04.12.16

Mexico's first real attempt to legalize cannabis

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Last week, Mexican Senator Roberto Gil Zuarth, introduced a bill that would legalize cannabis, both for medical and personal use. This is only the last of a few drastic changes that Mexico has undertaken in recent months surrounding its marihuana policy. In the last six months, the Supreme Court has ruled on two cases on the issue. The first case was brought to the court by the parents of Grace, an 8 year old girl who suffers from a condition that causes severe seizures. After testing 19 different drugs, her parents sought out a drug whose main component is a derivative of cannabis, but because of the illegality of the substance they could not gain access to it. A long judicial process and media campaign led to Grace becoming the first person allowed to import and receive cannabis treatment in Mexico.
A few months after the “Grace case” a group of individuals—the Mexican Society for Responsible and Tolerant Consumption (SMART)—asked COFEPRIS (the sanitary regulatory agency) to authorize the possession, cultivation, harvesting and supply needed for the personal consumption of cannabis. It is important to note that the government legalized the personal use of cannabis in 2012 but gave no legal way to gain access to these amounts. When they were refused, they took the case all the way up to the Supreme Court. In a landmark ruling, the Court stated that the contested rules resulted in an undue restriction of the rights to personal identity, self-image, the free development of personality, self-determination and individual freedom. According to the Court, the absolute prohibition of marijuana also adversely affects the right to health.
Mexico has had insurmountable evidence that the war of drugs has failed and negatively affected the health of all Mexicans. Over 100,000 people have been killed in the last decade and hundreds of thousands have been imprisoned for non-violent crimes of cannabis possession or use. Due to this consensus has grown in three areas. First, consumers should not be criminalized, but rather treated as patients in cases where their use is problematic. Second, the change in drug policy must start by regulating the cannabis market. Cannabis is the illegal substance with the highest rates of use in Mexico as well as the lowest levels of harm from use. Third, laws should allow medical use to enable treatment of conditions such as those faced by Grace.
After these two cases, both the Congress and the President decided to open up separate public forums for the discussion of alternatives to the current prohibitionist model. While President Peña Nieto seemed to establish his forum mostly to save face, it seems the legislative branch is serious about presenting new alternatives.
So what does this new law propose? In a nutshell, it seeks to find the balance between law enforcement and public security and public health. When talking about cannabis regulation we need to balance two aspects. On the one hand it is necessary to:

  • Take the thousands of consumers out of the criminal justice system;
  • Reduce the size of the black market;
  • Ensure access to cannabis products for medical use; and
  • Guarantee personal liberty and allow adults who choose to do so to use cannabis products, so long as they do not harm anyone else through their use.

On the other hand we need to make sure that when regulating we can:

  • Prevent and avoid the use by minors;
  • Protect the health of those choosing not to consume; and
  • Lessen the problematic use of cannabis.

The novelty of leaving a prohibitionist regime is that we can accomplish both through responsible regulation.
The initiative proposes three types of use: medical, therapeutic and personal. The latter is regulated through three modes of supply. First, it seeks to decriminalize up to six plants for home-growth . Second, it regulates cannabis cooperatives (known as cannabis clubs in Spain), conceived as nonprofit associations, which would provide a monthly supply of a regulated amount of cannabis for members through quotas. Third, it gives a monopsony to a state distributor (called CANNAMEX), which would be responsible for buying the production of cannabis from local farmers, withdrawing them from cartel control. CANNAMEX would then sell in bulk to those individuals authorized to sell at licensed retail locations. No one would be allow to both grow and sell, eliminating the dangers of vertical integration. Additionally, by having the whole process go through a government distributer, a non-competitive market is established, taking large companies with the power to capture the regulator out of the equation, and ensuring that the goal of this new market is not to increase use or to maximize revenue.
Additionally, CANNEMEX would be responsible for ensuring standards and quality control as well as determining the types of packaging and labels and safety criteria for all products distributed to authorized outlets. To further protect the public health, the bill prohibits all forms of advertisement, promotion and sponsorship and strictly prohibits sales to minors. Through this system, the state retains control and ensures that public health is the priority at every link in the production chain.
The regulatory body created by this law would be the Mexican Institute of Cannabis (or IMCANN), which would also be responsible for investigating medical and therapeutic uses of cannabis. If approved, IMCANN, alongside CANNAMEX, would also regulate the types of cannabis for pharmaceutical production and therapeutic uses.
Finally, to make sure prevention and treatment efforts are also included, the law creates the Program for the Prevention, Treatment and Control of Problematic Use of Psychoactive Substances, which takes the problematic consumer out of the criminal justice system and treats them as patients.
Today we have been presented with a unique opportunity. We can choose how to regulate and that allows us to learn from the past and correct the mistakes we have made not just in regards to drug policy, but also in the regulation of other products that are harmful to health such as tobacco, alcohol and unhealthy foods. These were all markets that were allowed free reign and now are almost impossible to regulate in a safe and efficient manner. When regulating cannabis we should be thinking of strategies to avoid the creation of dangerous and powerful industries.
The novelty of this law is not the legalization for these three uses (which is important in itself) but rather the fact that it is a complete and comprehensive regulation. It is a 180-degree turn from the status quo. With this law in place it would allow those who want to consume cannabis to do so more safely, it would provide those who are going to consume to have the necessary information to make responsible decisions and it would make sure that those who do not consume or have any interest in doing so do not have to suffer the damages brought on by the violence and  the black market.
In Mexico, the cannabis industry already exists. Consumption already exists. It is preferable that the state-and not organized crime define how production, distribution and consumption of cannabis is undertaken.

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The views reflected in this blog are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.

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