REPLACEMENT EXPLANATORY STATEMENT

Issued by the Authority of the Assistant Treasurer

Competition and Consumer Act 2010

Consumer Protection Notice No. 3 of 2013

Imposition of interim ban on certain consumer goods containing synthetic drug substances

Background

Subsection 109(1)(a)(ii) of Schedule 2, the Australian Consumer Law (the ACL), to the Competition and Consumer Act 2010 (CCA) provides that a responsible Minister (including the Commonwealth Minister) may impose an interim ban on consumer goods of a particular kind if it appears to the responsible Minister that a reasonably foreseeable use (including a misuse) of consumer goods of that kind will or may cause injury to any person.

Subsection 132J(1)(a) of the CCA provides that when it appears to the Commonwealth Minister that consumer goods of a particular kind create an imminent risk of death, serious illness or serious injury, the Commonwealth Minister may certify by written notice published on the internet, that an interim ban should be imposed on the consumer goods without delay.

Once an interim ban on consumer goods is imposed under s109 of the ACL, and if before the ban was imposed, the Commonwealth Minister published a notice in accordance with subsection 132J of the CCA, the Commonwealth Minister must invite any person who supplied or proposes to supply consumer goods of that kind to request a conference with the Australian Competition and Consumer Commission (ACCC) in relation to the interim ban.
 

The interim ban on certain consumer goods containing synthetic drug substances

The interim ban prohibits the supply of certain consumer goods containing a substance that is a form of synthetic cannabinomimetic, NBOMe type substance, or synthetic cocaine type substance that is proscribed by Schedule 9 of the Poisons Standard 2012. The interim ban also specifically captures 19 named consumer goods (and equivalents) which are believed to be three synthetic cocaine products and 16 synthetic cannabis products. Prior to the imposition of the interim ban, these consumer goods were available to consumers in some jurisdictions both over the counter and online and therefore would have been available for supply to children.

Based on incidents reported in New South Wales involving the use of consumer goods believed to be synthetic cannabinomimetics, NBOMe type substances, or synthetic cocaine type substances, users are at risk of a range of serious negative side effects including tachycardia, elevated blood pressure, seizures, self-harm, delusional behaviour, paranoia/anxiety, agitation, hallucinations or psychotic episodes. There is also evidence that users of these consumer goods pose a risk to the safety of police and health professionals who are called to deal with aggressive and violent drug affected users and to members of the public who encounter drug affected users.

The interim ban was imposed following the imposition of interim bans on consumer goods in both New South Wales and South Australia. This Commonwealth ban overrides those state interim bans that were only enforceable in the state they were made.

The Department of Health and Ageing administers the process for scheduling poisons, drugs and medicines into the Poisons Standard. The Poisons Standard Amendment No. 1 of 2012, which came into effect on 1 May 2012 scheduled 3,4-methylenedioxypyrovalerone (synthetic cocaine) and numerous categories of substances referred to as synthetic cannabis into Schedule 9 of the Poisons Standard. Most states and territories have adopted the relevant amendments to Schedule 9 of the Poisons Standard into their laws, thereby prohibiting synthetic cocaine and synthetic cannabis. Synthetic LSD is also prohibited under Schedule 9 of the Poisons Standard.

The Assistant Treasurer decided that, because of the imminent risk of death, serious illness or serious injury in relation to the use of consumer goods believed to be synthetic cannabinomimetics, NBOMe type substances, or synthetic cocaine type substances, a national interim ban on their supply was warranted, to allow all states and territories time to develop legislation to address the hazards associated with these types of products.

The Poisons Standard serves two key purposes. Firstly it contains the decisions of the Scheduling Delegates regarding the classification of poisons into Schedules, as recommendations to Australian States and Territories. The scheduling of poisons is implemented through relevant State and Territory legislation. Certain advertising, labelling and packaging requirements may also be a consequence of scheduling, but are the subject of other Commonwealth registration schemes. Secondly, it includes model provisions for labelling, containers, storage and possession of poisons in general, which are intended to be adopted for use in each jurisdiction of Australia, according to local requirements and local law.

The Poisons Standard 2012 is available on the ComLaw website: http://www.comlaw.gov.au/Details/F2012L01200.

Consultation

Section 131E of the CCA provides that an interim ban made under section 109 of the ACL is a legislative instrument for the purposes of the Legislative Instruments Act 2003 (LIA). Section 17 of the LIA requires that the rule maker should consult prior to making a legislative instrument. Section 18 of the LIA outlines the circumstances where consultation may be unnecessary or inappropriate. An instrument which is required as a matter of urgency is an example where consultation is unnecessary or inappropriate (subsection 18(2)(b)).

The Assistant Treasurer decided that the banned substances create an imminent risk of death, serious illness or serious injury. The Assistant Treasurer decided and gave notice that an interim ban on products containing a form of these substances should be made without delay, as provided for under section 132J of the CCA. A notice under section 132J of the CCA is not a legislative instrument.

Consultation did not take place prior to imposing the interim ban. The ACCC on behalf of the Commonwealth Minister will invite any person who supplied or proposes to supply goods which are captured under the interim ban to request a conference with the ACCC.

Commencement

This legislative instrument commences on the day specified in the instrument.

Disallowance

This instrument is not subject to disallowance due to section 44 of the Legislation Act 2003.

Sunsetting

This legislative instrument is not subject to sunsetting due to section 54 of the Legislation Act 2003.