By: Carlos Allan Malacara & Felipe Gutierrez Serrano, Panamericana de Patentes y Marcas
More than two years have passed since Mexico took the first step in the regulation on the use of cannabis, amending important provisions in the General Health Law and the Federal Criminal Code. This was a pivotal moment and a shift from a prohibitionist system, to a model where effective cannabis regulation could be developed.
Such significant changes in the federal laws still required a clear regulatory framework for implementation. Since June 2017, the Ministry of Health was instructed to design and execute public policies aimed at regulating the medicinal use of cannabis, within six months.
Attempts have been made, but all have failed, to adequately regulate the use and rules for commercialization of cannabis for medical and scientific research purposes. For instance, in November 2017, Mexico’s Federal Commission for Protection against Health Risks (Cofepris) approved the Regulations of the General Health Law involving Health Control of Cannabis and its Derivatives, which were never published and hence did not enter into force. In October 2018, Cofepris issued Guidelines involving Health Control of Cannabis and its Derivatives, which were in force for a short period of time. However, these guidelines were flawed as they did not follow the legal protocols upon issuance and contravened several other legal bodies so they were finally revoked in March 2019.
At the legislative level, eight different bill proposals are currently being discussed in Congress. The initiative presented by the Interior Minister in November 2018, has been well received by many as it balances free market principles but also considers public health concerns with regards to both medical and recreational use of cannabis, establishing the creation of specific cannabis regulatory authority. Additionally, it allows home growing operations for personal consumption and includes provisions aimed at regulating plantation, harvesting, distribution, advertising and labeling.
Mexican Courts have been very active on the subject and in 2018 the Supreme Court ruled that the absolute ban on recreational use of cannabis was unconstitutional as it violates the individual’s freedom to develop their own personality. As a consequence, jurisprudence was created which set an obligatory precedent for other Mexican courts to follow.
Due to the absence of rules regulating the therapeutic use of cannabis, the pathway for obtaining authorizations to import, export and commercialize cannabis-related products was through the Courts by way of Amparo appeals (Constitutional appeals) against authorization denials by Cofepris.
More recently, on August 14, 2019 Mexico’s Supreme Court ordered the Ministry of Health to issue regulation within 180 days on the medical use of cannabis which includes the entire production chain; that is, from the procurement, storage of seeds, cultivation, harvesting, processing, transportation, marketing and in general all activities aimed at medical consumption and scientific research, so as to guarantee access to such treatments for people who require it.
This decision derived from an Amparo appeal which was submitted by the mother of a child with multiple disabilities and drug-resistant epilepsy, whose treatment involved THC oil. The Court determined that the lack of regulation after legalization in 2017 had put at risk patients’ rights, including those of children. The Ministry of Health has announced that they will comply with the order, and failure to do so will have serious legal consequences.
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