It’s official – there is not going to be a ban on the sale of aromas/poppers when the Psychoactive Substances Act comes into force during the first week of April. The announcement was made on March 22nd by Karen Bradley MP, the Home Office minister for preventing abuse, exploitation and crime, in a response to Professor Les Iversen, chair of the Advisory Council on the Misuse of Drugs (ACMD), an independent expert body that advises government on drug-related issues in the UK.
The Home Office asked the ACMD to provide its assessment on the harms and psychoactivity of alkyl nitrites with regard to the Psychoactive Substances Act, and whether aromas/poppers should be exempted from the legislation.
The ACMD duly wrote to the Home Office with its conclusions, and in the report, dated 16th March 2016, Professor Iversen, said: “In the ACMD’s view, alkyl nitrites (‘poppers’) do not fall within the scope of the current definition of a ‘psychoactive substance’ in the Psychoactive Substances Act 2016. Consequently, the ACMD does not see a need for an exemption under the Psychoactive Substances Act 2016.”
Six days later Karen Bradley responded: “Having given due consideration, the government agrees with your advice and interpretation of the definition… Our understanding is that this approach does not have any further implications for the operation of the Act and that other substances that the Act intends to cover are not affected. We remain confident that the psychoactivity of those substances can be established under the definition in the Act. We will ask law enforcement agencies to be guided by our agreement with your advice. Our acceptance of your advice brings to an end the review process we were undertaking in parallel to consider the case for a bespoke exemption for the alkyl nitrites group under the Act on the basis of their beneficial and relationship effects. The process to exempt substances from the Act applies only to substances which meet the Act’s definition… We will ensure that our messaging across government and its agencies is updated.”
The ACMD report confirmed what John Addy of Perpol, makers of the Liquid Gold brand of aromas, has maintained since the issue first arose. Addy became an unofficial industry spokesperson on this subject, appearing in The Guardian and on the BBC to speak about the issue. His stance has been that the industry should not seek to have aromas exempted from the Psychoactive Substances Act, simply because they are not psychoactive, and are thus outside of the Act’s remit.
Addy also engaged the services of a legal team and Kevin de Haan QC, a regulatory specialist in the fields of consumer, environmental, health and safety and licensing law, wrote to the Home Office before the ACMD report was published. The QC warned the Home Office that in his opinion: “It would be unlawful to take any action under the Act in respect of a substance which the government regards as uncertain to be a psychoactive substance… If the Government is not clear on the basis of existing evidence, that these products are psychoactive, how could an enforcement authority ever lawfully conclude that the evidential threshold for the taking of any action is met?”