The Mexican Supreme Court legalizes adult cannabis use

In a historic session yesterday afternoon, the Mexican Supreme Court voted to issue a General Declaration of Unconstitutionality (the “Declaration”) prohibiting adult (recreational) cannabis use under the General Health Act.

The Supreme Court vote followed the failure of the Mexican Senate to pass a law on cannabis that would have regulated adult use, as we have reported here. In 2018, the Mexican Supreme Court ruled that the legal ban on recreational marijuana use was unconstitutional and ordered Congress to legalize recreational use across Mexico within 90 days. The deadline was extended several times and the last extension ended on April 30, 2021.

With the publication of the declaration (which will take effect after the publication in the Federal Gazette and the notification to the Ministry of Health – in particular COFEPRIS, the Federal Commission for the Protection against Health Risks) and both chambers of the Mexican Congress, the judges of the Supreme Court from the Mexican legal system have the wording of the General Health Act, which provides that any cannabis-related activity may only be carried out for medical or scientific purposes.

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What does the declaration mean for consumers?

First, that activities related to individual adult cannabis use are now fully legal across the country. In other words, the individual right to grow and use marijuana without prejudice to third parties is now officially recognized in Mexican law, formalizing the existing Jurisprudencia (binding court decision).

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Second, COFEPRIS, which will continue to be responsible for issuing individual adult cannabis permits, has been instructed to issue guidelines telling consumers how to source seeds for themselves, apply for permits, and conduct individual activities for adult use .

Thirdly, individual cannabis use among adults is considered to be the exercise of the “right to free development of one’s own personality” (what this means for cannabis use, see here), which in Mexico is considered a human right according to international practice.

Fourth, you will still need a permit to perform individual adult cannabis-related activities (i.e., growing and consuming marijuana without a permit is still a criminal offense). However, for COFEPRIS to process your application, you no longer need to file an Amparo lawsuit stating that the court has already ruled that the prohibition of individual adult use is unconstitutional.

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Fifth, individual adult consumption still does not include the right to import, buy, sell, or otherwise transfer property or distribute cannabis or THC. A permit may only permit the cultivation, preparation, possession and transport of cannabis for individual (ie private) use. A violation of this leads to the revocation of the permission.

RELATED: Mexico Failures to Legalize Marijuana as Chaos Grows in Drugs War

Sixth, since, in our experience, COFEPRIS either does not respond to applications or rejects them outright, we assume that Amparo will continue to require action to obtain individual adult use permits.

Seventh, with individual adult use now officially recognized, individuals (or their attorneys) can force COFEPRIS to respond to motions or justify denials by filing amparo lawsuits that include a motion to federal courts, individual activities up Admitting to a verdict had to wait for a court ruling that ordered COFEPRIS to act and obtained permission to carry out any activity.

What does the statement mean for cannabis industry stakeholders?

The declaration is another step on the road to the comprehensive cannabis law that we expected to be passed by Congress earlier this year. Although the statement issued by the Supreme Court limits adult cannabis use to individual consumers, those consumers will need seeds, supplies, and more. Once COFEPRIS issues guidelines that provide a framework for individual cannabis use, industry stakeholders will be able to respond.

Photo by Jezael Melgoza via Unsplash

With its declaration of unconstitutionality, the Mexican Supreme Court has again put pressure on the Mexican Ministry of Health and both chambers of Congress to regulate cannabis for reasons of legal security and public health policy.

Full legalization of cannabis cultivation and distribution is virtually inevitable in Mexico, and as we wrote recently, interested stakeholders understandably want to be prepared when the doors swing open. Here are our recommended steps to prepare your business for this day.

Adrián Cisneros Aguilar is an attorney with Harris Bricken overseeing the firm’s Mexico practice, where he has served corporations on cross-border U.S.-Mexican legal matters, including cannabis law matters, Latin American and European companies in China and international legal matters, and local companies involved in international and domestic transactions.

This article originally appeared on the Canna Law Blog and was republished with permission.