cannabis marijuana FDALast Wednesday, the Food and Drug Administration (FDA) announced it was seeking public comments regarding “abuse potential, actual abuse, medical usefulness, trafficking, and impact of scheduling changes on availability for medical use ….” of cannabis and other substances currently under international review. If you want to take FDA up on its offer, go here.

The FDA’s announcement was released as the World Health Organization (“WHO”)’s Expert Committee on Drug Dependence (“ECDD”) prepares to discuss the medical and legal status of cannabis in a November meeting in Geneva, Switzerland. Specifically, the ECDD is evaluating whether to recommend that certain international restrictions be placed or removed on the plant.

As we have previously discussed (here and here), marijuana is currently classified as a Schedule I substance under U.S. federal law and international drug treaties. Schedule I drugs, substances, and chemicals are defined as drugs with no currently accepted medical use and with a high potential for abuse. Consequently, nations that are signatories to these international drug treaties are expected to treat cannabis as an illegal substance. However, depending on the outcome of the survey conducted by the ECDD, the November meeting may bring us one step closer to the rescheduling of cannabis, giving signatories the freedom to decriminalize, and possibly legalize, the plant within their own borders.

Legalization advocates are hopeful that a careful review of the medical values of the plant will result in the rescheduling of marijuana. Groups like the Marijuana Policy Project intend to submit scientific and anecdotal evidence detailing the benefits of cannabis. Their optimism is undoubtedly fueled by previous ECDD recommendations to deschedule “preparations considered to be pure CBD,” the non-psychoactive constituent of the cannabis plant, which the ECDD concluded did not appear to have abuse potential nor present a significant risk to the public health.

However, even if the ECDD report were to favor the legalization of cannabis, it would take some time to implement this global reform. In its announcement, the FDA explained that it will not make any recommendations to the ECDD regarding whether cannabis should be subject to international controls at the moment. Instead, it will defer such consideration until the ECDD has made official considerations to the Commission on Narcotic Drugs, which are expected to be made in mid-2019. Moreover, the FDA declared that any position it takes on this issue will be preceded by another Federal Register notice, soliciting public comments.

Of course, the United States could deschedule marijuana before the international community takes that step—after all Canada, Uruguay and Portugal have managed to go around the international ban. According to a recent Fox News interview of Representative Dana Rohrabacher (R-CA), the Trump administration intends to relax federal marijuana laws and regulations after the midterm election.

Rep. Rohrabacher declared he has been “talking to people inside the White House” about ending cannabis prohibition and that he has been “reassured” that the president will stick to his promise to protect state cannabis laws from federal interference.

While it is premature to determine whether the Trump Administration will soon loosen, and possibly legalize, federal cannabis laws, it is clear that the international effort to study the medical and legal status of cannabis are promising steps.

U.S. border policy on Canadians and marijuana is tough.
On the eve of the Canada’s cannabis legalization, the U.S. Customs and Border Protection (“CBP”) held a teleconference to explain the agency’s enforcement policy and field questions from journalists.

The on-the-record teleconference featured the head of the CBP’s Office of Field Operations, which has a staff of 28,000+ employees and an operating budget of $5.2 billion to oversee the agency’s operations at 328 ports of entry and air preclearance locations worldwide.

CBP officials confirmed that U.S. government policy remains unchanged in the face of cannabis legalization in Canada: past use of, and any affiliation with, cannabis is grounds for getting a lifetime ban from entering the U.S. without a waiver, as explained in a previous post.

The key takeaways from the teleconference are as follows:

  • Possession: Individuals attempting to cross the Canadian-U.S. border while possessing marijuana are subject to arrest and prosecution. If prosecution is deferred, the individual is potentially subject to a fine of $5,000.
  • Amnesty or Pardon for Past Use: U.S. law will not recognize any amnesty or pardon by Canadian authorities for cannabis-related convictions. Admitting to a CBP officer that you used marijuana any time before legalization is the equivalent of a formal court conviction for that crime and you will likely be denied entry into the United States.
  • Cannabis Industry Workers: Those who legally work in the Canadian cannabis industry must provide details about their role and convince U.S. border officers that their trip to the U.S. is purely personal. Cannabis workers will likely need to prove that while in the U.S., they will not engage in any networking or strategic meetings, presentations, marketing efforts, or any manufacturing or distribution activities with customers or cannabis industry colleagues.
  • Cannabis Investors: Investors who knowingly financed and furthered the growth of the cannabis industry will almost certainly be denied U.S. entry and they risk a lifetime ban. Exceptions to this rule may be made for individuals whose mutual fund investment portfolio happens to have, without their knowledge, some stock in cannabis companies.

There appears to be some latitude at the border for occasional users of marijuana who start using marijuana post-legalization, and can demonstrate to the CBP officer’s satisfaction that they will not consume marijuana while in the U.S., even in states that have legalized it. Testing this theory, however, is for the brave who will put their hand in the crocodile’s mouth after being told that the crocodile does not bite.

canada cannabis marijuana

 

Congratulations to all of our Canadian readers! Today is the big day!

Whether you are a cannabis business owner, consumer, lawyer, doctor, advocate, or even an opponent, you can surely appreciate this historic day. Canada has bucked international trends and become the first North American country to legalize recreational, adult-use marijuana.

Canada has instantly become an international leader in marijuana policy. If states like Washington, Oregon, and California are any indication, there will surely be bumps along the way, but Canadians should be excited about what comes next.

For those celebrating today, be safe and enjoy responsibly!

For more on Canadian cannabis, check out these posts:

u.s. border customs marijuana cannabisCanada’s cannabis legalization creates yet another wrinkle in the relations between the U.S. and its northern neighbor.

U.S. Attorney General Jeffrey Sessions harbors a well known hatred towards anything cannabis and he clearly has no love for Canada’s Cannabis Act either. What will this mean though for Canadians who are 100% legally involved in Canada’s cannabis industry when coming to the United States?

The answer came last week, when U.S. Customs and Border Protection (“CBP”) issued its Statement on Canada’s Legalization of Marijuana and Crossing the Border:

[a] Canadian citizen working in or facilitating the proliferation of the legal marijuana industry in Canada, coming to the U.S. for reasons unrelated to the marijuana industry will generally be admissible to the U.S. [H]owever, if a traveler is found to be coming to the U.S. for reason related to the marijuana industry, they may be deemed inadmissible. (Emphasis supplied).

Though this statement is a welcome surprise, it still provokes skepticism from U.S. immigration lawyers who have seen countless foreign nationals banned for life from entering the U.S. because they once used marijuana or were once associated with the cannabis industry.

Under the U.S. Controlled Substances Act (“CSA”), passed by U.S. Congress in May 1971, cannabis is classified as a Schedule I drug, which is reserved for substances like heroin and LSD, among others, that: (i) have a high potential for abuse; (ii) have no currently accepted medical use in treatment in the U.S.; and (iii) lack accepted safety for use under medical supervision.

U.S. federal law – more specifically the Immigration and Nationality Act (“INA”) — governs entry into the United States and under the INA, a “conviction” for controlled substances renders a foreign national inadmissible into the U.S. INA’s definition of “conviction” expands beyond a formal finding of guilt by a court of law to include instances where a foreign national admits to the essential elements of the crime under oath to a U.S. consular or CBP officer. For example, by answering “yes” to the question, “Have you ever smoked pot?”

Even a foreign national who has never consumed marijuana could be declared inadmissible under the INA based on his or her involvement in a legal cannabis business, either as “a knowing aider, abettor, assister, conspirator, or colluder with others” or “an illicit trafficker” of a controlled substance. Earlier in the year, we saw two examples of this when Canadian businesspersons Sam Znaimer and Jay Evans were banned for life from entering the U.S. because of their intended affiliations with U.S. cannabis industry.

Of course, lying about the use of or affiliation with marijuana would also render a foreign national inadmissible and you should avoid this at all costs. CBP has the legal authority to search electronic devices, and if it finds conflicting and/or incriminatory evidence about a foreign national’s actual or intended activities, that foreign national may be refused entry into the U.S. or even given a lifetime ban.

Once declared inadmissible, a foreign national needs a waiver of inadmissibility from the CBP to enter the U.S. These waivers are discretionary, costly, time-consuming, and limited in validity to between one and five years. Even with a waiver, a foreign national will typically face secondary questioning and delays each time he or she attempts to enter the U.S., even when the purpose of the visit is purely personal.

Foreign nationals have also been historically denied entry for profiting from the drug trade. Because of this, cannabis lawyers were concerned that virtually all foreign nationals lawfully engaged in Canada’s cannabis industry would be deemed inadmissible even if coming to the U.S. for purely personal reasons.

The recent statement from the CBP appears to exempt individuals who seek to enter the U.S. for reasons unrelated to cannabis. However, the process of admitting foreign nationals into the U.S. remains discretionary and subjective and only time will tell just how exactly the new policy will be applied at U.S. ports of entry.

DEA and FDA are in a bit of a tiff over CBD.

Last week, following the highly-anticipated U.S. Food and Drug Administration (“FDA”) approval of Epidiolex, G.W. Pharma’s oral cannabidiol (“CBD”) solution for the treatment of seizure associated with Lennox-Gastraut and Dravet syndrome, the Drug Enforcement Administration (“DEA”) issued a Final Order rescheduling FDA-approved drugs containing cannabis-derived CBD with no more than 0.1 percent THC under Schedule V of the Controlled Substances Act (“CSA”).

The DEA’s decision to reschedule this very specific formulation of FDA-approved CBD was largely influenced by a joint recommendation made by the U.S. Department of Health and Human Services (“HHS”) and the FDA earlier this year (“Memo”). However, according to a letter released last week by HHS Assistant Secretary Brett Giroir (“Letter”), the FDA concluded that CBD and its salts “could be removed from control” because:

  • “There is little indication that CBD has abuse potential or presents a significant risk to the public health”;
  • “No evidence for a classic drug withdrawal syndrome for CBD, and no evidence that CBD causes physical or psychic dependence”;
  • “CBD does not appear to have abuse potential under the CSA”;
  • “There is no signal for the development of substance use disorder in individuals consuming CBD-containing products”; and
  • “It is unlikely that CBD would act as an immediate precursor to THC for abuse purposes.”

Upon sharing its conclusion with the DEA, the FDA was advised that removing CBD from the CSA would violate international drug treaties to which the United States is a signatory. Specifically, the DEA explained that the United States would “not be able to keep obligations under the 1961 Single Convention on Narcotic Drugs if CBD were decontrolled under the CSA”. Consequently, the FDA revised its recommendation and advised the DEA to place CBD in Schedule V—which applies to drugs with demonstrated medical value and deemed unlikely to cause harm, abuse, or addiction—instead. Nonetheless, the FDA declared that “[i]f treaty obligations do not require control of CBD, or the international controls on CBD…are removed at some future time, the above recommendation for Schedule V under the CSA would need to be revisited promptly.”

As we previously discussed, the World Health Organization (“WHO”) Expert Committee on Drug Dependence submitted a recommendation in July to the United Nations Commission on Narcotic Drugs (“CND”) that “preparations considered to be pure CBD” should not be scheduled under any international drug treaty. The CND is scheduled to consider this recommendation at its annual meeting in March 2019. Yet, even if the CND were to deschedule CBD, the DEA would be free to ignore the FDA’s recommendation (i.e., scientific advice) and continue resisting a broader rescheduling of CBD. After all, the United States is currently disregarding the scientific data supporting the therapeutic value of CBD and refusing to join the global medical community, which favors its use and descheduling. That being said, if CBD were to be descheduled at the global level, the United States, specifically the DEA (i.e., Jeff Session’s Department of Justice), would no longer be able to hide its personal biases behind international treaties.

We will continue to monitor these actions and provide any domestic or international updates. In the mean time, feel free to contact us with any questions you might have on CBD-related issues.

marijuana canada vancouver police
New rules at the Vancouver P.D.

Despite a few employee victories across the country, states continue to allow employers to punish employees for off-work use of marijuana—even if they are medical marijuana users. Oregon and California tried and failed to pass legislation to protect off-work use of marijuana. The federal government even tried to protect off-work use for medical marijuana. Despite the efforts, a majority of states with legal marijuana allow employers to terminate employee for off-work marijuana use. Our neighbors to the north, however, seem to be moving in the opposite direction.

Canada legalized the sale and use of marijuana earlier this year and is set to begin legal sales on October 17. It’s only the second country to fully legalize at the national level. Along with Canada’s progressive views on marijuana, comes progressive views on public employees’ use of marijuana. To wit, the Vancouver Police Department (“VPD”) has officially approved off-work marijuana use.

Initially, back in early August, the VPD proposed a 24-hour pre-shift period of abstinence. Instead of immediately accepting or rejecting the proposal, the VPD did its research. The VPD issued a report noting that cannabis can affect individuals to different degrees and THC remains in an individuals system despite the individual no longer feeling the effects. Specifically the VPD rejected any pre-shift abstinence period, finding that:

specifying a time frame can create an implicit approval that that this period of abstinence is all that’s required to ensure fitness for duty…This can lead to unnecessary labour conflicts where employees are fit for duty but have consumed cannabis within this time frame, or where employees are not fit for duty but mistakenly believe they are as they consumed outside this time frame.”

The VPD, much like it does with alcohol, will require officers to refrain from partaking prior to the start of their shift and present “fit-for-duty.” The VPD will also allow officers to possess cannabis during working hours so long as the substance is stored in its original, sealed, and unopened package.

What does this mean for the rest of North America? Not a lot exactly. Canada’s laws, rules, and policies have zero effect in the U.S. or elsewhere. But perhaps Canada’s policies will trickle down. U.S. lawmakers seem to be unable to draft a bill that garners enough support to protect employees’ off-work use of marijuana. Many states, like Oregon, fail because the marijuana remains a controlled substance federally. Unless marijuana is de- or rescheduled, states will continue to struggle to protect employees off work use.

At most, Canada’s legalization may show the United States a way forward. If Canada’s legalization goes smoothly, perhaps federal U.S. lawmakers will realize it can be done and will not continue to cleave to the failed policies of prohibition. At the state level, maybe jurisdictions like Oregon and California can look to Vancouver for guidance on protecting employees’ rights to use marijuana off-work.

VPD has taken a reasonable approach to off-work marijuana use: don’t show up to work impaired. This is the same standard we use with other substances, so why not marijuana? As Canada moves forward with its legalization, let’s hope the U.S. and its states look north for guidance in areas such as employee rights.

jamaica canada international marijuanaI recently traveled to Montego Bay for the annual CanEx Jamaica conference. I spoke on a panel with attorneys from Jamaica and Canada about the legal challenges across international cannabis markets. Grace Lindo of Jamaican firm Nunes, Scholefield, DeLeon & Co. and Sandra Gogal of Canadian firm Miller Thomson LLP, each spoke about the markets in their respective countries while I cover legal challenges in the US. The panel was moderated by Imani Duncan-Price, Chief of Staff for the Office of the Leader of the Opposition.

Jamaica breaks commercial cannabis licenses into six categories: cultivator, processor, transporter, retailer and a research and development license. A licensed business must be “substantially owned” (at least 51%) by Jamaican residents.

Because Jamaica has decriminalized cannabis under its licensing regime, intellectual property protection is available for trademarks. According to Lindo, Jamaica’s Patent Act is somewhat outdated, meaning that it is not possible, per se, to get protection for plant varieties. Trade secrets and know-how are not statutorily protected, so in Jamaica, confidentiality agreements are key.

Canada’s legal cannabis market is poised to take off this month, so it was very interesting to hear about the legal framework for our northern neighbors. This is when Canada’s “Cannabis Act” goes into effect, legalizing cannabis at the federal level. Like the US, Canada has a federal system of government. When it comes to cannabis, the federal government has jurisdiction over cultivation, quality control, and taxation. Provinces and territories, in turn, have jurisdiction over distribution and retail. There will be six license types: cultivation, processing, analytical testing, sale, research, and a cannabis drug license.

The Canadian market will arrive in a somewhat subdued form. Edible products, other than oils, will not be available initially. Also, the Canadian government is imposing strict limitations on the advertising and marketing. There is a general prohibition on promoting cannabis other than exceptions for “informational” and “brand-preference” promotion. That promotion will only be permitted for adults.

Because cannabis is going to be legal at the federal level in both Jamaica and Canada, my fellow panelists agreed that the international cannabis trade is going to be picking up in the near term. I discussed why America won’t be participating in this market until our federal laws change. As I recently wrote, the Controlled Substance Act makes it nearly impossible to import or export cannabis. I also spoke about the difference between marijuana and industrial hemp, and how the states have taken different approaches to regulating both hemp and marijuana.

It appears to me that both Jamaica’s and Canada’s laws have been influenced by various U.S. state markets. For example, like Jamaica, several states impose residency requirements. Canada has followed states like Washington in creating restrictive marketing rules designed to prevent promoting cannabis to children. On a larger scale, both Jamaica and Canada have also been influenced by the type of licenses issued. The model of issuing cultivation, processing, retail, and research licenses is certainly influenced by states like Washington, Oregon, and California.

When it comes to cannabis, American states have been pioneers and are now influencing regulatory regimes across the globe. However, America as a nation continues to fall behind due to the inability to participate in the international markets. There are signs that this could change, as the Associated Press recently reported that the University of California San Diego’s Center for Medical Cannabis Research obtained a permit from the Drug Enforcement Agency to import capsules from Tilray Inc., a Canadian cannabis company, that contain CBD and THC derived from marijuana. UCSD researchers will look into the cannabinoids effectiveness in treating tremors.  Though this is limited, it is a step in the right direction to keep the US involved in the growing international market.

canada cannabis trademarkNews broke recently that Tweed, Inc., a subsidiary of Canadian cannabis company Canopy Growth Corp., filed a Canadian trademark application on August 31, 2018 for CHRONIC BY DRE, which they subsequently withdrew, apologizing and calling it a mistake. As we’ve written before, the number of trademark filings covering cannabis and cannabis-related goods and services in Canada has increased dramatically since the cannabis legalization process began. This rush to file cannabis trademarks in Canada could have been what spurred Tweed’s employee to rashly file the CHRONIC BY DRE mark without obtaining the artist’s consent and without having any sort of licensing deal in the works. (No matter what jurisdiction you’re in, don’t ever file for trademark protection for a mark that is already affiliated with a celebrity, hoping to beat them to the punch.)

The application filed for CHRONIC BY DRE covered a wide range of goods including body lotion and body creams, essential oils, personal preparations containing cannabis or cannabis derivatives, sunglasses, housewares, jewelry, stationery, pet accessories, clothing, dog and cat toys, beverage products, smoking products and accessories, and “cannabis and marijuana and derivatives thereof, namely live plants, seeds, dried flowers, liquids, oils, oral sprays, capsules, tablets, and transdermal patches.” That’s pretty broad.

For anyone familiar with the trademark application process in the United States, this specification makes Tweed’s registration of the CHRONIC BY DRE mark seem unattainable, but in Canada, it is not (setting aside the fact that Tweed does not have any deal in place with Dr. Dre himself). In the U.S., as we’ve covered extensively, in order to obtain federal trademark protection, your mark must be in lawful use in commerce (or, if you’re filing an intent-to-use application, you must have a bona fide intent to use the mark lawfully in commerce at the time of filing). This precludes the federal registration of any mark for use on goods or services that violate the federal Controlled Substances Act.

And in fact, Andre Young AKA Dr. Dre filed a U.S. federal trademark application for CHRONIC BY DR. DRE way back in 2013, and it was ultimately abandoned. The examining attorney at the time inquired into whether the goods contained marijuana because if they did, the mark would not be eligible for registration.

But back to Canada, where it is possible to obtain a trademark registration for cannabis, and where Dr. Dre would likely be successful (barring other legal obstacles) in obtaining such a registration for CHRONIC BY DRE. Even though it is relatively straightforward to obtain a trademark for cannabis goods or services in Canada, there are many restrictions placed on how those cannabis trademarks can be used via the proposed cannabis regulatory framework. For example, cannabis trademarks may not be used to promote cannabis goods:

  • In a manner that appeals to children;
  • By means of a testimonial or endorsement;
  • By depicting a person, character or animal, whether real or fictional;
  • By presenting the product or brand elements in a manner that evokes a positive or negative emotion about or image of, a way of life such as one that includes glamour, recreation, excitement, vitality, risk, or daring;
  • By using information that is false, misleading or deceptive, or that is likely to create an erroneous impression about the product’s characteristics, value, quantity, composition, strength, concentration, potency, purity, quality, merit, safety, health effects or health risks;
  • By using or displaying a brand element or names of persons authorized to produce, sell or distribute cannabis in connection with the sponsorship of a person, entity, event, activity or facility, or on a facility used for sports, or a cultural event or activity; and
  • By communicating information about price and distribution (except at point of sale).

For cannabis business owners in the U.S., it may make strategic sense to consult with a trademark attorney with experience filing cannabis-related applications to consider whether Canadian trademarks make sense. Because successful brands will be those that think globally, not nationally.

For more on Canadian branding (and marketing) regulations, check out my recent post here.

Our firm’s main practice areas include cannabis, China, trade and immigration. As such, it may not surprise you to learn that we get a lot of questions about the developing international cannabis trade. This is in large part due to the fact that Canada is on the verge of legalizing marijuana nationwide.

Importing or exporting cannabis in the United States at this point is extremely limited. Marijuana is listed as a Schedule I substance in the Controlled Substances Act (CSA) and it is illegal under federal law to possess or sell marijuana. The Controlled Substances Import and Export Act incorporates the schedules of the CSA. That means that the U.S. Customs and Border Protection is likely to seize any shipments of marijuana, even if shipments are going to or coming from a nation that has legalized marijuana in some form. There has even been some noise about barring travel by foreign marijuana company investors themselves as of late.

All of that said, not all parts of the cannabis plant are considered marijuana. The CSA defines “marihuana” as “all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin.” The second classification under the CSA is “Exempt Cannabis Plant Material” which includes the following four categories:

  1. Mature stalks
  2. Fiber produced from mature stalks
  3. Oil or cake made from seeds
  4. Seeds incapable  of germination

Exempt Cannabis Plant Material also includes “any other compound, manufacture, salt, derivative, mixture, or preparation” of the items listed above. The term does not include resin derived from mature stalks as that is considered marijuana, not Exempt Plant Material.

Back in May 2018, the Drug Enforcement Administration (DEA) issued an internal directive acknowledging that Exempt Plant Material is not “marijuana.” The directive touched on how the distinction impacted internationally traded cannabis

[A]ny product that the U.S. Customs and Border Protection determines to be made from the cannabis plant but which falls outside the CSA definition of marijuana may be imported into the United States without restriction under the Controlled Substances Import and Export Act. The same considerations apply to exports of such products from the United States, provided further that it is lawful to import such products under the laws of the country of destination.”

There you have it straight from the horse’s mouth: Importing or exporting Exempt Cannabis Plant Material is lawful under the Controlled Substance Import Export Act. What is not clearly indicated is whether or not the DEA considers exporting industrial hemp, grown pursuant to the 2014 Farm Bill, as outside of the scope of the CSA.

By nature of the 2014 Farm Bill, industrial hemp cannot be imported. This is because the cultivation of industrial hemp is only permitted if grown pursuant to a state’s agricultural pilot program under the guidance of a state department of agriculture.

But before you go and order a metric ton of mature cannabis stalks, keep in mind that any shipment of any cannabis-related good can come with additional scrutiny. Even if a product is solely derived from Exempt Cannabis Plant Material, that doesn’t mean that Customs will thoroughly investigate its shipment. Importers and exporters should be prepared to prove that the product was solely derived from Exempt Cannabis Plant Material and not marijuana. This can be difficult to do as there is no way to truly test from what portion of the plant a product was derived. You may be thinking, “well can’t a lab confirm that a product contains no THC?” The answer, of course, is “yes”, but even though verifying THC content is important (THC is listed separately from marijuana as a controlled substance in the CSA) it is not dispositive in determining whether a product is derived from Exempt Cannabis Plant Material.

Intrepid importers and exporters should prepare to detail the chain of title for Exempt Cannabis Plant Material. This can include an affidavit from the original supplier of the plant that only Exempt Cannabis Plan Material was used, lab certifications, purchase orders, shipping documentation, and any other documentary evidence showing the source of the plant material. There is no single item guaranteed to satisfy the authorities, so it’s best to prepare multiple documents in case they are needed.

united nations international marijuana cannabis
Will they get it right this time?

Cannabis prohibition under U.S. federal law is nonsensical and causes many problems, from oppressive taxation to civil rights violations. Under international law, however, things may be even worse. Fortunately, it was reported this week that the United Nations (U.N.) will finally take a closer look at cannabis prohibition this fall. It was also reported that the World Health Organization (W.H.O.), an agency of the U.N., has recommended that cannabidiol (CBD) no longer be controlled under international law. Both developments are terrific news.

For public international law nerds, like me, the question of why international law is more intractable than U.S. law on marijuana is fun stuff. The short answer is that cannabis, along with opium poppy and coca bush, is restricted not just through “scheduling”, but by the core text of the principal treaty at issue. This means that under international law, 185 or so countries are going to have to agree to amend the Single Convention on Narcotic Drugs of 1961 (“Single Convention”) (specifically, Articles 1, 22, 28 and 49) in order to truly end prohibition. Then, cannabis would also need to be removed from the Single Convention’s Schedules I and IV. All of that is no small feat.

Still, it isn’t impossible that the Single Convention would be amended to loosen or abolish restrictions on cannabis. The treaty was amended once before, by the 1972 Protocol, which inter alia amended Article 22 to require nations to actually enforce laws on their books against both poppy and cannabis cultivation. Since 1961, the U.N. has also taken other action on controlled substances, mainly through the Convention of Psychotropic Substances of 1971 (which will need amending one day, too) and the Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988. So, the U.N. does re-think its stance on controlled substances from time to time, and for better or worse.

Like other international treaties that deal with drugs, the Single Convention is not self-executing. This means that signatory countries must pass domestic legislation to fulfill their treaty obligations. For its part, the U.S. passed the federal Controlled Substances Act (“CSA”) back in 1971. Unlike with the Single Convention, cannabis is not included anywhere in the body of this law. Instead, “marijuana” and other items are listed on separate “schedules” to the CSA. Each schedule then dictates the extent to which those items are controlled. “Marijuana” is a Schedule I drug with “no accepted medical use” and a “high potential for abuse.” That’s not so different than the Single Convention’s placement of “cannabis” at its Schedules I and IV, reserved for drugs that are “particularly liable to abuse and to produce ill effects” and where “such liability is not offset by substantial therapeutic advantages.” It’s important to note that even if the Single Convention were abolished entirely, its legacy would live on in the CSA and other domestic laws of its signatories, until those laws were also repealed.

Because the Single Convention has not been amended with respect to cannabis legality, it is controversial whether the U.S. has acted lawfully in allowing many of its states to promulgate medical and adult use marijuana programs in defiance of that treaty and the CSA. Recent U.S. delegations to UNGASS have made the argument that there is “sufficient flexibility” under the Single Convention to accommodate what has occurred under our federalist system of government. That’s a topic for another day, but suffice it to say that the “sufficient flexibility” argument is a thin one.

Many countries are no longer bothering with legal arguments, and simply ignoring their treaty obligations altogether. Canada and Uruguay are signatories to the Single Convention, and those countries have fully legalized sale and distribution of cannabis. Canada, for one, likely won’t even bother to withdraw from the Single Convention or submit reservations: It will just violate the treaty. Other countries around the world, from Israel to Germany to Columbia to Australia, have also pushed ahead to import or export medical marijuana in recent years. And many more, like the Netherlands and Spain, license or tolerate commercial or quasi-commercial marijuana activities.

Clearly, the Single Convention is outdated when it comes to cannabis prohibition, and global enforcement against licit marijuana economies is both impractical and legally problematic. In the coming months and years, countries will continue to legalize marijuana in abnegation of their treaty obligations, whether for moral or economic reasons. So let’s hope that the U.N. starts by acting on the W.H.O. recommendation to loosen controls on CBD, which shouldn’t be terribly difficult. But most importantly, let’s hope for an enlightened “big picture” approach on cannabis, even if that takes some work.