America and the entire world is waking up to the promise of cannabis and tiring of prohibition.
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The pace of expansion within the “legalized” cannabis industry is impossible to miss. News of U.S. states “going legal” or large commercial operations “going public” are often front page news. Notably, an increasing number of non-cannabis businesses find themselves working with the industry as it expands and requires greater resources.
In all of this, people ask, “How is this legal?” Explaining the quickly-evolving U.S. regulatory framework is complicated — and it’s just as complicated at the international level.
The role of United Nations coordinating international cannabis prohibitions.
Following the creation of the United Nations (UN), member countries sought to consolidate existing treaties and debates concerning the control of so-called dangerous drugs. With this stated purpose, the UN convened and adopted the Single Convention on Narcotic Drugs in 1961 (Single Convention).
The Single Convention created four schedules assigning different substances to differing levels of controls based on their relative medical efficacy, potential for abuse and side effects. The Single Convention schedules increase in their measures of control, with Schedule I having the least controls (which is the opposite of the schedules in the U.S. Controlled Substances Act, in which Schedule 1 is the most stringently controlled). Single Convention Schedule IV — also referred to as the “Prohibition Schedule” — lists those substances considered most dangerous. A treaty country:
“…shall, if in its opinion the prevailing conditions in its country render it the most appropriate means of protecting the public health and welfare, prohibit the production, manufacture, export and import, trade in, possession or use of” a Single Convention Schedule IV substance except “for amounts which may be necessary for medical and scientific research only.”
As a result of the Single Convention, cannabis was listed in Schedule IV alongside substances such as heroin (notably, opium, cocaine, fentanyl and similar substances were listed in lesser schedules). Upon adoption of the Single Convention, treaty countries returned home to either implement or refine their cannabis prohibition measures.
Later, at the United Nations’ Convention on Psychotropic Substances of 1971 (the 1971 Convention), the UN conducted research and scientific assessment of various psychotropic molecular compounds and placed them in four schedules based on their accepted therapeutic value, propensity for abuse and assessed threat to public health. The 1971 Convention Schedules list the most “dangerous” substances in Schedule I (like the Controlled Substances Act) and least dangerous in Schedule IV, and placed isomers of tetrahydrocannabinol (THC) in Schedule I alongside the likes of LSD and MDMA (Ecstasy/Molly).
The UN’s Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988 (the 1988 Convention) reinforced the Single Convention and Psychotropic Substances Convention and provided further coordination on reducing international trafficking of listed substances.
The UN is reexamining cannabis.
The U.N. created the Commission on Narcotic Drugs (CND) to monitor and amend the designations assigned to substances under the convention schedules. The World Health Organization (WHO) is, among other things, mandated by international law to research medical and scientific benefits and risks associated with dependency-producing plants or substances. Its Expert Committee on Drug Dependence (ECDD) conducts research and recommends actions relative to the convention schedules. The CND uses the ECDD’s recommendations when making scheduling decisions regarding a plant or substance.
After “all isomers” of cannabis were listed in Schedule I of the 1971 Convention Schedules, the ECDD conducted further studies to isolate different tetrahydrocannabinol (THC) isomers and treat them according to their unique properties. The ECDD noted that an “increasing number of cannabinoid substances show promise as therapeutic agents, but not many of them have yet been shown to possess hallucinogenic activity.” In 1991, based on ECDD recommendation, the CND transferred delta-9-THC from Schedule I to Schedule II alongside amphetamines and similar drugs.
Following a series of decisions on whether to vote on rescheduling or refuse to reschedule cannabis compounds notwithstanding the ECDD’s recommendations, the CND requested that the ECDD provide an updated report. In doing so, the CND recognized cannabis “had never been subject to a formal review” by the ECDD. The CND also noted the “increase in the use of cannabis and its components for medical purposes and the emergence of new cannabis-related pharmaceutical preparations for therapeutic use.”
In July 2018 the ECDD convened and recommended pre-review of cannabis and cannabis-related substances for purposes of determining if changes to scheduling should be made. The ECDD noted “there are no case reports of abuse or dependence relating to the use of pure” cannabidiol (CBD) and the substance “has been found to be generally well tolerated with a good safety profile.”
The ECDD also observed that “inclusion of cannabis and cannabis resin in Schedule IV may not appear to be consistent with the criteria for Schedule IV.” The ECDD also noted that, “of the six THC isomers [identified in the schedules], the abuse potential of only two of these isomers have been evaluated in a few human studies. These studies found that the acute intoxicating effects of these substances are similar to those of delta-9-THC, but they are less potent.” With regard to the isomers of delta-9-THC, the ECDD observed “chronic administration … can induce physical dependence in laboratory animals and in humans,” noted one isomer identified by the international non-proprietary name dronabinol “has recognized therapeutic uses.”
In November 2018 the ECDD convened and carried out critical reviews “to determine the most relevant level of international control for cannabis and cannabis-related substances and whether the [WHO] should recommend changes in their level of control.” In January 2019 the UN Director General communicated the ECDD’s recommendations for the CND to do as follows:
- Delete “cannabis and cannabis resin” from Schedule IV of the Single Convention entirely
- Add dronabinol and its stereoisomers (delta-9-THC) to Schedule I of the Single Convention while deleting them from Schedule II of the 1971 Convention entirely
- Add THC (isomers of delta-9-THC) to Schedule I of the Single Convention while deleting them from Schedule I of the 1971 Convention entirely
- Delete “extracts and tinctures of cannabis” from Schedule I of the Single Convention entirely
- Modify reference to cannabis in Schedule I of the Single Convention to note “preparations containing predominantly [CBD] and not more than 0.2 percent of delta-9-THC are not under international control”
- Add “preparations containing [Dronabinol], produced either by chemical synthesis or as preparations of cannabis that are compounded …with one or more other ingredients in such a way that [Dronabinol] cannot be recovered by readily available means or in a yield which would constitute a risk to public health” to Schedule III of the Single Convention.
The net effect of these changes would be to dramatically change the extent to which cannabis-based isomers are controlled, while entirely removing CBD from control of international law.
The CND met in February 2019 and discussed the recommendations. Based upon the concerns of some member countries about the amount of time they had to review the recommendations before a vote, the CND agreed to delay a planned vote during the March 2019 session. During the meetings, several countries — principally including Russia and Japan — expressed reservations about changing cannabis’ scheduling and voiced disappointment over member countries, in particular Canada, ignoring international drug control treaties in moving to national legalization.
The debate continues, and member countries appeared to call for further information and research.
Treaty countries are moving away from prohibition.
In recent history, a host of countries have allowed citizens to cultivate and possess cannabis for personal medical reasons.
- Some, such as Canada and Australia, allow for fairly broad commercial production and distribution of medical marijuana
- Others, such as Germany and Portugal, limit the commercial production and distribution to pharmacies with prescriptions
- Still others, such as Spain and the Netherlands, allow for consumption only in designated coffee shops or clubs
- And some, such as Italy, Argentina, South Africa and Columbia, only allow for personal cultivation or possession for one’s own medicinal purposes.
In December 2013, Uruguay became the first country to fully legalize cannabis at a national level, and in 2018 Canada followed suit. Notably, the approach taken by both countries legalized growing, manufacturing, distributing and possessing cannabis without regard to any underlying medical or scientific research purpose.
At last count, six countries allow for some form of recreational use and 15 allow for some form of medicinal use within their borders. Several others, including Norway and New Zealand, are exploring rollouts of legalization programs.
In implementing its Single Convention covenants, the United States identified cannabis as a Schedule I drug under the Controlled Substances Act of 1970, and it remains so today. However, during the past 20 years 33 states have legalized intrastate cannabis production and use for either medicinal or recreational use. At the federal level, a number of recent bills seek to reschedule or deschedule the substance from its Schedule I status, while annual appropriations bills have limited federal law enforcement’s ability to interfere with those state programs. In 2018, on the heels of the ECDD’s stated intent to review the scheduling of cannabis, the Food and Drug Administration and the Department of Health and Human Services sought public comments on recommendations to changes on international control of the substance. Meanwhile, mirroring the ECDD’s positions, the 2018 Farm Bill recently removed hemp from the definition of marijuana under the Controlled Substances Act and opened a path for the lawful cultivation of hemp and hemp-derived CBD.
What does this all mean?
As anyone watching the North American cannabis markets in the last decade knows, legalization has outpaced expectations. If the trend continues, additional countries will roll out national legalization programs, and UN member countries may get to a vote on rescheduling or descheduling cannabis from international treaties. As this occurs, the U.S. must continue to question whether it should maintain its prohibitionist approach or change course to participate more fully in the burgeoning international cannabis industry.