Cannabis Regulations Default, Questions RemainBy Rodrigo Brugada | Fri, 07/02/2021 - 11:41
Mexico's Supreme Court has declared unconstitutional some articles that prevented the consumption, acquisition of seeds, planting and distribution of cannabis.
These changes come after some articles of the General Health Law were declared unconstitutional in 2015 due to resolutions of appeals supported under the human right to the free development of personality. Congress had a 90-day term to eliminate or modify these articles. After this term and three extensions, Congress had no resolution, leading to a general declaration of unconstitutionality.
The Court explained that this declaration removes the legal obstacle for the Ministry of Health, through the corresponding agency, to authorize activities related to the self-consumption of cannabis and THC. These activities include planting, cultivation, harvesting, preparation, possession and transportation for recreational purposes. Therefore, the right to the free development of the personality is respected.
The amendment urges the Ministry of Health to issue authorizations for the aforementioned activities during the time Congress takes to legislate on the matter. It should be clarified that there is also the possibility that Congress does not pass legislation in this regard, in which case the SSA must continue issuing permits. In addition, COFEPRIS will be in charge of drafting guidelines for acquiring seeds and granting licenses for consumption. The Ministry will also have to establish rules so that the consumption of this drug does not affect third parties, nor does it occur in public places. Likewise, safeguards must be included to prevent driving and operating machinery under the influence and the performance of any activity that may put third parties at risk.
When the details are published in the Official Gazette of the Federation (DOF), citizens will no longer have to file an appeal and will only have to request their license from COFEPRIS. It should be made clear that the Penal Code has not been modified and the previous categorization of crimes is still in place. Persons without a license may still be prosecuted for drug dealing.
It should be highlighted that with this ruling Mexico adopted a vision of human rights and introduced safeguards for access to several rights, such as the free development of the personality. In no other country has this happened; all the others have instead regulated markets. The change to the legislation does not provide a regulatory framework to create a legal marijuana market and keeps the commercialization aspects in a legal vacuum. The Court, in this case, has acted as a negative legislator: it took those articles out but did not draft others.
The SCJN's resolution in the face of Congress's inactivity leaves many claims unresolved, both in civil society and the industry. Until there is a more formal regulation, issues such as complete decriminalization without the requirement of paperwork or licenses, free cultivation, unlimited possession when it is for non-profit purposes and the creation of spaces to share with tobacco smokers will remain pending. Likewise, the production, cultivation, transformation, transport or sale of cannabis will continue to be illegal.