Marijuana is one of the most recognisable names when it comes to illegal narcotics and plants with narcotic properties.
During the late 1800s and early 1900s, marijuana was seen as an industrial product and was predominantly used to make hemp fibres and certain kinds of textile. However, during the late 20th century, particularly the late 1960s and early 1970s, marijuana came to be used predominantly as an illicit drug, although it was also used in the production of herbal remedies and medicine.
Since then, the production and marketing of marijuana and its derivatives has been a major problem in Mexico – not only healthwise, but also socially and in terms of national security. Unfortunately, this problem has dramatically increased in recent years.
Under Articles 234 and 235 of the General Health Law, marijuana (or cannabis, including sativa, indica and American cannabis) and its resin, preparations and seeds are considered narcotics. Thus, the production, preparation, packaging, acquisition, possession, marketing, transport and use of marijuana, as well as all other acts involving it, are subject to the General Health Law and various regulations, official standards and international treaties.
Until mid-2017 it was illegal to use marijuana or its derivatives in Mexico. However, on June 19 2017 new legal provisions and amendments to those regarding the use of marijuana for medical and industrial purposes were published in the Federal Official Gazette. Most of these new provisions appear to have derived from two cases:
- The first case concerned an individual who had a rare illness and wanted to import pharmaceutical products derived from marijuana. The Mexican courts allowed the individual to import and access the corresponding medicines.
- The second case concerned a number of individuals who filed a constitutional remedy, in response to which the Mexican courts agreed that the excessive regulation of marijuana was against individual free will and liberty.
Further to such jurisprudential precedents, Article 235bis was introduced into the General Health Law to require the Mexican health authorities to regulate the use of pharmacologic derivatives of sativa, indica and American cannabis, including tetrahydrocannabinol (THC).
Notably, these amendments made it possible to regulate only pharmacologic derivatives of cannabis. They did not allow cannabis products or derivatives to be used for any purpose other than medical research or pharmacologic use.
Further, THC was included in Article 237 of the General Health Law as a substance that is considered to have a therapeutic use; however, the law also lists THC as a health problem in Mexico.
Articles 237(II) and (III) refer to substances that:
- have "some therapeutic value" and represent a "considerable health problem"; or
- have a "therapeutic value" and are a "health problem".
Further to the amendment, the law includes products with a THC concentration equal to or less than 1%. Likewise, Article 237(V) includes marijuana derivatives that:
- have a THC concentration equal to or less than 1%;
- have no therapeutic use; and
- are commonly used for industrial purposes.
These products may be marketed, exported or imported if the requirements established in the applicable provisions are met.
The wording of the above provisions appears to allow marijuana products to be imported, marketed, manufactured and exported not only for the pharmaceutical sector, but also for the industrial sector.
A final draft of the Marijuana-Related Activities Regulations will shortly be published in the Federal Official Gazette.
The proposed regulations have sparked great interest in the potential development of such products within the Mexican market. However, the wording of the proposed regulations could contravene other federal laws, regulations and standards, as most industrial products bound for human consumption are regulated by legal provisions other than those of the General Health Law and the Regulations Regarding Health-Related Products. Many of these provisions explicitly state that marijuana and its derivatives cannot be used as ingredients or raw materials for food, beverages, cosmetics and other products bound for human consumption.
Based on the provisions governing these products, parties intending to use such products should analyse the final regulations once they are published in the Federal Official Gazette in order to assess whether their intended use may actually be carried out. Although there appears to be a trend towards decriminalising marijuana, such trend does not – at least for Mexican legal purposes – imply that it may be used as an ingredient or raw material in products bound for human consumption.
Although there appears to be a trend towards decriminalising marijuana, such trend should not – at least for Mexican legal purposes – imply that it may be used as an ingredient or raw material in products bound for human consumption. However, in practice, this appears to be the case for an increasing number of dietary supplements and food products in the market.
For further information on this topic please contact José Alberto Campos Vargas at Sanchez-DeVanny Eseverri SC by telephone (+52 55 5029 8500) or email ([email protected]). The Sanchez-DeVanny Eseverri SC website can be accessed at www.sanchezdevanny.com.
This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.
