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Mexico fails in its duty to regulate access to medical marijuana

Mexico fails in its duty to regulate access to medical marijuana

Arnau Alcaide

Mexico, a country where justice decisions can establish legal obligations, failed to comply with the standing mandate to regulate the access to medicinal cannabis. The rule to which the state is binded already exists, but is still pending amendments by the citizens. Its deadline was due September the 9th and had been prorogued twice before, albeit with judicial permission. This third time was different, as the omission arrived before a new delay of the deadline for 70 days more on Tuesday 22nd.

The representative of the medicinal users organised in Regulación Por la Paz (Regulation For Peace), Margarita Garfias, the first Mexican citizen legally protected to grow cannabis at home, told us in an exclusive interview for Cannabis.es: “It is unsustainable that the state, who must safeguard our rights, keeps maintaining the uncertainty, criminalisation and the medical and legal exile of patients”.

The court ruling that postponed the obligation to regulate has taken into account its “complexity or difficulty” and the need to “fix a reasonably and strictly determined deadline” and it should protect, in theory, the legislative power from facing any responsibilities related to the expiration of the deadline. The now pending rule, that had been reintroduced this summer, gave continuity to a 2017 law. That law only referred to the production, control and distribution of medicinal cannabis for pharmaceutic purposes, but after a year it reached comercial implications regarding the selling of edibles. The law was suspended to avoid the commercialization of those edibles and to incorporate the citizens’ demands, a matter that is still being postponed today.

A different law will regulate the use of cannabis by adults entirely. That one has a still standing deadline: it must be regulated before December the 15th. However, this medicinal law that should have been adressed this September did not consider in its last version of the draft the traditional usage of the plant, therefore not allowing access to homegrowing, to the use of the flower or to low-price derivate products. A renewed version of the draft could well incorporate some of the citizens’ suggestions, or not.

It is worth reminding that the reason that forced the regulation at Court was precisely the herbal and traditional use of cannabis, domestic and cheap. The use, possession and homegrowing of cannabis could not be sanctioned. This not only absolved the patients from any criminal responsibility, but it also created the responsibility for the state to promote conditions for access to health for plant users, conditions that the cost of the medicines cannot guarantee.

“There is no political will to move forward in guaranteeing the rights of people who use the plant. Everything is being solved in the courts, in a presidential term in which double discourse is the norm: they say poor people first, but then the poor are the most affected in scenarios such as this one, where right is not guaranteed”, says Garfias about the political class. For instance, Morena, “the hope of Mexico” and the party in power at the moment, includes members that have been trained in a new approach to drug policy that, in this case, should grant patients actual legal certainty and not discriminate the herbal use from the pharmaceutical.

“The project of this rule does not comply with neither the rights of patients nor social justice. We are concerned about this project not including or even considering the following points, that could make a difference to many families in ending the health and legal exile in which the state has kept patients and their families for the last three years”.

Regulation for Peace’s demands for patients

Margarita Garfias herself exposes the demands from the patients organisation to be included in the pending regulation:

1.To differentiate the access to derivates with less than 1% THC and the ones that surpass that percentage. The only access stated in the current rule is through a prescription with a barcode for medicines and pharmacological derivates, so what we propose is:

2.To implement a mechanism like the one in Art. 226 (Fractions I to VI) of the LGS for the access to cannabis drugs according to their THC content, which will still ensure the quality, amount, safety and stability of the drugs and derivates and discriminate the access to them considering only their THC content. This would work to the benefit of medical practice and, in consequence, would benefit the access to, and medical monitoring of, all patients.

3. To include other ways of medical supply of cannabis such as the flowers, as well as seeds and plants for homegrowing and ‘solidary growing’. There is a precedent in Canada, where the flower has been the first step to make the properties of the plant available to all patients. Through the “Cannabis Act, 2018”, also in Canada it is possible for patients above 18 years of age to choose, to buy a drug or pharmacological derivate or to produce medical cannabis for their own use, with medical monitoring. Entering the register gives citizens legal certainty to access the seeds and plants from authorised suppliers, grants them counselling and laboratory tests to verify the result of the home-made derivates. The law even takes the option of solidary growing into account through a designated person authorised to that purpose.

4. To promote medical training plans with official validity through universities and academies. The knowledge of the endocannabinoid system, the phytocannabinoids, their dosage, and the interaction of these with other drugs, will lead to a safe and efficient medical practice, avoiding preventable mistakes in its performance.

5. To establish the obligation to share the information from investigations and active protocols through open databases. It is of vital importance to make the development of the investigation transparent as well as the knowledge of the plant and its derivates. It is equally important to have patients, medics, researchers, universities and the industry stay in contact through a Mexican open platform, clarifying for all patients and health professionals the applications and derivates -presentations and concentrations- approved for their use in humans. An example of this is the platform clinicaltrials.gov in the USA.

6. To create a mechanism that would allow the 100% national products to be the first in benefitting from this rule. We the patients would this way be given guarantees of accessibility and affordability. Mexican products are not subject to the peso exchange rate with other currencies. Also, not always can foreign products enter the country. Therefore, products produced in Mexico are of vital importance to guarantee the treatment.

Legal responsibility of states exists independently of how advanced jurisprudence is

In Spain and other countries in which justice resolutions do not exercise the legal obligation to regulate, states must nevertheless guarantee the right to health, so even if binding legal protection for the use of medical cannabis is not created, the need to include it in the legal system to allow the supply for patients can lead to legal responsibility. Prohibition is an unsubstantiated way of denying the access, an arbitrary decision that harms the health of a part of the population.

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