Mexico is on the verge of becoming the third country in the world, after Uruguay and Canada, to legally regulate cannabis for personal, adult use. This comes after years of strategic litigation, a landmark Supreme Court declaration and a legislative process of over two years in the Senate. The country can almost taste legal regulation. It was a long and winding road to get this point.
In November 2015, the Supreme Court declared, for the first time, that prohibiting cultivation for personal use violated the constitutional right to the free development of personality. This opened a broad discussion not on whether to regulate, but how to do so. In order to achieve jurisprudence in Mexico, the Supreme Court must rule five consecutive times, on five different cases, using the same criteria. Over the next three years, thanks to lawyers and civil society actors, this became a reality. The fifth and final case was won in October 2018. The Supreme Court then sent a notification to the Senate and House of Deputies to change the unconstitutional articles of the General Health Law by October 31, 2019.
As the world’s second-largest producer of illicit cannabis and one of the countries most harmed by prohibition, Mexico approaches regulation with specific objectives.
The Senate was granted an extension once, an additional postponement was given due to COVID-19 and while the Senate approved a bill on November 19, 2020, a final extension granted to the House of Deputies gave until April 30, 2021 for both chambers to approve the bill. The House can now make changes to the bill before voting on it, and it will then return to the Senate for its approval of the changes. If no further revisions are made, it will be sent for a final review and signing by the president.
As the world’s second-largest producer of illicit cannabis and one of the countries most harmed by prohibition, Mexico approaches legal regulation with specific objectives—primarily of freeing up state resources that have been badly used to implement prohibition and of increasing social justice. But moving from discourse and rhetoric to affirmative actions and justice mechanisms can be complicated.
Since Mexico militarized “public security” and its drug war in 2006, increasing the presence of the armed forces in daily life, human rights violations—including homicides, disappearances, extrajudicial killings, torture, femicide and extortion—have only increased. The state is often complicit in these activities; 92 percent of crimes are unreported, and impunity levels of more than 99 percent reflect a complete lack of access to justice.
Meanwhile, according to the latest official data, for 2018, 14 percent of adults who entered state prisons did so on drug-related charges (the second most common category after robbery), while such charges were the number one cause of incarceration at a federal level. The majority of these convictions (84.7 percent of 31,338) were designated as small-scale trafficking—which simply means possession of amounts above currently established thresholds. Sentencing can be a lengthy process, with 44 percent of those in state prison and 30 percent of those in federal prison for drug-related convictions still awaiting sentence.
As Mexico moves towards regulation,civil society seeks most of all to transform government authorities and institutions—to remove, for example, their opportunities to extort people who use cannabis or eradicate the crops of the communities that cultivate it. According to official data, cannabis is illegally cultivated on more than 114,000 hectares (250,800 acres) per year; between January and October 2020, the government eradicated 2,055 hectares. While the majority of the cultivation occurs in the northern states of Sinaloa, Chihuahua and Sonora (known as the Golden Triangle), Indigenous communities in states such as Oaxaca also participate in supplying the Mexican market.
The transformation we seek will only be possible if the final version of the bill centers the intention and purpose of a strong social impact.
Strengths and Failings of the Proposed Model
Let’s explore the current version of the bill. It passed in the Senate with 82 votes in favor, 18 against and seven abstentions, and has now gone to the House of Deputies for changes—and hopefully, improvements—during the legislative period beginning in February.
The bill contemplates three means of accessing the plant: home-growing of up to six plants, or up to eight if there are two adults in the household; cannabis associations with up to 20 members and four plants per person; and a regulated, commercial market with five different types of licenses. The five licenses are for: cultivation, transformation, distribution (sale), import/export and research.
Thanks in great part to the engagement of organizations, collectives, academics, activists and other members of the public, some improvements have been added to the bill during its multiple iterations since 2019. Positive examples include that there will be no registry or permits required for home-grow for personal use, and that dispensaries, which will sell cannabis only to over-18s will be required to share information about their products’ effects and demonstrate quality controls.
This version of the bill also eliminates the previous requirement of proving the legal origin of seeds, and opens the door to a free registration process for seeds intended for the commercial market—facilitating the use of current Mexican genetic strains.
The bill also proposes the creation of the Institute for the Regulation and Control of Cannabis—a body with positive potential if it is used as a vehicle to help drive responsible regulation in an emerging legal framework. While the bill provides broad discretionary powers to the Institute, its impact will depend greatly on nominating leadership that is prepared, understands both the plant itself and regulated markets, and prioritizes social justice mechanisms.
These limitations and exceptions to a free market bode well as a means of increasing social equity and reducing the power of large companies.
The proposal establishes limits to cultivation for commercial use of one hectare outdoors and 1,000 square meters indoors. Additionally, at least 40 percent of commercial cultivation licenses must be provided to communities that have been impacted by prohibition through forced crop eradication—or those that form part of the social sector, as defined in Mexican law, such as ejidos, communal properties or cooperatives. (Fully 50 percent of Mexican land falls within this sector, meaning it cannot be bought and sold but is communally owned.) The proposed law makes specific mention of giving preference to indigenous communities in these decisions. Finally, it limits points of sale allowed to three per company, per state, to reduce the possibility of monopolization or hoarding of sales licenses by one single company.
All of these limitations and exceptions to a free market bode well as a means of increasing social equity and reducing the power of large companies. But implementation, budgeting and the motivations of the regulatory Institute all present potential challenges.
Despite the improvements made to the bill, deficiencies remain that can and should be addressed by the House of Deputies. Although permitted personal possession limits increased from 5 grams to 28 grams, the bill maintains that regardless of the amount, a person could still be detained for simple possession if law enforcement considers the quantity or substance present to be in doubt. The person could be presented to the Public Ministry (PM; the equivalent of public prosecutors in the US) and detained for up to 48 hours while they do a forensic analysis to weigh the substance and ensure that it is cannabis.
This obviously negates full and effective decriminalization. While there would supposedly be no sanctions beyond being detained, the most likely scenario in Mexico is that the authorities will extort you during the process. For possession of between 29-200 grams, fines of up to $500 US could be levied; or possession of more than 200 grams, criminal sanctions could be imposed.
Imposing administrative sanctions such as fines only provides authorities with leverage.
The reality in Mexico is that extortion by authorities happens on a daily basis—and particularly around “crimes” where there is no direct victim, like drug possession. Imposing administrative sanctions such as fines only provides authorities with leverage that they can use to extort people who use cannabis, creating perverse incentives and promoting corruption. For these reasons, it is necessary and urgent to eliminate simple possession as a crime from the Federal Penal Code—something which the bill does not currently do. It is also crucial that the law eliminate the administrative fines contemplated for acts such as consuming in public spaces.
Some might say that we are asking for too much in wanting a comprehensive, social justice law. But we seek to change the paradigm. In order for the legal regulation of cannabis to have the social impact desired—including freeing up state resources to address crimes that have victims, reducing incarceration rates and increasing opportunities for rural communities—we must be bold in our demands. If a person can carry around all the alcohol or tobacco they want now, they should be able to do the same with cannabis. Only by doing this can we guarantee the rights of people who have been victimized by cannabis prohibition.
The improvements needed in the proposed regulated market are also clear, if we seek a social justice and reparations approach. Rather than creating a parallel legal market that seeks to compete with the illegal one, we must transition the people and communities involved so that they can benefit from the new legal market. This means reducing barriers to entry and providing affirmative measures to communities that already cultivate. It means increasing the proportion of cultivation licenses offered exclusively to these communities from 40 percent, as is currently planned, to 80 percent—truly giving them the advantage in the legal production chain.
The actor that we most seek to transform with a regulated market is the state.
Another worrying aspect of the bill’s development was the Senate’s last-minute removal of restrictions on vertical integration that could have mitigated the risks of corporate capture. The bill was initially drafted to allow companies to solicit only one of the five anticipated license types (cultivation, transformation, distribution, research, import/export). The only license holders that would have been able to take advantage of multiple licenses and thus of the entire production chain would have been those communities impacted by prohibition.
Legislators justified this change by applying the restrictions to the area allowed for cultivation, but it would have been an excellent mechanism to ensure benefits for those communities. Advocates will continue to work to incorporate the exclusivity of vertical integration to communities during the first five years of implementation.
The actor that we most seek to transform with a regulated market is the state. If the state stops persecuting people, stops eradicating crops and instead increases opportunities for rural and cultivating communities, it will change those relationships and begin to build trust. It will not be a swift or easy path, but in order to move towards justice, human rights and reparations, it is necessary.
Regulating cannabis with a social justice focus will be just one of many steps needed to move towards development, a fairer society and personal autonomy, but a vital one. We and our allies have fought every step of the way—through strategic litigation, the drafting of initiatives and participation in public hearings and extensive meetings with legislators. We will continue to fight until we achieve a regulation that meets the needs of Mexico.