Cannabis Law in Mexico: What does the Declaration of Unconstitutionality approved by the SCJN mean?

This Monday, June 28, around noon, the Supreme Court of Justice of the Nation (SCJN) approved the Declaration of Unconstitutionality on the prohibition of adult use of marijuana in Mexico , after which Congress did not reach a consensus regarding the approval of the Federal Law for the Regulation of Cannabis .

With eight votes in favor of the eleven ministers that make up the plenary session of the Supreme Court, the proposal of Minister Norma Lucía Piña Hernández was endorsed. It pointed out that the   Congress of the Union had failed to comply with the Court's mandate by failing to regulate the recreational use of marijuana. This Declaration of Unconstitutionality is expected to be published in the Official Gazette of the Federation (DOF) this week.

​What does the declaration of the SCJN really mean?

In an interview with Entrepreneur en Español , Luis Armendáriz , corporate lawyer for the Cannabis industry at Caam Legal and representative of Hoban Law Group, pointed out that this resolution raises more problems than solutions.

“It is a scenario where the Judiciary is legislating, because it is annulling, modifying, a law. The problem is that, although it is a step forward, the legal vacuum is expanding because you can already consume, but they are not regulating the industry. Where do I buy it? Who can sell it? Can I grow it to sell or not? What are the limits? In other words, a lot of legal uncertainty was created, how are you going to know what you can do and what not? " explains the specialist.

Armendariz pointed out that this Declaration of Unconstitutionality "decriminalizes but does not regulate" the cannabis industry and all the processes involved. Therefore, there will be situations that are legal and illegal at the same time "because it is going to lend a lot to the interpretation and perception of the people ."

Caam Legal's lawyer was concerned about all the implications of declaring unconstitutional the provisions of the General Health Law that prohibited the adult use of cannabis in Mexico .

“With this, they can't put you in jail for doing a lot of things related to cannabis. But if you are not regulated, from the point of view of administrative law, you can be fined, and you can request protection and be like this for a good time, ” explained Armendariz. “Maybe you can sell derivative products or even start a business, but the authorities can close you down, because you are not protected by regulation. There is no legal certainty ” .

​Why has the Law for the adult use of cannabis in Mexico not been specified?

Since 2018, the approval of the law that regulates the recreational, recreational use or better said, the adult use of cannabis in Mexico has been postponed. The Supreme Court of Justice indicated that it is unconstitutional to prohibit it and ordered the Legislative Power to legalize it, since the provisions of the General Health Law that prohibit it go against the rights granted by the Mexican Constitution.

“The Legislative Power takes its initiative of law and, time and again, they did not comply with the deadlines that the Supreme Court indicated to them to approve it. The last extension was granted on April 30 and that is why now they had to make the General Declaration of Unconstitutionality , ” Luis Armendáriz told Entrepreneur en Español .

Since 2017, the pharmaceutical use has been approved, but it had not been possible to implement it because there was no secondary regulation until January 2021. Image: Depositphotos.com

Last November, the Chamber of Senators approved the ruling of the Federal Law for the Regulation of Cannabis . Then it went to the Chamber of Deputies , where they made some modifications and returned it to the Chamber of Senators for a final vote by the commissions.

"That's why everyone thought it was legal for months, but technically the legislative process was not completed," said Armendariz.

If approved, the only thing missing would be the approval of President Andrés Manuel López Obrador and that it be published in the Official Gazette of the Federation to enter into force. However, “the ruling of the law was stopped in the Senate, because although it was approved by two commissions, it still lacks the vote of one more commission and pass it on to the president to sign it, although he could still veto it at that point. ” , Explained the expert in cannabis legislation.

The ruling of the law that is still pending approval "would legalize the adult use of cannabis and regulate the entire industry: cultivation, production, transportation, purchase and sale, consumption, business licenses and other activities, as well as the entire public health part" , said the lawyer.

What is legal and what is not of marijuana in Mexico so far?

Since 2017, in Mexico, legal use of cannabis can be made in the pharmaceutical industry , a law that could not be properly implemented until January 2021, when the regulation was finally published to be able to apply it.

“This regulation is strictly focused on pharmaceutical use, pharmacological derivatives and pharmaceutical grade products. This law regulates the entire chain, from cultivation, research and processing for primary production, to the manufacture, prescription and sale of drugs with components derived from cannabis ” , clarified Luis Armendáriz.

Now, we only have to wait for Congress to approve a definitive regulation for the adult use of cannabis in Mexico, otherwise we will be stuck in a limbo of uncertainty for as long as it takes to reach a consensus.