We hereby present you an update of the case (proofread by our lawyers):
In November 2008 the Dutch Smartshop association (www.VLOS.nl) started legal proceedings in order to have the mushroom banning order by the Dutch government declared invalid because of a number of legal shortcomings. VLOS also claimed damages on behalf of its members. VLOS lost the case and appealed.
read on for the summary of the courtcase:
APPEAL CASE
VLOS vs DUTCH STATE (5th March 2009, Court of Appeal, The Hague)
In the appeal proceedings the lawyers of the Government repeated their earlier points of view. The main point of contention is about the procedure the minister should follow in order to add new substances or products to the list of forbidden products within the framework of the Dutch Opium Law. That law states that the minister may or ‘can’ take advice from professional bodies. In the history of the Opium law it has been consistent practice that the Minister took advice from its professional advisory council named ‘CAM’. A few years ago one of his predecessors, expressly stated in parliament that the Minister should take advice from his advisory council and that the council’s advice should be followed. Contrary to this clear policy statement the government lawyers stressed to almost total freedom of the minister to do what he considers necessary. In their opinion the minister is totally free to ignore any advice as give. The VLOS lawyers opposed such a ‘free ride’ for the minister and pointed out his obligation to come with well founded and proper arguments if he wished to ignore the findings of his advisory body. If that were not so, the minister would be at liberty to place a piece of toast on list 1 of the Dutch Opium Law because of the assumed dioxin in the toasted bread or a glass of water because of the chlorine and fluoride in it.
Since more than twenty years the Dutch society has adopted a relatively liberal attitude towards the use of soft drugs. Magic mushrooms form part of the scene and have been legally allowed until December 1st 2008. This policy has, in fact, been far more successful than the strong repressive stance taken by most other countries in Europe and Northern America. This liberal attitude has also had a appealing effect on young tourists from other countries in Europe and from the U.S.A. who concentrate their visits on the centre of Amsterdam. They would visit the many bars, cafes and ‘coffeeshops’ and sometimes they would also buy and consume mushrooms. Multi-usage of drugs with or without alcohol is in all cases risky and mushrooms are no exception. Despite the clear warning against multi-use with or without alcohol, these young tourists visiting Amsterdam have a tendency to ignore the warnings. Even so no toxicological proof or any other form of evidence has ever been produced about the risks of magic mushrooms. The advisory council of the ministry stated in 2007:
The use of hallucinogenic mushrooms (paddo's) poses such a low risk for the health of the individual and for society that prohibiting their use would appear to be a disproportionately grave measure in relation to the nuisance and damage caused by their current use. This is the conclusion reached by the Co-ordination Centre for Assessment and Monitoring of new drugs (CAM) in an assessment commissioned by the the Dutch Ministry of Health, Welfare and Sport (VWS). The CAM performed this risk assessment according to established procedures with the support of the Committee for risk assessment of new drugs for the mushrooms containing the active substances, psilocin and psilocybin, the so-called ‘magic mushrooms’ (paddo’s). Physical or psychological dependence has not been reported, and acute toxicity is mainly confined to possible attacks of panic or anxiety, which only seldom have fatal consequences. With regard to chronic toxicity, only the occurrence of flashbacks can be mentioned. Thus, on balance, the use of magic mushrooms is not considered to pose a risk to an individual’s health. For only one of the criteria in this risk category, namely, acute toxicity, was a small risk estimated. Although scientific data are not available, the use of magic mushrooms in combination with other psychoactive products, including alcohol, appears to constitute an additional risk.
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In defending his ban the minister repeatedly quoted accidents where no mushrooms were involved or where there was only an assumption of multi-use of drugs and alcohol including mushrooms. No official post mortem examination was ever carried out nor has any forensic study been done. In the opinion of VLOS the government’s ban on mushrooms is – within the framework of the Dutch Opium law - not sufficiently founded on proper studies and advice showing the risks of mushroom consumption for public health and giving proper evidence of a connection between some fatal accidents and the assumed consumption of mushrooms.
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The author of one proper scientific study into the effects of psylocibine (the active substance in magic mushrooms) on the human system (Prof. Griffith of John Hopkins University, Boston) has expressly stated in writing that his report should not be misquoted or partially quoted by the government lawyers for the benefit of an unbalanced conclusion. He stressed the positive factors.
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Similarly, the Amsterdam ambulance service warned against any factual conclusions from the data as supplied by them, which needed careful and further investigation. These data are only collected for the benefit of preventive care and are largely based on ‘hearsay’ and assumptions. They are not based on proper toxicological or forensic tests.
In the opinion of VLOS regulation of the ‘market’ should be given priority together with further measures specifically for the centre of Amsterdam. The minister has consistently refused to even consider such a possibility. The VLOS concluded that the list of prohibited products and substances as part of the Dutch Opium law may not be changed by the minister on the basis of ill or half baked arguments.
Such an attitude is against the proper care and diligence that any public functionary should observe.
