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Legal aspects of marijuana use

Country report – Spain

written by: Ricardo Navarrete-Varo
Last update September 2018 

LAW

The international treaties established in the Single Convention of 1961 were ratified by Spain in 1967, controlling the cannabis and classifying it as a narcotic drug. Despite this, this classification does not prevent the production, manufacture, export, import, distribution, trade, use and possession of cannabis from being carried out as long as it is carried out for "medical and scientific purposes" (Single Convention, Article 4 ). This is what is corroborated by Spanish Law 17/1967, which with respect to cannabis admits "authorized therapeutic, scientific and teaching uses in accordance with this Law". In addition, Royal Decree 1/2015 allows the sale of plants traditionally considered medicinal.

Until 2014, internationally, each medical cannabis program was developed according to the criteria that each State considered convenient. In order to unify criteria that were in line with the 1961 Convention, in 2014 the International Narcotics Control Board (the United Nations body responsible for the control and monitoring of the distribution of narcotics at the international level), established , through its annual report, the "Control measures applicable to programs for the use of cannabis for medical purposes under the 1961 Single Convention on Narcotic Drugs" (points 218-227) (INCB, 2014). In that report, the INCB reiterates that "The Single Convention on Narcotic Drugs amended by the 1972 Protocol limits the use of narcotic drugs, including cannabis, for medical and scientific purposes" (point 218); and that "The Single Convention allows States parties to use cannabis for medical purposes" (point 219). Thus, "States wishing to create programs for the use of cannabis for medical purposes that comply with the requirements of the Single Convention should establish a national cannabis body responsible for overseeing and supervising the cultivation of the cannabis plant and issuing licenses with that end "(point 221). The aforementioned Narcotics Law of 1967, in fact already contemplates that "an integrated and complete legislative system in the matter must revolve or be sustained on (...) an administration by the public sector, meticulous and total, of the narcotic drugs". Since then, the control of this legislative system has belonged to the Narcotics Control Service (today called the Narcotics and Psychotropic Area of ​​the Department of Drug Inspection and Control), an organization created in its day for that purpose and today attached to the Spanish Agency of Medicines and Health Products (AEMPS). Then, without prejudice to the creation of a special organism for the control of cannabis in an eventual medical cannabis program in Spain, the body that the INCB requests in its 2014 report does in fact already exist in our country.

Regarding research with cannabis or derivatives, it is the 1967 law itself that establishes it: scientific use is allowed. To investigate, it is necessary to carry out clinical trials authorized by the AEMPS. In this sense, apparently, there are no restrictions other than the logistic and economic ones of any clinical trial.

In this regard, the Spanish health authorities (AEMPS) recognize the therapeutic benefits of cannabis (for example, for multiple sclerosis), which is why Sativex® cannabis extract has been approved since 2010. To this we must add that the 2007 report of the National Plan on Drugs, under the Ministry of Health, acknowledges that "there is scientific evidence for its therapeutic use in the case of nausea and vomiting secondary to treatment with antineoplastics, loss of appetite in AIDS and terminal cancer and the treatment of neuropathic pain in multiple sclerosis ".

It is a public fact that at the beginning of 2018, in Spain, there are up to 20,000 hectares for the legal cultivation of marijuana. Health has granted permits to five companies, of 160 petitions, to grow cannabis for therapeutic and research purposes (date updated January 2018). The Spanish Agency for Medicines and Health Products (AEMPS) has authorized Alcaliber for the cultivation, production, manufacture, import, export, distribution and trade of Cannabis sativa and its products. The destination of cannabis and cannabis products obtained from these crops [extracts, tinctures, active principles such as cannabidiol (CBD), cannabinol (CBN), etc.] would be both the export and the manufacture of medicines in entities authorized by the AEMPS, conducting clinical trials authorized by this Agency or research purposes. Also, it has authorized DJT Plants Spain S. L. for the production and export of seeds and cuttings of cannabis plants. The cannabis species that this company grows is a variety of low THC content and high CBD content.

Taking into account the above, it should be noted that administratively in the Spanish State it would be possible to develop a medicinal cannabis program. Said program would be in accordance with the Law on guarantees and rational use of medicines and health products, in charge of establishing the parameters that a drug must meet to be considered a medicine. As specified in Article 51: "plants traditionally considered medicinal and that are offered without reference to therapeutic, diagnostic or preventive properties may be sold freely to the public, and street selling is prohibited". In this case, the traditional use of cannabis is easily demonstrated, so this circumstance would be very favorable in order to legalize access to medical cannabis.

Finally, drug use has always been decriminalized in Spain, although their possession and consumption on public roads can be fined with an administrative penalty of 600 to 30,000 Euros (Law for the Protection of Citizen Security). The possession of plants for consumption is not criminally prosecuted, although there is no specific regulation on the number of plants that a person can have for self-consumption. This legal vacuum regarding the provision of plants, plus the jurisprudence of the Supreme Court (TS) on shared consumption, have given rise to this special model of cannabis access known internationally as the Cannabis Social Clubs (CSC). Currently, it is estimated that there are about 800 in operation throughout the State.

JUDICIAL JUDGMENTS

Jurisprudence based on judicial decisions determines that the cultivation of cannabis for self-consumption is not a crime in Spain. However, apprehensions of small domestic plantations often occur. Most of them, if we talk about individual consumption, end in a) fines because the plants were somewhere visible from the public road, b) in the file of the proceedings by the judges, or c) with acquittals after the conclusion of the trial if it is verified that the purpose of the cultivation was the own consumption. To the foregoing, it should be added that there are few judgments that specifically refer to the therapeutic nature of the purpose of the crop. Despite the fact that in many cases those reported for cultivation had alleged that their use was for therapeutic purposes, court rulings do not usually go to assess the medical purpose of the same and are limited to ruling that there is no offense in cultivation for own consumption. In this sense it is worth mentioning some precedents:

In another order, at the end of 2017 the Constitutional Court (CC) annulled the Navarre Regional Law aimed at regulating cannabis clubs. The high court created a doctrine by which no autonomous community could legalize cannabis clubs throughout the Spanish territory. Also at that time the CC paralyzed the Catalan law that regulated the cultivation and transport of marijuana and remained pending to be resolved if it corresponded to the Constitutional order. It was no use arguing that these rules "establish a legal coverage for cannabis use activities invoking the legitimate exercise of a fundamental right, that of association". The combination of these TC resolutions affects very negatively the cannabis clubs, since they determine that their activity is criminal under the Penal Code and the autonomous communities can not do anything to avoid it due to the lack of legal competences.

More problematic is still the legal situation of the people responsible for CSC which affects the legal consideration of Social Clubs of Cannabis and the doctrine of "shared use" in which they are protected. The Supreme Court considers cannabis clubs in their standard form, with a large group of people and open to new incorporations, commit a crime at the moment they start to grow cannabis and distribute it among its members. And, the Constitutional Court has ratified it.

In addition to all this, and apart from the strictly judicial framework, we present below a brief list of different Early day Motion (EDM) of political groups of national scope that have been presented since 2017. These EDM are a type of proposals not binding, which, in this case, are dedicated to cannabis and urging the Central Government and the legislature to promote an in-depth debate on the subject.

National PNL's:

It could be added to this summary that the current political situation is complex. It is true that on the one hand these initiatives include the point of view of many parts of society that are in favor of updating the laws that affect cannabis, but certain parties can hinder the process. The Partido Popular (PP, who ruled till july 2018), for example, traditionally aligned with prohibitionist policies, is likely to put obstacles and, at the same time, in other remaining parties there is an internal debate that is far from clear. The political party with the most parliamentary representation and, at the same time, with a more explicit determination to regulate cannabis is Podemos. It can be said that there is still a long way to go, but that the amount and support of the proposals is very positive. 

3 - REALITY

In Spain, some 2.2 million people between the ages of 15 and 64 claimed to have used cannabis in the last month in surveys conducted between December 2015 and April 2016 by the Ministry of Health. It is about 7.3% of the population and contrasts with the 6.6% obtained in previous studies in 2013.

Since 2010, Sativex has been approved for the treatment of spasticity associated with multiple sclerosis as the only indication, although it can be used as a compassionate use for the treatment of other medical pathologies, mainly chronic neuropathic pain.

Regarding the support for regulation among the Spanish population, in 2014 a study was published showing that 47.8% defended that it could be sold in pharmacies or authorized places, and 6.1% was in favor of selling without restrictions. That is, there were already 53.9% of supporters to legalize the sale, compared to 46% who said they were against.

The initiatives of organized civil society that advocate cannabis legalization also increase. Along with the more than 800 cannabis clubs scattered throughout the Spanish territory, there are various platforms and movements that work to support proposals that regulate production and consumption, something that undoubtedly demonstrates the interest in the legal situation of the plant. Likewise, there are numerous seed and paraphernalia stores for cultivation (an estimated 1,200 throughout the State).

Going into the medical question, we find that in Spain there are many doctors, especially oncologists, pain units, rheumatologists, neurosurgeons and other specialists, who recommend out of consultation the use of cannabis. But these patients are still in the same legal as recreational users, meaning that patients are exposed to being fined for possession and to suffer the risks of a product lacking a minimum guarantee of quality

It is not possible to quantify the number of patients under treatment with cannabinoids in its different forms, but there is evidence that in addition to the patients under treatment with cannabinoids there are many who resort to the crop itself or to the donation by another grower or association of growers with relative tranquility. Different entities try to give voice to the collective: CANNABMED, Union of Patients for the Regulation of Cannabis, Spanish Observatory of Medicinal Cannabis.

A possible solution to modify the status of medicinal cannabis would be to regulate self-cultivation and to create a licensing system for controlled crops that guarantee the safety of the product (this being susceptible to be distributed in therapeutic clinics under state control and / or pharmacies). This reality, existing in other countries, shows that it is feasible to promote this kind of change, for which it is necessary to inform patients and those health professionals interested in knowing the medicinal properties of the plant. In addition to this, political will is needed, since a regulation does not contravene any national or international law, and can help improve the quality of life of thousands of people who can benefit from treatment through the use of cannabis and its derivatives.

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