Prohibition system of the recreational use of cannabis declared unconstitutional

On June 28, 2021, the plenary of the Mexican Supreme Court of Justice held an ordinary session through electronic media, by virtue of which, after the statement of reasons of each of the Ministers, with eight votes in favor and three votes against, it was determined to approve the general declaration of unconstitutionality (DGI) regarding the prohibition of the recreational use of cannabis, and its derivative, THC. The above was based on the right to the free development of personality.

By virtue of the general declaration of unconstitutionality, the prohibition of recreational consumption of cannabis and THC, as mentioned in the General Health Law, has been eliminated and the Federal Commission for the Protection against Health Risks (Cofepris) shall issue individual permits to cultivate and consume cannabis without the need to file an amparo proceeding in favor of any person of legal age who so requests.

Among other things, by virtue of the issuance of the general declaration of unconstitutionality, the General Health Law will have to be published with the amendments resulting from the declaration and the Congress will again be urged to legislate to regulate the market in this matter, especially considering that the declaration will have no effect on the crimes provided for in the Federal Criminal Code on the matter, so that the result of the DIG and the obligation of the Cofepris to issue the relevant permits, will result in the existence of an unsustainable exception regime in our legal system.

The immediate antecedent of this general declaration of unconstitutionality is found in the 2019 resolution issued by the Supreme Court of Justice, which ordered the Congress to resolve the lack of proportionality regarding the prohibition of the personal consumption of cannabis before April 30, 2021. Although last April 30 the Senate received a bill regulating the production, distribution and possession of cannabis for personal use approved by the Chamber of Deputies, the Chamber of Senators did not approve it during its ordinary period of sessions. Therefore, the SCJN, to resolve the relevant legislative omission, exercised its faculties with the general declaration of unconstitutionality that concerns us.

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Yours sincerely,

Cannizzo