U.N. Vote on Cannabis: Is This the Beginning of the End of the Controlled Substances Act?
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U.N. Vote on Cannabis: Is This the Beginning of the End of the Controlled Substances Act?

The United Nations Commission on Narcotic Drugs is scheduled to vote on the rescheduling of cannabis and cannabis-related substances in December.

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The United Nations Commission on Narcotic Drugs (CND) is scheduled to vote on the rescheduling of cannabis and cannabis-related substances during the 63rd reconvened session in December 2020. This scheduled vote follows an earlier meeting of the World Health Organization (WHO) Expert Committee on Drug Dependence, during which the Committee recommended the rescheduling of cannabis and several cannabis-related items, effectively removing cannabis from the list of scheduled substances. While participating countries will make the decision regarding rescheduling cannabis through an international forum, domestic lawmakers and international policymakers will maintain a close watch over the outcome, as the consequences of such a vote may affect the direction of the cannabis industry in their respective countries going forward.

The recreational use of cannabis is legal in four countries—Canada, Uruguay, South Africa and Georgia—and is decriminalized in several others. A vote to remove cannabis and cannabis-related substances from the list of scheduled drugs will likely encourage more countries to revisit how they approach the legal classification of cannabis on a domestic level. This extends to the possibilities of more countries legalizing cannabis or decriminalizing it in an effort to take a softer stance against the use of cannabis and prepare for involvement in a potentially extensive and financially lucrative global cannabis trade market.

There are three international drug treaties governing cannabis that strictly oppose the legalization of cannabis in any of the participating countries. The Single Convention on Narcotic Drugs of 1961 classifies cannabis as a Schedule I and Schedule IV substance, requiring countries to adopt special measures of control to prevent the illicit traffic in and misuse of cannabis.

The Convention on Psychotropic Substances of 1971 focuses on the psychoactive component in cannabis, THC, and regulates cannabis-related substances. The recommendation of the WHO’s Expert Committee on Drug Dependence is to remove cannabis and THC from the scheduled drugs on this convention altogether. Finally, the 1988 Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances governs the trafficking of cannabis and requires participating states to maximize efforts to prevent such offenses. Rescheduling cannabis will likely mean revisiting and amending all three international drug treaties in part to account for this change in policy.

A vote to reschedule cannabis will also drastically change the landscape of the global cannabis trade market and open the door for countries to enter new international treaties that focus specifically on the international regulation of cannabis. The result is the creation of a new international cannabis market where participating countries can benefit from working with one another as opposed to operating under the current landscape, which leads to legal disconnect and invites the illegal smuggling of cannabis across international borders.

U.S. policy toward cannabis currently stands as one of the largest hurdles against rescheduling cannabis through the CND. Historically, the U.S. has played an influential role in the international regulation of drugs, including acting as a driving force behind implementing the existing international drug treaties in an effort to promote its staunch opposition to drugs on an international level.

Should the U.S. elect to support the rescheduling of cannabis through the upcoming CND vote, such a change in international policy would surely garner a review of domestic federal and state regulations. While the recreational use of cannabis is currently legal in 15 states (with Arizona, Montana, New Jersey and South Dakota recently joining the list), as well as for medical use in 35 states, the federal government still classifies cannabis as a Schedule I drug under the Controlled Substances Act of 1971. Rescheduling cannabis on the international stage provides lawmakers in the U.S. with the opportunity to revisit removing cannabis from the Controlled Substances Act.

Recent trends suggest more states are moving towards legalizing cannabis; thus, there is growing support within Congress to legalize cannabis federally as well. Changes to domestic policy and the international drug treaties will ultimately reside at the discretion of Congress. The question will be whether Congress will act to legalize cannabis first or wait to see how other countries react to a proposed amendment to the international drug treaties.

Optimism for an actual vote this December is measured. The CND has delayed the vote to reschedule cannabis several times in recent years, though the positive takeaway from these delays is that the topic is receiving legitimate, complete consideration. However, there is also a political convenience that accompanies avoiding the vote to reschedule cannabis. For some countries, the current framework of international drug treaties provides sufficient flexibility under which these countries can regulate cannabis to their liking. While some countries, such as the U.S., utilize this flexibility to allow some form of acquiescence to the states, other countries use this flexibility to enact a significantly stricter stance against cannabis.

For example, the Single Convention on Narcotic Drugs of 1961 states, “a Party shall not be, or be deemed to be, precluded from adopting measures of control more strict or severe than those provided by this Convention” (Article 39). Under this provision, countries such as China and Russia are able to take harsh stances against cannabis use, including implementing punishments such as the death penalty. With such a wide spectrum of approaches to the regulation of cannabis around the world, the question becomes whether there is truly a consensus on regulation that would result from rescheduling cannabis. While the probable answer is no, the benefit of moving forward without a consensus may merit a vote in a favor of rescheduling cannabis.

Another reality to take into consideration is the ongoing pandemic. As COVID-19 cases continue to increase steadily, there is speculation that rescheduling cannabis is not a high priority item, and the CND will delay the vote once again. In a way, rescheduling cannabis forces countries to review their domestic policies, and countries may instead be more inclined to approach the subject when they are less concerned about the spread of COVID-19 and can focus on the global and domestic implications of rescheduling cannabis and cannabis products. With so much uncertainty currently surrounding the topic, we are best set to patiently wait and see how the vote unfolds in December.

Joshua Horn is a partner at Fox Rothschild LLP and co-chair of the firm’s cannabis law practice group. He can be reached at jhorn@foxrothschild.com.

Jonathan Dolgin is an associate at Fox Rothschild LLP who handles a variety of corporate matters, including within the firm’s cannabis law practice group. He can be reached at JDolgin@Foxrothschild.com.