Laws
Peru Issues Draft Law to Allow and Regulate Patient-Grown Medical Cannabis
The Ministry of Health is issuing a draft resolution to receive comments from both public and private entities as well as citizens in Peru for the next three months.
The Peruvian Ministry of Health (MINSA) has decided to do something radical. Namely, obtain public comments on their next version of pending cannabis legislation before they actually pass it. This legislation amends the law passed last year which allows patient groups or collectives in Peru to legally grow their own supplies by further defining the right.
Medical use of cannabis and cannabinoid-based drugs has been legal here since November 2017. However, after the government updated parts of the law they received heavy criticism from advocates who said that patients still did not have enough access. This version will also incorporate guidelines on the artisanal production and processing of the plant by patient organizations.
It may sound like semantics, but this is actually a very important step.
The Home Grow Dispute, in Peru and Beyond
No matter how much authorities just don’t like the idea, let alone parts of the established corporate cannabis industry (which has also opposed the idea directly in places like Canada), the right to grow at home and distribute medical cannabis grown in patient collectives will not die.
During the 1980s and 1990s, for example, when AIDS was still a death sentence, patient collectives began operating in major cities. The biggest “threat” to their existence has in fact been legalization.
Now as the cannabis revolution spreads globally, the same issues are arising repeatedly.
In Germany, for example, despite initially allowing patients to obtain specific cultivation licenses from BfArM, this right was eliminated with the legislation passed in 2017, mandating insurer reimbursement when prescribed by a doctor.
That right is about to be at least partially reinstated if the rumors are to be believed. It is widely expected that home grow at least for “recreational users” will be a part of the legalization legislation now being drafted by the German Ministry of Health. How the Germans will deal with patient collectives is still an open question—but one that clearly makes sense given the pushback from the major insurers about coverage for the past five years.
How to regulate that, however, is still very much undecided, just about everywhere. For example, in South Africa, these issues are very much front and center as the government struggles to pass its first cannabis legalization bill to create structure for the commercial production of cannabis.
In countries like Peru, much as in South Africa, with a less robust public health system than European countries, there is less competition from the established industry, let alone pharmaceutical companies. People there cannot afford medication. Cannabis is just one of them.
Allowing people to grow at home will significantly alleviate demand on the health system if not give critically ill people access to medicine they otherwise would not have.
There is, in reality, no way to prevent patients from organizing to obtain home grow from somewhere—even if they cannot grow their own. The conditions that this drug treats effectively are still on the edges of being treated effectively with more conventional medications. Chronically or terminally ill people are rarely deterred by a still jail sentence.
The Re-Awakening of Patient Collectives
Organized into patient collectives or not, the issue is coming back, and in a big way, as Europe proceeds with legalization. Malta dipped its toe into the recreational discussion last year by allowing home grow. Luxembourg looks ready to do the same this year—and it is clear that Germany will have to consider these options.
Beyond this? In both Spain and Holland, there already is a defacto “home grow” movement that is, at least in Holland, being increasingly regulated out of existence—at least formally. But it won’t last long.
Indeed, in the U.K. recently, where medical cannabis legislation has repeatedly stalled, a patient who operated a collective and delivered cannabis oil to literally hundreds of patients was just given a slap on the wrist by authorities after his grateful clients testified on his behalf.
Peru, in other words, may be on the right, and potentially only, track to deal with this issue.
Business
New Mexico cannabis operator fined, loses license for alleged BioTrack fraud
New Mexico regulators fined a cannabis operator nearly $300,000 and revoked its license after the company allegedly created fake reports in the state’s traceability software.
The New Mexico Cannabis Control Division (CCD) accused marijuana manufacturer and retailer Golden Roots of 11 violations, according to Albuquerque Business First.
Golden Roots operates the The Cannabis Revolution Dispensary.
The majority of the violations are related to the Albuquerque company’s improper use of BioTrack, which has been New Mexico’s track-and-trace vendor since 2015.
The CCD alleges Golden Roots reported marijuana production only two months after it had received its vertically integrated license, according to Albuquerque Business First.
Because cannabis takes longer than two months to be cultivated, the CCD was suspicious of the report.
After inspecting the company’s premises, the CCD alleged Golden Roots reported cultivation, transportation and sales in BioTrack but wasn’t able to provide officers who inspected the site evidence that the operator was cultivating cannabis.
In April, the CCD revoked Golden Roots’ license and issued a $10,000 fine, according to the news outlet.
The company requested a hearing, which the regulator scheduled for Sept. 1.
At the hearing, the CCD testified that the company’s dried-cannabis weights in BioTrack were suspicious because they didn’t seem to accurately reflect how much weight marijuana loses as it dries.
Company employees also poorly accounted for why they were making adjustments in the system of up to 24 pounds of cannabis, making comments such as “bad” or “mistake” in the software, Albuquerque Business First reported.
Golden Roots was fined $298,972.05 – the amount regulators allege the company made selling products that weren’t properly accounted for in BioTrack.
The CCD has been cracking down on cannabis operators accused of selling products procured from out-of-state or not grown legally:
- Regulators alleged in August that Albuquerque dispensary Sawmill Sweet Leaf sold out-of-state products and didn’t have a license for extraction.
- Paradise Exotics Distro lost its license in July after regulators alleged the company sold products made in California.
Golden Roots was the first alleged rulebreaker in New Mexico to be asked to pay a large fine.
Source: https://mjbizdaily.com/new-mexico-cannabis-operator-fined-loses-license-for-alleged-biotrack-fraud/
Business
Marijuana companies suing US attorney general in federal prohibition challenge
Four marijuana companies, including a multistate operator, have filed a lawsuit against U.S. Attorney General Merrick Garland in which they allege the federal MJ prohibition under the Controlled Substances Act is no longer constitutional.
According to the complaint, filed Thursday in U.S. District Court in Massachusetts, retailer Canna Provisions, Treevit delivery service CEO Gyasi Sellers, cultivator Wiseacre Farm and MSO Verano Holdings Corp. are all harmed by “the federal government’s unconstitutional ban on cultivating, manufacturing, distributing, or possessing intrastate marijuana.”
Verano is headquartered in Chicago but has operations in Massachusetts; the other three operators are based in Massachusetts.
The lawsuit seeks a ruling that the “Controlled Substances Act is unconstitutional as applied to the intrastate cultivation, manufacture, possession, and distribution of marijuana pursuant to state law.”
The companies want the case to go before the U.S. Supreme Court.
They hired prominent law firm Boies Schiller Flexner to represent them.
The New York-based firm’s principal is David Boies, whose former clients include Microsoft, former presidential candidate Al Gore and Elizabeth Holmes’ disgraced startup Theranos.
Similar challenges to the federal Controlled Substances Act (CSA) have failed.
One such challenge led to a landmark Supreme Court decision in 2005.
In Gonzalez vs. Raich, the highest court in the United States ruled in a 6-3 decision that the commerce clause of the U.S. Constitution gave Congress the power to outlaw marijuana federally, even though state laws allow the cultivation and sale of cannabis.
In the 18 years since that ruling, 23 states and the District of Columbia have legalized adult-use marijuana and the federal government has allowed a multibillion-dollar cannabis industry to thrive.
Since both Congress and the U.S. Department of Justice, currently headed by Garland, have declined to intervene in state-licensed marijuana markets, the key facts that led to the Supreme Court’s 2005 ruling “no longer apply,” Boies said in a statement Thursday.
“The Supreme Court has since made clear that the federal government lacks the authority to regulate purely intrastate commerce,” Boies said.
“Moreover, the facts on which those precedents are based are no longer true.”
Verano President Darren Weiss said in a statement the company is “prepared to bring this case all the way to the Supreme Court in order to align federal law with how Congress has acted for years.”
While the Biden administration’s push to reschedule marijuana would help solve marijuana operators’ federal tax woes, neither rescheduling nor modest Congressional reforms such as the SAFER Banking Act “solve the fundamental issue,” Weiss added.
“The application of the CSA to lawful state-run cannabis business is an unconstitutional overreach on state sovereignty that has led to decades of harm, failed businesses, lost jobs, and unsafe working conditions.”
Business
Pot Odor Does Not Justify Probable Cause for Vehicle Searches, Minnesota Court Affirms
The Minnesota Supreme Court affirmed that cannabis odor does not constitute probable cause to search a vehicle.
If Minnesota police search a vehicle solely based upon the smell of pot, they can’t justify searching a vehicle, even if there is evidence found of other alleged crimes. Even after appealing a lower court decision to suppress the evidence—twice—the Minnesota Supreme Court agreed, and the dismissal of his charges stands.
In a ruling filed regarding a case the State of Minnesota Court of Appeals on Sept. 13, the Minnesota Supreme Court affirmed that cannabis odor does not constitute probable cause to search a vehicle.
The case has been ongoing for two years. On July 5, 2021, just before 10 p.m., a Litchfield police officer stopped a car for an obscure local law: the light bar mounted on the vehicle’s grill had more auxiliary driving lights than are permitted under Minnesota law. The officer asked the driver, Adam Lloyd Torgerson, for his license and registration. Torgerson, his wife, and his child were present in the vehicle. The officer stated that he smelled pot and asked Torgerson if there was any reason for the odor, which he initially denied. But cops found a lot more than just pot.
A backup officer was called in. The couple denied possessing any pot, but Torgerson admitted to smoking weed in the past. The second officer stated that the weed odor gave them probable cause to search the vehicle and ordered them to exit the vehicle. The first officer searched the vehicle and found a film canister, three pipes, and a small plastic bag in the center console. The plastic bag contained a white powder and the film canister contained meth, which was confirmed in a field test.
Torgenson was charged with possession of meth pipe in the presence of a minor and fifth-degree possession of a controlled substance after the unwarranted search of Torgerson’s vehicle.
Police Aren’t Allowed to Do That, Multiple Courts Rule
But the search had one major problem—cops weren’t searching for a meth pipe. They only searched his car because they could smell pot, and the meth and paraphernalia were a surprise for everyone. Still, they had no grounds to search the vehicle. The man’s charges were later dismissed after the district court determined the odor of cannabis alone was insufficient basis for probable cause to search the vehicle, regardless of whatever other drug paraphernalia they found.
The state appealed the case, but the Minnesota Court of Appeals affirmed the district court’s decision. The case was appealed a second time, this time to the Minnesota Supreme Court, which agreed with the lower court’s ruling.
“This search was justified only by the odor of marijuana emanating from the vehicle,” the Minnesota Supreme Court decision reads. “Torgerson moved to suppress the evidence found during the search, arguing that the odor of marijuana, alone, is insufficient to create the requisite probable cause to search a vehicle under the automobile exception to the warrant requirement. The district court granted Torgerson’s motion, suppressed the evidence, and dismissed the complaint. The State appealed. The court of appeals affirmed the district court’s suppression order. Because we conclude that the odor of marijuana emanating from a vehicle, alone, is insufficient to create the requisite probable cause to search a vehicle under the automobile exception to the warrant requirement, we affirm.”
It amounts to basic human rights that apply—regardless of whether or not a person is addicted to drugs.
Other States do Precisely the Same Regarding Pot Odor as Probably Cause
An Illinois judge ruled in 2021 that the odor of cannabis is not sufficient grounds for police to search a vehicle without a warrant during a traffic stop.
Daniel J. Dalton, Associate Judge of the 14th Judicial Circuit, issued a ruling in response to a motion to suppress evidence in the case of Vincent Molina, a medical cannabis patient arrested for cannabis possession last year.
In that case, Molina was arrested despite the decriminalization of small amounts of cannabis in Illinois in 2019 with the passage of the Illinois Cannabis Regulation and Tax Act.
In some states, the issue of probable cause and cannabis was defined through bills.
Last April, the Maryland House of Delegates approved a bill that reduces the penalties for public cannabis consumption and bars police from using the odor of cannabis as the basis for the search of an individual or auto. Under Maryland’s House Bill 1071, law enforcement officers would be prohibited from using the odor of raw or burnt cannabis as probable cause to search a person or vehicle.
The rulings represent the rights of citizens when they are pulled over by police, even if there are hard drugs involved.
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