Drug Abuse

4. Options

4. Options

In this chapter we will present the different options for future legislation on cannabis consumption, purchase and supply. In public discussion of this topic various legal terms are continually used in a vague or misleading sense. This is particularly true of the notion of an 'expediency principle’ which has entered the vocabulary in this country under the influence of the Dutch practice in relation to cannabis. Section 4.1 is therefore devoted to clarifying a number of terms. In section 4.2 we describe options which could be implemented within the ambit of the United Nations Single Convention of 1961. Section 4.3 then looks at legalization models. Chapter 5 considers the foreseeable consequences of the various options. Finally, Chapter 6 consists of an evaluation of the options.

4.1 Clarification of terminology

4.1.1 Decriminalization under substantive and procedural law

'Decriminalization', as a general term, denotes a change in the law which has the effect of removing, with prospective effect, the criminal sanction attached to a particular form of behavior. A distinction is made between substantive and procedural decriminalization. The relationship of the term to another frequently used expression – legalization – will also be explored. While the meaning of the term 'substantive decriminalization' is self- explanatory (it means removing the criminal sanction for conduct which was previously prohibited), to facilitate a better understanding of the reform models considered below some further explanation must first be given of the term 'procedural decriminalization' i. e. a relaxation of the obligation to investigate and prosecute crime involving the partial disapplication of the procedural law's 'legality principle' in favor of the so- called 'expediency principle'.

The expediency principle, as such, does not exist. The term merely refers to a common concept, which in practice however find expression in various forms. The basic idea is this: the substantive law (criminal law) remains unchanged but not every offence (which comes to the attention of the authorities) has to be investigated and prosecuted – contrary to what the procedural law's legality principle would demand. We will now look briefly at the key differences between the Swiss and Dutch understandings of the expediency principle in the field of drug enforcement law.

4.1.1.1 Discretion in Swiss law

In Switzerland the expediency principle is understood as meaning that the criminal justice authorities, but not the police, are given discretion (which must be exercised on proper grounds) exceptionally, in particular circumstances which are specified in legislation (mainly in the cantonal procedural rules but to some extent also in criminal justice statutes), to refrain or to desist from prosecuting or to seek no penalty for conduct which is prohibited by the criminal law. Decisions are always taken in the light of the facts of the individual case, although the grounds on which the discretion is exercised are expressed in broad terms. Decisions not to prosecute must not become standardized to such an extent that particular conduct which the criminal law has made an offence is no longer ever prosecuted or punished. For example, it would not be possible for the prohibition of cannabis consumption to be undermined by being always dealt with as a minor case under Article 19a( 2) of the Swiss Narcotics Act, resulting in the proceedings being discontinued or no sentence imposed (BGE 124 IV 44 E. 2 b). It is of course possible, and a common practice, for the prosecution authorities to exercise their discretion in accordance with schematised internal guidelines and for the police to take a lead from that practice, although there is no legal basis for the police to operate in this way (referred to as 'de facto expediency'). This gives rise to some marked divergences between the cantons in prosecution and sentencing practice 1 .

4.1.1.2 Discretion in the Dutch sense²

In the Netherlands, the criminal law (in relation to all offences but particularly drug offences) confers not an obligation (as is the case in Switzerland under the prevailing legality principle) but merely a power to prosecute. This does not apply merely on a case by case basis: it is actually possible to refrain from prosecuting certain offences altogether, and thus to 'rewrite' the substantive law to some extent. This is normally done by means of guidelines issued by the Conference of the five Prosecutors General and approved by the Minister for Justice, to whom they are answerable. These guidelines are binding throughout the Netherlands and are published in the official gazette. They also apply to police investigations. They specify which offences are to be prosecuted in what order of priority and which offences are (in future) not to be prosecuted. The Minister for Justice is responsible to the national parliament in respect of the exercise of his authority over the Prosecutors General. This indirectly makes for a degree of parliamentary control, since the government (which is reliant on the parliament's support) will ensure, in its own political interest, that the guidelines curtailing prosecutions are not too far removed from the majority view prevailing in the parliament (and thus indirectly from the wishes of the electorate).

Using this machinery, the Netherlands has largely decriminalized dealing in small quantities of cannabis (together with possession of small quantities and consumption), primarily by means of guidelines which provide that 'coffee shops', as they are known, and their clients should not be prosecuted for the illegal sale or purchase of cannabis. This is subject to the following conditions: no advertising, no hard drugs, no breach of public order, no selling to minors or of quantities in excess of those required for personal consumption (the limit was formerly 30 grams and is now 5 grams). But no provision is made in relation to an equally important question: what quantities of cannabis the coffee shops may purchase or keep in stock. In fact, the guidelines state that it is not possible to specify maximum permitted quantities for want of a statutory basis (so that a coffee shop operator who is at all times in possession of sizeable quantities and, if individual transactions are aggregated, also sells large quantities, ought really to be prosecuted). In practice, this loophole appears to be dealt with in a fairly informal manner: either by the police turning a blind eye or else a) using the possibility provided for in the guidelines for a further curtailment of law enforcement by arrangement between the local prosecutor, the local police and the mayor's office, b) by agreements with the coffee shop owners based on arrangements of the above kind or c) by the local authorities operating coffee shops themselves. However there is no waiver of criminal prosecution, at least not 'officially', in the case of those who supply coffee shops, with the remarkable consequence that the cannabis which de facto can legally be sold can be procured only from illegal sources, the result of which is that, contrary to the objective of separating the drugs markets, the coffee shops have remained to a greater extent than expected within the milieu of hard drugs, money laundering and organized crime.

4.1.2 Decriminalization and legalization

In accordance with standard usage, the term legalization and the legalized availability model are used in this report to refer to forms of legal regulation which remove the criminal sanction – i. e. make lawful – the handling of narcotic drugs of the cannabinoid type (or at least some of them) including cultivation, production, supply, purchase and consumption, subject to certain conditions (e. g. selling to minors prohibited). In effect, legalization means full decriminalization under the substantive law, as opposed to limited decriminalization restricted, for instance, to consumption and purchase for personal use.

4. 2 Models of limited decriminalization

4.2.1 Introduction and summary

The following summary shows the most important variants which are possible under the United Nations Convention of 1961. The range of variants would be reduced if Switzerland were to ratify without reservations the United Nations Convention of 1988. It is the view of the Commission that Switzerland should not ratify the Convention without reservations, in order to keep all drugs policy options open.

Variants possible under the United Nations Single Convention of 1961

Conduct	Sanctions
Consumption	criminal offense or not
Possession for personal use	criminal offence or not with or without a maximum quantity limit
Cultivation for personal use	criminal offence or not with or without a maximum quantity limit
Toleration (expediency principle)
Consumption/ possession	with or without a maximum quantity limit
Cultivation	with or without a maximum quantity limit
Sale	with or without conditions

 

Legislative variants

There are considerable differences in drugs legislation around the world, even among the countries which have ratified the Single Convention of 1961. There are also internal variations in the criminal law within those countries. For example, possession of small quantities of marijuana is treated as merely an infraction in ten states of the USA, but as a misdemeanor in the remainder. The penalty for this ranges from a fine of between US$ 500 and US$ 10,000 to one year‘ s imprisonment. The penalty for possession of more than a small quantity is imprisonment of between six months and life (The Lindesmith Center 1998). A comparative analysis of legislation on the possession and consumption of cannabis in a number of European countries was carried out in a Swiss study (Cattacin and Renschler 1997). The differences are apparent from the following table.

Cannabis legislation in Europe and the USA

Country	Consumption	Penalties
Germany	- / p	no penalty for small quantities
France	c / p	?
United Kingdom	c / p	low
Italy	- / -	fluctuates
Netherlands	- / p	de facto no penalty
Austria	c / p	low
Sweden	c / p	varies
Switzerland	c / p	low
Spain	- / -	only public consumption
USA	c / p	variable, partly high

(from Cattacin and Renschler 1997)

The differences become even clearer when one observes the changes in anti- drugs legislation in the various countries. In some the penalties are being reduced while in others the opposite is happening. Even within regions sharing a similar historical and cultural background the laws of different countries have been increasingly diverging (for example in Scandinavia, Hakkarainen et al, 1996). One common feature of all these differences, however, is that they reflect differences in attitude rather than differences in the empirical facts that have been established in relation to cannabis consumption and dealing.

4.2.2 Removal of the substantive offence of consumption and procurement for personal use

In the past, the establishment of new criminal offences in relation to cannabis products was usually founded on arguments of general prevention. This was particularly so in the case of the amendment of the Swiss Narcotics Act in 1975, which made cannabis consumption a statutory offence. At the forefront of the current debate on drugs policy reform is the proposal by the 'Experts Commission on the Amendment of the Swiss Narcotics Act' (Schild Commission) to remove from the statute book the offences of consumption and activities of procurement or preparation solely for personal use (cultivation, purchase, possession etc.). 3 There are a number of arguments in favor of substantive decriminalization along these lines and they are considered in Chapter 7 below. The Report also contains a separate discussion of whether it should continue to be an offence to supply cannabis to others for their own personal consumption and not for profit. There is little point, either from a legal or a practical standpoint, in removing the prohibition of consumption while maintaining in force the prohibition of preparatory activities and possession. If the offence of possession were retained every consumer could be convicted on a possession charge even if consumption itself were no longer a criminal offence. Definitions of what constitutes a small quantity for personal consumption vary widely however: in the Federal Republic of Germany, for example, the maximum amounts range from one gram (in Bavaria), six grams (in Lower Saxony), ten grams (in Northrhine Westphalia) right up to 30 grams (in Schleswig- Holstein). (These figures are based on the 1995 provisions). (Schneider 1995).

4.2.3 Change in the severity of penalties

Both increases and reductions in the severity of punishment for a wide variety of offences have been introduced in a number of jurisdictions over the past two decades. As part of its 'war on drugs’ the United States has both increased the level of penalties and introduced other forms of punishment, such as loss of social security benefits or grants, confiscation of driver’s license, notification of employer together with the attendant consequences, etc. The present debate is centered on variants of the substantive or procedural decriminalization either of consumption alone or of consumption together with the preparatory activities for personal consumption. Another proposal that has been the subject of discussion is the substitution of administrative measures for criminal sanctions (Schneider 1995). In States which impose custodial sentences for cannabis consumption, and particularly those where such sentences are heavy, a reduction in the level of penalties is also under discussion, since heavy sentences are believed to cause more detriment than benefit to the offenders concerned and to the criminal justice system itself.

4.2.4 Introduction of an expediency regime for cultivation and retail along the lines of the Netherlands model

An alternative course to the decriminalization of consumption and procurement activities, but one which would achieve a similar effect in practice, would be to leave the statutory prohibition in place but to issue a legally- binding order directing the police and prosecution authorities to refrain from investigating and prosecuting violations. This is the approach which the Netherlands has opted to take. However, procedural decriminalization in this form, if restricted solely to consumption and prior activities enabling personal consumption, would amount to little more than a formal change of minor significance. A truly progressive and ground- breaking measure would involve the non- prosecution of retail dealing, including dealing from fixed premises on a commercial basis, under certain conditions (see section 4.1.1.2 above). In such a system, an expediency regime for suppliers could be readily combined with the decriminalization of consumption and activities preparatory to personal consumption. Does the Netherlands solution offer a viable alternative for Swiss law – particularly with regard to the decriminalization of drug- dealing? It quickly becomes clear that the Dutch model cannot simply be imported en bloc. That would immediately give rise to difficulties caused by constitutional differences between the two countries, in particular the different understanding of the separation of powers principle, together with the fact that, unlike the Netherlands, Switzerland does not have a single Conference of Prosecutors General for the whole country but instead has twenty- six autonomous cantonal prosecutors who are not normally beholden to any authority (and at any event do not take orders from the Federal Minister of Justice). What is more, the power to waive prosecution across the board for certain offences would constitute a de facto disapplication of the substantive law and consequently would amount to a transfer of legislative power from the legislature to the body empowered to issue the relevant guidelines. These difficulties do not mean that a system equivalent in its end effect to the Dutch model is not possible, but they would have to be taken into account in the way the system was designed. The starting point for a Dutch- style solution can be found in Articles 69 and 69 bis of the Swiss Constitution, which gives the Federal Council powers of legislation in the field of narcotic drugs, including power to enact penal provisions and provisions governing the administration of criminal justice (see Article 30( 1) BetmG). This means that the Federal Council has power to issue implementing regulations to regulate the prosecution of crime, despite the fact that this is otherwise a matter within the province of the cantons (see Article 28( 1) BetmG). The statutory basis for the issuing of such regulations would first have to be created in the BetmG, which would need to contain all the essential provisions enabling offences to be overlooked by the prosecution authorities (and by the police), so that the implementing regulations issued by the Federal Council would be limited to filling out the details 4 . Not the least attraction of this approach is that it would offer the possibility of extending procedural decriminalization, on a clear legal basis, to the cultivation, purchase, storage, possession etc. of medium/ large quantities – activities which are antecedent to the small- scale retailing which would be tolerated under such a system. In this way the inconsistencies and weaknesses of the Dutch approach on this point (see the final part of section 4.1.1.2 above) could be avoided. Decriminalization by means of the expediency approach does not – as the example of the Netherlands demonstrates – constitute a breach of international obligations assumed under the Single Convention of 1961. A number of difficulties (albeit of a formal nature) arise, however, in relation to the Vienna Convention of 1988 (which has not yet been ratified by Switzerland), Article 3( 6) of which requires contracting states to endeavor to ensure that any discretionary legal powers are exercised 'to maximize the effectiveness of law enforcement measures' with due regard to the need for deterrence. This point could be dealt with by means of a reservation, however, as was done by the Netherlands.

4.2.5 Conditions to be met by models for change

The most important condition that has to be satisfied by the models described under section 4.2 is compatibility with the relevant United Nations Conventions. Note that these Conventions accord no special status to cannabis. The Conventions of 1961 and 1971, however, do not specify in any detail how the basic prohibition is to be enforced in law and in practice. The severity of penalties and the way the legislation is operated is left up to the signatory states. Only the list of offences to be established is mandatory. The substantive or procedural decriminalization of consumption and of preparatory activities are compatible with these Conventions. The 1988 Convention, however, unlike the 1961 and 1971 Conventions, explicitly requires signatory states to make criminal offences of the possession, purchase or cultivation of narcotic drugs or psychotropic substances for personal consumption. This means that while consumption itself does not have to be prosecuted, the preparations for personal consumption do. If such offences are no longer to be prosecuted, a reservation will have to be made to the 1988 Convention.

1 Albrecht, 1995, Art. 19 N. 10; Art. 19a N. 47; Art. 19b N. 8 (on the related issue of determining what is a 'small quantity'); Killias, Vorschläge betreffend die Verankerung des Opportunitätsprinzips im zukünftigen Betäubungsmittelstrafrecht, 23.11.1998, II. ff.; vgl. auch BGE 124 IV 184 ff.

2 This topic and the following are discussed in detail in Killias/ Grapendaal, 94 ff; Rüter 1988, 385 ff; 1992, 147 ff.

3 Report of February 1996, page 49 ff.

4 This is similar to the approach suggested by Killias/ Grapendaal, page 103 ff., whose proposed legislation, however, would not meet these criteria. On examination, it contains neither a general clause empowering the Federal Council to make regulations concerning the non- prosecution of categories of offences i. e. not just in the specified cases, nor is it drafted broadly enough, if the category of such offences is meant to be closed. The condition that 'solely consumption or dealing in small quantities is involved' is not satisfied in the case of commercial retail outlets or coffee shops. Their 'dealing' necessarily involves purchasing and stocking – and perhaps growing – quantities which can be substantial – violations which, under this proposal, would be liable to be dealt with severely under existing law, with a minimum sentence on conviction of one year’s imprisonment (Article 19( 2)( b): offence committed by a member of a criminal gang; Article 19( 2)( c): professional dealing‚ with a large turnover‘ or a ‘substantial profit‘”).

Literature

Albrecht P (1995). Kommentar zum schweizerischen Strafrecht, Sonderband Betäubungsmittelstrafrecht, Art. 19- 28 BetmG, Berne

Büttner Th (1997) Eine verfassungsrechtliche Bewertung des Betäubungsmittelstrafrechts, Bern/ Frankfurt/ New York

Jenny G (1992), Strafrecht in der Drogenpolitik: eine kritische Bilanz, in: Böker/ Nelles (Hrsg.), Drogenpolitik wohin? 2 nd edition Berne 1992, 167 ff.

Jenny G (1997) .Weichenstellungen in der Drogenpolitik, in: Schweiz. Arbeitsgruppe für Kriminologie, Drogenpolitik - Beharrung oder Wende, Chur/ Zurich 1997, 293 ff.

Killias M, Grapendaal M (1997). Entkriminalisierung des Drogenkonsums oder Einschränkung der Strafverfolgungspflicht? in: Schweiz. Zeitschrift für Strafrecht 115 94 ff.

Nestler C (1998). Betäubungsmittelstrafrecht. Bürgerautonomie und Drogenkontrolle durch Strafrecht, in: Kreuzer (Hrsg.), Handbuch des Betäubungsmittelstrafrechts, Munich, 697 ff.

Rüter F (1988). Die strafrechtliche Drogenbekämpfung in den Niederlanden. Ein Königreich als Aussteiger? in: Zeitschrift für die gesamte Strafrechtswissenschaft, 100, 385 ff.

Rüter F (1992). Drogenbekämpfung mit wenig( er) Strafrecht. Niederländische Erfahrungen der letzten 20 Jahre, in: Böker/ Nelles (Hrsg.), Drogenpolitik wohin? 2 nd edition Berne, 147 ff.

Schultz H (1972). Die strafrechtliche Behandlung der Betäubungsmittel, in: SJZ 68 (1972) 229 ff. Schultz H (1973). Zur strafrechtlichen Behandlung der Betäubungsmittel, in: SJZ 69 (1973) 65 ff. Schultz H (1991). Zur strafrechtlichen Behandlung der Betäubungsmittel. Eine kriminalpolitische Skizze, in: Studi in memoria di Pietro Nuvolone, Milan, 233 ff.

4.3 Models of legal availability of cannabis and THC products

4.3.1 Introduction and overview

The common feature of the models discussed in this section is that they all, in one form or another, would abolish the existing prohibition of cannabis and introduce legal availability for the plant, its products or its active constituents (in particular 9 -Tetrahydrocannabinol THC). Comprehensive proposals for such models are to be found in the report of a UK experts group (Logan 1979) and in the proceedings of the London Cannabis Conference of 1998 (Single 1998). None of these existing surveys contains all the possible options, such as are presented here. The most radical model treats cannabis like any other commercial good, albeit one subject to regulations and taxes, but the production, sale and purchase of which are not subject to any special authorization or restriction. This most radical variant is not at the forefront of the legalization debate. Other models involve control mechanisms which operate either at the level of the producer/ vendor or consumer/ purchaser. The purpose of the control mechanisms is to prevent or at least to minimize any adverse consequences of legalization. Examples of adverse consequences would be an overall rise in consumption, an increase in harmful forms of consumption, an increase in health and social problems and a higher endangerment of especially vulnerable groups. Whether and to what extent the controls envisaged are capable of averting adverse consequences of this kind is discussed in Chapter 5 below. The common denominator of all the proposed control measures is the introduction of an authorization requirement for production, dealing and/ or purchase. In the case of a medical prescription, the authorization function is reserved to medical practitioners, with or without special provisions. The licensing model is also based on authorization, the issuing of which can be subject to special conditions the fulfillment of which is capable of being monitored. Restrictions could also be imposed in relation to the purchase of cannabis products. Even free availability could be subject to conditions.

On the basis of a systematic analysis, the following models of legal availability arise for consideration:

Doctor’s prescription (see section 4.3.2) 
- for medicinal purposes 
- for non- medicinal purposes

Dealing subject to authorization (licensing);( see section 4.3.3)
- with or without technical qualifications 
- with or without proof of need 
- with or without restrictions on sale 
- with or without product requirements 
- with or without taxation/ retail price maintenance 
- with or without advertising restrictions

Purchase subject to authorization (see section 4.3.4)
- with or without age limit 
- with or without proof of residence 
- with or without exclusion of persons at risk 
- with or without maximum quantity limits 
- with or without registration of purchasers 
- with or without logging of purchases

Free availability (see section 4.3.5)
- with or without restrictions on sale 
- with or without product requirements 
- with or without taxation/ retail price maintenance 
- with or without advertising restrictions

Cultivation (see section 4.3.6)
- with or without mandatory notification 
- with or without requirement of authorization 
- with or without specified maximum quantity

4.3.2 Prescription of cannabis by medical doctors

Medical prescription of cannabis constitutes a special case. As a rule, what is meant here is prescription for medicinal purposes, that is, the therapeutic use of the active constituents of cannabis in the treatment of certain medical conditions. This topic is dealt with in section 2.5. The idea of a medical prescription for non- medicinal purposes is a very recent one that has been put forward as an alternative to the present prohibition of hashish.

4.3.2.1 Medicinal use
See section 2.5.2

4.3.2.2 Non- medicinal use

There have been isolated calls for medical doctors to be permitted to prescribe cannabis for purposes other than therapeutic ones. The advocates of this approach argue that it would allow information and advice to be given to users regarding the negative effects of cannabis use and enable such effects to be promptly detected and dealt with. Such proposals have hitherto been rejected on the ground that prescription for nonmedicinal use is inconsistent with the function of a medical doctor. Perhaps a more acceptable variant would be to permit cannabis to be supplied only to individuals who have undergone a medical examination and received medical advice. This idea is looked at under restrictions on the right to purchase (see section 4.3.4.).

4.3.2.3 Conditions for medical prescription

The prescription of cannabis or active constituents of cannabis for medicinal purposes presupposes that the products in question are registered as medicines and that the permitted indications are specified. In Switzerland such registration would have to be applied for to the Intercantonal Office for the Control of Drugs (IKS), on the basis of a file prepared in accordance with Good Clinical Practice guidelines. Medical prescription for non- medicinal purposes would entail the authorization of all or selected medical doctors for that purpose. In addition, the Swiss Narcotics Act would need to be amended accordingly and a reservation would have to be made to the United Nations Convention of 1988.

4.3.3 Licensing of dealing

Lawful availability of cannabis products can be provided in a controlled manner by introducing an authorization requirement for their importation, production and supply. The grant of such authorization can be made subject to certain conditions, compliance with which is monitored and failure to comply with which can mean loss of the license. Possible parameters and criteria for the grant of such authorizations are discussed in the following sections.

4.3.3.1 Limitation of the number of licensed outlets

In order to guard against an increase in the volume of consumption of cannabis products, the number of importers/ producers/ sales outlets could be restricted. This could be done, for example, by allocating quotas or by requiring proof of need to be shown. But instruments of this type would run counter to the general contemporary trend towards trade liberalization and are being done away with in the case of other dependency- causing substances (alcohol, for example). Moreover, the criteria to be used for fixing quotas or for the proof of needs are a contentious issue. Another means of limiting the number of dealers would be to require specialist knowledge and professional expertise from prospective licensees. This would help to ensure that the businesses are properly managed. Another possibility would be to require a certificate of good character as a condition of eligibility for a license. But here again the general trend appears to be moving away from requirements of this kind. One concrete proposal originating in Schleswig- Holstein, Germany, involves using pharmacies as distribution outlets for cannabis and cannabis products. Under such a system, its proponents argue, purchasers would be given proper advice and the products would be handled expertly. This is the only proposal yet to have been worked out in detail as a practical project to be carried out under scientific monitoring (Raschke and Kalke, 1997). It was drawn up following the approval by the Conference of Health Ministers of the German Federal States of the implementation of a model trial in November 1995. The reason why pharmacies were chosen as delivery points, apart from the pharmacists‘ specialist expertise, was the fact that coffee shops, tobacconists, public health offices and drug counseling units – which were the other candidates considered – were judged unsuitable (the first two because they failed to meet the criteria for participation in a scientific trial, the public health offices because they are viewed with suspicion by drug users and drug counseling units because they are too close to the drugs scene and to users of hard drugs). The project is scheduled to run for five years, minors are excluded from taking part and measures have been put in place to prevent abuses. A question still to be resolved is where to source the cannabis for this pilot project (both cultivation and purchase are seen to pose difficulties). Finally, enthusiasm for the project among the pharmacists concerned is apparently limited. Similar arguments could be put forward in support of permitting the sale of cannabis in drugstores, for example: drugstore personnel have training in handling toxic substances and experience in advising customers, skills which are not generally found in hemp shops. A perceived difficulty with all these proposed solutions, however, is that the vendor would have a commercial interest in maximizing sales; the only way of avoiding this would be for the distribution outlet to receive a fixed fee for its services, irrespective of the quantities sold.

Special restrictions on distribution outlets could include, for example, the prohibition of cannabis selling in highway restaurants (by analogy with the ban on alcohol in such outlets) or in school shops and recreation centers for young people.

4.3.3.2 Product requirements

In Switzerland, at present, it is lawful to cultivate cannabis plants with a THC- content of less than 0.3 percent and to sell food products having a THC- content of less than 0.3 percent. In similar fashion, a maximum THC- content for legally available cannabis products could be laid down. The rationale for doing so is that very high- percentage and concentrated forms present a significantly increased risk of adverse health consequences for the user. Further product requirements could relate to the quantity per packet, health warnings to be displayed on packaging etc. Special quality specifications could also be considered. Another issue to be considered under the heading of product requirements is whether all product formats should be permitted or not. To allow the sale of cannabis cigarettes manufactured on an industrial scale would be to run the risk of an increase in the volume of consumption: preparatory activities would no longer be necessary, a new and lucrative market would open up for the tobacco industry, suppliers would spend heavily on advertising and the hashish cigarette would acquire the status of a 'normal' consumer product. This is what happened when industrially produced tobacco cigarettes came on the market.

4.3.3.3 Taxation and retail price maintenance

By analogy with other potentially addictive substances, the sale of cannabis products could be taxed and thereby become a source of revenue for the State. Among the points in favor of such a measure are the fact that the consequential costs of drug consumption have to be met out of public funds and the argument that the higher prices caused by the effects of taxation would have a preventive effect. Retail price maintenance in the form of a minimum price could also be prescribed.

4.3.3.4 Advertising restrictions

The advertising of potentially addictive substances has been a subject of contention for many years. All- out bans on such advertising have been proposed on several occasions but have never been passed into law. Advertising restrictions have however been introduced, such as the ban on the advertising of addictive substances on radio and television and, in certain circumstances, on public property. Were cannabis products to be made legally available under a licensing scheme, consideration would have to be given to a total prohibition of advertising. This would constitute an additional argument against the authorization of manufactured cannabis cigarettes, as an advertising ban would be virtually impossible to enforce in respect of such products.

4.3.3.5 Licensing without restrictions or taxation

The possibility of licensing the sale of cannabis without restrictive measures and without taxing the product is conceivable but has little in its favor. Of course, a license that has been issued could subsequently be withdrawn, in cases, for example, where the licensee was found to have sold adulterated products or was at the same time dealing unlawfully in prohibited substances. Given that making cannabis legally available is not without its attendant risks, the feasibility of restrictive and fiscal measures in relation to the licensing option will have to be studied carefully.

4.3.3.6 Requirements for the implementation of licensing models

The first requirement would be to amend the Swiss Narcotics Act in order to remove cannabis and cannabis product from the lists of banned or prescription- only substances. Licensing models are not compatible with Switzerland’s obligations under the United Nations Conventions. At national level, legislation would have to be enacted laying down the rules governing the grant of licenses and the taxation provisions.

4.3.4 Controlled purchase

An quite different strategy from supply control measures consists of imposing controls on the purchase of cannabis products. The two strategies can be used in combination. Purchase controls involve placing limitations on the quantity that may be purchased and restricting the category of persons authorized to make purchases or requiring that such persons to be registered. Common to all such models is that purchase authorization is not issued unless certain conditions are fulfilled. As a consequence, any person wishing to purchase cannabis products must apply for the necessary authorization and furnish proof that he or she satisfies the conditions laid down.

4.3.4.1 Rationing

Under this model a limit is placed on the quantity of cannabis products that can be purchased in a given month. Detailed proposals as to how such a rationing system would operate have not been produced. Such proposals would have to contain a realistic method for determining the permissible quantity and both for individual products and for the total purchase volume. A rationing scheme would also require eligible purchasers to be issued with counterfeit- proof purchase vouchers or for purchases made to be recorded in a central register. In both cases the administrative workload entailed would be quite considerable. Furthermore, in order for the rationing model to work there would need to be a credible notion as to what is the critical limit for regular consumption of cannabis products. Unlike the case of alcohol and tobacco (for which approximate values are known for the daily intake levels which can be consumed without serious risk of damage to health), a credible safe limit has yet to be put forward in the case of cannabis products.

4.3.4.2 Restriction of the right to purchase

It is known from cannabis research that certain groups of persons are more vulnerable than others when using cannabis products, particularly when the use is intensive. These include the young, pregnant women, individuals having a tendency towards paranoid psychoses and in particular those suffering from chronic paranoid psychoses, and finally individuals suffering from heart and lung disease (Kleiber and Kovar 1998, Gowing et al 1998, Hall 1998, Hall and Solowij 1998). For their protection and in order to limit the harmful potential, these persons would have to be denied the right to purchase. If a rationing scheme were to be adopted, another possibility would be to reduce the ration of cannabis products issued to these groups of persons. The research also indicates, however, that the adverse mental health effects brought on by cannabis consumption are to a large extent determined by personality factors. But these personality factors are not amenable to sufficiently clear and conclusive diagnosis as to provide a scientifically tenable basis for imposing restrictions on purchasing rights. Further research in this area would be necessary. For such groups, examination by a medical specialist would be a condition for the granting of a purchasing entitlement. However, the examinations would need to be repeated at regular intervals in order to allow detection of factors such as pregnancy and recent onset paranoid psychoses, for example. Whether provisions of this nature could be implemented must be regarded as doubtful. There are no comparable provisions in force for other addictive substances such as alcohol and tobacco, although it has been proven that these also involve significantly higher risks for vulnerable individuals. But the provision of information and advice to individuals belonging to these categories is an acceptable alternative.

4.3.4.3 Registration of purchasers

The idea behind this model is that although everybody can apply for and receive a purchasing entitlement all purchases will be recorded. Particularly frequent and large purchases would attract attention. In police investigations of illegal cannabis dealing the volume of purchases made by an individual could be scrutinized and that individual’s purchase rights withdrawn.

One variant would be, for example, that purchases would be logged only at the sales outlet; the purchase records would have to be transparent, however, in order to facilitate investigations by public health officials and the police. Another possibility would be to have central registration of purchases. The most suitable center would appear to be the official agency which issues the purchase entitlements. The entitlement cards could be issued without personal data but with an identification number which would be recorded each time a purchase is made. In this way, only the official agency would have the means of identifying the individual in question.

4.3.4.4 Purchase entitlement without rationing or registration

If everybody were entitled to purchase cannabis products, with no restriction applying to particular groups of individuals, with no quantity limitations and with no registration, then there would be little point in requiring users to apply for a purchase entitlement.

4.3.4.5 Prerequisites for controlled purchase

As with the licensing models, all forms of legalized purchase would require the drugs legislation to be amended appropriately in respect of cannabis and cannabis products and an exception would have to be made for cannabis when ratifying the United Nations Conventions. In addition, it would be necessary to create the statutory basis for measures restricting the right to purchase. Finally, if a rationing scheme were to be adopted, a declaration obligation for cannabis products would have to be introduced.

4.3.5 Free availability

Free availability denotes a situation in which no special authorization is required either for the importation, production or supply, and no purchase entitlement is necessary for the purchase of cannabis products. But even free availability may be subject to certain requirements, on matters such as product characteristics, advertising , pricing and taxation. Restrictive measures of this kind are common practice in the case of many potentially addictive substances, such as alcohol, tobacco and habit- forming medicinal drugs, for example. The exceptions are solvents and other commercially available intoxicating substances.

4.3.5.1 Product requirements

Basically, the same product requirements are involved as those looked at under section 4.3.3.2: a maximum limit for the content of psychotropic constituents (particularly THC), clear marking and health warnings on the packaging, other quality requirements. In this case too, consideration would need to be given to a prohibition of the industrial manufacture of cigarettes with THC content, in order to prevent consumption levels being driven up.

4.3.5.2 Fiscal measures

Both the taxation of the products and the setting of minimum prices would need to be considered under this heading, along the same lines as discussed under section 4.3.3.3.

4.3.5.3 Advertising restrictions

As discussed under section 4.3.3.4 above, an advertising ban or at least some effective form of advertising restrictions would need to be looked at. This applies in the case of free availability just as much as under the licensing model.

4.3.5.4 No restrictive regulations and no taxation

This constitutes the most radical variant of the legalization of cannabis products. It has not hitherto attracted much serious consideration, since every form of legalization seeks to find a reasonable compromise between the drawbacks of prohibition and those associated with unrestricted marketing.

4.3.5.5 Prerequisites for the introduction of free availability

Once more the necessary legislative amendments would have to be enacted, both to permit legal availability and to introduce the necessary restrictions.

 

4.3.6 Cultivation

For the cultivation of cannabis plants all variants between the two following models are conceivable.

4.3.6.1 Cultivation permitted for personal consumption

This would necessitate stipulating what quantities of hemp plants could be grown for personal use.

For their own self- supply adults are permitted to grow a maximum of 10 plants of the drug type on their own land or in their own home.

4.3.6.2 Strictly regulated cultivation

Legislative action would be required in order to give the Federal Government control over cannabis products and empower it to raise taxes from the growers.

The Federal Government has a monopoly over the entire hemp market. Commercial production, processing, supply and distribution are allowed only with a license issued by the State.

The Federal Government stipulates the total area under cultivation, quality standards, prices and taxes.

The Federal Government controls the quality of all products and carries out research, both of which are paid for by the producers and suppliers.

The areas under cultivation are allocated to selected operators according to criteria of agricultural policy and security.

Outside of the selected operators in these valleys all commercial cultivation of cannabis is prohibited, with the exception of limited cultivation for self- supply (see above).

The Federal Government issues market licenses to suitable operators in accordance with strict safety and quality criteria.

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