ANY reader of this newspaper will be well aware of the proposed changes to the laws dealing with the use of marijuana. These changes are being piloted by the minister of justice by way of the Dangerous Drugs (Amendment) Bill (2015), which was recently approved by Cabinet, and is currently being debated by the Senate.

If passed, this Bill will bring about a sea change to the marijuana laws in Jamaica and allow for the emergence of a medical marijuana industry — an industry currently valued at US$3 billion in the USA alone and estimated to increase to US$35 billion by 2020 if legalised at the federal level.

This article compares the existing legal framework in Jamaica for medical marijuana with the proposed reforms.

Presently, the use and trade of ganja (as it is referred to in the legislation), whether for medicinal purposes or otherwise, is governed by the Dangerous Drugs Act (1996) (“the Act”), and to some extent, also by the Food and Drugs Act (1975).

The current definition of ganja in the Act excludes medicinal preparations made from the ganja plant. However, while medicinal preparations made from ganja are excluded, and technically therefore, are not illegal, the application of other provisions within the Act make it difficult to be in the business of medical marijuana without carrying out an illegal activity.

This is because, while the final product is legal, the raw material (ganja) itself remains illegal as well as all dealings with it.

For illustration, if a pharmaceutical company is interested in manufacturing and distributing a medicinal preparation derived from ganja, it may encounter the following legal obstacles under the existing laws:

* Cultivating, gathering or producing ganja is illegal. So, too, is being the owner or occupier of any premises for the cultivation or storage of ganja, or using or knowingly permitting premises to be used for the cultivation or storage of ganja. Therefore, the company will not be able to legally grow the ganja in Jamaica.

* If the company consequently decides to purchase the ganja locally (from someone who is illegally cultivating and selling ganja), it may be guilty of “dealing in ganja”. Also, in transporting the ganja it may be guilty of “using, owning, or permitting a conveyance to be used for carrying ganja”, and of course, also “being in possession of ganja”.

* Importation of ganja is similarly an offence. Nonetheless, the company may be able to obtain import authorisation from the chief medical officer under section 14 of the Act. Oddly enough, however, the Import Certificate (Form C) lists as one of its conditions that “this authorisation is not a licence to be in possession of or to supply the drug imported”. Accordingly, the company may be in the anomalous position of having lawfully imported the ganja, yet being unlawfully in possession of it!

It is therefore clear that the current legislative framework in Jamaica is prohibitive of a local medical marijuana industry. However, change appears to be on the horizon. The legislative amendments being contemplated by Parliament in the Dangerous Drugs (Amendment) Bill (2015) will bring about significant reform.

According to its long title, the Bill is intended to “provide for, among other things, the modification of penalties for the possession of ganja in specified small quantities and the smoking of ganja in specified circumstances, and for a scheme of licences, permits and other authorisations for medical, therapeutic or scientific purposes.”

In relation to medical marijuana, some of the notable amendments include:

* A new definition of ganja, which explicitly excludes both hemp and medicinal preparations made from ganja.

* It will be permissible to possess ganja (above the two ounces to be permitted for private use) for the purposes of scientific research, either conducted by a duly accredited tertiary institution, or otherwise approved by the Scientific Research Council or such other body prescribed by the minister of justice.

* It will be permissible to handle ganja for medical, therapeutic or scientific purposes under a licence, permit or other authorisation. “Handling” here includes: use, cultivation, processing, importation, exportation, transit, manufacture, sale, possession and distribution.

“Medical, therapeutic or scientific purposes” include research, clinical trials, therapy and treatment and the manufacture of nutraceuticals and pharmaceuticals.

Accordingly, if adopted, the Bill will facilitate a local medical marijuana industry, as it will legalise a wide range of dealings with ganja once it is for the purpose of medical, therapeutic or scientific purposes and under a licence, permit or other authorisation.

The Bill also seeks to establish a Cannabis Licensing Authority (“the Authority”), which will regulate the industry in hemp and ganja for medical, therapeutic or scientific purposes. As part of its regulatory capacity, the authority will be empowered (with the approval of the minister of justice) to make regulations for the issue of licences, permits and authorisations, including the procedure governing applications, the criteria for grant and the terms and conditions for licence holders, etc.

As the debate on the Bill continues, Jamaica will have to wait until the smoke clears to know whether a regulated marijuana industry will remain a pipe dream or if Parliament will add a new meaning to the idea of Jamaica “going green” (all puns intended).

René Gayle is an associate at Myers, Fletcher & Gordon and is a member of the firm’s Litigation Department. René may be contacted via rene.gayle@mfg.com.jm or you can visit the firm’s website at www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.