Legalization of marijuana has been front and center on the Mexican legislative agenda since 2018. At that time, the Supreme Court ruled that laws prohibiting personal adult use of marijuana were unconstitutional. The court held that the two individuals who filed cases should be allowed to use cannabis for recreational purposes.
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This ruling was based on the premise that adults have a fundamental right to “free development of the personality” without state interference.[1] The court further ruled that this right is not absolute, that consumption of certain substances may be regulated, but by the same token, the effects of marijuana do not justify an absolute prohibition.
This was the fifth ruling on the same issue, making it binding precedent.[2] The Supreme Court instructed congress to enact laws and regulations for legal use of marijuana and imposed a deadline of October 31, 2019. At the time of this ruling the political climate seemed favorable for speedy legislative enactment. President, Andres Manuel Lopez Obrador was scheduled to assume power that December, and he had expressed approval of adult use legalization on the campaign trail. Added to that, his political party, the MORENA party, had also won a majority of Congressional seats.
However, speedy enactment did not happen. Instead, due to a struggle to reach consensus on legislation, Congress requested three times—and the Supreme Court granted three times—an extension of the deadline for legislation. As of this writing, the revised deadline is December 15, 2020.
As the saying goes, “If it weren’t for the last minute, nothing would get done.”[3] And, so just in the nick of time, perhaps, on November 19, 2020, the Senate passed a bill to legalize adult-use marijuana. The bill, which had been circulating for a while, was passed with a few last-minute amendments. The vote was 82 to 18, and seven abstentions.
The bill from the Senate Chamber (the “Origin Chamber”) was sent to the Deputies Chamber (the “Revisor Chamber”) for passage. Under normal circumstances, the Revisor Chamber has 30 days to discuss, revise and vote. If they approve on the same terms as the Origin Chamber, the legislation is sent to the President for signature. But, if the Revisor Chamber modifies the legislation, it returns to the Origin Chamber, or Senate in this case, and the process begins anew. Given the multiple delays and current deadline of December 15, the Chambers do not have the luxury of this full process, so all eyes are upon the Revisor Chamber.
The Senate bill establishes a cannabis market in Mexico, which is regulated by The Mexican Institute of Cannabis. Some of the fundamental provisions include allowing adults 18 and older to purchase and possess up to 28 grams of marijuana and to cultivate up to four plants[4] for personal use. Possession of more than 28 grams but fewer than 200 grams violates the law and is punishable by a fine, but no jail time. Public consumption is permitted except where tobacco use is prohibited and where people under 18 would be exposed (including some at home “should nots”). In an effort to incorporate a social equity component, the law provides that for the first five years after implementation, at least 40 percent of cannabis business licenses must be granted to those from indigenous, low-income, or historically marginalized communities.
Advocates for cannabis legalization are concerned by high penalties that could be imposed for violating cannabis laws. There is also a sentiment that more should be done to promote social equity. However, they think that Mexican legislators are receptive to requests for changes so remain hopeful – and active.
Stay tuned for an update on the final legislation in the near future.
Susan Burns, Attorney
S Burns & Associates LLC
[1] The Suprema Corte de Justicia de la Nación (SCJN) ruled on this case on October 31, 2018. [cite]
[2] In Mexico, the Supreme Court is required to rule five times on the same constitutional issue (5 amparos) before the ruling becomes binding precedent. There were two cases with the same issue brought before, and decided by, the SJCN, making the last one the fifth ruling, thus invalidating the federal law prohibiting recreational marijuana use.
[3] Rita Mae Brown, American writer
[4] Up to a maximum of six plants for households with more than one adult
Susan Burns of S Burns Associates is a business lawyer whose specialty is guiding small businesses that need steady or rapid growth strategies. This includes startups innovative industries such as small, sustainable food producers and industrial hemp producers.
Her career has focused on “doing well by doing good” and one of her guiding principles is “a bit of world-bettering is always encouraged.”
While completing her LL.M., Susan was a Legal Fellow for The Good Food Institute where she developed an interest in regulations on new food technology–particularly pathways for exporting cell-cultured food to Mexico.
Susan has leadership roles in the American Bar Association’s Section of International Law and is also a board member of the Minnesota Organic Advisory Task Force.
A Minnesota native, Susan earned her J.D. from Hamline University School of Law and her B.A. from the College of St. Benedict. She holds an LL.M. in Food and Agriculture Law from the University of Arkansas.
Susan Burns
S Burns Associates
612.306.4143
