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Advertising Psychoactive Substances

Advertising psychoactive substances is an offence under section 36ZG of the Drug Misuse and Trafficking Act 1985, which carries a maximum penalty of 2 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You published or displayed an advertisement
  2. Your advertisement promoted or apparently promoted the consumption, supply or sale of a substance for its psychoactive effects, and
  3. Your advertisement provided information on how or where the substance could be acquired.

The definition of ‘substance’ extends to any plant, fungus or natural organism.

A ‘psychoactive substance’ is one which, when consumed by a person, has the capacity to produce a psychoactive effect.

A ‘psychoactive effect’ means:

  1. Stimulation or depression of the central nervous system resulting in hallucinations or a significant disturbance in, or significant change to, motor function, thinking, behaviour, perception, awareness or mood, or
  2. Causing a state of dependence, including physical or psychological addiction.

The offence does not apply to:

  1. Prohibited drugs, prohibited plants or precursors under the Act
  2. Poisons, restricted substances or drugs of addiction under the Poisons and Therapeutic Goods Act 1966
  3. Therapeutic goods under the Therapeutic Goods Act 1989
  4. Foods under the Food Act 2013
  5. Alcohol or tobacco
  6. Plants, fungi or extracts thereof that are not, or do not contain, prohibited drugs or prohibited plants
  7. Controlled drugs, plants or precursors under the Criminal Code Act 1995, or
  8. Substances supplied by health practitioners under the Health Care Complaints Act 1993 provided they are supplied in the course of providing health services.

Your advertisement may have been published or displayed in any manner, way, medium or form. It may be by words, whether written or spoken, by pictorial representation or design, or by any other representation by any means at all and the promotion of the psychoactive substance may have been direct or indirect.

Duress and necessity are defences to the charge.

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