Martin Jelsma / TNI – 25 November 2020
1) Main positive impact: WHO recognition of medicinal properties of cannabis
Whether or not recommendation 5.1 (deletion from Schedule IV) will be adopted, the WHO has finally and clearly decided that there is sufficient evidence for the medical usefulness of cannabis, both in the form of the plant material itself and in the form of preparations based on extracted cannabinoids.
In strictly legal terms this is not a major change, because the recommended prohibition of cannabis including for medical purposes, that comes with Schedule IV substances, was never obligatory. But it still makes a big difference, because until today there has been a UN treaty that explicitly advises NOT to use cannabis for medical purposes. The WHO has now given an unequivocal sign of support for medical cannabis programmes and if this recommendation is adopted by the CND, the treaty will no longer advise against it either. Argentina is a good example, as last week the government issued a decree authorizing sales and self-cultivation of cannabis for medical use, and the justification explicitly refers to the outcome of the critical review and the WHO recommendation to delete cannabis from schedule IV. The argument used remains valid even if the vote on 5.1 does not pass. Because a vote is not necessary to ratify the scientific conclusions of the Expert Committee, a rejection by vote does not invalidate the assessment that there is sufficient scientific evidence to prove that cannabis is an effective medicine (at least for a number of medical conditions). That conclusion reached by the WHO experts stands no matter how the political vote turns out in the CND.
The main consequence of a rejection therefore, is that it shows clearly that the CND is too politicised, is out of touch with science and reality, and incapable of modernising the UN drug control system in accordance with the latest evidence. It would also show disrespect for the WHO mandate, because recommendation 5.1 is purely based on medical-scientific analysis, which is exclusively WHO’s treaty mandate and an area where the CND is not permitted to draw contradictory conclusions. The same is not true for all the other recommendations, which can be legitimately challenged on the basis of legal, social, economic and administrative reasons. The CND is allowed to consider these other factors when deciding by vote to accept or reject the WHO recommendation, or in the case of the 1971 Convention even decide to place the substance in another Schedule than the one recommended by the WHO.*
Apart from questioning the evidence presented by the WHO, the other main reason given by Member States in the topical or intersessional meetings when announcing that they will vote against 5.1, has been the fear that the deletion from Schedule IV would “give the wrong signal”, and would be perceived as a conclusion that cannabis is less harmful than previously thought. According to the nay-sayers, that wrong signal would result in an increase in recreational use, especially among the youth. However, there has been scant evidence that cannabis use significantly increased after the introduction of medical cannabis programmes. In that sense, the recommendation is not only meant to bring the Schedules up to speed with the latest scientific evidence, but also to align the treaty with policy practices that are already in place in the 50+ countries with medical cannabis programmes and which continue to spread across the world.
2) Main negative impact: cannabis remains in Schedule I
It has been clear from the start that cannabis will remain in Schedule I, because the WHO recommended to keep it there, and no vote was required on this “recommendation 5.0” to reconfirm its Schedule I status. Indirectly, the vote on the recommendations to transfer THC from the 1971 to the 1961 Convention, however, is a vote on “5.0” as well, because the only reason given to place THC in Schedule I is the fact the cannabis itself remains there. We have argued elsewhere
that keeping cannabis in Schedule I is not a logical conclusion from the outcomes of the expert critical review, which concluded that cannabis was less harmful than most other substances on that list. There are at least three negative fall-outs from this non-decision:
(1) It shows that the role of the WHO within the scheduling procedure itself is compromised ―or influenced― by other considerations beyond the medical-scientific arguments, which are solely meant to weigh the medical benefits against the potential harmfulness on the basis of the latest available evidence. Of course, a recommendation to de-schedule cannabis to Schedule II or to even delete it from the treaty schedules altogether, would never have passed the required simple majority vote. But the fact that political considerations appear to have already slipped into the process at the stage when the WHO elaborates its recommendations, is highly worrying and a bad precedent for future scheduling decisions.
(2) The recommendation to keep cannabis in Schedule I has also demonstrated more clearly than ever that the Single Convention is too blunt an instrument to deal with nuances in the control regime. The 1961 treaty’s zero-tolerant nature and its basic premise that raw plant materials and extracted concentrated psychoactive compounds have to be placed under the same level of international control, has left the WHO with very limited options. A more logical scenario, for example, would have been to introduce a new category of high potent extracts, products like butane hash oil with up to 80-90% THC, and recommend keeping those in Schedule I, because those are the only cannabis-related substances for which the WHO did find significant health risks that could justify such strict international controls. Following on from the findings of the critical review, cannabis and resin could then be down-scheduled to Schedule II or even be taken out of the lists altogether. This option could not be considered, as the WHO has recognised, because it would contradict the ‘nature’ of the Convention, referring to the same distorted treaty logic that lies behind the decision to control the coca leaf as strictly as cocaine.
(3) A third reason why we think keeping cannabis in Schedule I has very negative repercussions, is that it represents a failed opportunity to correct an historical error that has had devastating consequences for millions of people around the world. As we have argued in detail elsewhere
, the inclusion of cannabis in the Single Convention was rooted in colonial attitudes towards non-western cultures and fundamentally racist arguments. The WHO at the time, in the 1950s, bore a lot of responsibility for that decision and could have used this as an opportune moment to reflect on its own tainted history in this regard, especially at a moment when decolonisation, anti-racism and indigenous rights have gained so much prominence on the international agenda. In addition, until now it could be argued that treating cannabis the same as heroin and cocaine ―instead of on a par with alcohol and tobacco for example― was based on colonial and racist attitudes, and it was merely difficult to change because of a political stalemate at the UN level. However, going forwards, there will be an unfortunate assumption that the presence of cannabis in Schedule I is based on a thorough WHO assessment of the latest scientific evidence, based on the first ever critical review. So, while more and more countries are questioning the original motivation of cannabis prohibition and are moving towards legal regulation, the prohibition of cannabis at the UN level only becomes more entrenched supposedly based on medical-scientific arguments and will therefore be more difficult to question in the future.
This whole point would be made worse and reach new levels of hypocrisy if the US (one of the countries rapidly moving towards ending cannabis prohibition, now in 15 States) manages to rally support of countries to sign up to their proposed “Explanation of Vote” (EoV), which states that the whole WHO cannabis review process has only confirmed the global consensus to keep cannabis firmly under the strictest international controls. Anyone signing up to this nonsensical hypocrisy just for the sake of keeping the ‘semblance’ of a Vienna consensus alive, can expect to be called out and ridiculed by the media and civil society. Instead, countries should consider their own honest reflections in post-vote EoVs.
3) Consequences for CBD control
The third and final issue where there could be some worrying fall-out and urgent need for follow-up discussions, is the confusion the whole process has left with regard to international control of CBD-rich cannabis extracts. The footnote proposing a 0.2% THC threshold for CBD preparations will not be adopted, and for good reasons, as adopting that in its current form would also have had serious negative repercussions. The confusion has only grown in the course of the discussions, because of the ambiguous opinions expressed by especially the INCB but also by the WHO on some aspects.
The WHO has replied to Member States’ questions that CBD extracted from cannabis cultivated for industrial purposes is not under international control. In the critical review report on CBD, however, the WHO also writes that "Cannabidiol that is produced as an extract of cannabis is currently included in Schedule I of the 1961 Convention." This appears to support the interpretation that CBD made from the flowering tops is under international control, and even leaves a certain ambiguity as to whether this is also the case for the flowering tops of 'hemp' since the treaty makes no distinction whatsoever between 'hemp' and other cannabis varieties. Only the purpose of use matters, not the specificities or the cannabinoid profile of the cultivar. The INCB goes much further, by taking a very narrow ―and strongly contested― treaty interpretation claiming that only ‘fibre and seed’ are legitimate industrial purposes, and that all CBD (except maybe if extracted from the leaves, which are exempted from control under the Single Convention) should be considered to be under international control as ‘extracts’ of cannabis, also because they contain THC, however small the amounts. That interpretation, initially followed by the European Commission, would declare most CBD products currently on the market to be ‘drugs’ subject to international treaty control measures.
The WHO had hoped to resolve the differences and ambiguities by deleting ‘extracts and tinctures’ and by adding a footnote saying that CBD preparations with less than 0.2% THC are not under international control. Deleting “extracts and tinctures” will be helpful, and as mentioned earlier there is still a chance that 5.4 will be adopted next week, but it will not be enough to resolve the matter, and the footnote definitely will not be approved. The difficulties with the footnote are many-fold, especially since it was clarified in the Q&A that the 0.2% threshold does not refer to the actual preparation/mixture, but would have to be measured on the basis of the THC content of the dried plant raw material used to make the preparation. In that way, indirectly or de facto, the WHO has basically tried to introduce a THC threshold for hemp, because most CBD on the market is derived from hemp.
The EU common position is now to reject the footnote as it currently stands, for valid reasons, but to ask the WHO even explicitly to come up with a new recommendation for a THC threshold for hemp. It is questionable, however, whether it falls within the WHO mandate to introduce a global definition or threshold for hemp, even less so via the backdoor of a footnote to the Schedule. If a threshold were to be introduced in the future, which could also be done by a CND resolution, for example as proposed by the US, the arbitrarily proposed figure of 0.2% by the WHO is simply too low and it conflicts with THC thresholds already in use for various CBD products in several jurisdictions, which vary between 0.2-1%.** More likely, the issue will be resolved by legislation and rulings at national and regional levels gradually converging over time, like the recent ruling of the European Court that CBD cannot be regarded to be a ‘narcotic drug’.
The critical review report on CBD itself is very clear and concludes that CBD should not be under any international control. But now that the WHO scheduling recommendations have not led to more clarity on the matter of CBD extracts and trace amounts of THC, and the INCB continues to defend a very narrow treaty interpretation, this has become an urgent matter to resolve in the near future, because the confusion has brought the CBD market and hemp industry in serious disarray.
*Neither treaty allows the CND to schedule a substance without an explicit WHO recommendation to do so, contrary to the UNODC scheduling brochure which claims erroneously that in the case of the 1971 Convention the CND could still place a substance ―in this case f. ex. CBD― by two-thirds majority vote on a Schedule even if the WHO has recommended not to place the substance under international control, as the WHO concluded for CBD.
**There is no scientific definition for ‘hemp’ or a globally recognized standard for defining the maximum THC concentration allowed in cannabis cultivated for industrial purposes. In fact, only the EU and some African countries currently apply a 0.2% THC threshold for hemp; and in the EU there is an initiative in the European Parliament to increase it to 0.3%, the same level established in the US by the 2018 Federal Farm Bill. The hemp industry in the US and Europe, however, is lobbying for a 1% threshold, the level already in use in, for example, Australia, Uruguay, Colombia, Ecuador and Switzerland. The problem with a lower threshold is that even when using standardized seeds the exact level of THC content depends on the climatological conditions during the cultivation period, the precise moment of harvest, the storage temperature, etcetera. To maintain a threshold of 0.2% requires sophisticated cultivation, harvesting and storage techniques and regular -expensive- testing, and will inevitably lead to destroying part of the harvest that tests above the threshold. Additionally, hemp cultivars with the lowest THC level around 0.1% usually also contain much less CBD compared to varieties with slightly higher average THC levels (e.g. around 0.5%), resulting in considerable lower CBD yields from the same amount of plants. All these represent additional production costs that only big producers can afford. Especially small farmers in the South (where the often warmer climate produces greater variations in THC content) will be unable to enter the legal market under such conditions.