United Nations Cannabis Rescheduling: A European Analysis
Following a critical review of cannabis and cannabis-related substances, the World Health Organisation’s (WHO) Expert Committee on Drug Dependence (ECDD) recommended in January 2019 that cannabis should be reclassified under the United Nations drug treaties.
Promisingly, preparations are underway for the United Nations’ Commission on Narcotic Drugs (CND) to vote on the WHO’s proposals at its 63rd Session in December 2020, after postponing the vote indefinitely for a second time in March. While the outcomes of the vote are unknown, rescheduling at the UN level would have significant implications for the global cannabis industry and a direct impact on opportunities within European cannabis markets.
Together, the UN treaties form an international law framework for global drug control, establishing control measures that allow certain substances to be used for medical and scientific purposes while preventing recreational use or diversion into illicit channels.
The Single Convention on Narcotic Drugs of 1961 and the Convention on Psychotropic Substances 1971 classify controlled substances in four Schedules according to their perceived therapeutic value and potential for abuse. An overview of the Scheduling frameworks of both Conventions can be found below:
An overview of the current control status and the WHO’s proposed rescheduling of cannabis and its derivatives can be found below:
If accepted by the UN’s Commission on Narcotic Drugs, the WHO’s recommendations could have far-reaching implications on national regulatory frameworks and policies. Several of the proposed changes aim to streamline existing regulations. The WHO recommends that cannabis, its active substances and its derivatives are consolidated into the same Schedule, and that the ambiguous category referring to ‘extracts and tinctures’ is removed.
Other recommendations are intended to reduce some of the heavy controls and bureaucracy surrounding cannabis-related substances - including confirming the exempt status of certain CBD products from international control and enabling THC preparations meeting specified criteria to be classified under Schedule III, granting nation states the ability to permit sales without a medical prescription if desired.
Alfredo Pascual, International Analyst at Marijuana Business Daily, explains that to be classified under Schedule III:
“Pharmaceutical preparations would have to contain THC alongside other ingredients and according to clarifications given by the ECDD, an average person must not be able to recover THC from these products. A product like Sativex would clearly fit into this category because it can’t be inhaled or smoked, and an average person would be unable to separate THC from the medicine. The ECDD clarified that extemporaneous preparations could also qualify”.
As the ECDD did not specify a maximum concentration level of THC for pharmaceutical products, Alfredo points out that:
“Member states could still establish their own limits according to what they consider to be a ‘risk to public health’, and would still be able to do their own assessments as to whether a product qualifies for medical use”.
A summary of the WHO’s recommendations, the European Commission’s stance and the potential implications for the cannabis industry of each proposed change can be found below:
Is it likely that the WHO’s recommendations will pass?
The WHO’s recommendations must be endorsed by the UN’s Commission on Narcotic Drugs to be implemented into the global Treaties. Changes to the Schedules of the 1961 Convention require a single majority of present and voting CND members, while changes to the 1971 Convention require a vote by two-thirds majority of committee members.
It is likely that some of the WHO’s recommendations will pass, particularly those aimed at streamlining existing frameworks by consolidating cannabis and its derivatives into the same Schedule. As cannabis would still remain tightly controlled under Schedule I of the 1961 Convention, it is plausible that its removal from Schedule IV will pass - acknowledging medicinal benefits at an international level.
In previous meetings, the European Commission has proposed its member nations vote against adding certain preparations to Schedule III, partly due to the implied ‘additional regulatory burden on Member States’ of enabling purchases without medical prescriptions. The Commission has proposed further assessment of the recommendation to clarify CBD’s exempt status from international controls, arguing that current controls and standards would be reduced if it were to be implemented.
Nick Pateras, Managing Director, Europe of Materia, a medical cannabis producer and distributor, highlights two key themes that stand out from the European Commission's stance:
“The first is the acknowledgement of cannabis' medical value, which could accelerate patient access and critical research across Europe. The other is the hesitation around clarifying that CBD preparations with low THC are not under international control: the rationale appears to contradict the ECDD's critical review findings and would be disappointing given the recommendation would clear the path for an international CBD market free of the current legislative overhangs."
While there is no precedent to the CND rejecting a WHO recommendation, the CND could decline to vote on a proposal. The UN’s CND has planned for pre-vote sessions to be held both behind closed doors and involving the media and non-governmental bodies.
Update: The first of the series of topical meetings to be held in advance of December’s vote is scheduled for June 24-25. According to Marijuana Business Daily:
“UN member countries are expected to discuss the implications of the WHO’s recommendations regarding extracts and tinctures as well as CBD.”
Will rescheduling lead to meaningful change?
Alfredo Pascual explains that if cannabis was removed from Schedule IV:
“The mandated international control of cannabis would remain unchanged. But the symbolic acknowledgement at a UN level of cannabis’ medical value and lesser liability for abuse could help medical legalisation campaigners around the world”.
Nick Pateras agrees that:
"The CND's adoption of the WHO's recommendations would represent a symbolic shift across the international community, mirroring the steps several individual member states have made around cannabis regulation”.
It is important to note that cannabis reform is still being driven at a national level rather than supranational. Despite the position of the United Nations, national reforms are still being tabled with the UK plotting its own path on CBD and New Zealand being the first country to put recreational cannabis legalisation to a referendum.
The UN Treaties do not directly apply to signatory countries, and their classifications do not have to be exactly mirrored in the national schedules often used in drug control frameworks. Instead, they oblige member states to enact domestic legislation to uphold the requirements placed on each Schedule of substances such as issuing licenses and requiring thorough records to be kept. For example, substances including heroin, cocaine and morphine are listed in Schedule I of the UN Treaties but fall under the UK’s ‘Schedule 2’ framework. Furthermore, the UN Schedules refer to a minimum rather than maximum level of control - a country can apply additional restrictions as it sees fit.
Further reaching reform is needed
If passed, the WHO’s recommendations would be a significant move in the right direction towards sensible regulation of cannabis under international drug control laws. In particular, recognising its medicinal benefits on an international level and enabling the sale of low-THC preparations without mandatory prescriptions could have a real impact on patient access and reform.
However, it is disappointing that the WHO’s Expert Committee on Drug Dependence has recommended that cannabis remains in Schedule I, alongside substances with far greater demonstrated harm such as heroin and cocaine. This is despite the Committee acknowledging that they did not consider cannabis to have the same risk to health as most of the other substances in this Schedule.
At a global level, the drug control treaties make it highly challenging for policymakers to engage with debate about how and whether to regulate cannabis for non-medical or scientific use. Several bodies have proposed an ‘inter-se’ modification of the 1961 Convention by certain signatories. Countries with adult-use cannabis markets could agree to make amendments to the Treaties to recognise cannabis as legal within their own borders, and permit the production, consumption and possibly even trade of cannabis for non-medical purposes. With a growing number of countries breaching the Convention to regulate recreational cannabis, it is evident that attempts to implement a global cannabis policy have been unsuccessful.
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