The Mexican Supreme Court (SCJN) issued on June 28, 2021 the General Declaration of Unconstitutionality (DGI) invalidating five articles of the General Health Law that absolutely prohibited the recreational use of cannabis and tetrahydrocannabinol (THC), collectively known as marijuana.
With a vote of eight in favor out of eleven justices, the SCJN once again compels the Mexican Congress to legislate to regulate the uses of marijuana.
Vote
- In favor: Norma Lucía Piña Hernández, Arturo Zaldívar, Alfredo Gutiérrez Ortiz Mena, Juan Luis González Alcántara Carrancá, Margarita Ríos, Javier Laynez Potisek, and Luis María Aguilar.
- Against: Alberto Pérez Dayán, Jorge Mario Pardo Rebolledo, and Yassmín Esquivel Mossa.
Invalidated articles
Articles 235 (last paragraph), 237, 245 (first section), 247 (last paragraph), and 248 of the General Health Law prohibit all acts related to cannabis: sowing, cultivation, harvesting, manufacturing, preparation, conditioning, acquisition, possession, commerce, transportation, medical prescription, supply, employment, use, consumption, among others.
Following this declaration, the Mexican Congress must eliminate the five aforementioned articles. The effects of the ruling —also approved by the justices— establish that the Ministry of Health, through the Federal Commission for the Protection against Sanitary Risks (Cofepris), must authorize permits to consume and carry marijuana for adult personal recreational use.
Scope and limitations
This does not mean that the entire cannabis market is legal or that consumers will be exempt from limitations or sanctions. The ruling specifies that “importation, commerce, or supply of marijuana is not authorized in any case.” What changes is that users no longer need to file an amparo proceeding to obtain Cofepris self-cultivation permits for personal use. Furthermore, consumption may not affect third parties, nor occur in public spaces or in front of minors.
These guidelines are effective once the declaration is published in the Official Gazette, and while Congress has not legislated further.
Legislative context
When presenting the project, Justice Norma Lucía Piña Hernández recalled that the SCJN had granted three extensions to the Legislative Branch, considering the complexity of the matter and the complications arising from the COVID-19 pandemic.
In 2019, the SCJN ordered the regulation of the recreational use of marijuana, finding its absolute prohibition unconstitutional. The initiative has since been stalled in Congress. An initial version was approved by the Senate in November 2020, but in March 2021 it was modified by the Chamber of Deputies and returned to the upper house. The Senate had until April 30, 2021 to decide whether to ratify the amendments or maintain its original proposal; disagreeing with the Chamber of Deputies, the matter never reached the floor.