Legal highs and injunctions

Can civil enforcement powers provide a solution to controlling – not stopping – the sale of legal highs? Alan Conroy explains.

The debate about how to control 'legal highs' continues and seems likely to do so for some time. There is no doubt that providing a regulatory solution is fraught with difficulties. Regulations that deal with packaging only provide part of the solution as they do not address other advertising or point of sale responsibilities. As frequently sold they cannot be brought into the scope of being a ‘medicine’ or a ’food’ and so what might seem to be a logical means of control is denied.

There had been hope that the Consumer Protection from Unfair Trading Regulations 2008 (“the CPUTRs”) might offer some hope but the problems associated with the concept of ‘Average Consumer’ appear, for the time being to have denied enforcers that option. As a result neither prosecuting under the CPUTRs or using the permitted alternative in Regulation 26 CPUTRs of seeking injunctive relief under Part 8 Enterprise Act 2002 (“Part 8 EA2002”) seem viable at this time.

In any case a prosecution may not be the answer in this area. Like it or not these products are called ‘legal’ highs for a reason which is of course because they can be legally sold. The profits to be made are significant and so the unscrupulous trader may well decide that accepting even repeat fines would be acceptable – if there was a prosecution route of course! There is, in my view, potential for amending the CPUTRs to bring greater clarity to the concept of a ‘vulnerable consumer’ but that is not for this article.

Civil enforcement is frequently regarded as a soft option and less attractive than criminal actions but it might well be that here it offers at least a partial solution.

Part 8 EA2002 allows enforcers to seek Enforcement Orders (injunctions in all but name) to prevent breaches of certain specified Domestic and Community Infringements. Within the Enterprise Act (Part 8 Domestic Infringements) Order 2003 is contained a list of such legislation. Some of that has since been repealed and/or replaced but amongst the remaining provisions are 2 general rules of law – one dealing with acts or omissions in contract and the other with breach of duty of care. The full expression of that latter provision is ….An act done or omission made in breach of a duty of care owed to a consumer under the law of tort or delict of negligence.

If a trader knows or suspects that a product he sells will be consumed, even in flagrant disregard of any warnings not to do so, does he have a duty to provide some information about the consequences? Where it is known, or suspected, that such products will be consumed together with alcohol or illegal substances does that duty of care on the trader become more onerous? How about considering the effect in combination with over the counter or prescription medication?

Taken at its very simplest does not the trader have a responsibility to ensure that information about the contents of the product and their potential effects on the human body are available should they be required by medical services? What if the products are bought by someone who does have a total disregard for the consequences for themselves but the product is taken by another – perhaps a small child? Where does the information come from to allow effective treatment to be given if needed?

The answers to these questions are really the foundation for a debate far outside the scope of this article. The key question though is there a duty of care on the trader in such circumstances?

While it is not possible to, currently, stop the sale of these products there seems little reason not to at least seek the Court’s assistance on ensuring that adequate information is made available. The precise nature of that information, how and to whom it is provided and so on may well vary but no responsible and reputable trader should have any objection to providing greater protection. Of course should a trader refuse then it would be an additional factor for a Court to consider.

An application for an enforcement order along the lines of ‘not to breach his duty of care to consumers by failing to provide information, as specified below, about the contents, strength, potential effects and a telephone number providing support to medical services in case of adverse reaction from any chemical substance sold’ is worth considering. That is a very simple and basic example but it makes the point I hope.

It may well be that enforcers do not need Part 8 EA2002 at all. Local authorities have wide powers to seek injunctive relief to promote or protect the interests of inhabitants in their area – s222 Local Government Act 1972 and s189 Local Government (Scotland) Act for example. While the numbers of injuries and deaths may not be high in relation to the volumes of these products being consumed the potential consequences are horrifying and so this may be something that local authorities wish to pursue. If information about the constituents of these products could be compelled to be disclosed it might just open the door for enforcement through means currently not possible.

Alan Conroy is a tenant at Church Court Chambers in the Temple and has specialised in consumer protection in addition to general crime and regulatory work since leaving the Office of Fair Trading in 2010. He can be contacted either through Chambers or directly This email address is being protected from spambots. You need JavaScript enabled to view it..