Cannabis and its regulation have recently received increased attention in the press and in the legal and business worlds. This is due in particular to changes in the legal status of cannabis globally, the increased availability of new cannabis treatments in the UK, and the growing prevalence of cannabis-derived CBD products. This article summarises these changes.
Though cannabis remains illegal in most countries, certain countries and regions have taken steps towards its legalisation or decriminalisation. In adopting a more permissive stance towards cannabis, those countries and regions either:
- “Tolerate” cannabis, even though it has not been legalised or decriminalised. For example in the Netherlands, where cannabis is technically illegal, the police turn a blind eye to its use in coffee shops
- Have decriminalised, though not legalised, cannabis. Whereas under a legalised regime cannabis can be bought and sold, under a decriminalised regime (such as in Portugal) the commercialisation of cannabis is forbidden, but the use of cannabis will not constitute a criminal offence, although it may still incur a fine or other civil sanction
- Have legalised cannabis solely for medicinal use. In Arizona, residents can apply to the Arizona Department of Health Services, for a “Medicinal Marijuana Card” which entitles the individual to purchase or grow certain quantities of cannabis; or
- Have legalised cannabis for both medical and recreational purposes. In Canada, anyone over the age of 18 (although this age cap can vary from province to province) can purchase from dispensaries or grow certain quantities of cannabis.
Cannabis treatments in the UK
In the UK, cannabis is classified as a Class B controlled drug under Schedule 2 Part II of the Misuse of Drugs Act 1981 (“MDA”), and is listed as a controlled substance under Schedule 1 to the Misuse of Drugs Regulations 2001 (“MDR” and, together with the MDA, the “Drugs Laws”). Save for when operating under a Home Office licence, the possession, supply, production, importation and exportation of cannabis constitutes an offence, as does the cultivation of any plant of the genus cannabis (e.g. hemp) which, depending on the offence, can give rise to a 14-year prison sentence and/or an unlimited fine.
Following the recent high profile cases of children with severe epilepsy whose symptoms are alleviated by cannabis oil, The Misuse of Drugs (Amendments) (Cannabis and Licence Fees) (England, Wales and Scotland) Regulations 2018 added “cannabis-based products for medicinal use in humans” to Schedule 2 of the MDR. Consequently, cannabis products can be prescribed for medicinal use in limited circumstances by approved specialist doctors (i.e. not a regular GP), without the need for a Home Office licence. However, there has not been a significant uptake on cannabis prescriptions, partly because until November 2019, no cannabis products were recommended for use in the UK by the National Institute for Health and Care Excellence (“NICE”). However, in November 2019, NICE recommended Sativex – an oral cannabis spray, which may result in an increase in prescriptions.
Further, more lenient cannabis laws in the UK may be on the horizon. This is suggested by:
- A cross-party group of MPs estimating in July 2019 that recreational cannabis would be legal in the UK within 5 to 10 years
- A cross-party group of MPs recommending in October 2019 that the government decriminalise the possession of all drugs (including cannabis); and
- The Liberal Democrat party having pledged to legalise recreational cannabis.
Cannabis is widely known to contain the psychoactive chemical compound Tetrahydrocannabinol (“THC”). However, cannabis contains over 100 distinct chemical compounds, most of which are not psychoactive and are accordingly regulated more liberally than cannabis, or cannabis products containing THC. Recently, the prevalence of products incorporating one such non-psychoactive chemical compound, Cannabidiol (“CBD”), has increased.
CBD is not a controlled drug under the Drugs Laws, and so can be sold freely in the UK. However, from 2016 any business selling CBD and claiming that it has medicinal purposes must be registered with the Medicines and Healthcare products Regulation Agency (“MHRA”). Due to the costs involved with this registration, companies selling products containing CBD often do not market these as having medicinal purpose, and instead rely on consumers having a general understanding of the potential health benefits.
In June 2019, the UK Food Standards Agency, following guidance from the European Food Standard Agency, defined CBD as a “novel food”. Novel foods cannot be sold without first having a pre-market safety assessment and authorisation under the EU Novel Foods Regulation. It is currently unclear whether CBD food products will need to undergo this testing. The Food Standards Agency has confirmed it is “committed to finding a proportionate way forward by working with local authorities, businesses and consumers to clarify how to achieve compliance in the marketplace in a proportionate manner”. CBD vaping appears to be unaffected by this.
Given the recent changes outlined above, it seems likely that the regulation of cannabis (and the growing market facilitated by these developments) will continue to be an area of interest for those in the life sciences and legal industries for some time. Whether the trend towards legalisation continues is likely to depend in part on the massed information that will result from the more widespread, permitted use of cannabis both globally and in the UK.