CHAPTER 11: Analogue Legislation

The appearance of numerous illicit fentanyl and pethidine derivatives in the 1980s led the United States to introduce legislation to control these designer drugs. The Controlled Substances Analogue Enforcement Act 1986 (The Federal Analogue Act) introduced the concept of a controlled analogue that had a chemical structure and a stimulant, depressant, or hallucinogenic effect broadly similar to that of an established controlled drug. The main appeal of the analogue concept is that it provides a means of avoiding a full risk assessment, particularly when little scientific information may be available on which to base such an assessment. The main weakness of the analogue approach is that it requires a criminal court case (effectively retrospective legislation), often leading to a ‘battle of the experts’ to determine if a substance in question fulfils those criteria. That can be contrasted with generic legislation where the legal status of a substance is defined, even if that definition might not be comprehensible to a lay reader. Other problems soon came to light with analogue control. By 2010, the Drug Enforcement Administration admitted that the legislation was no longer fit for purpose and was described as ‘an imperfect law’. Several other countries have also created analogue legislation although there is some confusion since legislatures often use the word ‘analogue’ in the context of what is really generic control.