A legitimate argument?

Lyrica Lyrica tablets, used by the NHS to treat epilepsy, contain "legal highs"

Would UK ministers and officials really claim that a range of NHS-approved drugs have no "legitimate use" in order to justify an EU opt-out?

NHS England alone spends more than £200m a year on the drugs - used to treat Parkinson's disease, epilepsy, depression and insomnia - but Home Office minister Norman Baker has told parliament that "very little" legal trade in the medicines takes place.

The apparently preposterous British position comes about because, to admit these substances are marketed legitimately, would fundamentally undermine the UK's argument this week for claiming an opt-out from proposed European regulation of "legal highs".

A Home Office official has told me the UK government does not believe medicines should be included as a "legitimate use" for substances identified as legal highs.

This week the crime prevention minister Norman Baker announced that the government had decided to opt out of proposals for a directive on new psychoactive substances (NPS), fearing that they would "fetter the UK's discretion" to control legal highs.

Norman Baker Norman Baker, the crime prevention minister

The prospect of press stories about "Eurocrats" telling the Home Office how tough they could be on legal highs is a nightmare for the UK government. "Member states should not be prohibited from unilaterally introducing more stringent controls for NPS," Mr Baker argues.

In a ministerial statement this week he explains how the coalition government "strongly dispute the evidence base stated in the EU Commission's impact assessment which estimates that 20% of new psychoactive substances have a legitimate use".

This is a key part of the government's legal justification for opting out. Without a significant legitimate trade in NPS, questions over the single market disappear.

The Commission has argued for a Europe-wide directive on legal highs because it says different approaches across the EU "can impede their legitimate use… and fragment the internal market".

The Brits refuse to accept there is much "legitimate use" for substances notified to European authorities as NPS.

"Our evidence suggests the trade is overwhelmingly illicit," Mr Baker told a Lords Committee last year, "and therefore it is difficult to argue that this is a trade measure, when there is very little legal trade taking place on this basis."

Start Quote

There are dozens of substances currently being monitored as potential legal highs which have medicinal uses or properties”

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However, the EC has produced a long list of all the uses and potential uses of substances flagged up to EU drug monitors as worrying legal highs.

Among them is Pregabalin, notified as a legal high in 2009. In 2012, NHS England alone spent more than £181m on the drug as a treatment for epilepsy, sometimes under the trade name Lyrica. The European market is worth considerably more.

Another substance notified to the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA) as a potential legal high is Aminoindan, from which a drug used in the treatment of Parkinson's disease, Azilect, is derived. The health service spends around £9m a year on the treatment.

Again, ministers argue there is no significant legitimate trade in Aminoindan.

Another substance identified as a legal high, ODT, is a metabolite of the pain relief tablet Tramadol. NHS England spent £33m on such pills in 2012.

The Home Office itself notified the European authorities that Zopicline was being sold as a legal high. The NHS in England spends around £4m on Zopiclone as a treatment for insomnia each year and it is sold across the EU.

NHS England also spends around £250,000 on Nefazodone and Trazodone - drugs used for treating depression which include notified legal highs among their ingredients. Again, UK ministers appear to be claiming the substances should not be regarded as having "legitimate use".

It is hardly surprising that prescription medicines and potential treatments should also be turning up as legal highs. To recognise their medical use does not prevent UK ministers from introducing tough penalties for their illegal sale and possession. After all, diamorphine (heroin) is widely used within the NHS and is also a class A illicit drug.

Tramadol NHS England spent £33m on Tramadol in 2012

It does, though, make it much harder to claim the legitimate market is "minimal at best".

The Swedes in 2011 alerted the authorities that Ostarine was being sold as a legal high. The NHS has suggested the drug has the potential to be an exciting new first-line therapy in the treatment of patients with lung cancer. Home Office ministers, though, dare not accept that the substance has a potential market across the EU.

Etizolam was identified as a legal high by the UK in 2011, a substance sold in chemists across many countries as a treatment for insomnia and anxiety. The Home Office also notified European drug monitors about Glaucine, a drug used in parts of Europe as an ingredient of cough medicine.

According to the European Commission, there are dozens more examples of substances currently being monitored as potential legal highs which have medicinal uses or properties.

And yet a Home Office official, David Greaves, told a House of Lords committee that, apart from two industrial cleaners and a "small number" of substances used to make medicines, "none of the other approximately 300 new psychoactive substances that have been reported to the EMCDDA have commercial or industrial uses".

There is a clear difference between the UK argument that legitimate uses for legal highs are "few and far between" and the EC argument that "the size of this market is considerable".

According to the Commission, almost a fifth of all new legal highs notified since 1997 have other uses, adding that, since data on legitimate use is not systematically collected, this may well be an underestimate.

I contacted the Home Office to ask how they could come up with such a different conclusion from the European Commission. A press officer tells me: "We disagree with how the Commission has defined legitimate use. They have included medicines and potential medicines. We don't think medicines should be included."


I am still awaiting a response to that question. But I think I know the answer. It is not because Norman Baker truly believes there is no legitimate use for a cancer drug or a market for an insomnia treatment. That is a ridiculous claim.

It is because, as Mr Baker said, "the proposed NPS regulation… is a harmonisation measure". And if avoiding that horror requires UK officials and ministers to claim NHS-prescribed medicines for epilepsy and Parkinson's disease have no legitimate use, then that is just what they will say.

Mark Easton Article written by Mark Easton Mark Easton Home editor

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  • rate this

    Comment number 42.

    Many pharmaceutical drugs can be misused. That's no reason to withhold them from patients who would benefit. An indiscriminate ban on "legal highs" would be stupid and cruel. Why not just ban the trade in them for non-pharmaceutical uses?

    Zopiclone is hardly a "high", since it allows you to float pleasantly into sleep. NB: I had it on prescription.

  • rate this

    Comment number 41.

    39.TM - The only reason people want to legalise drugs is so they can get stoned without consequence.

    People can do this now. Millions have been getting stoned in the UK for hundreds of years, this isn't a new thing!

    You think someone's going to decide not to smoke a joint because Theresa May tells them not to? How naive.

  • rate this

    Comment number 40.

    37. shockrock

    It has always been legal to sell products that kill. Look in your kitchen and I'm sure you'll find a knife, look out into the street and I'm sure you'll see a car. Were they bought on the black market?

  • rate this

    Comment number 39.

    The only reason people want to legalise drugs is so they can get stoned without consequence. They want to stick unknown chemicals in their bodies then I would if I could say yep get on with it if it goes wrong tough. Trouble is we have to fund the health, police and social help needed to sort it out when they go mad or get ill. Legal or not addiction will still be a problem along with org crime.

  • rate this

    Comment number 38.

    17: Please listen. Banning alcohol was tried in America, 1920-33, and failed there, and in Russia, 1914-24, and neither the Tsars nor the Communists there could make it stick either. (Nor can the Saudis.) It would be a bonanza for organised crime. And the same with tobacco. It's too late. You can't ban either of them.

  • rate this

    Comment number 37.

    In recent years I have about more people dying because of legal highs, When has it ever been legal to sell products that kill?

  • rate this

    Comment number 36.

    More guff from a slimeball - what's news.
    The importation of drugs is controlled at high level - hence CIA cocaine runs and UK troops guarding Afghan poppies.
    The rest is revenue and control.

  • rate this

    Comment number 35.

    Making drugs illegal makes them more appealing: Fact.

    Making drugs illegal keeps them in the hands of criminals and provides criminal gangs and despotic regimes across the world with a lucrative trade second only to oil in revenue: Fact.

    The war on drugs has never worked, will never work. Fact.

    Our politicians seemingly will go to any lengths to keep drugs illegal!

    Who's side are they on?

  • rate this

    Comment number 34.

    The reason a lot of these 'legal highs' are springing up is because of the war on drugs, if drugs of a similar nature to and cannabis were legalised these drugs wouldn't really exist. The war on drugs is never going to work, regulate and make it legal, it will be a fair revenue stream for the government too.

  • rate this

    Comment number 33.

    @31 drunken hobo
    "illegal status works a treat"

    Being illegal doesn't prevent access to drugs but the illegal status in itself can add to the allure of drug taking, especially amongst the young as an expression of non-conformity.

    + Illegal drugs trade world over being worth billions one has to wonder exactly who gets a cut??? After all a lot of people who "promote" peace also supply guns!!!

  • rate this

    Comment number 32.

    is it me ?

    of does this make very little sense?

    Can someone explain it?

  • rate this

    Comment number 31.

    28 martoon196 - I'm not saying it's a "non-point" - I'm saying the exact opposite - it's very relevant indeed.
    Alcohol & tobacco are relatively mild drugs, but due to their availability they cause inconceivable harm. Harder drugs do less harm by comparison because they are far less common. Their illegal status works a treat; it's obvious to anyone who isn't biased towards legalisation.

  • rate this

    Comment number 30.

    @26 Ignoring reality for fantasy is also something that should be grown out of at that time :)

    Illegal drugs are widely available so pretending that them being illegal prevents people getting them is naïve at best.

    I'd rather have laws based on our current reality than a moral fantasy myself.

    Strange harmonising laws on legal highs when laws on illegal drugs across the EU are not.

  • rate this

    Comment number 29.

    even anti depressants are causing problems because we cant fully understand how drugs work with the odd 1 in 1000, never trust medical drugs always do your own research

  • rate this

    Comment number 28.

    @26 It was Socrates who said "he who has lost the debate will resort to insults".

    I'm not sure how you could class the 2 most dangerous drugs being legal as a non-point when debating drugs. That is unless you think they should all be banned...

    Not with a name like that eh drunken hobo.

  • rate this

    Comment number 27.

    easy targets for media and thus politicians with little or no facts

  • rate this

    Comment number 26.

    19 Toffee Warrior - There's little point in using logic or reason amongst those looking to legalise drugs. Their argument usually goes "Alcohol and tobacco (both legal) are the most damaging drugs, therefore we should legalise more drugs".

    It's the sort of reasoning most people grew out of before they started nursery.

  • rate this

    Comment number 25.

    Drugs: legalise them, tax them, move on.


  • rate this

    Comment number 24.

    If we are being strictly scientific about this then we need to address the drugs that cause the most damage first - Alcohol and Tobacco.

    These and a lot of other drugs are illegal and vilified by society when they are only a fraction of the danger of legal drugs.

    If you want to argue with that go and see an MS sufferer who cant take cannabis, the only drug that will alleviate the pain for them.

  • rate this

    Comment number 23.

    You can't criminalise the item if it has a clinical use. You can, however, criminalise improper possession. If it is recognised that someone who has been prescribed a drug is therefore licensed to use that drug (own use only), and anyone else apart from medical staff is in improper possession, that clarifies the issue.


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