Competition and Consumer Act 2010 - Consumer Protection Notice No. 3 of 2013 - Imposition of Interim Ban on Certain Consumer Goods Containing Synthetic Drug Substances

Administered by Department of the Treasury

Legislation au F2013L01053 Not in force Legislative Instrument

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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.

 

 

Overview

The Competition and Consumer Act 2010 (CCA) was enacted to protect consumers and ensure fair competition in the marketplace. It includes the Australian Consumer Law (ACL) and provisions for banning consumer goods that pose significant risks. Consumer Protection Notice No. 3 of 2013, issued under the CCA, addresses the problem of synthetic drug substances posing serious health risks, including the potential for death or serious injury. This notice was introduced to provide a national interim ban on the supply of certain consumer goods containing synthetic drug substances, following incidents in New South Wales and South Australia. The Assistant Treasurer determined that the urgent risk of these substances warranted a national response to protect public health. The interim ban covers specific substances listed in the Poisons Standard and aims to prevent the supply of these dangerous goods until states and territories can enact their own legislation to address the issue. The CCA empowers the Assistant Treasurer to impose such bans without delay in cases of imminent risk.

Scope and Application

The Competition and Consumer Act 2010, through Consumer Protection Notice No. 3 of 2013, imposes an interim ban on the supply of certain consumer goods containing synthetic drug substances. This applies to any person or entity involved in the supply of these goods, which are specifically identified as containing synthetic cannabinomimetics, NBOMe type substances, or synthetic cocaine type substances, as proscribed by Schedule 9 of the Poisons Standard 2012. The ban extends nationally across Australia, overriding previous state-level bans, thereby ensuring a uniform approach to the prohibition of these substances. The interim ban is designed to address the imminent risk of serious injury or death associated with the use of these products, which were previously available both over the counter and online, potentially exposing children to these hazardous substances. The ban also includes specific consumer goods that are identified as containing these synthetic substances. This legislative action was taken to provide all states and territories time to align their laws with the national approach to managing these substances. The interim ban is not subject to disallowance or sunsetting, ensuring its immediate and sustained effect until further legislative measures are enacted.

Key Provisions

The primary sections of Consumer Protection Notice No. 3 of 2013, issued under the Competition and Consumer Act 2010 (CCA), establish an interim ban on the supply of certain consumer goods containing synthetic drug substances. Section 109(1)(a)(ii) of the Australian Consumer Law (ACL) enables a responsible Minister to impose this ban if it appears that the use of these consumer goods may cause injury. Section 132J(1)(a) allows the Commonwealth Minister to certify an interim ban when there is an imminent risk of death, serious illness, or serious injury. The interim ban specifically targets consumer goods containing synthetic cannabinomimetics, NBOMe type substances, or synthetic cocaine type substances listed in Schedule 9 of the Poisons Standard 2012, as well as 19 named consumer goods believed to be synthetic cocaine and cannabis products. This ban was implemented to address the significant risks associated with these substances, which include serious side effects and dangers to public safety. The Act imposes several obligations on parties and entities governed by it. Firstly, the Commonwealth Minister is required to consult with relevant stakeholders and publish a notice on the internet if an imminent risk is identified, as outlined in section 132J of the CCA. This notice must be published before an interim ban is imposed. Secondly, the Minister must invite any person who supplied or proposes to supply the banned goods to request a conference with the Australian Competition and Consumer Commission (ACCC) to discuss the interim ban. Additionally, the Department of Health and Ageing, which administers the Poisons Standard, plays a role in scheduling these substances into Schedule 9, thereby prohibiting their sale and distribution. Failure to comply with the interim ban can lead to significant legal consequences. The Act does not explicitly outline specific offences or penalties within the Consumer Protection Notice, but general penalties for breaches of the ACL can include fines of up to $1.1 million for corporations and $220,000 for individuals, as stipulated under section 231 of the CCA. Furthermore, breaches of the interim ban may also result in civil actions for damages caused by the supply of the prohibited substances. The seriousness of these consequences underscores the importance of adhering to the interim ban to protect public health and safety. In summary, Consumer Protection Notice No. 3 of 2013 imposes an interim ban on certain consumer goods containing synthetic drug substances under the Competition and Consumer Act 2010. It mandates that the Commonwealth Minister consults with relevant parties and invites suppliers to request a conference with the ACCC. Non-compliance with this ban can result in significant fines and civil actions, reflecting the gravity of the risks posed by these substances.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.