Medicinal Cannabis an International legal challenge

(English version of French speech at ASUD conference, Paris, 26 november 2009)

My first encounter with cannabis used for medicinal purposes was when I was just a youngster in the late fifties. A friend of the family was prescribed a special kind of cannabis cigarettes for asthma that according to her were the only thing that really helped.  

My second encounter was in the USA in the early nineties. At the time I worked for the Netherlands Institute for Alcohol and Drugs (NIAD) and attended a conference where I presented a law proposal I had written which would have regulated the Dutch market for recreational cannabis. (1)

My first reaction to medical marijuana was of an ambivalent nature, I remember saying: “Oh my god, this is crazy, before I know it the Dutch coffeeshops will be closed and everybody will have to go to the doctor instead.”  Next I was freaked out by hearing about people in wheel chairs being sent to prison to serve Draconian sentences for treating themselves with cannabis. Next I was enlighted on the issue by Lester Grinspoon and visited a trial here in Paris where Francis Caballero defended someone with AIDS/HIV, who was arrested on the airport carrying some hashisch.(2)

People have used substances without nutrive value since the very beginning of mankind’s existence in order to produce a feeling of contentment, ease and comfort.   Nowdays we call them psychoactive substances or drugs.  In view of this long and beneficial association, drug use is surely inherent a human universal. (3)

Now in my view, when government chooses to allow and tax alcohol and tobacco, yet prohibit and prosecute the use of cannabis, the resulting situation forces citizens seeking fulfilment of the legitimate desire for psychoactive substances to make choices that are probably unhealthier and more risky than need be. There is not one case in medical history of a fatal cannabis overdose and therefore cannabis prohibition as such is unjustified.

But prohibiting people suffering from severe disorders from using  cannabis to save their lives or make it at least bearable, while the prescription and the sale in drug stores of all kinds of highly toxic substances is medically allowed, seems simply insane.

Cannabis is one of the psychoactive substances, or rather plants, which has been used by humans throughout their entire history and prehistory as well. In India it was found to be used somewhere between 2000 and 1400 BC  and parts of the cannabis plant were found on the mummified Ramses II (approx. 1200 BC.) Recently in China, proof of pyschoactive cannabis use from 2700 years ago was found and also the Greeks and Romans were aware of the psychoactive nature of cannabis and used it for medicinal purposes. In Western Europe during the Middle Ages cannabis was mostly used for the production of rope, clothing and wind break but some were aware of its psychoactive qualities.

In the Netherlands just like elsewehere in Europe, modern cannabis use is very recent, in a historical perspective. Earlier in the twentieth century cannabis, and other psychoactive substances such as cocaine and opiates, were included without any legal constraint in numerous elixers and medicines. This came to a halt gradually during the twentieth century, as a result of measures protecting the medical and pharmaceutical orders, but initially the measures were not intended to limit their use.
Thus the use of cannabis in western Europe passed into disuse although cannabis was still part of the Dutch pharmacopea until 1958 and could be prescribed by doctors.

In the late fifties cannabis use reemerged in Europe amongst students and artists and became part of the “flower power” movement in the sixties. More and more young people started to use cannabis, drawing the attention of the Dutch Public Prosecutor and resulting in some severe sentences. This caused a public debate resulting in the the institution of a government commission just like in Canada, the USA and the UK. (4)     

The 1972 report of this Commission "the working group on narcotic substances", led to the depenalisation of cannabis under which prohibition of cannabis remained in the criminal code but personal use was no longer prosecuted. This plan brought a clear-cut distinction between drug users and traffickers, and between illegal drugs with so called "unacceptable health risks" and cannabis products. The philosophy behind this was called the "separation of drug markets"

The policy aimed to avoid contacts by young cannabis consumers with the "hard drug scene" and the criminal violence that often accompanied it. The Netherlands permitted the retail-trade of cannabis products in about 700 local "koffeeshops" under specific condition[s,] i.e. no advertising, no hard drugs, no disturbance of public order, no sale to minors (under 18), and no sale of quantities larger than 30 GMs per customer (now 5 GMs). Enforcement of these guidelines fell to local "Triangle Committees" composed of the Mayor, Chief of Police, and District Attorney of each city.

Therefore the situation in the Netherlands was and is still somewhat different from elsewhere for patients seeking cannabis, since they can go to a coffeeshop to buy cannabis. But in the late nineties this was not considered a valid solution for several reasons such as:

1.    Necessity of cannabis of constant qualty
2.    Necessity of cannabis of medicinal quality
3.    Patients do not want to go to coffeeshops
4.    Patients should not be confronted with illegal cannabis and situations
5.    Medicinal cannabis should be provided by doctors and pharamacies

Therefore I was involved at the end of the nineties in the first production of cannabis for therapeutical purposes. It was carried out by a glaucoma patient and endorsed by the Rotterdam police. But the quality left much to desire and for sevaral other reasons this was not a satisfactory solution.  

Thanks to the Health Minister at that time, Dr. Els Borst, patients in the Netherlands now can obtain fully legal medicinal cannabis on prescription from pharmacies since the 1st of september 2003. This medicinal product is produced under control of the Government Bureau Medicinal Cannabis (BMC) and consists of three varieties of cannabis. Medicinal cannabis is prescribed to a wide variety of patients such as people suffering from AIDS/ HIV, Multiple Sclerosis and other muscle related diseases, Gilles de la Tourette, rheumatism and cancer.9

Recently Germany, Italy and Finland have also decided to allow the prescription of such medicinal cannabis and to facilitate such practice on the basis of cannabis imported from and produced by the BMC in the Netherlands.10 Further countries are expected to follow in the near future.

The main problem with medicinal cannabis in the first years was the availability of more varieties of cannabis at a much lower price in the coffeeshops, but now that more varieties are prescribed and significant price cuts have been realized, more and more patients as well as doctors realize the advantages of cannabis produced for medicinal purposes and hence of consistent quality and constant strength.

The current Dutch Minister has just decided that the production and hence prescription of medicinal cannabis will be extended for at least another seven years as well as facilitating further scientific studies.

Meanwhile in the USA medicinal cannabis is allowed in fourteen states and the Obama administration has just decided that neither pattients or sanctioned suppliers in those states will be pursued under Federal drug laws. California is rather unique among these states for the widespread presence of “medical marijuana dispensaries” , which even advertise their activities.

But what good is this for a French patient seeking relief, suffering from for example MS, nausea problems related to chemo therapy, HIV/AIDS, chronic pain and Gilles de la Tourette. Especially when compared to a patient from another EU member state such as the the Netherlands. Such a patient being prescribed for example five grams of cannabis a day may go on holidays to France for a month and bring his 150 grams of medicinal cannabis legally using a “Schengen Declaration” (9) issued by his general practitioner.

Now apart from what will happen when this patient is halted by the French police delivering Louis de Funes style of situations it is certainly a case of legal disparity we should not have in the European Union.

Mario Lap

[1] Mario Lap, NIAD, Cannabis law Proposal 1992

[2] Lester Grinspoon and James Bakalar , Marihuana the forbidden medicine

[3]

[4] Netherlands, and Commissions, Canada, , USA and UK

[5] http://www.emcdda.europa.eu/situation/cannabis/3

[6] http://www.bedrocan.nl/Engels/indexeng.htm

[7] https://abuse-drug.com/lib/index.php/nl/law/254

[8] https://abuse-drug.com/lib/

(9)  Article 75, sub 1 of the Schengen Implementation Convention reads:

‘As regards the movement of travellers to the territories of the Contracting Parties or their movement within these territories, persons may carry the narcotic drugs and psychotropic substances that are necessary for their medical treatment provided that, at any check, they produce a certificate issued or authenticated by a competent authority of their State of residence.’

The Schengen States have adopted such a certificate, which shall be issued to people resident on their territory who want to travel to another Schengen State and who, owing to a medical prescription, need to take narcotic drugs and/or psychotropic substances during this period. The certificate shall be valid for a maximum period of 30 days. It shall be issued or authenticated by the competent authorities on the basis of a medical prescription.

The introduction of the certificate was intended to safeguard the free movement of travellers between and within the Schengen Countries. It was introduced as a measure for preventing the diversion of controlled medicinal products composed of narcotics drugs and psychotropic substances on the one hand while ensuring free movement of patients with their essential medication within the Schengen area.

This certificate is only required for people taking medicinal products composed of controlled narcotics drugs and psychotropic substances. It is worth noting that the diversion of medicinal products based on narcotics drugs and psychotropic substances for non-medical purposes is an important concern worldwide, although the basis of the international drug control conventions is to ensure availability of such medication for medical purposes at all time. The distribution of these products from the manufacturers to the patients is strictly licensed within the European Union. Due to differences in national legislation, the availability and control of some of these medicinal products may vary between the Member States, e.g. in the case of medicinal cannabis.

Even though there may be no formal medical passport controls in the customs areas of most Member States, travellers may need to justify the presence of such medicines in their belongings when detected in checks. The presence of an authenticated certificate can avoid unnecessary delays and misunderstandings.

When such a medicine is marketed in one Schengen country but not in all, the issuing of an authenticated certificate is of particular relevance for the free movement of patients. In cases where patients pass through or arrive in a Member State without a Schengen Medical Certificate, they might be subject to arrest and further criminal proceedings, depending on the legislation and legal practice as well as on the status of the medication concerned in that country.

In short, the Schengen certificate is meant to strike a balance between the fight against illicit trafficking and diversion of medicinal products and the free movement of patients. The 30 days validity time limit for the Schengen Certificate was deemed appropriate by the Member States to ensure that medication carried over by the patient remains for his own use.

Finally, the choice concerning the use of digital or any other aids in activities related to healthcare and medicine provision is a competence of the Member States. If the Member States agree to resorting to eHealth tools to support the simplification of procedures related to Schengen declaration of medicines, the Commission can be called to provide relevant input. This would draw on the experiences of past and ongoing projects that have been developing the concept and practical application of safe cross-border health information flows resorting to interoperable eHealth tools (the most important of such examples being the epSOS project(1)).