Drug paraphernalia and UK law

Paraphernalia supply has been a problematic legal issue in the UK since the inception of needle exchange. This page explains the legal issues, and charts the history of the impact of the law on drug users, and how, why and when the law has changed.

The two main legal issues have been around:

• The Misuse of Drugs Act 1971 had a subsection 'section 9A' added in 1986 to make it an offence for a person to supply any article - except a syringe or needle - in cases where 'the supplier believes it may be used by the recipient to administer an unlawful drug or prepare an unlawful drug for administration; and

• The Medicines Act, because under the Medicines Act water for injections was a prescription only medicine. This meant that, in practice, it couldn't be legally supplied by needle exchanges.

Section 9A of the Misuse of Drugs Act
Under Section 9A of the Misuse of Drugs Act 1971, it was made a criminal offence to supply or offer to supply articles for administering or preparing controlled drugs. The Act says an offence will be committed if the following circumstances exist:

• An article is supplied or offered to be supplied.

• The article may be used or adapted to be used (whether by itself or in combination with another article or articles) in the administration of a controlled drug.

• The person supplying or offering to supply the article did so in the belief that the article would be so used by any person, whether to administer the drug to themselves or another, in circumstances where that administration would be unlawful.

Articles such as pipes, grinders, bongs and tourniquets could fall within this prohibition. However, prosecutions under section 9A - even of headshops clearly promoting drug use - are unheard of, and there has never been an employee of a drug service tried for this offence.

Exceptions
Section 9A exempts certain items:

• Hypodermic syringes

In addition, the following articles are exempt if they are dispensed by a doctor, a pharmacist or someone working lawfully within drug treatment services:

• Swabs

• Utensils for the preparation of a controlled drug

• Citric acid

• Filters

• Ascorbic acid

• Water ampoules of up to 2ml

Section 9A was drafted to enable prosecution of drug dealers who sell complete 'kits' of drug and implements to take them, and/or are raided and although not found to be in possession of drugs, do have all the paraphernalia needed to take them.

However, this obscure bit of law was virtually unknown in the drugs field, and was rarely used by the police for its intended purpose following the failure of a number of high profile cases of attempted prosecutions for sale of cannabis and cocaine consumption implements, in which defendants had used the "it's an ornament" defence.


Changing section 9A of the Misuse of Drugs Act
However, in the late 1990's the issue of section 9A of the Misuse of Drugs Act with regard to the supply of paraphernalia by needle exchanges also became an issue following a letter to the Pharmaceutical Journal on October 24, 1998 from a pharmacist in Somerset who questioned the legality of supplying citric acid to injecting drug users. In the wake of this, pharmacists up and down the country stopped selling citric to injecting drug users.

While working for the drug service in Dorchester, Andrew Preston negotiated the UK's first local agreement with Dorset police to enable pharmacists there to resume sales of citric, and other areas were able to use this model to negotiate further local agreements. Glasgow Drug Action Team received an assurance from the procurator fiscal for the Glasgow and Strathkelvin that no action was envisaged against pharmacists who supplied citric acid, etc, in the interest of harm limitation as part of a recognised needle and syringe exchange scheme.

The Law and Ethics Committee of the Royal Pharmaceutical Society recommended that the RPS should make clear to pharmacists in the Glasgow area that it would support their professional decision to supply citric acid in appropriate circumstances.

However, despite these local and professional body successes, the availability of citric and vitC continued to decline. As heroin can't be injected without an acid, injectors began using lemon juice and vinegar and workers on our safer injecting courses from drug services up and down the UK began reporting eyesight problems and blindness caused by candidal infections from these acids.


We tried to persuade a number of companies in the field to supply citric acid in single-use sachets but they were all too concerned about the legal problems that could arise. So, in the spring of 2001 we set about arranging the manufacture for ourselves.

Paraphernalia and the law: a timeline
September 2001: citric sachets launched
The sachets were launched in September 2001, and were supplied by drug services, many of whom used the Dorset agreement as a model for ensuring the supply didn't put workers at risk of prosecution.

The increasing number of services supplying citric, and the benefits it was having in terms of attracting users into contact with services, and reducing the harm associated with other acidifiers increased the pressure to clear up the anomaly in the law.

Kay Roberts, a pharmacist managing the Greater Glasgow pharmacy needle exchange scheme, and member of he ACMD, put the issue on the agenda of the ACMD technical committee, and in late 2001 the committee recommended that the Misuse of Drugs Act be amended to permit the supply of certain additional items.

November 2002
The Home Office issued a consultation document requesting responses to the proposal to amend Section 9A.

February 2003: vitC sachets made available
In response to demand from drug users, we launched a (technically illegal) single use VitC (ascorbic acid) sachet, alongside our citric sachet.

July 2003: citric, swabs, spoons, and filters made legal
On 8th July 2003 a press release announced that the ACMD recommendations on paraphernalia supply had been accepted, and that 'The Government will be laying a negative resolution statutory instrument to implement changes to section 9A of the Misuse of Drugs Act 1971' with effect from 1/08/03.
This will make legal the supply to drug users of '5 types of items':

• Ampoules of water for injection;

• Swabs

;

• Utensils for the preparation of a controlled drug

(spoons, bowls, cups, dishes);

• Citric acid

; and

• Filters

.

To see the change set out on the Home Office website, click here

The change didn't make legal the supply of VitC (ascorbic acid), which remained illegal to supply. However, the tone of the press release, and the fact that it was now clear that the intention of Section 9A was to allow the supply of items that could reduce harm, many services continued to provide it.

September 2003: launch of sterile water
The change to the misuse of drugs act which removed the prohibition on supply of water for injections made no practical difference to the supply to injecting drug users because, like all injectable preparations, it remained a prescription only medicine.

We therefore tried to find a way around this problem by supplying a single use 1.4ml ampoule of sterile water. Technically illegal under the Misuse of Drugs Act (because it wasn't water for injections). The ampoules were available from September 2003 until June 2004.

June 2004
Unfortunately, a private briefing we'd given to the National Needle Exchange Forum on the current state of play with drugs, paraphernalia and the law was completely misrepresented in a formal complaint to the medicines regulator - the MHRA, made by a competitor.

The complaint led to a visit from two MHRA officers, who ordered that our 1.4ml plastic ampoule stock be quarantined, and that we stop selling it on the grounds that it was presented as a medicine, and therefore needed a medicines licence.

We immediately began the process of applying for a licence, and a letter writing campaign was launched to persuade the MHRA to allow the resumption of supply, and to reclassify water for injections as soon as possible, however the commercial realities of producing a technically complex, generic medicine in a market where production is often in the tens of millions means that as yet we have been unable to source a small volume plastic amouple of water for injections.

October 2004: MHRA consult on changing the status of water for injections
However, the impact of the decision to stop us selling sterile water was that the campaign to permit legal supply of water was stepped up. This campaign was very effective, and on the 19th October the MHRA consulted on changing the status of water for injections to enable its supply by needle exchanges. To see the consultation document, click here.

June 2005: Supply of water for injections made legal!
On the 27/06/2005 the pressure to change the law, and the mass of responses to the consultation paid off. Statutory Instrument 2005 No.1507 The Medicines for Human Use (Prescribing) (Miscellaneous Amendments) Order 2005 was published on the HSMO website, with an amendment to Schedule 5 of the POM Order (to see it, click here)

The SI became law on 30th June 2005 and contained provisions for the supply, by drug workers, of water for injections to injecting drug users (without any pack size restriction, as proposed in the consultation) and with a limit on the size of ampoule that could be supplied of 2ml.

Water for injections is still a prescription only medicine, and a prescription is still required for all uses other than supply to injecting drug users, but this change to the regulations meant that, at last, drug workers could legally dispense water to injecting drug users.

Unfortunately, although this made the supply of water completely legal in terms of both the medicines act and the misuse of drugs act, the only 2ml licensed water for injections available in the UK was in a glass ampoule.

We continued with our application for a licence for our plastic ampoule, but made little progress.

In 2012 the ampoule size that could be distributed within the law was increased to 5ml. Details here.

October 2005: vitC made legal
Meanwhile, The Advisory Council on the Misuse of Drugs (ACMD) advised government that the oversight regarding the omission of VitC from the section 9A exclusions should be corrected, and on the 12th October 2005 Under-Secretary of State Paul Goggins signed a statutory instrument - SI 2005 (2846) - adding ascorbic acid (VitC) to the list of items that it is legal for services to supply.

January 2006: glass 2ml ampoule and safe snap amp snapper made available
In the autumn of 2005, with our licence application for a plastic ampoule stuck at the MHRA we reviewed all of our options, and looked again at the issue of glass ampoules which are readily available. Having discussed the problem, the idea of developing a device that could completely enclose the ampoule thus removing the risk of glass cuts emerged.

We filed an application for a patent for the 'safe snap' ampoule snapper in October 2005 and immediately began the product development and testing. We negotiated a reliable supply from the UK's biggest supplier of Water for Injections and ordered deliveries of ampoules through January, February and March to ensure continuity of supply.

The manufacture of the safe snap began in early January, and the ampoule and safe snap were launched at the end of the month. Making this the first time a safe, completely legal supply of water for injections had been available in the UK.

February 2007
Exchange Supplies again push the boundaries, and formalise the provision of foil as a reverse transition intervention with the first foil pack designed for drug users.

As foil wasn't on the list of exempt items under section 9A, extensive guidance was again issued on our website to enable services to distribute it without fear of prosecution in the same way that they have before for citric, vitC, and water. We expect the law to change to allow foil to be provided...watch this space.

November 2010
Professor Les Iversen, Interim chair of The Advisory Council on the Misuse of Drugs wrote to Theresa May enclosing a copy of a report prepared by the ACMD on the provision of foil, saying that 'The ACMD consider that the balance of benefit favours exempting foil from Section 9A of the Misuse of Drugs Act 1971.'

August 2011
The Home Office wrote to the ACMD asking for more information on the effects of heroin / cocaine inhalation, and the risks of infections from smoking, the ACMD response to the enquiry is here.

2012
The Human Medicines Regulations were amended to allow supply of up to 5ml Water for Injections in the lawful provision of Needle and Syringe
here (scroll down to number 7.)

November 2012
The Home Office wrote to the ACMD asking for evidence that provision of foil would help people get off drugs, that letter from Theresa May is here. The response from the ACMD is here.

July 2013
After another incredibly long wait on July 4th 2013 Theresa May published this announcement:
"Written ministerial statement on the government's acceptance of Advisory Council on the Misuse of Drugs advice on the lawful provision of foil.

This written ministerial statement was laid in the House of Commons by Theresa May and in the House of Lords by Lord Taylor of Holbeach.

The Secretary of State for the Home Department (Theresa May): The government has accepted the advice of the Advisory Council on the Misuse of Drugs (ACMD) to allow for the lawful provision of foil by drug treatment providers subject to the strict condition that it is part of structured efforts to get people into treatment and off drugs.

The government's 2010 Drug Strategy, reducing demand, restricting supply, building recovery: supporting people to live a drug-free life is ambitious in its aims and takes a balanced approach. At its core is recovery enabling individuals to live free from drug dependency, enabling them to re-build their lives and address the criminality and health issues associated with drug abuse.

The available evidence shows that the provision of foil can encourage people to take their first steps into treatment, reducing the immediate harm and facilitating the onward journey towards recovery and abstinence. By lawfully providing foil under strict conditions, we also tackle the significant health risks associated with injecting behaviours, including the transmission of dangerous blood borne viruses.

The government will introduce legislation to ensure foil is only offered by drug treatment providers as part of structured efforts to get individuals into treatment, on the road to recovery and off of drugs. We will also put in place mechanisms to carefully monitor and evaluate take-up, implementation and adherence to the conditionality over the next year."

The statement was published here.

This effectively legalised foil (because prosecutions are never brought against people breaking laws that are about to be repealed), although the actual statutory instrument has yet to be published, and no date was given for this.

September 2014
Foil finally made legal. On 9th August 2014 it was announced that a SI would be laid before parliament in September adding foil to the list of items exempt from section 9A.