How the “legalizing” trend on cannabis products is impacting Mexican market.
The recent incorporation of jurisprudence and thus as a law treatment as a consequence of the constitutional recognition for diverse Mexican citizens to consume and cultivate cannabis (marijuana) for personal purposes, as well as the presentation of three bills in the Mexican Senate, and the publication of sanitary control guidelines by part of the Federal Commission for the Protection against Sanitary Risks, are a sign of how the door of a different reality to the historical treatment on the legality of this plant in our country begins to open.
The ruling of the court
October 2018 will be marked in the history of cannabis in Mexico as the Supreme Court (“SCJN”) granted the fourth and fifth constitutional protections (amparo), and thereby recognized the cultivation and personal consumption of marijuana as necessary activities for the right to the free development of personality.
Thus, the first chamber of the SCJN recognized for the fifth time the right to the free development of personality in complaints filed by eleven citizens in total who requested to consume and cultivate marijuana for “recreational” purposes. In practice, each of these people is authorized to have cannabis plants in their home.
In a wider scope, these five constitutional protections, when granted consecutively, integrate a jurisprudence that forces all the judges of the country to resolve in the same sense before the refusal of the federal authorities to give cultivation permits. In other words, the absolute prohibition of consumption and cultivation without commercial purposes is unconstitutional in our country, so that no authority can prevent any Mexican from planting cannabis plants if they are for their exclusive use.
All this began on the historic date of November 4, 2015, when the SCJN granted an injunction to four Mexican citizens so that they could produce, possess and transport marijuana for their personal consumption. The route undertaken by the four members of the Mexican Society of Responsible and Tolerant Self-Consumption, A.C. started in 2012 with a request to the Federal Commission for Protection against Sanitary Risks, which was denied, before which they requested the intervention of a district court, which turned the request to the SCJN, where Minister Arturo Zaldivar Lelo Larrea elaborated a sentence project in which he put above the sanitary risk the right to the free development of the personality that all citizens have by the simple fact of being born in Mexico. Although such a project considers the use of cannabis harmful to health, it places the freedom to choose as a right to be protected by the State. The vote of the ministers of the first chamber in favor of Minister Zaldivar’s project was four to one, with which the members of the Mexican Society of Responsible and Tolerant Self-Consumption A.C., acquired the desired right.
Almost three years later the second protection would come in the person of Ulrich Richter; the third, on June 13 for Armando Rios Peter; the room for Josefina Santacruz and Javier Mancera, and for Aram Barra the last one necessary to constitute jurisprudence, both granted on the last day of October 2018.
However, these constitutional protections only protect the behavior of cultivation and consumption, so the possession and trade of marijuana will continue to be persecuted and this keeps at risk any user who is arrested with marijuana in some public space.
Initiatives of law
As has already been mentioned, the year 2018 will be remembered as particularly decisive for the legal landscape of cannabis in our country, and political changes could not be made to wait. On November 6 of last year, a bill was introduced by the political party MORENA in the Mexican Senate. On the same day, two more parties presented initiatives, one by the political party PRI and another by political party Movimiento Ciudadano.
Among the legislative proposals to regulate the use of cannabis, we can highlight:
- The MORENA parliamentary group issues a new law that establishes that everyone has the right to carry up to 30 grams of cannabis. Those that require more, will have to request a permit to the Mexican Institute of Regulation and Control of the Cannabis, that will be the one in charge to regulate, monitor, sanction and evaluate the system of regulation of the plant. This proposal states that a person who consumes marijuana may do so on public roads, with the exception of spaces one hundred percent free of tobacco smoke; It allows the cultivation of up to twenty plants per person for self-consumption, but they must be registered in an anonymous register and their annual production must not exceed four hundred and eighty grams. For industrial uses, the initiative authorizes the sowing, cultivation, harvest, preparation, manufacture, production, distribution and sale of cannabis.
- The PRI parliamentary group modifies the General Health Law, the Federal Law against Organized Crime and the Federal Penal Code, allows personal consumption and medicinal use, prohibits its trade, sale and distribution. Indicating that it cannot be consumed in front of minors or in public places. And, it increases from five to twenty-eight grams the amount that is considered personal and immediate consumption.
- The Movimiento Ciudadano parliamentary group, modifies the General Health Law, allows recreational and medical use, allows trade, export and import of cannabis products with concentrations of 1% tetrahydrocannabinol or less; eliminates the restriction of a maximum dose for personal and immediate use, indicating that the Ministry of Health will be in charge of designing policies to regulate its use.
The Ministry of Health through the Federal Commission for the Protection against Sanitary Risks (COFEPRIS), presented guidelines on the sanitary control of cannabis and its derivatives, with pharmacological, medical and research purposes, and sanitary criteria for commercialization, export and import of products with wide industrial uses, containing cannabis derivatives in concentrations of 1% or less of tetrahydrocannabinol.
Cannabis contains more than 421 different chemical compounds of different molecular classes, including flavonoids, terpenes, steroids and cannabinoid varieties.
The three main cannabinoids present in the cannabis plant are tetrahydrocannabinol (THC), cannabidiol (CBD) and cannabinol (CBN). THC is the main psychoactive compound and CBD is a non-psychoactive compound.
In Mexico, according to the reform of the General Health Law of 2017, Article 245 establishes that products containing cannabis derivatives, in concentrations of 1% or less of THC, may be marketed, exported and imported for industrial uses (food supplements, beverages and cosmetics mainly).
Hemp is a plant belonging to the species of cannabis sativa, whose characteristic is the presence of traces and even absence of THC. Its seeds and stems are harvested to produce a wide range of products, which include: food, food supplements, personal care products, paper, textiles, construction materials, plastics and even biofuels.
As we have previously mentioned, the industrial uses that recognize COFEPRIS guidelines allow the commercialization of food supplements, which should not be aimed at preventing, alleviating, treating or curing a disease, disorder or physiological state; herbal remedies that do not contain in their formulation narcotic or psychotropic substances (for example THC greater than 1%), or any other allopathic drug or other substances that generate hormonal activity, hormonal activity or any other substance that poses health risks.
It is important to note that COFEPRIS considers that the preparation, preparation, conditioning, acquisition, possession, trade, transportation in any form, medical prescription, supply, employment, use, consumption, and in general, any act related to any pharmacological derivative of the cannabis, are performed for medical purposes when said activities are part of or derive from the process of sanitary authorization of medicines.
And, that sowing, cultivating and harvesting cannabis is considered to be done for medical purposes, when said activities are part of or derive from the process of sanitary authorization of medicines. Thus, COFEPRIS has announced the authorization of several products with cannabis and its derivatives, which do not have THC or cause psychoactive effects, and among which are food supplements, cosmetics, food and raw materials.
As a way of conclusion
Once said the above, the authors would like to question the audience – how the Mexican legal market will fare against the legal markets in Canada and the United Sates, once it opens?
Canada, the United States, and Mexico have a long-standing free trade agreement that was up until recently called NAFTA, but now it´s called USMCA.
If all three countries federally legalize cannabis, the cannabis trade among these three countries could be a whole new industry with whole new rules.
Seeing how Mexico has the absolute lowest cost of production when it comes to cannabis, and cost of labor, it is the perfect place for American and Canadian licenses producers to move their productions centers south of the border once the legal loops are regulated.
- Mauricio Mondragón Velázquez
Uhthoff, Gomez Vega & Uhthoff, S.C. Associate- Life Sciences Practice.
- Ignacio Dominguez Torrado
Uhthoff, Gomez Vega & Uhthoff, S.C. Partner – Life Sciences Practice.