Legal Regulation

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The term 'legal regulation' is often used interchangeably with ‘legalisation’, however there is a subtle difference between the two. Legalisation is merely a process – essentially, of making something illegal, legal. The term therefore does not specify the new policy to be adopted. Legal regulation, on the other hand, does indicate a policy endpoint – namely a legal framework governing the production, supply and use of drugs. Any activity outside of this framework will remain prohibited.

Consequently, the term 'legal regulation' emphasises that drug policy reform is not aiming towards an unregulated free-for-all on drugs. (In reality, that is what we currently have under prohibition.) The term also indicates that reform advocates are not talking about a free market model of drug control, where any business could chase profits by selling drugs. Indeed, if anything, the legal regulation of drugs involves bringing strict controls to bear on a policy area where there are currently none.

It is important to stress this point, given that supporters of prohibition present any steps towards a less punitive drug policy as 'radical', and therefore innately confrontational and dangerous. But the historical evidence demonstrates that, in fact, it is prohibition that is the radical policy. The legal regulation of drug production, supply and use is far more in line with currently accepted ways of managing health and social risks in almost all other spheres of life.

A heroin consumption room

Any drug will be safer if its production and availability is regulated rather than left in the hands of criminals. In theory, therefore, if a drug is being widely consumed, a pragmatic approach will always involve evidence-based regulation rather than repressive prohibitions that are likely to make matters worse. This rationale applies to the more risky drugs as well: drugs need to be regulated because they are dangerous, not because they are safe. 

Regulation does not, however, necessarily mean making all forms of all drugs legally available. Regulation establishes parameters around markets, beyond which some prohibitions remain in place. For example, more potent preparations of certain drugs could be more heavily restricted or simply not made available for sale (just as there are limits on the alcohol and nicotine content in legally sold drinks and cigarettes).

For the most risky drugs – such as heroin or injected stimulants  registered dependent users would be able to obtain a strictly controlled, clean supply of them from doctors or pharmacists. In Switzerland, for example, dependent heroin users are able to acquire the drug on prescription and consume it in a supervised medical setting. The impact of this has been overwhelmingly positive, with the following outcomes observed:

  • Substantial decreases in levels of acquisitive crime, as users do not have to steal to raise money to get their fix
  • Significant declines in rates of HIV and hepatitis stemming from unsafe injecting practices
  • Reductions in rates of illicit drug use (including heroin use), as the stability and contact with medical professionals that comes with the programme has enabled some patients to make the transition to opioid substitution therapy or even abstinence
  • A dramatic reduction in the risk of death from overdoses

Findings from other countries that have experimented with similar policies mean there is now a strong body of evidence that favours the implementation of heroin prescription programmes.

It is also important to recognise that in illicit drug markets there is an economic incentive to push supply towards increasingly potent and risky preparations of drugs, as they become more profitable per unit weight.

Just as under US alcohol prohibition the trade in beer gave way to more profitable and dangerous spirits (because if it is illegal to own, it is appealing for consumers to buy less but stronger substance), the trade in coca-based products has similarly been made more profitable and dangerous due to the war on drugs. Before its prohibition, the common forms of cocaine use involved low-risk coca leaf chewing and coca-based drinks, such as tea and wine. It was organised criminal networks created by prohibition that brought cocaine powder onto the streets in the first place, and ultimately introduced smokable crack cocaine.

If less potent preparations were made available, demand would likely move away from more risky preparations, just as patterns of alcohol use shifted back towards beers and wines when alcohol prohibition was repealed. Current legal structures do not allow for any such policy options to be explored even though the traditional consumption of low potency cocaine products is widespread in South America and is not associated with any serious public health issues.

Essentially, where a drug is potentially dangerous, and demand for it is high, the benefits of legal regulation will be the greatest, because there is the most to gain from managing their supply. Bear in mind that legal regulation means regulation on the substances being produced themselves, and if a substance cannot prove what it is and what it does then it would not be regulated (i.e., untested substances such as the recently banned 'legal highs' would not be on the legal market until properly experimented on). 

Despite the widespread consensus that the war on drugs has failed, a major barrier to drug law reform has historically been the lack of clear alternatives to current policy. Transform’s flagship publication, 'After the War on Drugs: Blueprint for Regulation', has sought to provide this necessary vision, outlining practical systems of regulation for each main type and preparation of currently illegal drug.

Written with the aim of establishing a regulatory system that prioritises the protection of public health and safety, the book’s recommendations are based on evidence of what works from the regulation of legal drugs such as alcohol and tobacco, as well as legally available medical drugs. Ultimately, Transform proposes five models for regulating the supply of drugs, with the stringency of each model being relative to the level of potential risk associated with each key type of drug:

  • Medical prescription and/or supervised venues – for the highest-risk drugs, injected drugs (such as heroin), and more potent stimulants (such as methamphetamine)
  • Specialist pharmacist retail model – combined with named/licensed user access and rationing of volume of sales for moderate-risk drugs such as amphetamine, powder cocaine, and MDMA/ecstasy
  • Licensed retailing – including tiers of regulation appropriate to product risk and local needs. This could be used for lower-risk drugs and preparations such as lower-strength stimulant-based drinks
  • Licensed premises for sale and consumption – similar to licensed alcohol venues and Dutch cannabis “coffee shops”, these could potentially also be for smoking opium or drinking poppy tea
  • Unlicensed sales – minimal regulation for the least risky products, such as caffeine drinks and coca tea

We can learn from the mistakes of alcohol and tobacco regulation. Levels of alcohol and tobacco use are the result of centuries of commercialised promotion, often in largely unregulated markets. With currently illegal drugs we can put in place the optimal regulatory framework from the start, controlling all aspects of the market.

Spectrum of drug policy options and their likely effects

Change will come in increments over a number of years – a new ‘post-prohibition’ world will not spring into being overnight. However, a positive process of reform is already underway on many levels. Although driven by a range of motivations and local priorities, there is undoubtedly a global trend away from harsh, costly and counterproductive punitive enforcement, towards a greater emphasis on approaching drug use primarily as a public health management issue.

These changes around the world include decriminalisation and sentencing reform, regulation models for cannabis and ’legal highs’, and innovative harm reduction interventions such as maintenance heroin prescribing. All these reforms are chipping away at the monolith of prohibition in different ways, but all demonstrate that principled and evidence-led reform is possible – even in sometimes hostile political environments.

The UN drug conventions present one of the most significant – but by no means insurmountable – obstacles to the legal regulation of drugs, yet there is now a growing consensus, even from within the UNODC itself, that these conventions need to be made "fit for purpose".

However, the power of the UN drug treaties is built on the consensus of the member states that ratify and enforce them, and this consensus is rapidly collapsing as the global drug control regime consistently fails to deliver what it set out to do. The past few years have witnessed open dissent in the highest-level UN forums for the first time.

While challenges to, and defections from, the convention system by individual states have been and will remain important in forcing the reform debate onto the agenda, long-term reform is likely to result from a coalition of states highlighting the failings of the system and demanding remedies. They will not be seeking to “overthrow” the international drug control system. Rather, they will be seeking greater flexibility for individual states or regions to explore regulatory alternatives to prohibition, while at the same time preserving the positive elements of the system – such as regulation of the international pharmaceuticals trade, and the consensus to minimise the harmful consequences of drugs and drug markets.