New Psychoactive Substances Regulation Demands More Professional Discussion

Prosecutor Lin Ta published an op-ed in Apple Daily titled "Amend the Law Quickly to Plug the Loophole and Curb New Psychoactive Substances," strongly supporting the Executive Yuan's draft bill to expand the definition of drugs to include substances "likely" to possess the three characteristics of drugs, as well as "similar chemical structures," while questioning "what kind of professionalism and imagination the judicial reform groups are basing themselves on" in obstructing this legislative amendment. Because Prosecutor Lin Ta harbors numerous misunderstandings regarding the positions of judicial reform groups, it is necessary to write a response to clarify these points.

The Judicial Reform Foundation (JRF) does not oppose the amendment of the Narcotics Hazard Prevention Act. Rather, we argue that the regulation of new psychoactive substances should not directly incorporate tiered scheduling under drug laws. Instead, it should reference the Japanese legal system and adopt an alternative regulatory framework centered on "designated substances."

Traditional tiered scheduling of drugs occurs when substantial evidence confirms a substance's harmfulness, at which point it is scheduled based on the severity of its harm to the human body. However, because new psychoactive substances are constantly emerging and scientific research fails to keep pace, determining whether to schedule them faces the dilemma of lacking definitive scientific evidence. Consequently, authorities must rely on known substances with chemical structures similar to these new psychoactive substances to infer their effects on the human body.

For example, when chloroethylcathinone was previously classified as a Category 3 drug, the official explanation stated: "Currently, there are no pharmacological or toxicological studies related to chloroethylcathinone; its side effects are presumed to be similar to methcathinone and ethcathinone..." But the problem is that even if the chemical structures are "similar," different substances may still have vastly different mechanisms of action and effects. Using chemical structures to "infer" effects is something even experts such as toxicologists, pharmacologists, or psychiatrists would not dare guarantee as certainly correct.

To address the continuous emergence of new drugs, Japan's Pharmaceutical Affairs Act regulates them through provisions for "designated substances" rather than scheduling them directly under the "Four Narcotics Laws" (similar to Taiwan's Narcotics Hazard Prevention Act). The rationale is that because penalties under the Four Narcotics Laws are relatively severe, only substances proven by scientific research to possess a high degree of harmfulness are included. As for new psychoactive substances, although their chemical structures are similar to existing controlled substances and they are presumed to be harmful, their actual impact on the human body has not yet been scientifically proven, and their actual degree of harm to humans may vary wildly.

Therefore, uniformly imposing severe punishments would violate the principle of proportionality under the Criminal Code. This is why Japan chose to regulate them under the Pharmaceutical Affairs Act with lighter penalties. Although the draft currently proposed by the Ministry of Justice claims to reference the Japanese legal system by adopting the management approach of "chemical structure analogues," the Ministry's draft conflates tiered scheduling—which requires clear evidence of the degree of harm—with the scheduling approach for new psychoactive substances whose degree of harm still requires research. This creates a situation of excessively broad punitive scope and the overutilization of criminal penalties.

Consequently, the JRF has suggested that the Ministry of Justice should faithfully reference the legislative spirit of the Japanese legal system rather than creating an inappropriate legislative model of its own under the guise of adopting Japanese law. Finally, Prosecutor Lin Ta's mention that "the United Nations has reported and controlled up to 971 new psychoactive substances" also reflects a misunderstanding. These 971 new substances are actually early warning substances listed under the United Nations early warning systems, not drugs actually scheduled by the United Nations. The reason they are not scheduled drugs is precisely because of a lack of research, and because they may appear temporarily and then quickly disappear, rendering scheduled control lacking in practical utility.

The regulation of emerging substances requires more professional discussion rather than comprehensive control based on "speculation" without regard to the severity of the offense!

※ This article was published in the Apple Daily on Nov. 13, 2019