The Netherlands - by Mr. Kaj Hollemans (KH Legal Advice) (columns KHLA).
On June 21, 2022, the House of Representatives voted on a motion by Member of Parliament Joost Sneller (D66). This motion has been passed which means that the government is requested to investigate how the possibility can be created to regulate the sale and possession of new high-risk substances more quickly and efficiently. The motion is interesting in that sense, because it closes a gap between (being able to) do nothing and a total ban.
Regulation, such as setting an age limit for sale, volume restrictions, an advertising ban or a mandatory health warning, contribute to reducing the health damage of new high-risk substances. Adding a list 0 to the Opium Act for new high-risk substances, to which such measures will apply, temporarily or otherwise, could indeed be a useful addition to the current legal framework.
This would, for example, have been a good solution for nitrous oxide (laughing gas), which will soon come under the scope of the Opium Act, with the exception of a few legal applications. This makes almost the entire production, trade and sale of laughing gas illegal. If the sale and use of nitrous oxide were better regulated from the start, then the situation hadn't gotten so out of hand and the problems had
around nitrous oxide has been smaller. However, for the past 7 years, the national government has failed to regulate nitrous oxide in any way, despite calls of the sector to that end. From the start, the national government had only one goal in mind: placing nitrous oxide on list II of the Opium Act. The proposal is now before the Council of State for advice. Partly in view of the critical parliamentary questions about this proposal, I expect that the Council of State will still have some reservations about the proposal or the explanation and that an amendment or addition is necessary, but in the end nitrous oxide will be placed on list II of the Opium Act. The ban is expected to come into effect on January 1, 2023.
Council of State
The Council of State also has reservations about another proposal from the government. The advice is on June 8, 2022
published on the amendment of the Opium Act in connection with the addition of a third list with the aim of countering the production of and trade in new psychoactive substances (NPS). This proposal is better known as the substance groups ban.
In its advice, the Council of State notes that RIVM already conducted research in 2012 at the request of the Ministry of Health, Welfare and Sport into the advantages and disadvantages of various options for a generic criminalization of NPS. The RIVM then came to the conclusion that the introduction of a generic system is not recommended.
According to the Council of State, a generic ban is not based on proven harmfulness of all substances covered by the ban. After all, the exact health risks of NPS are unknown, because they often involve new substances. In addition, a generic ban is based on the precautionary principle: groups of substances are banned that, according to the government, pose an unproven threat to public health.
Strikingly enough, the Council of State does not state in this context that the system of the Opium Act does not allow certain substances to be banned on the basis of the precautionary principle. After all, the basic principle of the Opium Act is that substances can only be brought under the scope of the Opium Act if it has been demonstrated that these substances influence people's consciousness and, if used by people, can lead to damage to their health and damage to society.
Effective and effective
The Council of State also criticizes the bill on other points. The proposal brings a large number of substances within the scope of the Opium Act. In doing so, the government is moving away from the criterion of proven harmfulness to public health. According to the Council of State, such a radical change can be justified if it can be demonstrated that the proposed change is effective and efficient. The explanation falls short in this regard.
In order to be able to assess the added value of the bill, according to the Council of State, it is especially important that the selection of the groups of substances to be banned is efficient. This requires that the groups of substances are not too large. As the groups of substances become larger, more exceptions and exemptions are required. After all, not all substances that fall under the banned substance groups have only illegal uses.
According to the Council of State, the explanation also contains no information about the number of substances that are expected to fall under the ban, but that are not at all harmful or have legal applications. It is therefore not possible to deduce from the explanation to what extent the ban on the selected groups of substances will be effective and to what extent the bill will only result in a limited increase in the number of exemptions.
Information provision
A ban on groups of substances is also less easy to explain than a ban on one specific substance. From the perspective of the citizen, it is important that clear communication takes place about which concrete substances fall under the substance group ban. Most citizens will not know this, because it requires specialist knowledge. A clear communication process is therefore required for the bill to be effective. The citizen should be adequately informed about all substances that fall under the generic ban. The explanation does not address this.
Properly informing citizens about which concrete substances fall under the generic ban poses a significant challenge for the government. It is difficult to make this concrete, precisely because the substance groups ban potentially concerns many different substances. All these substances will soon be banned. Without realizing it, you as a citizen can face severe penalties or a conviction. This is a very justified point of the Council of State, because it must be clear to a citizen what exactly is punishable in the Opium Act. This certainly applies to high criminal threats.
RIVM report
In 2012, RIVM published a report on the advantages and disadvantages of introducing various forms of a generic ban on NPS. At the time, this led to the conclusion that a generic criminalization of all NPS is not feasible, because hundreds of connections would be banned as a result. There is no indication in the explanation how RIVM was involved in the preparation of this proposal. According to the Council of State, this raises the question to what extent the disadvantages of a generic ban, mentioned at the time in the RIVM report, would no longer apply.
In view of the relevance of the RIVM report to the bill, the Council of State advises to examine the disadvantages described by RIVM in more detail and to justify why this should now be looked at differently. The Division also recommends stating reasons in the explanation why RIVM was not asked to advise again on the desirability of criminalizing the three proposed groups of substances.
The RIVM report describes a total of 9 disadvantages. I suspect that the government deliberately did not respond to this report. On the basis of this report by the RIVM, the proposal has no chance of success. The government was made aware of this by several parties in 2020 during the consultation but decided not to do anything about it. This makes one wonder to what extent the government has taken the criticism of this proposal from society and academia seriously. It is good that the Council of State has noted this and is once again drawing attention to it.
Free traffic of goods
The Council of State also has criticism on another point. The bill is a restriction on the free movement of goods. Such a restriction must be justified. The explanation refers to two grounds of justification: protection of public health and protection of public order. Both grounds for justification are insufficiently motivated, according to the Council of State.
In order to justify the restriction on the free movement of goods, the explanation refers primarily to the protection of public health. It should be noted that it is not certain that all substances in the banned substance groups are actually harmful to health. Based on the precautionary principle, however, according to the government, it would be justified to ban substances as long as it is unclear whether they are harmful to health.
The Council of State rightly points out that the precautionary principle requires at the very least that real damage to the health of persons is probable. However, the explanatory memorandum does not state any scientific data to justify the harmfulness of the substances that fall under the proposed substance groups. The precise health risks of these new substances have not yet been mapped out, according to the explanation.
The Council of State recommends further substantiation that the bill is necessary to protect public health, examining the plausibility that the prohibited groups of substances pose a real risk to public health and amending the bill if necessary.
Secondly, the explanation refers to the protection of public order in the Netherlands. The bill would be suitable to protect this interest, because the Public Prosecution Service will be given the opportunity to prosecute persons who act in violation of the bill. The bill thus combats organized crime, which can have a disruptive effect on Dutch society.
Besides the fact that this is circular reasoning (after all, there is no question of a crime, because these substances do not yet fall under the Opium Act), an appeal to the protection of public order is not lightly accepted in case law. There must be a 'genuine and sufficiently serious threat affecting a fundamental interest of society.' According to the Council of State, the motivation for this criterion is again inadequate.
It is by no means certain that the involvement of criminal organizations in certain goods or services must always lead to these goods or services having to be banned. According to the Council of State, the explanation should further explain why protection of public order by means of the proposed prohibition is necessary in this case.
Signals
I broadly agree with the advice of the Council of State. The proposal is not well motivated in several respects and the government has hardly done anything with the input from various parties during the consultation.
This week the police argued for the regulate the drug market during a meeting of Leap Europe and appeared a report of the independent think tank Thinking proposing to regulate the domestic supply of both cannabis and ecstasy. This increases the credibility and effectiveness of drug policy. Not all drugs require the same approach.
By regulating weed and ecstasy, hundreds of millions of euros in profits per year can be diverted from criminals, according to the report, and the effects of drug crime can be tackled: waste dumping in nature, young people who leave school to deal in drugs. In addition, ecstasy users come into contact less with drug dealers and less likely to come into contact with other, more harmful substances, such as speed, GHB and crystal meth.
The proposal to add a list 0 to the Opium Act is also along this line. Regulation, whereby the government sets strict rules for the production, distribution and sale of certain substances, is a better alternative than a total ban. This would also be a godsend for NPS.
In the United Kingdom, the introduction of a substance group ban has led to an increase in drug use. Two years after the ban was introduced, the death rate from the use of impure MDMA, cocaine and opiates hit a new record. From a “Review of the Psychoactive Substances Act 2016” of November 2018 shows that the rise of NPS in the UK has not diminished after the introduction of the Psychoactive Substances Act and that street traders have largely taken over the distribution of new psychoactive substances.
The Ministry of the Interior has itself admitted that the targets for “harm reduction” have not been achieved. If that is the result of the substance groups ban proposed by the government, then I wonder what the rationale is behind this proposal.
Time for a different drug policy
It is time that the politicians in The Hague took these advice and signals seriously and started thinking about a different approach to the drug problem, in which the government monitors and regulates the market, instead of leaving it to ruthless criminals. It is time for governments to take the protection of users' health seriously, rather than making people feel guilty to mask the failure of current policies. In short, it is time for a different drug policy.
