The Fight for Home Grows in South America

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More than half of the countries in South America have approved some form of cannabis for medical use. 

But there’s a hitch. Except for Colombia, which allows its citizens to cultivate up to twenty plants, home grows remain largely prohibited throughout the region, even for medical purposes. Also, in many cases, the domestic production of cannabis is either limited or nonexistent, which forces patients to either import often costly products from abroad or clandestinely grow plants at home—exposing themselves to possible seizures and imprisonment. 

This could be changing in some nations. Under mounting pressure from interest groups, lawmakers in Argentina, Brazil, and Chile have crafted draft legislation that seeks to allow home grows for medical purposes, a move that could improve patient access and alter the flow of money in the international medical cannabis industry. 

Argentina

In 2017, Argentina approved the medical and scientific research of cannabis. It also established a national program that provides cannabis-derived products to patients free of charge. The program, however, is limited to patients with refractory epilepsy. Those who are not enrolled must obtain a prescription to use cannabis for medical purposes, as well as cover the cost of importing the products. 

According to proponents of the home grows bill, including the NGO Mamá Cultiva, the issue with this policy for those who have reasons to use medical cannabis outside of epilepsy is that it can lead to bureaucratic delays and, as a result, interrupted patient treatment.  Moreover, many patients and caretakers who have opted to grow cannabis at home instead have been subject to confiscation, arrests, and even jail time. 

Covert home grows have also paved the way for landmark court rulings that side with patients and their families. In 2018, for instance, a federal judge ruled in favor of a family who cultivates cannabis to treat a child with Tourette’s Syndrome. Likewise, earlier this year, the grandparents of a child with West Syndrome were authorized to grow cannabis at home, after having authorities confiscate their plants and arrest them. In many of these cases, decisions point to a 2009 Supreme Court ruling, which deemed it unconstitutional to punish individuals for having and consuming cannabis if they are not endangering a third party. 

If implemented, the home grows bill would enable patients or their caretakers to cultivate cannabis at home without fear of being subject to enforcement. According to the draft legislation, even though the law established in 2017 “brought relief to many families,” it  was “insufficient” because a “ wide range of diseases requires palliative care,” including kidney failure, chronic liver disease, multiple sclerosis, dementia, and drug-resistant tuberculosis.

But this is not the first time lawmakers have sought relief for those who cultivate cannabis for medical purposes. In fact, in 2016, a lawmaker noted that, since 2003, more than ten bills calling for this change had come before Argentina’s Chamber of Deputies. Back then, lawmakers noted that, per the country’s narcotics law, a mother who grows cannabis to treat her child could receive a sentence of four to fifteen years.  At a congressional hearing, former Deputy Araceli Ferreyra requested the release of all youths who had been imprisoned for home grows in the city of Córdoba. She also called for authorities to stop arresting for home grows. Ferreyra then pointed to Colombia, noting that the country’s medical cannabis law allows for personal cultivation. Out there, she said, patients can “freely” purchase cannabis-based products that “cost a fortune” in Argentina. 

Brazil 

Brazil’s Federal Council of Medicine began allowing neurosurgeons and psychiatrists to prescribe cannabidiol (CBD) in 2014. Then, with the 2015 approval of the National Agency of Sanitary Surveillance (ANVISA), the medical use of CBD went from being classified as a prohibited substance to a “controlled use” medication. The agency subsequently authorized the prescription and importation of THC for medical use. As a result, importing cannabis-based products for medical use is permitted

The country’s regulation, however, restricts the “exceptional importation” of cannabis-based products to individuals with a prescription from a qualified medical professional. And, as in Argentina, the cost and amount of time it takes to import the products can pose a challenge. 

Like in Argentina, some individuals in Brazil have obtained special authorizations for medical use through the court system, including a mother in Campinas, São Paulo who was given permission to cultivate cannabis to make CBD oil for her daughter, who has autism, as well as a woman who was authorized to grow six plants to treat symptoms associated with Parkinson’s disease. In the same vein, the nonprofit organization Abrace Esperança was authorized to cultivate cannabis for more than 150 medical patients who cannot afford to import products.

Meanwhile, Brazilian lawmakers have also been working to decriminalize home grows for medical cannabis patients. In 2018, for instance, Paulo Teixeira of the Partido dos Trabalhadores (Worker’s Party) introduced a bill to regulate “the medical and non-medical use of cannabis.” Pointing to Uruguay as an example, the draft legislation would have allowed individuals who are at least 18 years old to cultivate up to six female plants. Under this bill, cannabis would have been treated “like alcohol and tobacco,” with a “focus on traffickers, not on the users.” 

Teixeira’s bill was tossed out  in February 2019. However, lawmakers are still weighing another bill to decriminalize cannabis cultivation for medical purposes. The measure, brought about in response to an online citizen-led petition, would remove criminal penalties for growing, possessing, and consuming cannabis for patients with doctor’s prescriptions. 

Authored by the Senate’s Committee on Human Rights and Legislative participation, the bill signals that “about two million Brazilians suffer from epilepsy” and that “One third of them, approximately 600,000 people, have a type of epilepsy resistant to conventional treatments.” For them, the bill says, “cannabis extracts have been are the only solution.”

According to the bill, “Even though there are currently some medications that can be imported, the very high cost still makes them inaccessible for most of the population.” The cost to import cannabis products, it says, is around $1,500 Brazilian Reais ($375 dollars).  Depending on the socioeconomic status of the patient and the amount of medication needed, “its consumption is absolutely not viable.”

Chile 

In 2014, Chile’s Agriculture and Livestock Service authorized the nonprofit organization Fundación Daya to cultivate cannabis for a research program that aims to alleviate the pain of about 200 patients who suffer from cancer and epilepsy in La Florida, a suburb of Santiago. Then, in 2015, the agency authorized Fundación Daya to grow cannabis in the Maule region. This project, which involved 6,900 cannabis seeds, was done in collaboration with the pharmaceutical company Knop Laboratories, so as to provide treatment for patients who suffer from cancer, epilepsy, or chronic pain. 

As with Argentina and Brazil, imported products, like GW Pharmaceuticals’ Epidiolex, are  available to patients in Chile. However, as in those countries, proponents of home grows in Chile point to the cost of the products as a barrier to access. 

Prior drug legislation in Chile has also generated gray areas that some patients and their caretakers have turned to in defense of home grows. Law 20.000, which was enacted in 2005 and modified in 2015, decriminalized cannabis for medical use or “personal use in the near future.” (The law, however, provides no guidelines in terms of quantities.)

Chilean lawmakers have also tried to legalize home grows in the past. These attempts include  failed bills in 2005, 2012, and 2014. In January 2019, the Senate’s Health Commission began discussing a new bill that seeks to modify the country’s Health Code, making it so that individuals would be allowed to cultivate cannabis at home without the need to obtain a permit from the Agriculture and Livestock Service. To protect themselves from confiscation or arrest, patients would only need a doctor’s prescription. 

But in June 2019, the Colegio Médico (Chile’s medical surgeon’s association), issued a thirty-two-page opposition paper. In it, the association says that the bill “does not supply the necessary safeguards to grant adequate, safe, and evidence-based treatment.” Cannabis, the document also underscores, “remains listed under the strictest regulations of the International Drug Conventions.” (Notably, the Colegio Médico does acknowledge that the World Health Organization has called for cannabis to be down scheduled and have its medical utility acknowledged.) 

To further explain its opposition, the Colegio Médico then signals that “No European country has approved home grows for medical use.” Then, to drive home its point, the association points to Epistemonikos,  a collaborative health database, which, the Colegio underscores, “is a non-profit and has no ties to the pharmaceutical industry.” The database, it continues, synthesized all existing evidence on the effects of medical cannabis and determined that: “Based on the existing scientific research, it is possible to conclude that there is no condition for which the benefits derived from the use of cannabis or derived products is superior to its adverse effects and risks.” Consequently, the Colegio asserts, its members are “not willing to prescribe” cannabis, nor are they willing to be an avenue for the de facto legalization of a substance known to be harmful.”

Prior to the Colegio’s position paper, Carlos Charme, director of Chile’s National Service for the Prevention and Rehabilitation of Drug and Alcohol Consumption, also expressed his opposition to the bill in an interview with El Mercurio, saying that “There is overwhelming evidence that  marijuana has no therapeutic purpose.”

In response, Ana María Gazmuri, founder and director of Fundación Daya, shared the article on Twitter, saying that Charme not only “lies,” but that his position is “unacceptable” and “offends the hundreds of Chilean doctors and thousands of patients who improve their lives with medical cannabis.” Gazmuri also deemed it “incomprehensible that [the] authority [would] deny reality,” given that Chile legalized cannabis for medical purposes in 2015.

In July, the bill to legalize home grows for medical use—known throughout the country as Ley Cultivo Seguro, or, loosely translated, “Secure Crop Law”—received the support of lawmakers across the political spectrum of the Senate’s Health Commission. 

The bill, introduced by Deputy Karol Cariola, was approved by 121 of the Chamber of Deputies’ 155 members. Nevertheless, its proponents, including Fundación Daya, do not have  high hopes for its approval in the Senate, where many members have aligned themselves with the Colegio Médico. 

Policy Discord at the International Level 

The disagreement among lawmakers at the national level mirrors that among international regulators, for while the World Health Organization calls for cannabis to be placed in a less restrictive category and have its medical utility recognized, the International Narcotics Control Board, which monitors the implementation of the United Nations’ international drug control treaties issued a report, which states that “personal cultivation of cannabis for medical purposes is inconsistent with the 1961 Convention as amended because, inter alia, it heightens the risk of diversion.” 

According to the Board, the “Personal cultivation of cannabis to be used for medical purposes does not allow Governments to exercise the supervision required by the 1961 Convention over the production, manufacture, export, import and distribution of, trade in and use and possession of cannabis.” 

Additionally, the Board maintains that “allowing private individuals to cultivate cannabis for personal medical consumption may present additional health risks, in that the dosages and levels of THC consumed may be different from those medically prescribed.” 

The global medical cannabis industry, meanwhile, continues to expand. And given that so many nations turn to international regulators to set their local policies, their position will have a strong  influence on cost and patient access.


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