BZP-‘Party pills’,populism and prohibition: Exploring global debates in a New Zealand context

Abstract

In New Zealand, the debates surrounding legal highs have been developing for approximately a decade. New Zealand’s historical grappling with the problem of legal highs reflects a global problem in addressing the issues related to new psychoactive substances. The focus of this article is the prohibition of BZP-based party pills under the Misuse of Drugs (Classification of BZP) Amendment Act, 2008 (hereafter the 2008 Act). This article reports on a qualitative study of the banning of BZP-based party pills in New Zealand, using thematic analysis of the discourses contained in the 2007 Parliamentary Bill readings of the 2008 Act. Six key themes were identified from the bill readings: prohibition is not an effective way to deal with drug use; BZP has a ‘gateway effect’; availability and accessibility means young people can access BZP-PPs too readily; young people are at risk; BZP has contributed to establishing a pill popping culture in New Zealand; and BZP has the potential for harm/has a moderate risk of harm. The thematic analysis revealed that evidence was often not fully represented in parliamentary debates, and that many of the concerns raised about BZPPs could have been dealt with through regulation rather than prohibition. A punitive moral populism aimed at drug use and drug users was also identified, driven by fears of drug using groups, and the symbolism associated with drug use.

Keywords

BZP drug policy drugs populism prohibition

Introduction

In considering the debates surrounding drug use and drug policy, scholars have argued that a culture of fear has developed around these issues, feeding into punitive policy and regulation (Milhet, Moloney, Bergron, & Hunt, 2013), and that historically drug policy has been driven by fears of particular social groups. Drug policy is also often influenced by political values with decisions about prohibition, for example, being based on myths and misconceptions rather than evidence, despite the rhetoric that drug policy is informed by research based evidence (Coomber, 2013). It is further suggested that ‘drug control cannot be understood fully as a rational, scientific response to the prevalence and dangers of various substances’ (Stevens & Measham, 2014, p. 1226), indicating that additional issues are also important in decisions about drug control and drug policy. The ‘drug war’ it is argued is based on symbolism, with the symbols and images surrounding drug use taking on an intense emotional significance, becoming the focus of punitive policy (Manderson, 1995). Therefore, the ‘drug war’, based on such symbolism, is positioned by Manderson (1995) as illogical, and as a consequence it is argued that responses towards drug use should not be expected to unfold in a logical way. Similarly, drug policy should not be analysed from this viewpoint: that drug legislation is a rational, scientific response to drug use. Instead drug policy should be considered as a reaction to the symbols related to drug use, and that the ‘failure to recognise that we are dealing with the symbolic realm… bedevils both drug users and legislative policy’ (Manderson, 1995, p. 799).

Policy and law making surrounding drug use are complex processes, influenced and affected by a diverse range of issues. However, acknowledging this can be both problematic and challenging, calling into question how the legitimacy of legislative and policy decisions may be assessed (Lancaster, 2014, p. 949). In order to explore these issues, and bearing these complexities in mind, this article will consider drug controls in New Zealand surrounding BZP-based party pills (BZP-PPs). The aim being to explore the decision to ban BZP-PPs, under the 2008 Misuse of Drugs (Classification of BZP) Act (hereafter the 2008 Act) (a decision I was genuinely surprised by). Given the arguments noted above, what is of interest here are the processes underlying the decision to ban BZP-PPs instead of regulating them, given that an alternative to prohibition under the 2005 Misuse of Drugs Amendment Act¹ (hereafter the 2005 Act) was readily available.

The focus for this discussion will be what are referred to as ‘legal highs’, ‘herbal highs’ or ‘party pills’.² More specifically, it will concentrate on BZP-PPs³ and their prohibition in New Zealand under the 2008 Act. New Zealand, the focus of this article, regulates drug use through the Misuse of Drugs Act 1975 with a scale of penalties for the sale, supply and use of illegal drugs, based on the system of classifying drugs as A, B or C depending on perceived harmfulness – a model similar to the UK system. BZP-PPs became popular in New Zealand from about 2000 onwards, with approximately 120 different party pills available in New Zealand at this time (Gee, Richardson, Woltersdorf, & Moore, 2005). They were marketed as a legal alternative to drugs such as amphetamine and ecstasy and became popular among young dance club attendees, with an estimated 8 million servings sold between 2000 and 2005 (Social Tonics Association of New Zealand, 2005). In a country that has a population of approximately 4 million (Statistics New Zealand, 2013) this is a significant number of party pills. As noted by Cohen and Butler (2011), the legal high market in New Zealand developed particularly quickly, partly due to New Zealand’s small population and geographic isolation. Consequently, it has an underdeveloped illicit drug market compared to European counties (Cohen & Butler, 2011). Illicit drugs are often poor quality and expensive, so legal alternatives that produce similar effects, more cheaply are highly attractive. New Zealand research demonstrates that BZP-PPs are often used as a substitute for ecstasy and other dance drugs such as amphetamine, usually when ecstasy or amphetamines are unavailable (Butler & Sheridan, 2007; Hutton, 2010), and that BZP-PPs are used as one substance among a variety of illicit/licit drugs; they are another substance on the menu for poly-drug users (Hammond, 2008).

In New Zealand, the debates surrounding legal highs have been developing for approximately a decade, with various landmark legislative steps during this period (from 2005 to 2014). However, concerns that the party pill market had developed unregulated since approximately 2000 surfaced, as well as emergency department doctors noting presentations related to party pill ingestion (Gee et al., 2005). In order to impose some kind of regulation on this ‘new’ market, the 2005 Act created an innovative ‘restricted substances’ or Class D category for psychoactive substances. BZP-PPs were placed in this category until research could be carried out into their toxicity and potential for harm. The 2008 Act then banned BZP-PPs, although after the ban party pills in general remained popular, and new pills that did not contain BZP rapidly appeared on the market.⁴ The struggle to contain the proliferation of new legal highs in New Zealand was a key factor behind the review of the 1975 Misuse of Drugs Act by the New Zealand Law Commission in 2010. ‘Kronic’ a legal cannabis substitute was also banned in New Zealand in 2011 after intense media attention⁵ focussing on its accessibility and attractiveness to under 18s. However, as Wilkins and Sweetsur (2013) note, the continuing popularity of legal highs in New Zealand⁶ demonstrates that there is a demand for these products which the banning of both BZP-PPs and ‘Kronic’ has not diminished.

Consumers of legal highs such as BZP-PPs in studies such as Sheridan et al. (2007), Butler & Sheridan (2007), Sheridan & Butler (2010) and Green (2008) noted the legal status of BZP as a benefit of using ‘party pills’. This enabled users to engage with the NTE and the club/dance scene without fear of criminalisation. As noted earlier, New Zealand is a country where illegal drugs such as ecstasy are often expensive and poor quality (Cohen & Butler, 2011), and BZP-PP users cited their availability, as well as the fact that they offered the promise of a similar high to ecstasy or amphetamines as positive features. Additionally, BZP was cited in Sheridan and Butler (2007, 2010) as used mainly for stimulant and social effects. Users in their studies reported using them to experience the effects of intoxication and to enhance the way they felt on nights out. BZP-PPs were also cited as having longer lasting effects than illicit drugs such as ecstasy (Butler & Sheridan, 2007, p. 5). Several research studies were commissioned in New Zealand to try to establish what kind of effects BZP-PPs had on consumers. Although some serious side effects were highlighted it was also noted that ‘many users are currently taking BZP-based pills without significant adverse effects’ (Gee et al., 2005, p. 8). A study of the Auckland City Hospital overdose database in 2004 similarly noted that 21 people presented in 2004 with party pill ingestion but only 5 with party pill only ingestion. The authors concluded that ‘with consumption of 200,000 tablets a month, a presentation of 21 patients to the emergency department in a year is relatively small’ (Theron, Janson, & Miles, 2007, p. 3). Research has also noted a number of adverse effects related to taking BZP-PPs such as headaches; tremors/shakes; stomach pains/nausea; sleeplessness; loss of energy; and mood swings (Wilkins, Girling, Sweetsur, Huckle, & Huakau, 2006), with more serious side effects, such as seizures, noted as small in number. Medically based studies documented some serious side effects of BZP-PPs such as seizures⁷ and highlighted that a small dose of BZP could potentially produce serious effects (Gee et al., 2005; Harnett, 2007; Thompson et al., 2006). A qualitative study exploring BZP use by young people found that although there were some benefits to retaining a legal market for BZP-PPs such as the avoidance of the illicit market for users, there were also some negative impacts, e.g. the assumption of quality control of BZP-PPs when the opposite was the case (Butler & Sheridan, 2007; Sheridan & Butler, 2010). Party pill users were also argued to put themselves at risk of adverse effects by consuming alcohol in conjunction with BZP-PPs, and taking more pills than recommended (Nicholson, 2006).

Therefore, the key focus of the debates surrounding BZP-PPs, informed by the research noted above, was the harm caused to users by the substance in question. The benefits of retaining a legal market as noted by Sheridan and Butler (2010), the pleasures users gained from BZP-PP use, as well as any harms related to prohibition were rarely discussed, lending weight to the argument that ‘political discussion tends to underestimate the harms of prohibition’ (Stevens & Measham, 2014, p. 1226).

Internationally legal highs such as substitute cannabis (e.g. Spice), BZP and mephedrone (sometimes euphemistically known as ‘meow’) pose similar issues to those faced by New Zealand. McElrath and O’Neill (2011) identified that producers changed chemical compounds so new ‘tweaked’ drugs were marketed in the UK after mephedrone was banned in 2010. Naphthylpyrovalerone (Naphyrone) appeared in the UK six weeks after mephedrone was criminalised and was marketed as legal mephedrone (Johnson, Johnson, & Portier, 2013). Similarly with Spice, a replacement legal analogue was on the market in Germany four weeks after Spice was banned in 2009 (Johnson et al., 2013). Alternative approaches other than that of prohibition were rare, with BZP banned in the UK in 2009 along with synthetic cannabinoids and GBL, demonstrating the ‘drug policy ratchet’: the inclusion of new psychoactive substances in existing drugs legislation, ‘facing tighter rather than looser control’ (Stevens & Measham, 2014, p. 1232). ‘Knee-jerk’ responses towards prohibition of legal highs, often influenced by media reporting, are also argued to affect the ‘drug policy ratchet’, as Lancaster, Hughes, Spicer, Matthew-Simmons, and Dillon (2011) note in their exploration of the banning of Mephedrone in the UK in 2010.

New Zealand’s historical grappling with the problem of legal highs also reflects these global problems. However, in 2013, New Zealand departed from the traditional response of banning new psychoactive substances, and to the problems of legal highs, with the 2013 Psychoactive Substances Act (hereafter the 2013 Act), which regulated rather than prohibited legal highs.⁸ Although in May 2014 with the Psychoactive Substances Amendment Act (hereafter the 2014 Act), the New Zealand government suspended all licenses granted for regulating legal highs in the previous year, effectively banning all legal highs. As previously noted historically drug policy has been influenced by factors other than objective consideration of harms related to particular substances (Stevens & Measham, 2014, p. 1229), and this appears to have been the case in the New Zealand context in 2007/2008 and in 2013/2014. BZP-PPs were banned in 2008 despite the lack of robust evidence that they caused significant harm, and in 2014 the government effectively banned all legal highs, again despite a lack of evidence that regulation would be harmful. However, as Bennett and Holloway (2010, p. 42) argue ‘evidence is only ever likely to be one of many factors that influence the policy process’, with Hallam and Bewley-Taylor (2010, p. 1) noting that drug policy is notorious for the extent to which it has remained evidence free’ (emphasis in the original), leading to the question of what did then influence the banning of BZP-PPs if the evidence for it was not robust.

‘Populist punitiveness’ and drug policy

Societal responses to drugs and drug users are argued to be based in fears about particular groups or substances. Drug policy and law making are also argued to be influenced by a wide range of issues, not necessarily evidence, science and rationality (Coomber, 2013; Stevens & Measham, 2014). Historical considerations of drug controls provides evidence that this is the case, with stringent and punitive drug controls introduced in response to fears about particular groups (Carstairs, 1999; Fastier, 1998; Kohn, 1992). In Canada, in the 1920s, racialized debates focused on Chinese opium users resulting in punitive legislation. Similarly, in New Zealand, under the 1901 Opium Prohibition Act and the 1908 Opium Act, the police gained the power to search any Chinese premises without a warrant but required a warrant if the occupants were not Chinese (Carstairs, 1999; Eldred-Grig, 1984). Fears about particular groups were often strengthened through sensationalised media coverage which is also argued to have influenced punitive drug policies (Ayres & Jewkes, 2012; Carstairs, 1999; Coomber, 2013; Lancaster et al., 2011). Media coverage of mephedrone in the UK in 2010 was argued to have significantly affected the banning of this particular ‘legal high’, with Lancaster et al. (2011, p. 5) noting ‘that mephedrone went from being a relatively unknown “legal high” in the UK to being banned by legislation as a Class B drug within less than six months highlights the power of the media’s effect in this particular policy debate’.

In considering the position that drug policy is influenced or driven by diverse issues, including the media, the concept of penal populism is significant within this debate. In recent years the idea of ‘governing through crime’, populism and populist agendas dominating policy has been developed by a number of theorists (Bottoms, 1995; Pratt, 2008a, 2008b; Pratt & Clarke, 2005; Simon, 2007; Sparks, 2003). Bottoms (1995, p. 40) refers to the term ‘populist punitiveness’ to convey the idea of politicians ‘tapping into, and using for their own purposes, what they believe to be the public’s generally punitive stance’, and argues that ‘populist punitive’ strategies are adopted by politicians based on the belief that they will be popular with the voting public. He further notes that offences relating to violence, sexual and drug offences are those most likely to be subjected to ‘populist punitiveness’ (Bottoms, 1995, p. 40). Scholars in this area also argue that debates about crime and punishment are prominent in public discourse, and that for politicians the temptation to ‘take a stand’ on specific issues, in relation to perceived public anger, outrage or disgust, is often too strong to resist (Sparks, 2003). It is also acknowledged that wider societal contexts influence policy and legislation, and that the influence of ‘populist punitiveness’ is related to wider social and economic changes in recent decades, since the 1970s (Bottoms, 1995; Pratt & Clark, 2005; Sparks, 2003).

In a New Zealand context, Pratt (2008b) notes that as crime rates have declined punishment levels have increased, leading to an examination of other issues that could be influencing this relationship. He argues that ‘penal populism’ has been ‘increasingly influential on policy development’ (Pratt, 2008b, p. 265) and defines penal populism as

the way in which policy is increasingly likely to be determined by governments in conjunction with those who claim to speak on behalf of the public (law and order lobbyists, talkback radio hosts, the popular press and so on). In such ways ‘ordinary people’ are no longer left out of policy making but instead they, or more likely those who claim to speak on their behalf, have become important definers of its quantity and intensity. (Pratt, 2008b, p. 266)

In an age of sound-bites and increasing crime reporting, as well as more varied ways to access this reporting, legislation and policy have a tendency to respond to the perceived concerns of the public rather than evidence that a particular approach is an appropriate response. The intense public profile that media-driven, spotlighted issues such as drug use have garnered in some westernised nations have ‘left lasting marks in legislation and criminal justice practice’ (Sparks, 2003, p. 155), as exemplified in the mephedrone ban in the UK in 2010. Therefore, the ways in which political elites can highlight particular ‘causes for concern’ can affect and mobilise public concerns around crime, punishment and issues such as drug use. In a New Zealand context, the media choose who to give agency to in the reporting of debates around drug use, with particular voices being given priority and authority (Barton, 2014). The media frame certain issues such as drug use in particular ways, influencing the public debate through the way the problem is defined (Lancaster et al., 2011, p. 3). ‘Common sense’ accounts presented in the media are subsumed into public ‘knowledge’ about specific issues and mobilised to justify ‘swift and serious action’, as an urgent response to perceived risks (Chiricos, 2006 cited in Alexandrescu, 2014, p. 28).

The risks, anxieties and uncertainties about crime that are argued to have developed in an era of late modernity (Beck, 1992; Giddens, 1991) have become central to the claims of governments to authority and control of these social ills. The debates surrounding risk and crime also concern the ‘fevered politics that swirl around questions of risk and the battles that determine which risks are selected for particular attention, which categories of persons and which places come to be regarded as bearers or containers of intolerable levels of risk’ (Sparks, 2003, p. 160).

Illicit drug users have been defined historically as ‘containers of intolerable risk’: from the Chinese opium smokers of the 1800s, to the marihuana smokers of the 1930s, to the cocaine ‘fiends’ of the 1930s and 1980s, to the stimulant users of the 2000s (Alexandrescu, 2014; Homan, 2007; Kohn, 1992; Murji, 1998). Therefore, the ‘othered’ identity that illicit drug use and drug users have been labelled with, coupled with ‘populist punitiveness’ and an intense media spotlight, mobilised the debates surrounding legal highs or party pills in New Zealand. Pratt (2008a) also argues that punitiveness influenced by a populist agenda can only succeed as long as the group/s it is aimed at are seen as legitimate targets for such punitiveness. Furthermore, although punishment that is too severe as well as too lenient can become an issue that affects governmental legitimacy (Pratt, 2008a), leading to a retreat from penal populism (on some issues), drug policy is still subject to punitive ‘moral populism’ and ‘falls into antique mode’ refusing to ‘shed its ancient moral freight’ (Douglas, 1992 cited in Sparks, 2003, p. 159). It could be argued therefore that a process of punitive ‘moral populism’ has occurred around illicit drugs, given the politicisation of substance use, and the historical legacy of harsh responses to drugs and drug users (Barton, 2003; Carstairs, 1999; Eldred-Grig, 1986; Lancaster et al., 2011). A punitive ‘moral populism’ permeated the debates about legal highs in New Zealand, with legal high users tainted by the ‘othered’ identity associated with illicit drug users, and the association of ‘party pills’ with a youth orientated NTE.

Despite the introduction of the new, innovative Class D category, the lack of evidence to be overly concerned about the risks posed by BZP-PPs, and the additional risks created by banning the drug, the New Zealand government made BZP illegal: possession carrying a maximum penalty of three months prison, while supply carries a maximum penalty of eight years prison. Therefore, what did influence the banning of BZP-PPs and why was the introduction of the 2008 Act seen as such an urgent necessity? Did ‘populist punitiveness’, in particular the punitive ‘moral populism’ aimed at drug users, part of the wider social and political context, intrude on these debates leaving ‘lasting marks in legislation and criminal justice practice’ (Sparks, 2003, p. 155)? In order to explore these issues, and to try and ascertain the rationale behind the banning of BZP-PPs in 2008, the 2007 parliamentary Bill readings were scrutinised to uncover the discourses surrounding the debates, and to gain an insight into the evidence used to support the ban. This article explores the rationale for banning BZP-PPs; the arguments used when debating the ban; and the reasons why the New Zealand Government opted for prohibition as an effective way to address the ‘problem’ of BZP-PPs.

Methodology and methods

The aim of scrutinising the 2007 Misuse of Drugs (Classification of BZP) Bill (hereafter the 2007 Bill) readings was to explore how evidence based the arguments mobilised by politicians were and to consider whether the assertions of Bennett and Holloway (2010) and Hallam and Bewley-Taylor (2010) applied to the debates surrounding the 2007 Bill. If the arguments and discourses identified were not evidence based, a further aim of the analysis was to explore reasons why this might be the case in a New Zealand context. To this end, a thematic analysis (Braun & Clarke, 2006) was carried out on the discourses used in the 2007 Bill readings. Bill readings in this instance refer to the Parliamentary debates held during the three readings of the 2007 Bill. The Members of Parliament (MPs) in debating the 2007 Bill noted a number of studies as evidence in their debates. MPs were also provided with a briefing document, ‘Legal Party Pills in New Zealand’, as well as reports and advice to the Minister from the Expert Advisory Committee on Drugs (EACD). The EACD considered a range of evidence in their deliberations about BZP-PPs (Butler & Sheridan, 2006; Gee et al., 2005; Nicholson, 2006; Theron et al., 2007; Thompson et al., 2006), as well as a coroner’s report which did not find BZP-PPs responsible for the death of a young woman, some of which was quoted in the bill reading debates (Gee et al., 2005; Theron et al., 2007; Thompson et al., 2006), alongside the EACD’s recommendations to ban BZP-PPs.⁹

As Bryman and Burgess (1994, p. 216) note, qualitative data are often ‘voluminous, unstructured and unwieldy’. Thematic analysis can help to organise such data sets and to identify repeated meanings and patterns across sets of data such as Parliamentary Bill readings. The parliamentary readings of the 2007 Bill were printed out for ‘close’ reading off screen. Repeated words and key phrases were underlined (in the hard copy) and cut and pasted into a separate word document (in the electronic copy) to enable a clear pattern of discourses to emerge. A thematic analysis was developed as themes emerged from the data. Themes that made up the discourses within the bill reading debates were identified through their frequency and consistency across all three readings of the 2007 Bill. Following the thematic analysis, carried out by the author, discourses were grouped together under separate headings. For example, ‘prohibition will not solve the problem’, ‘legislation will not deal with the problem’, ‘legislation not getting to the root of the problem’ and ‘can’t keep drugs out of jails or off the streets so why ban BZP?’ were grouped under the heading ‘prohibition will not stop people using BZP’, which were then further refined to simple phrases such as ‘prohibition is not an effective way to deal with drug use’. This process was repeated for each reading and the key discourses pared down to 9 for the first reading, 11 for the second reading and 14 for the third reading. The six key discourses explored in this article appeared across all three bill readings.

Although bill readings tend to be loaded with undercurrents, emotive language and political rhetoric, their advantage is that they often set out different sides of a particular debate and can give insights into what kind of discourses feed into and influence law making and policy. As Tonkiss (1998, p. 247) notes ‘the way language is used divides up, categorises and stereotypes groups and individuals’. Therefore, how a problem such as drug use is understood through particular discourses informs how the problem will be tackled. This particular thematic analysis takes a ‘contextualist position’ (Braun & Clarke, 2006, p. 9), and acknowledges that analysis cannot guarantee that the ‘real facts’ of a situation, of attitudes and behaviours will be uncovered. The well-noted concept of what people say and what they actually do or think can be very different, and this is a limitation of this kind of research and analysis. Politicians are also embedded in particular social and cultural contexts and as such will be influenced by these, as well as by party political expectations. Therefore, the broader social context impinges on the meanings underlying the discourses identified from the bill readings. It should also be noted that this particular thematic analysis refers to a specific social context and may not be applicable to drug debates in other countries. However, the results of this study may be useful in considering political decisions about prohibition as a policy response to drug use, in other social contexts.

Results

There were six key discourses that appeared across all three of the Bill readings: prohibition is not an effective way to deal with drug use; BZP has a ‘gateway effect’; availability and accessibility means young people can access BZP-PPs too readily; young people are at risk; BZP has contributed to establishing a pill popping culture in New Zealand; and BZP has the potential for harm/has a moderate risk of harm. Although it is recognised that parliamentary debates sit within, and are influenced by, particular social and cultural contexts, of interest in this discussion are the processes by which BZP-PPs were framed in these debates. Additionally, the evidence cited and the discourses present within the Parliamentary debates are important in light of the issues raised in the introduction to this article: that drug controls are not fully rational and are based on the symbolism surrounding drugs (Manderson, 1995; Stevens & Measham, 2014). The six discourses identified from the data will be discussed, in turn, below.

‘Prohibition is not an effective way to deal with drug use’

When undertaking the analysis it was expected that the opposition (which was from ‘minority’ parties, the Greens, Māori¹⁰ party, ACT¹¹ party) would put forward a summary of the arguments against prohibition, in opposition to the proposed Bill, which they did. The opposition noted that: prohibition does not work, parliament and politicians overestimate the effect of law making and the underground market for illicit drugs causes havoc in New Zealand communities (2007, 3rd Bill Reading). However, both those for and against the banning of BZP-PPs put forward these points; that the ban would not achieve anything, that young people would simply turn to ‘harder’ drugs or new pills without BZP in and that the ban would not stop the pill popping culture in New Zealand. In short, both camps agreed that the ban would not address the problem of legal highs and BZP-PPs as the following quotes from MPs supporting the ban highlight:

We realise this legislation will not actually stop party pill culture. (NZ First¹² 2^nd bill reading)

I rise to support the Misuse of Drugs (Classification of BZP) Amendment bill…This bill will not stop the use of party pills in our community or party pill shops. (National¹³ 1^st Bill reading)

They want to get rid of party pills but this legislation will not do that, it will do very little to inhibit the party pill trade. (National 1^st Bill reading)

Perhaps surprisingly both those opposed to and in favour of the 2007 Bill echoed Shiner’s arguments and what he refers to as the ‘global failure of prohibition’ (Shiner, 2006, p. 68), supporting the general consensus that prohibition has not stopped or reduced drug use, that it has not stopped or reduced the harms from drug use and that drugs offences relating to cannabis clog courts, criminal justice processes and take up too much of police time (Buchanan, 2009; Levy, 2014; Stevens, 2011; Wodak, 2014). However, again as Shiner (2006, p. 71) notes, ‘prohibition may have largely failed as a crime-control strategy but it has been spectacularly successful as a political project’, with Wodak (2014, p. 198) similarly arguing that ‘dysfunctional policy has been good politics’. This was also noted in the 2007 Bill readings with opposition MPs accusing the supporters of the Bill of electioneering and stating that ‘drug issues are used for electioneering purposes’ and that one MP in particular had ‘failed our young people for electioneering purposes’, as well as accusing particular politicians of ‘pandering to the fear of parents…trying to pander to the fear of people in return for a vote in election year’ (2007 3rd Bill Reading). The notion of populism is clearly evident in these comments as is the idea that ‘fearfulness has been long created around drugs’ (Coomber, 2013, p. 23). In a global context where there has been the ‘politicisation of substance use on an unprecedented level’ (Barton, 2003, p. 24), the notion of populism is a pertinent backdrop in these debates. Prohibition is therefore argued to be a political tool incorporated into ‘tough on crime’ stances that are popular in general elections globally. The year 2008 when BZP-PPs were banned was an election year, as was 2011 when synthetic cannabis was banned, and so was 2014 when all legal highs were effectively banned in New Zealand under the 2014 Act. In a UK context, the legislation banning substituted cathinones was passed quickly and supported across political parties less than three weeks before a general election in 2010 (Stevens & Measham, 2014, p. 1229).

‘The gateway effect’

One of the key discourses contained in the 2007 Bill readings was that of the ‘gateway effect of BZP’. This ‘common-sense’ assumption was put forward regularly in the bill reading debates, as if there was not any argument that this was the case, as if this was hard fact. The ‘gateway effect’ refers to the idea that those who start off using cannabis then go on to use other illicit drugs such as cocaine and heroin. Those who endorse that the ‘gateway effect’ exists argue that if the use of the alleged ‘gateway’ drug is addressed or eliminated then the use of other drugs may be reduced, and this is argued to be the appeal of the ‘gateway effect’ for those who favour prohibition (Kenkel, Mathios, & Pacula, 2001). This perceived truth is often taken at face value as it appeals to the simplicity inherent in public debates surrounding issues such as drug use. The search for a simple and easily fixable solution to complex social problems is appealing. The gateway hypothesis also taps into public insecurities and fears about drug use and drug users, namely that drug use is contagious and it will inevitably spread and become worse. The following quotes demonstrate that this assumption, that the gateway effect existed, was consistently used, by one MP in particular, in the debates surrounding the prohibition of BZP-PPs.

The evidence shows that the use of BZP pills has a gateway effect into the use of other drugs. (National 1st bill reading)

The danger of BZP is compounded by its potential status as a gateway to harder drugs such as LSD, ecstasy and methamphetamine in the same way that cannabis is. (National 2^nd bill reading: emphasis added)

There is clear evidence that BZP is a gateway drug. (National 3^rd bill reading)

However, the gateway effect is a contested position, with the debates around the gateway effect reaching no concrete conclusions (Kenkel et al., 2001; Van Gundy & Rebellon, 2010). Caution when examining the gateway effect is also urged by other authors (Fergusson, Boden, & Horwood, 2006; Morral, Mcaffrey, & Paddock, 2003) as it is it is not seen as the best explanation for a link between cannabis and other drugs. Most notably in relation to the BZP debate in New Zealand, the debates surrounding the gateway effect centred on cannabis and there is no research internationally that rigorously examines BZP-PPs as a gateway drug. In New Zealand, research by Wilkins et al. (2006) was referred to in parliament to support that BZP was a gateway drug. However, Wilkins et al. (2006) do not argue that there is a gateway effect, in fact the majority of respondents in their research stated that they used legal highs so they did not have to use illicit drugs (Wilkins et al., 2006, p. 42). What their research actually said in relation to the gateway effect was that a small percentage of their overall sample indicated they started using party pills and now used illegal drugs. However, the reasons for this use of illegal drugs are not referred to or discussed. The authors themselves also state that more detailed research needs to be done around this issue. Additionally, the EACD noted that ‘this study provides little support for the gateway theory’ (EACD, 2006, p. 4). Therefore, this study was far from conclusive, but it was presented in parliament as concrete evidence of the gateway effect of BZP-PPs. MPs had access to the research evidence by Wilkins et al. (2006) discussing the gateway effect of BZP-PPs, but this evidence was not properly represented.

Bryson and Wilson (2007) were also referred to in parliament as conclusively showing a gateway effect. However, similarly, their research simply showed that BZP-PP users were more likely to have used a number of other illicit drugs – this is not a causal relationship, BZP use does not cause the use of other drugs as stated with such certainty in the bill reading debates. Therefore, although MPs throughout the debates did refer to evidence, the evidence cited was not fully represented or explicated in the 2007 Parliamentary debates. MPs relied on emotive ‘common sense’ arguments to try and win support for the passing of the 2007 Bill into law. The gateway effect and its common sense assumptions support punitive ‘moral populist’ rhetoric with a focus on criminal justice system sanctions. As noted earlier such common sense assumptions are given authority through regular media exposure ultimately resulting in the media influencing the policy agenda (Alexandrescu, 2014; Lancaster et al., 2011).

‘Availability and accessibility’

Many of the concerns raised in the 2007 Bill readings focused on the widespread availability and accessibility of BZP-PPs. The availability and accessibility discourses focused on how easy it was for young people, in particular to access BZP-PPs. The public debate surrounding legal highs in New Zealand often focused on the availability to underage youth (Barton, 2014) and calls for extending punitive, prohibitionist policies, despite the fact that these policies have failed globally to reduce drug availability, drug use and the harms related to the use of illicit substances (Levy, 2014; Wodak, 2014). Within this discourse the emergence of populist, emotive arguments are also apparent with one MP stating that ‘babies’ had got into trouble taking BZP-PPs:

The National Poisons Centre reports that a number of young children – some as young as 18 months: as in babies – have got into trouble taking BZP. (National 1^st Bill Reading)

It was seen as an outrage that these pills could be accessed easily as they were sold in dairies (newsagents) with no age restrictions prior to the 2005 Act. In 2007, a range of restrictions had been put in place, most notably that they were not to be sold to those under 18. However, MPs often focussed their arguments on the assertion that young people were vulnerable to a ‘legal drug culture’:

We currently have a legal drug culture in New Zealand whereby any 10 year old, 8 year old, 5 year old can walk into the corner dairy (newsagents) and see party pills displayed on a shelf next to jelly beans. (National 1st Bill reading)

As long as the drug is lawfully distributed 13, 14, and 15-year olds are going to get it far too easily. (Labour 2nd bill reading)

The notion of youth at risk intersects with the discourse of ‘availability and accessibility’ with ‘children’ and young teenagers seen as being at risk of accessing party pills. As a ‘vulnerable and morally innocent group’ (Barton, 2014, p. 6), young people under the age of 16 are seen as a group worthy of political and media attention. Politician’s comments in the previous quotes demonstrate a resonance with parents who may be concerned about ‘party pills’ and their teenagers, further mobilising and echoing anecdotal public sentiment about BZP-PPs, their availability and accessibility. The wider social and political contexts that MPs operate within are evident in these quotes. Populist notions based on fears about corruption of vulnerable groups were present in public debates about BZP-PPs (‘The Ill Effects of Party Pills’, 2007), and MPs would have been aware of and influenced by these public discourses. For example, the media publicised the results of Gee et al.’s (2005) and Thompson et al.’s (2006) studies, as well as a case where a young man was in a coma after taking BZP-PPs, although he had also consumed alcohol, caffeine drinks and ecstasy (Crewdson, 2007). Seven out of 61 submissions (11.47%) noted concerns that sensationalised media coverage (of the young DJ’s case noted above in particular, also the focus for a television documentary in 2007), as well as comments by the Health Minister indicating a ban on BZP would be forthcoming, influenced both the public and policymakers (Allen and Clarke Policy and Regulatory Specialists Limited, 2007).

However, properly enforcing class D and tighter regulations could have addressed these concerns, something noted in 38 out of the 61 submissions (62.29%) on the 2007 Bill (Allen and Clarke Policy and Regulatory Specialists Limited, 2007, pp. 22–23). By using the full regulatory powers of the 2005 Act, this would have presented a ‘unique opportunity to explore new ways of managing the harms associated with psychoactive drug use’ (Sheridan & Butler, 2010, p. 81). Additionally, the EACD minutes refer to the concern about the widespread availability of party pills but also acknowledge that this could be addressed under class D restrictions. The Health Select Committee (2007, p. 6) report further notes that:

We consider insufficient resources appear to have been put into enforcing the existing regulation of BZP which a majority of us think may have resulted in a situation where legislative action was seen to be needed. (emphasis added)

Therefore, instead of acting on the advice from experts, and the issues noted by the submitters, the government opted for a more punitive tightening of the ‘drug policy ratchet’ (Stevens & Measham, 2014, p. 1232), despite a lack of evidence that this would address the problems associated with BZP-PPs, and while there was a reasonable, less punitive option available. In relation to penal populism it is also noted that experts are often side-lined in favour of perceived public opinion, and it would appear that this was also the case in the 2007 Bill reading debates (Pratt & Clark, 2005).¹⁴

‘Young people are at risk’

In a similar way to the previous discourse ‘availability and accessibility’, the ‘young people are at risk’ discourse centred on the harms to young people from the use of BZP-PPs. The word ‘kids’ and references to preteens were also common and used to emphasise the dangerousness of the BZP-PPs:

I suggest that the marketing around BZP pills is targeted to appeal to those kids of 11 to 12 years of age. (National 1st Bill Reading)

Not a pill for young adults acting illegally and popping an ecstasy tablet or whatever in the pub in their 20s but a pill for kids. (Labour 1^st bill Reading)

MP’s comments were commonly foregrounded with the phrase ‘young people’ or ‘our young people’ and often repeated in one sentence or point.

There have been no long term studies on the effects of BZP on young people…we do not want our young people here to be case studies…some young New Zealanders…this is a whole generation of young people that we are actually experimenting with. (NZ First 2^nd Bill Reading)

Young people are often the receptacle of societal hopes and fears, on the one hand being viewed as vulnerable and innocent, while on the other being seen as responsible for a host of societal ills, among them the use of drugs (Measham & Moore, 2008; Muncie, 1999; Scraton, 2007). Also in a New Zealand context in media reporting during the ‘Kronic’ ban, young people were seen as passive objects as having things done to them by others such as ‘Kronic’ retailers (Barton, 2014). In a similar fashion, MP’s comments here also render young people as passive, their voices and reasons for taking BZP-PPs are absent from the debates: they are not presented as active consumers, but as passive victims of party pill marketers and retailers.

Therefore, the negative issues associated with BZP-PPs were emphasised by MPs in their debates, the notion that pleasure in intoxication could also be present in young people’s party pill use is never even considered. Consideration of the motives for drug use are often absent from drug laws, e.g. the Misuse of Drugs Act 1975, the 2013 and 2014 Acts. The six principles included in the 2013 Act to be considered by the regulatory authority all focus on risk and likelihood of harm (Psychoactive Substances Act, 2013). Yet, the academic literature cites pleasure as a key issue in young people’s alcohol and other drug use (Holt & Treloar, 2008; Hutton, 2006; Ritter, 2014). To focus solely on the harms is to ignore the lived experience of drug use. The demand from drug users for illicit substances is not often addressed in drug legislation, despite that an understanding of the subjective motives for drug use, including pleasure, is an essential part of any coherent response to drug use (Moore, Measham, Griffin, Morey, & Riley, 2008).

‘BZP has contributed to establishing a pill popping culture in New Zealand’

The discourse that BZP-PPs had contributed to a pill popping culture in New Zealand was also intertwined with the previous discourses: ‘availability and accessibility’ and ‘young people are at risk’. That they were readily available and easily accessible was argued to have caused a lamentable propensity on the part of (mainly) young people towards popping pills to feel good and to ‘get blotto’. In discussing the ‘young people are at risk’ discourse above, it was noted that pleasure was absent from the debates about young people’s BZP-PP use. Here BZP-PP use by young people is presented as beyond the comprehension of the MPs present:

I lament the fact that we have a generation of young people today who actually need these stimulants and means of escapism before they can enjoy themselves. (National 1st Bill Reading)

Party pills have become such an entrenched part of youth culture. (Māori Party 2nd Bill Reading)

Why, with the wonderful God-given mind each of us has, and our wonderful bodies and wonderful opportunities, so many of us, so often, want to get blotto and call that fun. (ACT 2nd Bill reading)

We also now have a culture whereby many children hold the view that in order to have a good time one must first take a pill. How regrettable is that? (National 3rd Bill Reading)

There is also a clear moral tone present in these quotes with BZP-PP use being described as ‘regrettable’ and lamentable by a diverse range of MPs across political parties. The notion of ‘moral populism’ is significant here with MPs referring to an imagined moral issue; that of young people and a (supposed) pill popping culture in New Zealand. Coupled with the ‘young people are at risk’ discourse this further mobilises public and political alarm at the implied entrenchment of youth drug use, lending support to the notion of clamping down on BZP-PPs and other such substances. Young people are presented as a potent symbol of the harms associated with drug use, generating alarm amongst policymakers, driving punitive legislation and the ‘drug policy ratchet’ (Stevens & Measham, 2014). It should also be noted that no evidence was forthcoming about whether young people felt that they ‘needed’ stimulants to have a good time, that party pills had become an entrenched part of youth culture, nor that any ‘children’ held the view that they must take a pill to have a good time.

‘BZP has the potential for harm/has a moderate risk of harm’

The debate about the potential for harm that BZP-PPs had was also central to the availability and accessibility discourse. In 2006, the EACD in a letter to the Associate Minister of Health recommended that BZP-PPs be reclassified under the Misuse of Drugs Act 1975 as a Class C restricted substance, and considered that they had a ‘moderate risk of harm’. However, their deliberations were not without controversy. First, the research referred to in their 2006 letter to the Associate Minister of Health had not been peer reviewed and this had to be rectified. They then restated their decision to ban in advice to the Minister in 2007. Second, the EACD’s decision was not unanimous and accusations flew around their decision making process, namely that ‘the EACD was divided on whether to make party pills illegal, and that the votes of two members who were not present at the meeting were nevertheless counted. We find this odd and irregular’ (Health Select Committee report, Green Party statement, 2007, p. 8).

Although the research evidence highlights some serious adverse effects related to BZP-PPs (Gee et al., 2005; Thompson et al., 2006), on balance they appear to be limited to a minority of users under particular circumstances, as well as related to a number of other factors (Gee et al., 2005; Nicholson, 2006; Theron et al., 2007; Thompson et al., 2006). As BZP-PPs were deemed harmful by some MPs in the bill reading debates, their availability was seen as a negative thing, particularly for young people as the previous quotes demonstrate. However, the notion of harm contained within the debates and the evidence presented as ‘fact’ to support that BZP-PPS had a moderate risk of harm were often misrepresented throughout the Bill readings. As noted earlier, two studies (Bryson & Wilson, 2007; Wilkins et al., 2006) were stated as evidence that the gateway effect existed which neither of the two studies actually claims. Furthermore, the clinical studies relating to BZP-PPs only note a minority of people suffering from serious adverse effects, and the fact that the cases referred to had also consumed other substances creates doubt about whether BZP was the causal factor in these cases. The EACD (2006, p. 7) noted in relation to Gee at al.’s (2005) study that ‘seizures are also related to the use of other substances and many of the patients in this study were polydrug users’. The randomised clinical trial carried out by Thompson et al. (2006) was also heavily criticised as there were several issues that could have impacted on the adverse effects exhibited by their study participants, e.g. participants were fasted for 6 hours prior to BZP ingestion. However, it should also be noted that although it was often polydrug use and not necessarily BZP that was problematic, BZP-PPs were combined with other substances such as alcohol and cannabis, and young recreational drug users are often polydrug users (Hutton, 2010). So while BZP itself was not necessarily causing significant harm, the way it was used could have increased risks and contributed to harms such as those identified by Gee et al. (2005).

Overall, the evidence considered by the EACD suggested that harms from BZP were not necessarily significant undermining the argument for the ban and the EACD’s recommendation of prohibition. This is especially so, in light of the committee’s view that ‘there are potential advantages in retaining BZP as class D – this allows a range of restrictions to be put in place that would address concerns about availability’ (EACD, 2006, p. 12), and that ‘there is no guarantee that scheduling a substance… reduces the availability or potential risk of harm from a drug’ (EACD, 2006, p. 12). Utilising the full potential of Class D would have meant that dose could have been regulated as well as places of sale, largely addressing many of the concerns raised in the submissions on the 2007 Bill (Allen and Clarke Policy and Regulatory Specialists Limited, 2007) and by the EACD. In addition, 11 out of 61 (18.03%) submitters, as well as the research commissioned, highlighted that using BZP-PPs meant that young people in particular could avoid contact with the illicit drug market, and this was seen as a benefit of retaining a legal party pill market (Allen and Clarke Policy and Regulatory Specialists Limited, 2007, pp. 22–23; Sheridan & Butler, 2010).

The benefits of retaining a legal party pill market were identified by academic researchers and the EACD, but these issues were side-stepped in favour of a focus on the negative issues related to BZP-PPs. However, as with the research cited in the gateway effect discourse, the evidence was not fully represented and the caveats related to BZP-PP studies were not highlighted in the parliamentary debates. Furthermore, seven submitters, including academics and medical researchers, were highly critical of the Thompson et al. (2006) study which was given a lot of weight as a clinical trial both in the bill reading debates and in EACD minutes. Also not all of the evidence considered by the EACD was cited in the Parliamentary debates, although whether this is because MPs were not aware of it or did not wish to use it in their arguments is unknown. Additionally, the notion of ‘harm’ was also only referred to in terms of BZP use and the wish to protect users from any harms induced through the use of BZP-PPs. ‘Harm’ was not considered in relation to the consequences of prohibition. The harms imposed by prohibition such as net widening, and criminalisation of those people who use illicit drugs (Jurgens, Csete, Amon, Baral, & Beyrer, 2010; Stevens, 2011) were rarely referred to. Furthermore, identifying something as harmful does not necessarily mean that prohibiting it is the best way to address any issues that occur. The decriminalisation of sex work in New Zealand for example exemplifies this alternative approach.

Therefore, although there were reasons to be concerned about the use of party pills and possible harms to users, prohibition itself has harms that were not considered in the Parliamentary debates. The focus was solely on harms from BZP-PPs and alternatives to prohibition to address these harms were not considered. So the response to BZP-PPs was a response not only to the drug itself but also to the symbolised dangerousness of drug use that infuses policy and legislative changes (Coomber, 2013; Manderson, 1995). Within this abstinence-based punitive system, MPs are unable to develop new approaches that are not based on considerations of harm, but that focus on the lived experiences of those who use drugs. There is no doubt that MPs were privy to evidence that suggested BZP-PPs could be harmful in some circumstances for some users; however, the contention here is that this evidence was not the only issue driving the ban on BZP-PPs under the 2008 Act. As noted earlier, drug policy and law making are argued to be influenced by a number of issues, not necessarily solely by research and evidence (Coomber, 2013; Lancaster, 2014; Lancaster et al., 2011; Stevens & Measham, 2014). In a New Zealand context, Fastier (1998) comments that historically sanctions against drugs were linked to social context, noting that ‘marihuana is not only a drug it is symbol’ (p. 22).

Discussion

Despite the arguments noted in the discourses that were reproduced in many of the media reports at the time (‘Next Generation of Party Pills to Roll Out’, 2008; ‘Prohibition Will Lead To Black Market’, 2008; ‘Teens Pass Out on Pills’, 2008), 38 out of 61 (62.29%) of submissions on the 2007 Bill noted that tighter regulation would be a better way to proceed than prohibition and argued that being aware of the potential harms and then trying to minimise them would be a responsible way forward (Allen and Clarke Policy and Regulatory Specialists Limited, 2007, pp. 22–23). The New Zealand Drug Foundation (2007, p. 1) also noted that ‘the safety of young people and other BZP users would be better served by strong regulation with firm enforcement, rather than by an illicit free market’. So there was support amongst the public and amongst researchers for an alternative to prohibition to be found (only 14 (22.95%)), of the submissions on the 2007 Bill supported the ban (Health Select Committee Report, 2007), although the cost of improved regulation was cited in EACD reports. However, prohibition is itself a costly affair with NZ$12 million spent on imprisoning cannabis users aged 17–25 from 2007 to 2011 (New Zealand Drug Foundation, 2013). It was genuinely surprising that the government opted for prohibition rather than regulation, given that an alternative under the 2005 Act was readily available and the evidence for significant harm, as noted previously, was not robust.

Further adding to the confusion over the ban was the agreement amongst MPs, both for and against it, that prohibition was not an effective way to deal with drug use, and that the proposed Bill would be ineffective in addressing the issues related to legal highs. BZP use did decline dramatically after it was banned (Wilkins & Sweetsur, 2013), although as predicted by many, there was also a rapid rise in the use of new party pills without BZP in them (Bassindale, 2011). Newspaper articles from August 2008, only a few months after BZP-PPs were banned, noted that new party pills were on the market and that users were suffering from adverse effects (‘Party’s Over for New Pills’, 2008). So it would seem that previous BZP-PP users had substituted them for other legal highs. Therefore, prohibiting BZP-PPs did not reduce drug use, nor did it address the ‘pill popping culture’ that MPs argued existed in New Zealand, as they themselves predicted in the 2007 Bill reading debates.

Given these issues, the discussion has moved full circle back to the question posed in the introduction to this article: What did influence the banning of BZP-PPs if the evidence for it was not robust? Was it, as Bennett and Holloway (2010, p. 42) argue, because ‘evidence is only ever likely to be one of many factors that influence the policy process’, that BZP-PPs were prohibited, or was it because of the more serious assertion by Hallam and Bewley-Taylor (2010, p. 1) that ‘drug policy is notorious for the extent to which it has remained evidence free’ (emphasis in the original)? What is clear is that the evidence presented in the 2007 Bill readings was not fully explicated, although the assertion that ‘populist punitiveness’ is solely to blame is a very large one to make. It is apparent however that ‘something else’ contributed to the parliamentary debates in 2007, and the passing of the 2008 Act. It could be argued that the wider social and cultural context that often reflects the way societies punish transgressions (Sparks, 2003) is evident in this instance. The extreme reluctance of political parties to consider alternatives to drug prohibition speaks to their fears that a perceived punitive public will abandon them at the polls. The newsworthiness of drug issues gives them prominence in the public eye and as Bottoms (1995) argues drug issues are one category of offences that are particularly susceptible to ‘populist punitivesness’. The ‘othering’ of drug users and the symbolism associated with illicit drugs are also pertinent in these debates, alongside the concept of a punitive ‘moral’ populism aimed at those who use drugs; the fact that many people use drugs for pleasure without suffering any adverse effects is often inconceivable to policymakers. In addition, as drug users have historically been viewed as ‘containers of intolerable risk’ (Sparks, 2003, p. 160) to decriminalise or regulate drugs is often seen as radical and unthinkable, despite the recent developments in countries such as the United States, Uruguay, the Netherlands and Portugal. New Zealand has also resisted recommendations from the Law Commission (2010, p. 9) to relax punitive approaches to possession and ‘social or small scale dealing’, with a continued focus on Criminal Justice System sanctions for drug possession (as evidenced in the 2014 Act which includes penalties for possession). The Minister of Justice also stated in 2010 that ‘there’s not a single solitary chance that as long as I’m Minister of Justice we’ll be relaxing drug laws in New Zealand’ (http://www.nbr.co.nz/article/drug-law-proposals-set-be-rejected-118406), contrary to the relaxation of penalties for drug possession in other jurisdictions such as Australia, Portugal, the Netherlands, and the USA.

Issues such as ‘populist punitiveness’ and ‘moral populism’ would appear to have some relevance to this debate. The EACD stated that one of the key reasons for their recommendation of a ban on BZP-PPs in 2007 was the ‘recreational context of BZP use’ (EACD, 2006, p. 13), so was the ban related to who was using BZP-PPs and for what purposes? Contemporary researchers (Buchanan, 2009; Measham & Moore, 2008) have pointed to a ‘wave of criminalisation’ that has focussed on particular groups of recreational drug users such as those engaging with the NTE. People’s ‘impermissible pleasures’ (Measham & Moore, 2008, p. 284) are legislated against which is significant in modern societies driven by populist agendas. However, although the public may not be as punitive as proponents of ‘populist punitiveness’ suggest (Hutton, 2005), it would appear that on issues related to drugs, punitive ‘moral populism’ is a significant issue, which drives drug policy and political responses to drug use. It may also be the case (as evidenced in the submissions on the 2007 Bill) that politicians assume a punitive public and act accordingly without fully absorbing the diverse range of views from their voting electorates.

The 2013 Act, which may have provided an alternative way to address the issues related to legal highs, was amended in 2014, an election year, in the face of small, vocal campaigns around emotive issues, such as animal testing of new psychoactive substances.¹⁵ This again raises the spectre of ‘populist punitiveness’ and its influence on drug policy. Hughes and Winstock (2011, p. 1895) refer to the effects of vocal, emotive campaigns on the deliberations of expert committees and note that they can ‘be brought under intense public pressure to conclude their findings’, and that ‘faced with media headlines and grieving parents the majority of countries simply continue with the default option to classify these new substances as “illegal drugs” as quickly as possible’. This return to prohibition in 2014 echoed the debates documented in this analysis about the 2008 banning of BZP-PPs. The harms of legal highs, mainly focusing on synthetic cannabis products, were brought sharply into focus by such vocal campaigns,¹⁶ and by newspaper reports of excessive harms and addiction to such legal highs. Harms ranging from an increased heart beat and sleeplessness, to paranoia, seizures and kidney failure were identified by researchers both internationally and in New Zealand (Barrett, Cakic, & Lenton, 2013; Glue, Courts, McDonald, Gale, & Mason, 2015; Schep, Slaughter, & Temple, 2011; Zawilska & Wojcieszak, 2014). However, the more serious side effects were also commonly found in those with existing mental health issues, those who ‘binged’ heavily on synthetic cannabis, and naïve, inexperienced users (Barrett et al., 2013; Glue et al., 2015; Zawilska & Wojcieszak, 2014). These nuances and complexities were also absent in media coverage. Reports focused on young people, in particular, whose lives had been ruined by smoking synthetic cannabis, with media reporting interviews and comments with anxious, grieving and outraged parents (‘Families Elated at Legal-Highs Ban’, 2014; ‘Former Legal High Addict Building a New Future’, 2014; ‘Son’s Death Prompts Legal High Protest’, 2014).¹⁷ The 2013 Act was also heavily criticised with government referred to as ‘wimpish’ for not banning legal highs (‘Government ‘Wimpish’ Over Legal Highs—Napier Mayor’, 2014). Thus, the harms related to prohibition, as well as the benefits of retaining a legal market were ‘silently silenced’ (Mathiesen, 2004 cited in Stevens & Measham, 2014, p. 1229) as they had been in the 2007 Bill reading debates. Additionally, researchers who had expressed reservations about the 2013 Act on the basis that it may simply add another layer of punishments in the Criminal Justice System for another set of drugs offences (Buchanan, 2013), were (unhappily) vindicated with the passing of the 2014 Act which widened the net of prohibition and criminalisation.

Conclusion

It is evident that the issues surrounding BZP-PPs and new psychoactive substances are part of a complex and long standing debate in New Zealand drug policy. The debate about BZP-PPs often centred on the harms produced by use of these ‘party pills’. While there was evidence that use of BZP-PPs (and other legal highs such as synthetic cannabis) could cause harms to users, the contention here is that the evidence was not robust enough to warrant a ban. This claim is strengthened by the criticisms of one of the key studies used by MPs to support the ban, and by the EACD comments on this particular study (Thompson et al., 2006). It is also the case that prohibition is not necessarily effective in reducing the harms from drug use and that a ban may not have been the best way to address any harms associated with BZP-PP use.¹⁸ It is clear that there was opposition to the ban from national and well-respected agencies such as the New Zealand Drug Foundation, as well as from the majority of submitters on the 2007 Bill. It is interesting that the majority view was ignored both by the EACD and by MPs in their passing of the 2008 Act. The MPs themselves also noted in their Parliamentary debates that prohibition of BZP-PPs would not address the problems associated with BZP use, nor address any of the harms related to its use. Although MPs were guided by the EACD’s decision to recommend a ban, it is surprising that a more critical debate did not take place, given the strong statements made by the Green Party over the EACD’s deliberations. Therefore, although it could be argued that MPs simply followed the EACD’s recommendations, and that this is what the EACD is there for, to guide MPs who are not experts in the field in their decision making, it could equally be argued that there was enough doubt over processes and research evidence to recommend caution in banning BZP-PPs. This is especially so in the case of BZP-PPs in New Zealand where there were benefits identified in keeping a legal market (Sheridan & Butler, 2006, 2010), and where an alternative to prohibition was already in place under the 2005 Act. MPs appeared unable to consider any alternative to the ‘drug policy ratchet’ (Stevens & Measham, 2014).

The processes surrounding the debates about the 2007 Bill have been critically explored in this article, and a punitive moral populism has been identified, aimed at drug use and drug users, historically driven by fears of drug using groups, and the symbolism associated with drug use (Coomber, 2013; Manderson, 1995). That three key pieces of punitive legislation were enacted in election years appears too much of a coincidence to ignore. ‘Populist punitiveness’ appears to have influenced policy development around legal highs, with a particular punitive ‘moral populism’ directed at drug use and drug users, driving the protests, debates and ultimately the legislation surrounding BZP-PPs in 2008, and other legal highs in 2013 and 2014. The assertion of Bennett and Holloway (2010) rings true in this instance: evidence was only one of many factors that affected the 2008 Act, with the wider social and cultural context being reflected in the 2007 Bill readings, and ‘leaving lasting marks in legislation and criminal justice’ (Sparks, 2003, p. 155). The debates surrounding BZP-PPs, the 2008, 2013, 2014 Acts and ‘populist punitiveness’ are inevitably bound up with those surrounding prohibition. These two debates and their intersections highlight the complexity of the social, cultural and political landscapes that they are formed within. Whether the 2013 Act would have provided a positive way forward will never be known, as the New Zealand Government treads the well-worn and tired path of prohibition in relation to tackling the harms associated with illicit drug use.

Footnotes

Acknowledgements

The author would like thank Julian Buchanan for his helpful comments on an earlier draft of this paper, as well as the anonymous reviewers of this article for their constructive and useful comments.

Declaration of conflicting interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

Notes

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