Recreational Use of Cannabis Moves Forward in Mexico by Decision of the Supreme Court

After the Mexican Congress failed to comply with the deadline and various extensions provided by the Supreme Court to issue a new law to regulate the recreational use of cannabis, on June 28, 2021, Mexico’s Supreme Court resolved, with across-the-board effects, that the General Health Law´s blanket prohibition on the recreational use of cannabis and THC was unconstitutional.

With an eight-vote majority, out of a possible eleven, the Supreme Court determined to invalidate certain provisions of the General Health Law that exclusively allowed for the authorization of personal use of cannabis “for medical and scientific purposes.” Through such invalidation, the Ministry of Health, through the Federal Commission for the Protection Against Sanitary Risks (COFEPRIS, as per its name in Spanish), will now be bound to authorize requests related to the recreational use of cannabis and THC, including seeding, growing, harvesting, preparing, possessing and transporting for personal use.

The decision also holds that COFEPRIS shall issue the necessary guidelines for the acquisition of the seed, with the understanding that the authorization for personal use shall not include the right to import, sell or distribute. It was also ordered that the COFEPRIS authorization shall exclusively be granted to adults for personal use of cannabis and THC, and not to other substances, that recreational use shall not occur in front of children, in public places where others have not granted their consent, or while carrying out activities that can put others at risk, such as driving or operating hazardous machinery.

The Supreme Court again urged the Mexican Congress to move forward with the passing of a law to provide legal certainty to users and third parties, and to generate the necessary conditions to responsibly exercise this right.

Although the Supreme Court’s resolution is a significant step in the right direction, uncertainty will remain among users and the industry in general if necessary regulations for personal recreational use, and for other uses of cannabis (industrial, cosmetic, nutritional, etc.) are not promptly in place. It is not yet clear, for instance, where, how, or from whom someone can legally buy cannabis or the seed for recreational use, while related criminal penalties for activities like growing, possessing, selling and transporting cannabis without proper authorization remain in place. It is therefore urgent for the Mexican Congress to properly regulate the industry to provide that certainty.

In November 2020, the Mexican Senate approved the Federal Law for the Regulation of Cannabis (the “Cannabis Law”) and sent it to the House of Representatives for discussion and approval. As the latter made significant changes, it was returned to the Senate for final approval, where it remains in limbo. Readers should bear in mind, however, that the medical and therapeutic use of cannabis has recently been authorized in Mexico, and COFEPRIS has already issued regulations concerning these activities. For more information, click here.