Mexico City, June 29th, 2021.
Yesterday, the Plenary of the Supreme Court of Justice of the Nation («Mexican Supreme Court»), invalidated with general effects the articles of the General Health Law that establishes the absolute prohibition to consume cannabis and THC for recreational purposes.
The effects of the resolution issued by the SCJN are as follows:
1.- The general declaration of unconstitutionality («DGI») is issued because the criterion held by the First Chamber of the Mexican Supreme Court when resolving the Amparo Review 237/2014, in the sense that the absolute prohibition provided in the General Health Law to consume cannabis and THC for recreational purposes was unconstitutional, integrated mandatory jurisprudence as it was reiterated in four additional rulings to the one indicated above.
2.- Consequently, the Mexican Supreme Court initiated the DGI procedure, requiring the Congress of the Union (Chambers of Deputies and Senators) to make the corresponding adjustments to the regulatory framework in force in the country, in order to eliminate the prohibition of self-consumption of cannabis and THC for recreational purposes.
3.- Since to this day the Congress of the Union has not made the adjustments, the Mexican Supreme Court determined to invalidate with general effects the articles of the General Health Law that only allow the self-consumption of cannabis and THC for medical and scientific purposes, thus establishing the possibility of requesting an authorization for self-consumption for recreational purposes.
The practical consequences of the DGI are as follows:
- The legal obstacle for the Ministry of Health, through the Federal Commission for the Protection against Health Risks («COFEPRIS») to authorize activities related to the self-consumption of cannabis and THC for recreational purposes including planting, cultivation, harvesting, preparation, possession and transportation is removed.
- COFEPRIS will only issue authorizations in favor of persons of legal age.
- Only the consumption of cannabis and THC will be authorized, not being able to authorize the consumption of other drugs under the protection of the mentioned DGI.
- The authorization will not imply the permission to import, commercialize, supply or any other act of distribution of cannabis or THC.
- COFEPRIS shall issue the necessary guidelines for the holders of these authorizations to be able to acquire cannabis seeds.
- The authorizations must specify that consumption must be carried out without affecting the rights of third parties, e.g., it may not be carried out in the presence of minors, nor in public spaces where there are people who have not given their consent, and the prohibition of driving vehicles or dangerous machinery under the effect of cannabis or THC must be established.
The SCJN once again urged the Congress of the Union to legislate regarding the recreational self-consumption use of cannabis and THC to create legal certainty on the matter, so that individuals may exercise this right in a responsible manner.
Finally, it is worth noting that the DGI only refers to the recreational use of cannabis and THC and, therefore, its effects cannot be extended to other uses such as industrial use.
Our Health and Regulatory practice group is at your service to clarify any doubts you may have on this subject.
S I N C E R E L Y,
Daniel Del Río
Juan José López de Silanes
lopez_de_silanes@basham.com.mx
Rodolfo Barreda
Ricardo Evangelista
Carolina Nogal
