Bans on possession of herbal smoking mixes including Kronic, Mango Kush and Kalma by the West Australian government may run foul of the Australian Constitution as well as mutual recognition agreements with other Australian states and territories, as well as New Zealand.

W.A. Mental Health Minister, Helen Morton, issued a media release yesterday stating that the products had been banned on health grounds and that people had a few days to drop their stashes off at the police station.

Representing the producers and distributors of the herbal mixes, Eros Association President, Fiona Patten, said that implementing the ban was likely to be complicated by section 92 of the Australian Constitution, the Mutual Recognition Act 1992 (Cwlth), and the Trans Tasman Mutual Recognition Act 1997 (Cwlth). These last two Acts permit the sale of goods produced and lawfully available for sale in one state in a second state.

“Not only has the Minister acted prematurely on this matter but she has acted contrary to the findings of last week’s Report by the Global Commission on Drug Policy which was specifically formed to review global drug policy, and which recommended that personal possession of cannabis be decriminalised. The Report noted (page 15) in particular that cannabis use had in fact decline since Western Australia decriminalised the possession of cannabis in 2004."

"The Minister has also ignored the good science on this product carried out by the New Zealand Expert Advisory Committee on Drugs, and the New Zealand Institute of Environmental Science and Research ("ESR")."

The only recent in depth scientific research into these substances was done by the New Zealand Expert Advisory Committee on Drugs late last year. The Committee found that smoking Kronic was significantly less harmful than drinking alcohol and recommended that its sale be restricted to 18 years plus, not banned. Sensibly, the New Zealand Government accepted this advice and is putting it into effect.

"The Director of the ESR, Dr Keith Bedford, was recently reported as saying 'Every indication seems to be that [cannabinoid derivatives] are not a high or even medium level of risk - there's a low level of risk.' Dr Bedford also said he backed the New Zealand Government's moves to make "legal weed" products restricted substances instead of banning them outright. He said a "moral panic" was fuelling attitudes to ban the products instead of restricting them."

Ms Patten said the WA government should be investigating ways to restrict and regulate the products rather than handing over their supply to local drug dealers and interstate and international on-line dealers. “

"The products Ms Morton has banned will now simply be sold by suburban drug dealers. There will be no control over their composition, strength, or who they are being sold to. The Minister is actively fuelling the drug trade through unenlightened legislation," Ms Patten said.

“The Minster claimed that she was ‘happy with the level of public debate’ on the issue. However she did not consult with the industry that was producing and retailing the products. How can you claim to consult widely on an issue like this when you ignore the retail group that is selling and producing it?" asked Ms Patten.

Ms Patten said that the government had conducted no scientific research on the effects of the products and has instead relied totally on the advice of mining companies and the AMA.

"The Western Australian Government has missed a golden opportunity to regulate synthetic cannabinoids, and ensure that they are safe and only consumed by responsible adults. Instead, it has clung to a failed policy which has been proven not to work."