In Mexico, the question is not whether to legalize cannabis, but just how to do it.
On Monday, the Mexican Senate will launch a series of roundtable discussions to gather input on the country’s pending regulation of cannabis. The meetings this week, widely publicized on social media, will take place in the nation’s capital, granting citizens nine opportunities to weigh in in-person.
This move follows two separate Supreme Court decisions, which, combined with three previous rulings in deference to the Constitution’s “free development of personality” doctrine, set a binding precedent—that the prohibition of cannabis for “recreational” purposes is unconstitutional.
In concrete terms, the rulings invalidate sections of Mexico’s General Health Law that prohibit activities related to cannabis for personal use, including cultivating, harvesting, and transporting the cannabis plant.
But the Supreme Court decisions were hardly the end of the discussion. In practice, lawful consumption of cannabis in Mexico still requires citizens to undergo a bureaucratic rigmarole. First, people who want cannabis must request an authorization from the Federal Commission for the Protection against Sanitary Risk (COFEPRIS), the Mexican health authority’s regulatory arm—and they must do so knowing that the request will be denied. Rejected petitioners must then go before a federal court and request an injunction, which every federal judge is obligated to grant because of the precedent established by the Supreme Court. Finally, once the petitioners obtain the injunction, they must return to the COFEPRIS, which will be forced to authorize the original application.
The average citizen, of course, does not have the time and resources to carry out this procedure. (Among recent successful petitioners, for example, is the actor Gael García Bernal.) The Supreme Court’s jurisprudence, moreover, does not touch on the trade, supply, or any form of cannabis distribution. As a result, just how a person with permission to consume cannabis is supposed to obtain it remains murky.
To make matters more complicated, the former administration approved prescription-free sales of dozens of cannabis-based products last year, including twenty-one dietary supplements and nine cosmetics, all with less than one percent THC. The products, the COFEPRIS said at the time, would enable patients to treat illnesses like epilepsy, arthritis, and anxiety. They would also serve as “relaxants, analgesics, and for the treatment of difficulty falling asleep.” Notably, the move was made just weeks ahead of President Andrés Manuel López Obrador’s inauguration in December.
Under the new administration, which made drug policy reform integral to its platform, the COFEPRIS tossed out those guidelines. Doing so, said the agency, was necessary because the former administration contravened a decree issued in 2017 that allows for the medical use of cannabis. Additionally, said the agency, the guidelines exceeded their purpose by authorizing the commercialization of products that contain THC for uses that are neither medical nor scientific, and included products forbidden in international trade.
To date, the 2017 decree allowing for medical cannabis has yet to be implemented. Most policy reform advocates, moreover, feel that it is insufficient anyway, as it does not allow for the domestic production of cannabis, forcing those who need it to import.
Then came the Supreme Court. On January 31 of this year, the Court issued an official notice of its precedent to both houses of Congress, which are now required to reform the laws to reflect that the prohibition of cannabis use is unconstitutional.
Thus the listening sessions. Legislators are contemplating several bills and working through a host of details, with the aim of crafting legislation to regulate its use.
In April 2019, Senator Julio Ramón Menchaca Salazar, who presides over the Justice Committee, confirmed that a new regulatory framework for cannabis is in the works and suggested that lawmakers use the summer recess (May 1 to August 31) to pore over the details, so as to meet the October deadline set by the Court. The Mexican Senate also hosted a forum in April, titled “Towards a Policy to Regulate Cannabis,” in which lawmakers, regulators, and policy experts at the local, national, and international level exchanged ideas on the best model for the country.
Some early advice
Among them was Zara Snapp, a drug policy expert and reform activist based in Mexico City. During her presentation, Snapp first pointed to the human cost of Mexico’s “war on drugs.” Between 2006 and 2016, she said, 250,000 people were killed one way or another in that war and nearly 2,000 clandestine graves have been unearthed. Some 40,000 people remain missing, another 300,000 have been internally displaced.
Snapp also provided context regarding the unregulated cannabis market, noting that, in Mexico’s case, “the issue is not so much consumption but production.” Currently, about 500,000 people are involved in the cannabis chain of production. According to the UN, they produce 15,000 to 27,000 tons of cannabis per year, primarily in the northern states of Sinaloa (36%), Chihuahua (19.5%), and Durango (16.4%), though also in Guerrero, Jalisco, Michoacán, Nayarit, Oaxaca, and Sonora. Mexican cultivators, Snapp added, earn 200 to 540 pesos ($10 to $28) per kilogram. But once the product gets across the US-Mexico border, the same product is sold for about $1,000 per kilogram.
Moving forward, Snapp told lawmakers, Mexican cannabis policy should look to keep that value in its state of origin by legalizing and regulating cannabis. Additionally, rather than using federal funds for enforcement and eradication programs that adversely affect the environment and rural communities’ income and health, lawmakers should consider providing current cultivators with technical assistance, so as to improve the quality of the cannabis and offer a better product, both domestically and abroad.
“We have an historic opportunity, but we have to do it very carefully and with an emphasis on social justice,” Snapp told the forum’s participants, “instead of gifting this [industry] to large corporations, as was done with last year’s Medical Cannabis Law, which does not provide for domestic production.”
Though unable to attend the forum, the Drug Policy Alliance’s executive director, Maria McFarland Sánchez-Moreno, issued a statement on Mexico’s move towards cannabis legalization, stating in part that “the massive amount of resources invested in the war on drugs has contributed to a bloodbath.” Legalizing cannabis, she acknowledged, “will not solve the serious security and health problems in Mexico. But regulation does have the potential to improve the lives of many: people who are currently criminalized or abused in the name of cannabis prohibition, and people who don’t have access to medical cannabis.”
Pointing to efforts in the US as a potential model, the Drug Policy Alliance’s executive director suggested expunging the records of people convicted of cannabis-related offenses, as well as reinvesting revenue from the cannabis industry into communities that have been most impacted by prohibition.
By regulating the industry, she underscored, Mexico will be better able to “shape how cannabis is produced, distributed, and consumed” and “demonstrate regional leadership.” Like Snapp, McFarland Sánchez-Moreno asked lawmakers to “Ensure that the new legal market does not only benefit big businesses.” Pointing to California as a possible model, where some cities have prioritized licensing for people with low incomes, she encouraged the Mexican Senate to “limit vertical integration to make sure that the entire market does not end up controlled by only a handful of powerful groups.”
Bills under review
There are ten bills under consideration. One of them was introduced on November 6, 2018 by the Citizens’ Movement, a center-left political party that is among the top four most numerous groups in the Senate. This measure cites a study conducted by the Washington Office on Latin America, which indicates that, between 2009 and 2013, 14,860 people were detained in Mexico on charges of cannabis consumption. According to the bill, “Under this regime, the police constantly extort citizens, which affects their perceptions of the justice system.” The Mexican penitentiary system, moreover, is in a “deplorable state,” in which “prisoners live in overcrowded conditions that violate human rights, preventing the reintegration of citizens into society.”
“Our penitentiary system,” the bill underscores, “is at 250% to 305% of its capacity,” and a cell for six people might actually hold between fourteen and twenty.
In response, the Citizens’ Movement bill would decriminalize the consumption of cannabis for “ludic or recreational purposes,” as well as eliminate the need for citizens to seek an authorization from the COFEPRIS. Notably, personal consumption of cannabis—whether for medical or recreational purposes—would be exempt from maximum dose restrictions. The marketing, export, and import of cannabis products that have broad industrial uses and contain less than or equal to 1% of THC would also be permitted. The bill also calls upon Mexico’s Ministry of Health to design and execute public policies that regulate the medical and “recreational” use of cannabis sativa, as well as domestic production.
Back in September 2018, just before the Supreme Court issued its decisive fifth ruling, the Citizens’ Movement also introduced another measure, which calls for amnesty for those who have been sentenced for cannabis consumption or possession. In its explanatory statement, the measure points to previous Supreme Court decisions, which granted plaintiffs permission to consume cannabis “in a recreational, regular, and personal manner,” as well as to cultivate, harvest, prepare, possess, and transport the material, so long as it is not for commercial purposes.
As the measure underscores, the Supreme Court decisions solely apply to plaintiffs who managed to secure an injunction against the COFEPRIS. This, says the measure, has generated duplicity in the legal system, because the law is applied differently to those who lack the resources to obtain an injunction. Such a policy, the bill goes on to say, undermines principles of equality before the law, a situation that is “aggravated when we consider that there are thousands of Mexicans incarcerated in prisons for possessing or consuming marijuana and at the same time the Court has declared that the norms that prohibit their consumption are unconstitutional.” It also notes that, “according to official data published by the federal government in response to a request for transparency,” 43.7% of prisoners did not have a lawyer present when making a statement before the Public Ministry and 39% did not have a lawyer explain the results of the proceedings.
If implemented, the amnesty bill would apply to all persons against whom authorities have brought or could bring criminal proceedings for the personal consumption or possession of cannabis. Judicial and administrative authorities would also be obligated to revoke pending arrest warrants and release accused or sentenced persons.
In November 2018, the Institutional Revolutionary Party (PRI), which ruled the country without interruption for more than seventy years, until 2000, also put forth a measure, calling for adjustments to the country’s General Health Law, Federal Penal Code, and the Federal Law Against Organized Crime.
Like the measures put forth by the Citizens’ Movement party, this bill acknowledges the Supreme Court rulings declaring cannabis prohibition unconstitutional and calls for the decriminalization of consumption for “ludic and recreational purposes.” Likewise, if implemented, obtaining a permit to consume from the COFEPRIS would no longer be required.
Still, the PRI’s bill differs from the Citizens’ Movement measures in important ways.
Currently, the country’s General Health Law indicates that no criminal action will be taken against a person in possession of up to five grams of cannabis for personal consumption. Under the PRI’s bill, the limit would increase to twenty-eight grams. This is markedly different from the proposal introduced by the Citizens’ Movement, which calls for personal cannabis to be exempt from any quantity restrictions. The PRI also makes no mention of people who have been imprisoned in relation to cannabis use or simple possession, though it does stipulate that the “ludic and recreational use” and personal consumption of cannabis will not be subject to criminal prosecution.
The PRI bill also explicitly references the procurement of cannabis seeds and stipulates that the possession of seeds, in addition to the acts of sowing, cultivating, and harvesting, will not be subject to punishment—so long as these activities are carried out for non-commercial purposes. This is significant because, to date, only a handful of people have permission to obtain seeds in Mexico. One of them is policy expert and activist Zara Snapp, who, along with two others, sued the federal government to obtain this permission. And though the Supreme Court ruled in their favor, current policy forced Snapp to import seeds from a seed bank in Holland, a process that involved several months of waiting.
This recommendation runs counter to another distinguishing feature of the PRI bill, which repeatedly makes it clear that commercial sales and any type of cannabis distribution will not be permitted. So, while people would be able to possess small amounts, it would still be unlawful to buy and sell it. On the international front, the measure states that it will be permissible to export and import cannabis products that contain 1% or less of THC. It also stipulates that all cannabis-related activities in Mexico will remain subject to international treaties and conventions.
The most prominent and comprehensive bill under consideration was introduced by Mexico’s Interior Minister, Olga Sánchez Cordero while serving as a senator representing the National Regeneration Movement (MORENA) party, which has a majority in both houses of Congress.
This measure begins by citing the Geneva Academy’s 2017 War Report, which categorizes Mexico’s fight against organized crime as a “non-international armed conflict” akin to the situation in Afghanistan, Iraq, South Sudan, and Syria. This, the bill goes on to say, is because, since 2006, violence tied to organized crime in Mexico has been marked by “violent battles between heavily armed, and increasingly fragmented, criminal groups fighting for control of lucrative business opportunities,” as well as “violent clashes between criminal groups and the state armed forces.” The bill then goes on to say that the increased violence—which implicates both criminal groups and federal authorities —is “one of the most important problems in the country.”
“We don’t want anymore dead,” said Sánchez Cordero when she introduced the measure to Congress in November 2018, “be they police officers, servicemen, drug traffickers. We don’t want any more collateral victims, we don’t want any more families in mourning.”
The “War against narcotrafficking,” the MORENA bill says, “has generated two consequences that point to its failure,” namely “increased violence in every corner of the country,” along with “the criminalization of vulnerable sectors of society,” all rooted in the “false presumption that the drug problem must be addressed through a criminal approach.”
Though this bill, like all others being considered, solely focuses on cannabis policy reform, the MORENA measure takes issue with prohibition in general, arguing that it has failed to bring about its purported purpose, as there has been “a considerable increase in domestic consumption of cannabis and other drugs.” Moving forward, says the bill, Mexico must approach the issue differently, “precisely because the objective cannot be to eradicate the use of a substance with such prevalence as cannabis.”
In line with the Mexican Supreme Court’s rulings (in which Sánchez Cordero participated as a judge), MORENA’s draft decree places a premium on the Constitutional right to self-determination and consumer health. It includes a long list of “ailments that have been effectively treated with cannabis,” including cancer, glaucoma, epilepsy, and Tourette’s syndrome. Mexicans, the bill underscores, have a right to health. Therefore, the government must work to guarantee that patients with “difficult-to-treat diseases” can access medications “with characteristics that substantially improve their quality of life.” In doing so, the government will also “prevent and reduce the incidence of poisoning” through unregulated cannabis self-medication.
Under the proposed regulation, all adults would be allowed to have up to thirty grams of cannabis on their person (a slightly higher limit than that proposed in the PRI bill). However, if a person wishes to carry more, permission must be requested from a newly created Mexican Institute for the Regulation and Control of Cannabis, which would be established to monitor, regulate, sanction, and evaluate the legalization of the plant. Adult citizens would also have permission to grow up to twenty plants for personal use or participate in “production co-ops,” which can have from two to 150 members, and will be allowed to grow up to 480 grams of cannabis annually, per member. As in Canada, edibles would not be permitted in Mexico. Hemp is also included in the MORENA bill, though it is loosely defined as “non psychoactive cannabis” with a “low THC content.”
Additionally, advertising adult use cannabis products, even for medical use, would be prohibited in every means of mass communication. The MORENA bill also takes on packaging, which, under its framework, would have to be: childproof; establish levels of THC and CBD; and include legends that describe possible health risks, which must be “large, clear, visible, and legible” and occupy 30% of its surface.
The export and import of cannabis and its derivatives would also be permitted, under the jurisdiction of the Institute. While all packages and containers for domestic sales will be labeled “Authorized for sale only in Mexico,” the packaging of products for export and import must adhere to guidelines established in the receiving country.
In addition to having the government regulate and monitor the entire supply chain, the MORENA bill addresses public health and safety concerns. One feature of the measure that ran into a lot of pushback is that it would allow smoking cannabis in public places, except for smoke-free zones, just like with tobacco. The bill would also prohibit driving any vehicle and operating heavy machinery under the effects of THC. A person who violates this rule would be subject to a twelve- to thirty-six-hour arrest. The method of THC detection, the measure goes on to say, “should be based on scientific evidence.” Still, it remains unclear how authorities would make this determination.
The sale of cannabis to minors, as in other countries that have legalized the plant, would be strictly prohibited. Notably, the MORENA bill also forbids the employment of minors in the industry. And, though not in the bill itself, the party’s leadership has expressed support for the initiative that seeks to release those incarcerated for consumption or simple possession.
The greatest challenge in crafting this regulatory model, reads the text of MORENA’s bill, “is to balance the public health approach with the interest of commerce,” noting that “the former seeks to minimize risks and damages related to cannabis use, while the latter seeks to promote its use to obtain greater profits.” As such, the party argues that the model it has proposed is a “midpoint between absolute prohibition and the free market.”
When introducing the bill, Interior Minister Sánchez Cordero welcomed criticism and suggestions. “Let it be discussed, let it be opened up,” she said.
Business interests have already lined up for changes in the country’s cannabis policy. One multinational company that has already made inroads in Mexico is Khiron Life Sciences Corp, which has roots in Canada. In recent months, the company has been scooping up opportunities, not only in Mexico, but throughout Latin America, including Chile, Colombia, Peru, and Uruguay. Its board of directors includes former Mexican President Vicente Fox, who has taken to hosting international cannabis summits. In a reception hosted by Khiron in Toronto last March, Fox also added that he plans to construct a greenhouse within the compounds of his Presidential Library, where he will grow cannabis for research tied to the company. More recently, Khiron appointed Larry Holifield, former DEA regional director in Mexico and Central America, as director of the company’s security and compliance in Mexico—despite the agency’s imperfect and, at times, deadly record in the country.
Meanwhile, the War on Drugs continues in Mexico. In the absence of federal cannabis regulations, and with the assistance of the US Customs and Border Patrol (which provided training and equipment), Mexican officials recently located an illegal cannabis grow site close to the San Diego area. Measuring approximately thirteen square miles, the site contained more than 42,000 plants, with an estimated street value of $276,900,000.
As the Border Patrol proudly reported, all of the plants were destroyed on site.