This guidance is to help retailers understand the Psychoactive Substances Act 2016, which comes into effect on 26 May 2016. The act bans psychoactive substances, also known as ‘legal highs’, in the UK and prevents the supply of these previously unregulated and frequently harmful substances for human consumption.
This guidance should not be treated as legal advice. If you’re a retailer and are uncertain about your rights and duties you should seek independent legal advice.
2. Overview of the act
The UK has seen a rise in new substances and products that mimic the effects of traditional controlled drugs such as cannabis, cocaine, amphetamine and MDMA (ecstasy). These are known as psychoactive substances.
These new substances, together with other substances that have been used as intoxicants for many years, eg nitrous oxide are often referred to as ‘legal highs’
The main source of supply of psychoactive substances is ‘headshops’. These are small and specialised shops which sell legal highs and drugs paraphernalia.
Headshops will be the focus of enforcement monitoring and action. The substances associated with headshops are rarely, if ever, sold by responsible retailers.
The act will also affect responsible retailers who supply products that contain psychoactive substances, eg solvents and butane, but not for human consumption. The supply of many of these were previously covered by the Intoxicating Substances (Supply) Act 1985 (ISSA) which is repealed and replaced by this act.
The Misuse of Drugs Act 1971 will continue to be the main drug legislation in the UK. The 1971 act controls over 500 psychoactive substances as well as other harmful drugs, eg heroin and cocaine. Substances controlled under the 1971 will not be covered by this act. Where high street retailers are concerned, no non-medicinal products should contain controlled drugs.
The act creates criminal offences covering the supply of a psychoactive substance. These will apply across the UK including:
- producing a psychoactive substance (found in section 4 of the act)
- supplying, or offering to supply, a psychoactive substance (section 5)
- possession of a psychoactive substance with intent to supply it (section 7)
- importing or exporting a psychoactive substance (section 8)
- possessing a psychoactive substance in a custodial institution (section 9)
3. What is a psychoactive substance?
The new act captures psychoactive substances that aren’t covered by the existing misuse of drugs framework, eg nitrous oxide.
Unlike the Misuse of Drugs Act 1971, this act does not list substances that are affected. Instead it covers those that fit its definitions in a similar, but not identical way to ISSA. There is an understanding of so-called legal highs as replacements for controlled drugs, but the act provides a specific definition based on a substance’s effect on people.
A substance must be capable of having a psychoactive effect to be covered by the new legislation. A psychoactive effect is something which affects a person’s mental functioning or emotional state by stimulating or depressing their nervous system.
This would include effects that we associate with controlled drugs, including the following:
- changes in alertness
- perception of time and space
- mood or empathy with others
This wide definition intends to pre-empt new substances emerging onto the drugs market by defining them by their effects rather than by their chemical structure. This means that it may be difficult for conventional retailers to know if a substance is affected by the act or not.
A large range of substances are exempt from the act because they are already regulated by other laws. This means that nothing should change in the way that they are sold. The exempted substances are:
- medicinal products (defined by Human Medicines Regulations 2012)
- controlled drugs
- nicotine and tobacco products
3.2 What should retailers focus on in practice?
All substances that were covered by ISSA will now be covered by this act. They will be the primary focus for conventional retailers and include the following:
- solvent-based glues
- correction fluids/thinners
- marker pens
- any kind of aerosols
- nail varnish/nail varnish remover
- nitrous oxide
The age restrictions in the ISSA are replaced by the new offences described in section 4 of this guidance. Retailers should be aware that the offences no longer relate just to the supply to young people but affect supply to people of any age.
As with ISSA, an offence will be committed if the substance is supplied to somebody acting on behalf of someone else who will consume it, known as ‘proxy purchasing’.
3.3 Nitrous oxide
Nitrous oxide (N2O) is a colourless sweet-tasting gas often referred to as ‘laughing gas’.
Nitrous oxide has several legitimate uses in medicine and dentistry. It is also used as a fuel additive and as a component of rocket fuel, and is sold as an aerosol spray propellant within whipped cream canisters.
Products include small canisters in large packs, each enough for a recreational dose, and paraphernalia such as ‘creamers’ or ‘crackers’. These dispense the gas from canisters into balloons, which are used to inhale the gas.
Retailers should pay particular attention to the potential for abuse of nitrous oxide, especially where customers seek to buy in bulk or large volumes.
3.4 Other substances and uses
The act bans the sale of psychoactive substances which are consumed for their psychoactive effect (as part of the market inappropriately known as ‘legal highs’). This means that most psychoactive substances caught by the provisions of the act will not be sold by conventional retailers in the first place.
The act only applies to substances which are supplied for human consumption for their psychoactive effect unless they are exempt. The supply of a psychoactive substance for any other purpose is not caught in the act.
This means that where substances are sold by a retailer for their intended use, eg cleaning, gardening, industrial use, their sale will not be an offence. See the specific offences in part 4 of this guidance for more detail.
The act’s criminal offences will apply to all retailers, both the individual employee and members of management as appropriate with offences for management and partners at section 56.
4. Offences in the act
The supply and offer to supply offences (section 5 of the act) are most relevant parts of the act for retailers. They are similar to the offences in ISSA.
The offence of supply is outlined below:
A person intentionally supplies a substance to another person
This will require a deliberate action on behalf of the supplier.
The substance is a psychoactive substance
This is described in more detail in part 3 of this guidance.
If a case is prosecuted, the psychoactivity of a substance will need to be forensically proved by the prosecution.
The person knows or suspects, or ought to know or suspect, that the substance is a psychoactive substance
The prosecution will need to prove that the individual supplying the product either knew or should have known that the product they were supplying was psychoactive.
This will include considering what the product is, its packaging and whether it had any warning labels or descriptions.
Retailers are not expected to test of substances to confirm whether they are psychoactive.
Considerations will include the type of business that supplied the substance. For example, a worker in a shop that specialises in selling ‘legal highs’ should know more about the substances they are selling than someone selling thousands of varied products, such as in a supermarket.
They will also consider if an individual has received training from their employer on what the substance is and any restrictions on its sale. This is similar to the ISSA.
This issue will be considered on a case by case basis taking into account individual circumstances.
The retailer knows or is reckless about whether the psychoactive substance is likely to be consumed by the person to whom it is supplied, or by some other person, for its psychoactive effects
A retailer should take reasonable steps to make sure they are aware of the potential uses of such products.
These steps are likely to be similar to the steps that retailers have previously taken to comply with ISSA and could include:
- warning signs in store or on products themselves
- training to help staff assess the likelihood that products are being bought for their psychoactive effect
- updating training and age-restriction policies previously used under ISSA (young people are considered to be a particular risk group)
- limiting quantities of substances to be sold in one purchase
The prosecution will need to prove that the retailer knew the purpose of the sale or that they were reckless and did not take reasonable steps to satisfy themselves of the purpose.
A retailer should also consider the following:
- is the product being purchased known to be misused
- what are the circumstances of the sale, eg quantity and time of day
- is the customer a repeat purchaser
- is the customer known for psychoactive consumption
For example, someone buying industrial cleaner on a weekday alongside other household goods differs to young people buying nitrous oxide canisters late on a weekend.
Staff at the point of sale should consider whether it’s likely that a product is being purchased on behalf of another person (by proxy).
There is no expectation for a retailer to go above and beyond what is reasonable and it is important to remember that the offences only apply where there is a likelihood of consumption.
4.1 Controls and sanctions
Controls and sanctions for offences range from civil notices to criminal prosecutions as follows:
- civil prohibition/premises notices which act as a ‘light touch’ warning
- civil prohibition/premises orders made by courts which prohibit a person from carrying on a prohibited activity - a breach of a prohibition order is a criminal offence
- criminal prosecution where the maximum penalty on summary conviction for supply is 12 months imprisonment and/or an unlimited fine - on indictment it is 7 years with unlimited fine
The anticipated use of civil powers will enable law enforcement officers and local authority partners to take swift action and also to adopt a proportionate approach to low level offending.
4.2 Primary authority
The Psychoactive Substances Act is included in the Regulatory Enforcement and Sanctions Act 2008. This means that businesses can also draw on the expertise and guidance of primary authorities to ensure they follow the law.
It is envisaged that responsible retailers might agree primary authority relationships covering the act which replace previous agreements covering the sale of intoxicating substances. For example, a retailer might choose to agree guidance with a primary authority outlining how its stores will manage the sale of the products listed in paragraph 5 in compliance with the act.
5. Steps retailers can take to follow the law: examples and case studies
To what extent should retailers know what is and what is not a psychoactive substance in their range of products?
All substances that are covered by ISSA will continue to be in the scope of the act. These are the substances that should be the focus of retailers.
A retailer which sells a wide variety of products entirely legitimately may not be able to find out whether every product they sell might be psychoactive, but they should be aware that some household goods can also be abused. If retailers become aware of this happening they should apply measures which will restrict the opportunity for its abuse.
The Home Office will continue to monitor emerging substances of concern. If it turns out that established household or general retail products are being newly abused the Home Office will provide information about these products.
Case study: plants and seeds
A shop selling a range of products stocks a particular species of plant and seeds. It has sold these for a long time.
The plant and its seeds are supplied to the shop with no warnings from the supplier and were not covered by the ISSA.
Evidence later comes to the attention of enforcers that this plant has psychoactive properties.
The retailer won’t have committed an offence by supplying the plant because they did not know nor should they have known that the substance they sold was psychoactive.
But once the retailer receives this information they would be expected to take reasonable steps as a result. In practice this would be to agree processes to ensure that the products are only sold for legitimate usage and not for consumption for psychoactive effect.
How can retail staff ensure that they are not accused of being reckless?
This will be similar to the way they assess transactions under ISSA. Whether a person is reckless is subjective and comes down to the following:
- is the cashier aware of a likelihood that the product in question may be consumed for its psychoactive effect
- would it be reasonable in the circumstances for them to supply the product to the customer
While the new legislation does not target sales to people under the age of 18 in the way that ISSA did, retailers might want to maintain the same controls they did under ISSA and give updated training to staff to prevent those at highest risk from gaining access to psychoactive substances.
Where adults buy products containing psychoactive substances, retailers can consider whether they are being bought for human consumption by assessing various factors, including:
- What is the substance? Is it something that has been flagged high risk before, eg a substance covered by ISSA, or something that the Home Office has identified to retailers as being of concern? If not, it is unlikely to be high risk.
- How much psychoactive product is the customer is purchasing, eg a can of deodorant, or a number of canisters of nitrous oxide?
- What else they are buying, eg is this part of a weekly shop or a single purchase of high risk substances?
- What is the time of purchase? A purchase during unsocial hours might be more likely to be high risk.
- What is the physical or mental state of the customer? Are they already drunk/intoxicated, do they have physical symptoms of intoxication such as bad skin, weeping eyes, rash around the nose?
- Is the customer known to the store as having abused substances or been intoxicated before?
If the cashier has suspicions, they could ask the customer why they are buying the product. Does their explanation sound reasonable?
Case study: whipped cream canisters containing nitrous oxide
A customer who looks over 25 attempts to buy several containers of whipped cream canisters containing nitrous oxide from a shop at 11pm. They are not buying anything else.
The cashier asks the customer why they’re buying whipped cream. The customer hesitates in replying and when they do they seem intoxicated, slurring their words.
In this scenario the cashier should consider not selling the goods.
Case study: anti-freeze
In a motoring supplies store a male who looks in his 50s buys some anti-freeze. He also buys other items related to car maintenance. It’s during the day in the middle of the week and he seems sober.
In this scenario and without any further risk factors, the cashier would be justified in assessing this purchase as being unlikely to be for consumption for psychoactive effect.
Does the new legislation replace the Cigarette Lighter Refill (Safety) Regulations 1999?
No. The offence in these regulations is not replicated by the Psychoactive Substances Act as they prohibit the sale of butane canisters to anyone under the age of 18, regardless of any intent to consume for psychoactive effects.
How can we apply this to self-service checkouts?
The act can be applied to self-service checkouts, eg:
- continuing to focus on high-risk intoxicating products as they had been under ISSA
- age restrictions can help to limit the exposure of risk groups, eg young people to psychoactive substances
What about online purchases?
Businesses should take all reasonable steps to discharge due diligence in selling online.
This could include considering as much of the context of a purchase as possible, eg:
- is the address for delivery credible, eg if a large quantity of nitrous oxide is being delivered to a catering company then suspicions are likely to be minimal; but if it is to non business address such as student university halls of residence), they may be raised
- what else is the purchaser buying, eg consumption paraphernalia such as balloons with nitrous oxide canisters or crackers, particularly in high volume
- monitoring customer feedback of high risk products (such as nitrous oxide) and taking appropriate preventative action where this suggests misuse
Do proxy sales continue to be covered?
Yes. The offence of supply includes purchases where someone other than the person purchasing the product is likely to consume it. The key element to remember here is the likelihood of consumption.
It can be difficult to assess whether a proxy purchase is being made. The removal of the age restrictions that were in ISSA mean that the likelihood of consumption must be considered in all cases and not just adults, so the tendency towards proxy purchases is likely to be reduced.
However young people or those displaying signs of intoxication already may continue to attempt to circumvent store age-restriction policies. Points to consider include:
- discussion between the purchaser and another about what they want to buy
- suspicious behaviour outside the store, eg seeing children asking adults to buy products
6. Further information
For general enquiries, please email the Home Office Drugs and Alcohol Unit at firstname.lastname@example.org