Mexico's current legislation regarding cannabis use is the result of several legal actions. More than five years ago, the first legal actions regarding the prohibition of cannabis use were filed by the authorities, pushing towards a specific legal framework.
These actions involved the use of cannabis for different purposes. The relevant cases addressing the use of cannabis were aimed at obtaining the approval of an allopathic drug with a cannabisrelated substance as an active ingredient, and the approval for import of a cannabis-related substance medicine for personal and recreational use.
Supreme Court of Justice decision
The Federal Commission for Protection against Sanitary Risks (COFEPRIS), which is responsible for applying and enforcing the corresponding regulatory framework in relation to drugs, refused to review the dossier and grant a marketing authorisation for pharmaceutical products containing cannabis and other narcotics as active ingredients.
In September 2015, as a result of one of the legal actions filed by the parents of a young girl suffering from Lennox-Gastaut syndrome (epileptic attacks), COFEPRIS announced the import of a medical treatment containing a cannabis-related substance which was about to be authorised. In November 2015 the Supreme Court of Justice debated whether recreational use of cannabis should be authorised. The court's ruling considered that prohibiting the use of cannabis for recreational purposes is unconstitutional.
COFEPRIS complied with the decision on 10 December 2015 by granting only to the plaintiffs (four people) the authorisation to plant, cultivate, prepare, possess and transport cannabis for selfconsumption for recreational use, excluding any commercial activity. The case was significant, but the decision did not constitute binding jurisprudence for other courts.
The precedents set by the case prompted the discussion of a number of key topics (eg, the need to regulate and eventually authorise the medical use of cannabis for any individual) and highlighted the loopholes in Mexico's health system in respect of cannabis. The Supreme Court of Justice held that the General Health Law establishes a prohibitionist system which should not be applied to medical use.
Questions regarding the medical use of narcotic and psychotropic substances such as cannabis were inevitably raised and began to have a considerable effect on the Mexican legal system. As a result, various levels of the federal government began a serious and formal debate regarding the recreational and medical use of cannabis.
Legislative amendments regarding medical use of cannabis
In 2016 a legislative proposal was presented before Congress to approve the medical use of cannabis. On 13 December 2016 the Senate approved the proposal and the lower chamber of Congress approved the bill on 28 April 2017.
In June 2017 amendments to the General Health Law and the Federal Criminal Code were published in the Official Gazette. The amendments aimed to legalise cannabis for medical, scientific and industrial use, as well as for marketing authorisations for medicines in which the active ingredient is tetrahydrocannabinol (THC) and other isomers or stereochemical variants.
"This right for adults to recreationally use cannabis cannot be exercised in the presence of minors or in public places where third parties have not expressed consent"
After being in force for only five months, the COFEPRIS Guidelines for Cannabis Control were revoked through an official communication on 26 March 2019 and were published the following day.
COFEPRIS concluded that the guidelines went beyond the scope of the corresponding Health Law provisions, since they allowed for uses other than for medical and scientific purposes of THC, despite THC's classification as a narcotic or psychotropic substance, as established in the law. However, COFEPRIS may have disregarded Article 245, Section V, that provides for cannabis use with industrial purposes. Thus, contrary to COFEPRIS's decision to revoke the guidelines, the Health Law and the 2017 amendments do not limit the use of cannabis to use for medical and scientific purposes only. Products containing cannabis derivatives of 1% or less of THC, and which have extensive industrial uses, could be commercialised, exported and imported, thereby fulfilling the requirements established in the sanitary regulation.
In early 2018 General Health Law regulations concerning cannabis were under discussion. However, attempts made to approve such regulations later in 2018 failed to materialise. Instead, on 30 October 2018, COFEPRIS published some guidelines to establish the criteria for the appraisal of the application of authorisations for the commercialisation, exploitation and import of products other than medicines containing cannabis and its derivates at a concentration of less than 1% THC.
However, the guideless failed to clear a path for the cannabis business in Mexico. Some days after the guidelines were issued, the Ministry of Economy reacted negatively to the guidelines and the import of products containing cannabisrelated substances. The ministry highlighted that the tariff schedules concerning cannabis and its derivates were forbidden. It transpired that before the guidelines were issued, COFEPRIS had not properly requested a review of the eventual amendment to the trade regulation regarding cannabis-related substances.
Therefore, even though there were certain guidelines that allowed for the granting of sanitary approvals with respect to the commercialisation, exploitation and import of products containing cannabis-related substances, as long as the modifications to the trade legislation (specifically the tariff schedules) were in place, it seemed that the actual import of such products was not yet possible.
Nevertheless, it might be only a matter of time for the corresponding modifications to make the import of cannabis-related products feasible, as there is a bill presently under discussion in Congress and the new administration has expressed its intention to enact the corresponding law shortly.
There is a proposal for a new Law for the Regulation and Control of Cannabis. The initiative aims to regulate and control the process of harvesting, storing, transporting, labelling, producing, publicising, sponsoring, selling and commercialising cannabis. However, it remains under discussion by Congress.
The Supreme Court recently confirmed jurisprudence relating to recreational use of cannabis. The court decided that in order to preserve the right to free development of personality it must authorise individual use of cannabis for recreational use. The ruling established that individuals engaging in recreational use of cannabis must be over 18 years old. However, this right for adults to recreationally use cannabis cannot be exercised in the presence of minors or in public places where third parties have not expressed consent.
Over the past five years, Mexico has faced numerous cannabis-related legal issues and questions. Nevertheless, things are expected to change, as Mexican law makers are working hard to resolve the legal issues related to the cannabis industry.
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