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Setting the record straight on the ganja law

Anthony Hylton

Sunday, April 24, 2016    

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The Sunday Observer article of 10th April, titled ‘On the edge of ganja’s millions’ contained several serious inaccuracies. It compels me to set the record straight on a matter of great importance to this country.

A balancing act The Amendments to the Dangerous Drugs Act did not “legalise” the use of cannabis/ganja, but created the framework for the decriminalisation of offences under the Act; making it a ticketable offence to possess less than two ounces of ganja. This reduced it to a minor offence, which was more appropriate, and also helped to reduce the burden on our overloaded courts and penitentiaries. The same Amendments also created the framework for the development of legal medical marijuana, hemp and nutraceutical industries.

There were those who were disappointed that ganja was not fully legalised, but that was never the intention of the Cabinet, because Jamaica’s obligations under international law do not currently allow for the full legalisation, trade and export of cannabis. The Amendments, therefore, resulted in a reasonable and legally defensible compromise between the complete legalisation of ganja and those who wanted to exploit the legitimate opportunities recognised under existing domestic and international law to create a sustainable legal medical and therapeutic cannabis industry.

The Amendments were everywhere lauded for the creativity and deftness with which they achieved a balance between observing Jamaica’s international obligations to control the use of narcotics, while creating sufficient space within the existing domestic legal regime to allow the emergence of a legal medical and therapeutic industry. The same legislative Amendments recognised the need for clear, evidence-based regulations as a basis for the development of a legal industry, and therefore mandated the establishment of the Cannabis Licensing Authority (CLA). The legislation stipulated the composition of the CLA board, and set out the mix of government and non-government bodies to be represented thereon. Representatives from the Rastafarian community and ganja growers’ association were included on the board in order to ensure that it was truly representative of the main bodies of opinion and interests.


 

Expeditious timeline of the CLA

 

The Amendments were gazetted in April 2015. As minister responsible for this process, I moved immediately to convene the CLA board with the appointment of its membership, including the chairman, Dr Andre Gordon, a well-known professional and businessman, and former president of the Jamaica Exporters’ Association (JEA). The board was operational by May 2015 and had its first meeting in June 2015.

The board moved immediately to get advice on how best to establish the new industry and, after the normal tendering process, proceeded to hire BOTEC Consultants, who are a leading consultancy in the cannabis industry. BOTEC’s contract started in June 2015, the same month in which the board held its first meeting, which shows how quickly the CLA got into action. The consultants were given a very tight three-month timeline to deliver their report, which they succeeded in doing, and they produced the final draft by September 2015.

The content of the BOTEC report was shared with the wider community of interests and their views were then fully taken into account. It was during this stage of the process that some people expressed the view that Jamaica should follow the example set by the US state of Colorado, which issued cannabis licences before any regulations were put in place. The faction lobbying for no regulation, or a loosely regulated industry, was led by Paul Burke and Delano Seiveright. I believe that there were also less honourable elements in Jamaica who had a similar position because they wanted to be free to sell and export ganja with the Government’s imprimatur.

The proposed Colorado approach was duly considered by both the CLA board and the ministry’s business advisory group, and it was decisively rejected for four critically important reasons.

First, we spoke with representatives of Colorado. Some of them visited Jamaica, and a team from Jamaica, led by the Bureau of Standards, went to examine the situation in Colorado. The representatives from Colorado advised us in the strongest terms to avoid making the same mistake that they had, as it had resulted in a number of serious health and safety issues. They recommended that we ensure that regulations were in place first before issuing any cannabis licences.

Second, Colorado, which is a state of the Federal United States Government, does not have the treaty obligations that Jamaica has as a sovereign State, and thus an actor in international law. This power resides only in the Unites States Federal Government itself. Therefore, the state of Colorado, like the other states of the United States, has no direct obligations under the relevant UN Conventions on Dangerous Drugs.

Third, we consulted with leading members of the banking and financial services sector, who told us that it would be impossible for them to participate in, support, or provide financial services to the new industry unless there were appropriate, robust and internationally recognised regulations. They pointed out that their involvement in an unregulated industry, which is currently dominated by organised crime, could very rapidly result in the termination of all their correspondence relations with overseas banks, some of which are already engaged in the de-risking of their relationships with banks in the Caribbean, including Jamaica. This could have meant that Jamaicans would no longer be able to transfer funds to or from financial institutions abroad, which would have been a devastating blow to the entire economy.

Fourth, we realised that it was essential to take a long-term and strategic view. It is likely that, over time, the cannabis industry will come to resemble the alcohol and tobacco industries, both of which are regulated, controlled and taxed. Our long-term national strategic interest, therefore, is to ensure the competitiveness of Jamaica’s ganja industry in a world in which suppliers in regions, such as California, will eventually be able to produce high-quality cannabis on a far larger scale than Jamaica.

 

Protecting ganja’s reputation

 

Jamaica has, however, one very valuable asset, which is the reputation of the Jamaican brand. Jamaican ganja has an image and a reputation that other producers would dearly love to have. Over time, they will develop their own brands, of course, but Jamaica is already well-positioned.

The most crucial task facing the Government, then, is to ensure that nothing is done that would threaten the Jamaican brand. This is why standards are so important. They are the key to protecting the Jamaican brand and the future of the industry in Jamaica.

Consider what would happen, for example, if ganja marketed as Jamaican turned out to be blended with inferior quality product, or to be contaminated with pesticide residue, or if producers in some other part of the world could start selling ‘Jamaican’ ganja, even though there was no connection with Jamaica? The Jamaican brand would soon become worthless, and the market would then go entirely to the big producers who could guarantee the purity and quality of their products.

In order to protect the industry in Jamaica, the ministry asked the Jamaica Intellectual Property Office (JIPO) to increase their efforts to expand the framework for protecting Jamaican ganja either as a geographical indicator, or through copyright, or patent, or a combination of the above. JIPO has worked assiduously at the regional level, and with the World Intellectual Property Organization (WIPO), to try to achieve these goals, which are vital to the future of the industry.

I also instructed that work continue on determining how best to protect “Rasta ganja” amidst the controversy and negotiations with the rest of society that this would imply.

For all these reasons, it was absolutely clear that it would be madness to allow the CLA to issue licences until the necessary regulatory system was in place. In order to progress as quickly as possible, however, the ministry instructed the CLA to prepare an interim regulatory framework that would allow people to start the process of applying for licences while the regulatory framework itself was still being finalised.

 

Interim regulations

 

In an effort to move things forward as quickly as possible, and to meet the urging of potential investors and growers of ganja, the ministry and the CLA board worked exceptionally rapidly to develop these interim regulations. The process began in October 2015 with a policy direction that the legal and technical drafting should begin as soon as possible, and the process commenced in November 2015. The drafting instructions were prepared and presented to a subcommittee of the Cabinet in January 2016, and approval was given for the interim regulations to be prepared as quickly as possible. The work was completed by March 2016.

Given that it normally takes years to prepare and draft detailed regulation, this was a remarkably rapid production. My critics should recognise that it took exactly one year to go from the very beginning to having a set of detailed interim regulations in place, which was one of the fastest reforms ever achieved anywhere in the world (the average is about two years).

It was the development of the interim regulatory framework that allowed the CLA to signal that it would be possible to apply for various categories of licences for research, planting, transportation, processing, storage and exportation of ganja products by April 4, 2016.

 

Next steps

However, as fate would have it, the parliamentary election of February 25, 2016 resulted in a change of Administration. Of course, it always takes time for any new Administration to familiarise itself with the ongoing business of government, but several signals and pronouncements have now been made.

 

First, the April 4 timeline for receiving applications for licences has been extended to the end of April. Second, pronouncements have been made regarding the introduction of further legislation to, inter alia, legalise the possession and use of ganja in Jamaica and perhaps elsewhere. So it appears that we are still moving in the same general direction.

Regarding the “legalisation” of ganja the current Administration, like the previous one, recognises that this cannot be achieved without changes to Jamaica’s international obligations under United Nation conventions. To that end, the Minister of Foreign Affairs and Foreign Trade led a delegation recently to the United Nations to participate in a conference to examine proposed changes to existing treaty laws. However, the conference concluded without the necessary reforms, which means that Jamaica (and all other nations) will have to continue to operate within the existing legal framework.

For my part, I believe the UN meeting to be the beginning of a process of reform, rather than the conclusion. Some nations remain strongly opposed to change, so it is likely that there will have to be an extended period of dialogue before the laws are substantially amended. The accumulating weight of scientific, sociological, economic, and criminological evidence, however, supports the case for fundamental reform of the international treaties, so it is probably now only a matter of time.

As former minister with responsibility for moving the industry forward, I am pleased and proud of the tremendous work that has been done within the year to get us to this point, and I would like to record a particular debt of gratitude to Dr Andre Gordon, the chairman of the CLA board; Professor Anthony Clayton, the chairman of the Cannabis Industry Advisory Council; and Professor Winston Davidson, chairman of the Bureau of Standards Jamaica. The coming months should be exciting, and the future of a properly regulated, legal ganja industry in Jamaica looks bright!

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