Thirty-one psychoactive plants exempted from New Zealand's Psychoactive Substances Act 2013.

Abstract

Following passage of the UK Psychoactive Substances Act 2016 (UK PSA) there has been extensive debate concerning legal definitions of ‘psychoactivity’. Ireland (2010), Poland (2010), Romania (2011), New Zealand (2013), Australia (2015) and the United Kingdom (2016) have all passed laws where new psychoactive substances are defined broadly by their capability to influence the user's mind, mood, brain or behaviour. In the United Kingdom, the new definition has been criticized for being ‘extraordinarily broad’ 1 and ‘conceptually fraught’ 2. Three years after the passage of New Zealand's Psychoactive Substances Act 2013 (NZ PSA), controversy about what products are deemed psychoactive and hence covered by the Act has persisted. Most recently, in April 2016, the Psychoactive Substances Regulatory Authority (PSRA), the government agency overseeing implementation of the NZ PSA, published a list of 31 plant species which they consider are not covered under the NZ PSA, at least as they note ‘at this time’ 3. The list includes plant species such as yerba mate, passionflower and wormwood. The list was compiled based on the PSRA's understanding that it is not the intention of the NZ PSA to capture these plants, as they produce ‘only low level of psychoactive effects and have been available in New Zealand and internationally for decades with no evidence of adverse reactions’ 3. However, the legal definition of ‘psychoactive substance’ in the NZ PSA does not specify any minimum extent of psychoactive effect or any minimum level of harmfulness needed for a substance to be covered by the legislation 4. The criteria used to select the 31 exempted plant species are not made explicit by the PSRA, but there is reason to believe they have not been applied consistently. For example, the list does not contain Ginkgo biloba, a tree grown commercially in New Zealand, whose leaf extract has been reported to produce mild enhancement of cognitive function 5. Piper methysticum (kava kava), a psychoactive plant popular among Pacific communities due to their traditional ceremonial use of drink made from kava roots 6, 7, is also not on the list. Both plants are marketed legally as ingredients in products exempted from the NZ PSA regime, such as food, dietary supplements or herbal remedies 8. However, when marketed as ‘recreational products’ they should fall under the NZ PSA 4. For example, a number of recreational psychoactive products containing kava are listed currently as ‘unapproved psychoactive products’ 9. The list of plant species exempted from the NZ PSA is a good start to clarify the legal status of some plants, but greater transparency and consistency in making these classification decisions is desirable. Also, the legal basis for these regulatory exemptions is unclear (as under the NZ PSA it is the Governor General who has the legal power to declare substances or products to be or not to be ‘psychoactive substances’, s.99 PSA), which means the new list remains an opinion only and does not necessarily result in greater legal certainty for businesses involved in trade of psychoactive plants. None.