Introduction

The marijuana industry is becoming increasingly relevant in many countries, including Mexico. A considerable number of American and European jurisdictions now recognise marijuana and its derivatives as useful ingredients for the treatment of certain maladies, and new pharmaceutical products have emerged to treat specific sicknesses.

Until recently, the various therapeutic properties of marijuana and its derivatives were ignored or rejected, and the plant (cannabis) was largely considered to pose a health problem due to its psychoactive qualities.

Mexico has some of the most stringent regulations regarding the growth, use and marketing of marijuana and marijuana-based products. Over the past few decades, significant resources have been devoted to combating all activities relating to psychoactive plants. However, the government's position on the use of marijuana from a medical or pharmaceutical perspective has changed in recent years.

Regulatory history

Marijuana was first used in Mexico in the 16th century to produce textiles and ropes, having been imported by the Spanish authorities for industrial purposes. Due to their broad herbal knowledge, some indigenous peoples are thought to have discovered the psychoactive and medical properties of the plant and started using it together with a large variety of local plants.

The Spanish authorities implemented a number of regulations and prohibitions to avoid the plant's use as a psychoactive or medicinal substance; however, these were generally isolated and temporary. As such, it was not until the 1920s that legal prohibitions were formally implemented in Mexico to prevent or restrict the use of marijuana. These prohibitions were based on the perspective of a number of 'modern' medical research and opinions, which unfortunately placed a significant emphasis on perceived users' racial and social backgrounds.

Although the United States' issuance of the Marihuana Tax Act in 1937 saw a rise in the prohibition of marijuana worldwide, for a short period in 1940, the Mexican government established a dispensary for not only marijuana, but also other substances with psychoactive effects. However, this was not maintained due to international pressure.

During the late 1940s, the control of psychoactive substances was assigned to the Mexican Attorney General's Office and a range of amendments to the applicable legal provisions were implemented. The main purpose of these was to increase the criminalisation level of all activities relating to marijuana, including its cultivation, marketing and use. This increased criminalisation and prohibition did not effectively decrease the production and marketing of marijuana; rather, it contributed to the subsequent increase in price and related criminal activity.

During the 1960s and 1970s, the government initiated diverse military operations to cease the cultivation of cannabis (and other plants with psychoactive effects) and fight criminal organisations engaged in related activities (including exportation to the United States and elsewhere).

In the following decades, the government completely forbade any activity relating to marijuana, including research and development and health-related use.

Thus, it was only during the past decade that the government considered a different approach, likely due to international trends, as well as an increase in violence and criminal activity. Finally, in mid-2017 diverse amendments to the General Health Law were enacted due to internal pressure and legal precedents issued in connection with patients' human right to import pharmaceutical products containing pharmaceutical derivatives of marijuana (the so-called 'Grace case').

General Health Law amendments

These amendments to the General Health Law (specifically Article 235bis) permit the health authorities to:

design and execute public policies that regulate the medical use of pharmacological derivatives of cannabis sativa, indica or American or marijuana, including THC, its isomers and ester chemical variants, as well as to regulate domestic research and production of these.

Based on this provision, the following conclusions can be drawn:

  • The health authorities can implement public policies regarding marijuana. This does not imply that individuals or legal entities may carry out specific acts or activities involving cannabis.
  • Such public policies are restricted to the medical use of pharmacological derivatives and not the pharmaceutical or medical use of marijuana itself.
  • Tetrahydrocannabinol (THC) constitutes a pharmacological derivative and may be used for research and production purposes.

Article 235bis does not permit, in any manner, third parties to:

  • use, cultivate or market medical marijuana;
  • extract pharmaceutical derivatives; or
  • undertake other related activities.

The specific prohibitions included in Articles 235 and 247 of the General Health Law were not subject to any amendments. These provisions expressly prohibit the cultivation, preparation, packaging, purchase, sale, transport, prescription, supply, use and consumption of certain products, including cannabis, as well as any other related activities, except for specific medical and scientific purposes. In such cases, a permit from the health authorities is required.

Further, Section II of Article 245 of the General Health Law, which concerns substances which have some therapeutic value but constitute a major public health issue, lists THC in concentrations of more than 1%. Likewise, Section IV of Article 245, which concerns substances that have a significant therapeutic value and constitute a minor public health problem, lists THC in concentrations of less than 1%.

As part of the amendments to the law, a final paragraph was added to Article 245 establishing that industrial products containing cannabis derivatives with a THC concentration of less than 1% may be marketed, exported or imported under the corresponding provisions.

In this regard, Article 290 of the General Health Law establishes that the health authorities may grant import permits for pharmacological derivatives of cannabis (including THC) to specific entities authorised to manufacture medicines or finished pharmaceutical products.

Based on such provisions, it can be deduced that:

  • the medical use of cannabis is forbidden in Mexico;
  • specific individuals or legal entities to which certain licences or authorisations have been granted may import pharmacological derivatives of cannabis; and
  • activities regarding the potential use of cannabis are restricted to medical and scientific research.

Comment

The health authorities were required to issue the corresponding regulations within 180 days from the publication of these amendments in June 2017 – a period which has long since passed.

Some practitioners are positive that the use of marijuana in medical products – or at least as a source of pharmaceutical ingredients – will be recognised and regulated in the not-too-distant future. However, for now, any potential investment and participation in this industry should be carefully considered in order to avoid potential legal issues.

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 (jacampos@sanchezdevanny.com). The Sanchez-DeVanny Eseverri SC website can be accessed at www.sanchezdevanny.com.

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