They Just Don’t Get It! New Cannabis Bill is Still Riddled With Contradictions that Expose Government’s Confused Thinking
Despite certain positive amendments the Cannabis for Private Purposes Bill remains legally flawed and at odds with itself, particularly in its approach to adult use and its prohibitionist mindset. That’s the view of Desmond Greaver and Siseko Maposa of Inkwazi Farms, who argue that the State could have saved itself all this legislative mess if it had listened to stakeholders in the first place.
Director Desmond Greaver and Corporate Affairs Manager Siseko Maposa of Inkwazi Farms
9 May 2023 at 11:00:00
This opinion piece first appeared in Business Day on 8 May 2023.
The Department of Justice and Correctional Services recently issued a notice calling upon interested stakeholders to provide public comments on the Cannabis for Private Purposes Bill. The call instructed stakeholders to provide comments only on the proposed amendments to the bill, which seek to broaden its scope to include provisions relating to the commercialisation of hemp.
The bill introduces several important provisions contributing to SA’s cannabis development project, including the repeal of cannabis's inclusion in the Drugs & Drugs Trafficking Act, the lifting of THC limits for hemp to 2%, improved definitional clarity regarding THC, defined as total THC (— delta 9 + THCA), and the waiving of liabilities on healthcare professionals for cannabis “prescriptions”.
Regrettably, for every progressive element of the bill there are equally outstanding shortcomings that limit its usefulness. Instead of honestly attending to stakeholder comments made in the first public consultation process, all that has really happened is that regulations from different departments have been spliced into the original base document, with little to no consideration of restrictions.
When it comes to recreational cannabis there is major dysfunctionality in the proposed amendments. In chapter 2 the bill contradicts itself in the cut and paste provision that “10. (1) Subject to subsection (2), commercial activities in respect of [recreational] cannabis are hereby authorised”, and further “(2) National legislation must be enacted to authorise and regulate commercial activities in respect of cannabis.”
Chapter 2 thereby makes it clear that recreational cannabis must be commercialised, subject only to the provision that the law does not place restrictions on the section 2 provisions for personal use.
Practically though, this is entirely impossible without a rewrite of Chapter 1 to provide for a system of control over recreational cannabis.
Under the prescribed quantities for personal use in Chapter 1, subsection (3) states that “an adult person may, without the exchange of consideration per occasion, provide to or obtain from, any another adult person, for personal use, the prescribed quantity of cannabis”. Read together with chapter 2, this provision presents a deep substantive contradiction.
Cannabis as a public health risk?
Chapter 2.10 (3) of the bill also assumes that cannabis use is a public health risk and instructs government to place due consideration to public health risk factors in the drafting of commercial recreational cannabis legislation. Although not explicitly stated in the document, there is a general sense that cannabis use is assumed to be a public health risk due to claims that it is addictive and has devastating effects on mental health. However, there is a growing body empirical evidence opposing these claims.
For example, a 2019 study by the National Bureau of Economic Research found that the rate of cannabis use disorder (CUD) had not increased in states that have legalised its use in America. With regard to cannabis and mental health effects, research published in the Journal of Affective
Disorders found no evidence that cannabis use is associated with increased symptoms of depression in the general population.
In addition, studies from the Journal of Psychopharmacology and the Journal of the Canadian Academy of Child & Adolescents Psychiatry find that cannabis use does not lead to increased risks of developing schizophrenia or other psychosis-related disorders. As such, a more sensible approach for government would be to conduct context-specific research on the public health impact of cannabis in SA, particularly as the country legalises and commercialises the use of cannabis. Such empirical evidence must become the basis of laws governing the control and use of cannabis in the country.
With regard to commercial hemp policy proposals, the restriction of hemp activities to “approved cultivar” remains a lethal impediment to a viable, scalable commercial hemp sector in SA. In effect, by choosing to restrict activities to “approved cultivars” the department is creating for itself a chokepoint whereby it could summarily dismiss all development restricting activity to select industrial fibre and seed strains. This is an unacceptable level of risk for commercial investments in hemp flower cultivation and potential agro processing.
It is also worth noting that to date there is no record of approved cultivars beyond the much-touted RSA1 and RSA2 fibre platforms. As it stands, the permit process is well enough defined to allow for the sourcing and importing of select compliant strains. It is essential that this functionality be maintained to allow SA hemp flower cultivators to select, cultivate and market the most competitive strains internationally.
Cannabis for cultural purposes
The bill’s proposals on cannabis for cultural purposes are also concerning. The requirements for a permit for religious/cultural communities are draconian, requiring both ministerial approval and parliamentary sittings to authorise permits to closed individually identified communities that are deliberately barred from trading outside permitted lists. In addition, the permit application process is heavily convoluted, placing tremendous compliance burdens on communities that wish to cultivate cannabis for cultural purposes. The provisions are likely to be, and indeed must be, rejected out of hand.
Given that it has been almost two-and-a-half years since the bill was initially introduced, the concerns identified above indicate that the policy drafters are struggling to develop cannabis laws that are sensible, empirical, forward-looking and fit-for-purpose. It is hoped that as government continues to offer its policy proposals it does so with utmost commitment to the National Policy Development Framework (NPDF) 2020, which seeks to entrench good public policymaking practices in SA by setting out clear principles for effective policy development, inclusive of stakeholder participation.
Effective public consultation, where open debate is encouraged and advanced, is the only way SA can produce sensible cannabis policies that provide effective governing controls while developing the local economy. There has been much input from stakeholders across the fledgling industry. However, it is apparent that there is a lack of co-ordination between the various arms of government in putting together a single cohesive framework that reflects the will of the people to exploit the commercial potential of the industry.
Justice Dept Admits No Rational Evidence Behind Plant Limits in Cannabis Bill as State Lawyers Come Under Fire in Parliament
The Justice Department took flak in Parliament this week during stakeholder input into the Cannabis for Private Purposes Bill where it became evident that state law-makers are clueless as to what Government's intended vision for cannabis is. They remain conceptually and technically completely out of their depth - and lazy to boot as they have not bothered to bring any rational evidence to back up what is truly a pathetic legislative interpretation of the 2018 Constitutional Court ruling legalizing the private consumption of cannabis.
SA to Lift Hemp THC Limit to 2% But Cultivar Restrictions Remain a “Lethal Impediment” to the Industry
Government has made no official announcement about the "significant spike" in raising acceptable THC levels in hemp. It signalled its intentions in a clause in the Cannabis for Private Purposes Bill which will be welcomed by stakeholders. However, cultivar restriction could self-sabotage all the good intentions.
Cannabis in South Africa: The People’s Plant
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