one substance was criminalised, the chemists would tinker with the formula and a new “legal high” would be made. It quickly became apparent to Parliament that this was a battle they were never going to win without new legislation – so the Psychoactive Substances Act 2016 (PSA) was born.

The PSA approach was that of a blanket ban; all psychoactive substances are prohibited unless they are part of the exemptions.  Now Parliament’s approach is to try to stay one step ahead of the chemists by focusing on the effect of the substance rather than its chemical composition. However, this leaves the legitimate retailer – and, indeed, trading standards officers – in some difficulty. How is one to know the use to which someone may put a substance? This is a particular issue when it comes to solvents.

The Intoxicating Substances (Supply) Act 1985 (ISSA) – which was repealed with the granting of Royal Assent for the PSA – criminalised the supply of substances not already covered by the Misuse of Drugs Act 1971 to: those under the age of 18, or those thought to be buying for a person under 18 – a practice known as proxy selling; and if the seller knew, or had reasonable cause to believe, that if the substance was, or its fumes were, likely to be inhaled by the person under the age of eighteen for the purpose of causing intoxication.

So, with the repealing of the ISSA, are these items still covered or not – and what changes in enforcement do trading standards officers need to be aware of?

The starting point for any examination must be the effect the substance in question has, and the use to which it is put. Unless it can be proved that the substance has a psychoactive effect – as defined in section 2 of the PSA – and is intended for human consumption[1], it falls outside of any enforcement.

The next question to consider is whether the substance is contained within the schedule of exemptions. When looking at the traditionally controlled solvents, the most obvious of these is nitrous oxide. This has medicinal uses as well as being used in some food stuffs – for example, as a propellant in whipped cream.

On the face of it nitrous oxide would be caught by the exemptions to the act[2]. However, enforcers and retailers must be mindful of the potential misuse of otherwise lawful substances. It is suggested that both need to be vigilant as to bulk buying of products and the paraphernalia sold alongside it, which may show that the substance is to be used as a psychoactive substance. For example, nitrous oxide is often used illicitly by dispensing the gas into balloons.

One of the key changes with the PSA – compared to the ISSA – is the removal of the age restriction on the offence. Traditional solvents were an age-restricted product and as such it was an offence to sell to those who were under 18 where the substance was to be, or was thought to be, used for its psychoactive effect.  Individual items may still be age-restricted and this will be a factor that enforcers will need to be mindful of.

The offences created by the PSA are: producing a psychoactive substance[3], supplying or offering to supply a psychoactive substance in its simple or aggravated forms[4]; possession with intent to supply[5];  importing and exporting psychoactive substances[6]; and possession of a psychoactive substances in a custodial institution[7]. It is likely that trading standards officers will be mainly concerned with the offences of supplying, possession with intent to supply and importing.

In terms of the offence of supply, prosecuting agencies will need to consider the need to prove that the substance does have a psychoactive effect, whilst public analysts will have to be prepared to write reports and give evidence on this issue. Crucially, the prosecution will also have to prove that the individual selling – be they corporate or otherwise – knew, or ought to have known, that the substance is a psychoactive one.

Evidence gathering should encompass: the packaging or labelling of the product; whether there were any warning labels or descriptions attached to the product; the type of business selling the product[8] and, typically, those areas that have previously been explored for due diligence-type defences; what training do staff or sellers have on a particular product; what the substance is and any lawful use; and whether there are any restrictions on the product.  Those who are offering guidance to retailers should inform them of the need for staff training and robust record keeping.

The prosecution will also have to prove that the retailer knows or is reckless about whether the psychoactive substance is likely to be consumed by the person to whom it is supplied – or by some other person – for its psychoactive effects. Enforcers should ensure that evidence on this topic is gathered, most crucially during interview. 

When working with businesses, enforcers should inform retailers that they must make themselves aware of the potential uses of such products. These steps are likely to be similar to those retailers have previously taken to comply with the ISSA and could include:

  • Warning signs in-store or on products themselves
  • Training to help staff assess the likelihood that products are being bought for their psychoactive effect
  • Updating training and age-restriction policies previously used under ISSA  - young people are considered to be a particular risk group
  • Limiting the quantity of substances to be sold in one purchase

The prosecution will need to prove that the retailer knew the purpose of the sale or that they were reckless and did not take reasonable steps to satisfy themselves of the purpose.  Again, this is ground that enforcers will be well used to covering, but – for retailers – it may mean asking further questions, rather than merely conducting a visual age check.

It is likely that solvents will be covered by the PSA, but the prosecution of offences has now become more complicated by the replacing of a perfectly simple piece of legislation with a much more convoluted one.  If in doubt, seek advice!


[1] Items being sold for their legitimate use, such as cleaning solvents, will be exempt and no action could be taken against the retailer if it is subsequently misused

[2] See Schedule 1 paragraph 2 (medicinal exemptions and paragraph 7 (food exemptions)

[3] Section 4 PSA

[4] Section 5 and Section 6 PSA

[5] Section 7 PSA

[6] Section 8 PSA

[7] Section 9 PSA

[8] E.g. One would expect those working in traditional “head shops” to be more aware of these types of products and the effect that they may have as opposed to workers in a supermarket which will be selling may thousands of individual products.

Posted by Charlene Sumnall on 07 February 2017 at 19:56