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Why America Needs an FDA for Recreational Drugs

Because of the way they dodge regulation, the rise of legal highs reveals the bare truth about the inevitable failure of global prohibition—and why the only way forward is to regulate psychoactive substances rather than reflexively criminalize them.
August 13, 2015, 6:00pm
Photo via Flickr user Kurtis Garbutt

American cops and journalists have recently rediscovered Spice, one of the brand names for the assortment of shady chemical concoctions now being sold online and at convenience stores as legal highs. But as we contend with the real dangers of this stuff, it's all too easy to descend into the same kind of moral panic that brought us the war on drugs.

At a press conference on August 4, NYPD Commissioner Bill Bratton called Spice—also known as "K2" and technically best described as synthetic cannabinoids—"weaponized marijuana." He said the drug can produce superhuman strength in users and cited health department statistics showing that nearly 2,000 people had been admitted to New York emergency rooms between April and June alone after using it. To illustrate the danger, Bratton showed a video of a naked, bloody man fighting with police.


Of course, it's not quite as easy as it used to be to stir up a full-fledged drug freakout. As Gothamist quickly reported, the video was actually from an old episode of COPS. It was from 2002, not 2015, and was shot in Des Moines, Iowa. Also, it's not even clear if the suspect was actually on drugs at all, though the show's producers blamed PCP.

Read: How Synthetic Weed Is Ravaging Brooklyn's Homeless Population

What is obvious, however, is that the same claims—_This drug will make you crazy or violent—_are being made about Spice as have been made about marijuana, cocaine, crack, heroin, LSD, PCP, coffee, tobacco, "bath salts," and nearly every other new drug, probably since alcohol first began upsetting the elders in caveman days. And what's even more apparent is that our drug laws actually led to the rise of these new psychoactive substances, since they are largely taken as substitutes for illegal drugs.

Because of the way they dodge regulation, the rise of legal highs reveals the bare truth about the inevitable failure of global prohibition—and why the only way forward is to regulate psychoactive substance rather than reflexively criminalize them.

To deal with Spice and similar drugs, new thinking is needed. Stale rhetoric, demonizing and stigmatizing users by passing legislation in a frenzy of fear is what caused this problem—not its solution. To do better, we need to have a rational discussion about which substances should be legal and which should not, based on science rather than historical accident and prejudice.


In fact, to properly assess risks and benefits, we need to create the equivalent of a Food and Drug Administration (FDA) for non-medical drugs.

One small country has already taken steps in this direction. As I reported in Pacific Standard last year, New Zealand was one of the first nations to face an onslaught of "legal highs" because of its isolation from major drug trafficking routes. By 2006, 40 percent of Kiwis aged 18–24 admitted to having taken what became known as "party pills" at least once in the past year. The pills typically contained a stimulant known as BZP, but after a media panic, BZP was banned—even though there were no reports of death or lasting harm from it. And that just set off a cycle in which a replacement was marketed, prohibited, and once again replaced.

Here's the problem: There isn't any logical or scientific rationale for international drug law. Marijuana is illegal and alcohol is legal because of the cultures that dominated the world when the drug laws were made—not because marijuana is more harmful. The same is true for many other illicit drugs. Consequently, without any clear framework to determine a substance's legal status, if someone creates a new chemical that's fun—or at least interesting—to take, it sits in a legal gray area.

And in these days of widespread internet access, on-demand manufacturing and globalized supply chains, lots of people are making chemicals—often simply ordering up interesting molecules from China or India and then selling them as legal alternatives to illicit drugs. It's so easy that a British reporter was able to order a company to make a new version of the type of speed first taken by the Beatles in the 1960s. The market is now like the pharmaceutical industry before the advent of the FDA—a wild west with no rules on testing for safety and purity, let alone efficacy.


In New Zealand, the BZP craze was started by a steampunk guitarist and psychedelic aficionado. Matt Bowden scoured the scientific literature, found an antidepressant that failed clinical trials because it was attractive to stimulant users, and decided to use and it and sell it as a safer alternative to methamphetamine, which was then ripping through the local rave scene. But he didn't really want to be an illegal or even quasi-legal drug dealer, so he pushed the government to create a way of regulating these new drugs.

Since banning one drug after another was obviously failing, Bowden's call for a system to test and approve the safest and least risky substances began to seem less and less crazy. As more and more drugs were sold over the counter at thousands of corner stores and gas stations and even to kids with no restrictions, in fact, it began to seem like the only responsible approach.

In 2013, the Kiwi Parliament passed a law to create a system of clinical trials, licensed outlets and regulations for use—the world's first-ever recreational drug regulator. For almost a year, a group of products that had been sold before the law passed without reported problems was sold fully legally.

Meanwhile, regulators considered questions both philosophical and practical.
For example, how do you determine what "low risk" means for a recreational drug? Does it have to be as safe as marijuana—or can it be as risky as cigarettes? Must it be safer than driving? Or football? What about extreme sports? And how do you design a clinical trial for a recreational drug? The New Zealand law demanded only safety from products—not efficacy—but manufacturers would probably want to sell something that was stronger than placebo. So what "benefits" should they measure, and how?


Before officials could fully wrestle with these issues, however, New Zealand's system ran into a snag. Local media spotlighted unhealthy and homeless users who could be found hanging out near legal high shops (the healthy users got high at home or in clubs). This resulted in an election year revision in the law that banned all of the products that were then legal. Now it's not clear if regulators will let any new substances win approval, even if a manufacturer spends the money for trials and manages to get around a ban on animal testing in New Zealand that was inserted as a further hurdle. However, the laws for trials and plans for store sites are still going forward.

Meanwhile, the total ban hasn't eliminated the market, just driven it underground. New chemicals are being introduced, just like Spice in the US. The same problems the country saw before the law— like use by young people and overdoses— are popping up again.

In America, the situation is similar. By 2012, 11 percent of high school seniors reported having tried a legal high. While a 1986 law automatically prohibits all "analogs" of known recreational drugs, it isn't particularly effective because the term is hard to define. Is an analog a drug that chemically looks like the active ingredient in marijuana? Well, pharmacologically, it might have the opposite effect—and, indeed, Spice produces effects many pot users want nothing to do with. What about a drug that acts similarly? Molecularly, it might look entirely different. Moreover, banning substances willy nilly poses a real risk to pharmaceutical development—what if the cure for cancer turns out to be a substance some chemist creates as a marijuana substitute? Once a drug is banned, pharmaceutical companies tend to lose interest because of increased regulatory and cost barriers.

The UK is currently debating an extreme response: a law that would criminalize all psychoactive substances other than those specifically exempted in advance, like alcohol, caffeine and tobacco. This has already prompted protests from drug experts and scientists, who say that it will be impossible to enforce, will harm research, and won't work anyway.

While it may take governments decades to recognize it, prohibition is not the answer. People actually prefer tried and true drugs like marijuana, which has been used for thousands of years and is now more thoroughly studied than most approved medical drugs. They resort to unknown chemicals to avoid drug testing or because they actually don't want to break the law.

Every human culture has created technologies to alter consciousness; even animals like cats seek out highs. We can either accept this and try to regulate a natural impulse in a way that minimizes harm—or else we can continue to act based on media panics and leave millions of people to the mercy of an infinitely creative black market.

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