Second European Conference on Addictive Behaviours and Dependencies Krzysztof Krajewski Jagiellonian University Krakow - Poland Responses to the problem of ‘legal highs’ in Poland and their consequences Lisbon Addictions 2017 Second European Conference on Addictive Behaviours and Dependencies Lisbon, 24 – 26 October 2017

Question Poland sometimes mentioned along Ireland, UK, and Romania, as one of the countries with the so called total or blanket ban on new psychoactive substances. Is it true? The answer is by no means simple, especially from a purely legal point of view. Does it mean that total ban may take different forms?

Developments Uncontrolled explosion of ‚head-shop’ or ‚smart-shop’ phenomenon in the years 2007 – 2009; Around 2009 – 2010 about 1,300 retail outlets selling officially ‚legal highs’ and pretending they are not intended for human consumption; Government seems to be helpless; Media start hysterical campaign creating widespread moral panic;

‚Two track’ approach Penal law track; Administrative law track;

Penal law track Scheduling new psychoactive substances as controlled drugs, i.e. broadening criminalization: 2009 – 2 substances and 16 plants; 2010 – 7 substances; 2011 – 23 substances; 2015 – 114 substances;

Administrative law track 2010 – administrative decision by the State Sanitary Inspectorate to close all retail outlets selling ‚legal highs’ citing „sanitary reasons”; 2010 – changes of the drug law: introduction of the notion ‚substitute drug’: any substance of natural or synthetic character used instead of or for the same purpose as narcotic drugs or psychotropic substances, and not regulated by separate provisions; prohibition to manufacture, advertise or introduce into circulation of substitute drugs (but not possession); Ireland: „Psychoactive substance” means a substance, product, preparation, plant, fungus or natural organism which has, when consumed by a person, the capacity to — (a) produce stimulation or depression of the central nervous system of the person, resulting in hallucinations or a significant disturbance in, or significant change to, motor function, thinking, behaviour, perception, awareness or mood, or (b) cause a state of dependence, including physical or psychological addiction. Prohibited is: selling, importing, exporting. UK: (1) In this Act “psychoactive substance” means any substance which— (a) is capable of producing a psychoactive effect in a person who consumes it, and (b) is not an exempted substance (see section 3). (2) For the purposes of this Act a substance produces a psychoactive effect in a person if, by stimulating or depressing the person’s central nervous system, it affects the person’s mental functioning or emotional state; and references to a substance’s psychoactive effects are to be read accordingly. Prohibited is: producing, supplying, importing, possessing with intent ti supply.

Administrative law track At the first glance it amounts to a total ban on psychoactive substances similar to solutions present in Ireland since 2010 and UK since 2016 However, there are at least two significant differences: Definition does not resort to the notion of psychoactivity, but to use of the substance instead or for the same purpose as narcotic drug or psychotropic substance – in practice this amounted rather to analogue definition; Violations subject to administrative fine of € 5.000 – 250.000, and not penal sanctions;

Administrative law track 2015 – further changes of the drug law and ‚refinement’ of the earlier approach: Introduction of the notion ‚new psychoactive substance’: any substance of natural or synthetic origin having impact on central nervous system and placed on a special schedule attached to the ordinance of the health ministry; Change of the definition of the substitute drug: product containing at least one new psychoactive substance, or any other substance having similar impact on central nervous system and used instead or for similar purpose as narcotic drugs or psychotropic substances;

Administrative law track Manufacturing, advertising or introducing into circulation of new psychoactive substances and substitute drugs remains administrative violation subject to administrative fine; Combination of scheduling and total ban using not only analogue definition, but also the notion of psychoactivity; Narrower scope of prohibition (does not include simple possession); Use of administrative and not penal sanctions;

What total ban means? It seems that the notion of the total ban does not always mean the same; In Ireland and UK it involves not only blanket ban, but also use of penal sanctions (even if different from those in ‚regular’ drug law, and having narrower application); In Poland it involves a blanket ban (combined with analogue definition), but it is enforced using administrative sanctions, and not penal ones; Does it mean that total ban may be combined with search for a ‚third way’ (administrative control) of some psychoactive substances?

Effects Decision to close retail outlets selling legal highs taken in 2010 had crucial effect – most of such outlets functioning publicly disappeared; However, some of them persist in a more clandestine way; Internet trade, distribution via private channels and street dealing seem to play nowadays crucial role; Problems with enforcing administrative fines: during the years 2011 – 2016 fines amounting to about € 3,1 m were imposed by State Sanitary Inspection, but only about € 150 thous. were collected;

Effects Did the problem diminish? Side effects of certain actions regarding NPS; Side effects of the administrative total ban; Side effects of criminalization (results of scheduling NPS as controlled drugs);

Hospital emergencies involving NPS

Thank you for your attention! krzysztof.krajewski@uj.edu.pl