Legal challenge of MoH on medical cannabis

A post by Russell Brown at Public Address asks Is the Ministry of Health acting outside the law on medical cannabis?

The key barrier to the use of medical cannabis – or to even discovering what its uses might be – has long been marijuana’s illegality under the Misuse of Drugs Act. But what if it transpired that a key component of cannabis is not, and has never been, controlled by the act? And that heavy restrictions on its use and importation are in fact taking place outside the law?

…it’s the subject of an intended legal challenge notified by Nelson lawyer Sue Grey.

From a letter from Grey to Associate Minister of Health Peter Dunne outlines her claim.


I write on behalf of various interests who seek urgent clarification of the legal status of Cannabidiol “CBD” under the Misuse of Drugs Act.

In summary:

  1. CBD is not explicitly scheduled under the Misuse of Drugs Act.
  2. CBD does not meet the statutory criteria under Section 3A for scheduling under the Misuse of Drugs Act1 as there is no evidence that it poses a very high, high or moderate risk of harm to individuals or to society.
  3. Information obtained under the Official Information Act and from the Ministry of Health website identify a significant disagreement within the New Zealand government officials over the status of CBD under the Misuse of Drugs Act.!!Some from the Ministry of Health claim CBD is indirectly covered by Schedule 2 (1)(2)2 as a Class B drug based on their assessment that it is “an isomer of tetraDhydrocannabinols” (THC). In contrast, the government’s leading expert analytical chemist, Dr Keith Bedford and his expert team at Crown Research Institute Environmental Science and Research, “ESR”, have published a paper explaining why THC is not within this definition, because CBD has a different chemical formula, structure and function to THC and accordingly it is not caught within the definition of “an isomer within the same chemical designation”
  4. Dr Bedford’s expert view has been made clear to the Ministry of Health and to his colleagues on the government’s Expert Advisory Drug Committee (“the EADC”). The minutes of the EADC’s April 2016 identify no scientific or legal reason why Dr Bedford’s view is wrong. It appears the different views relate solely to policy consideration and perhaps vested interests, although it remains unclear to me why some members of the committee would prefer to continue to treat CBD as if it is illegal. Clearly government policy cannot override the law that was written by Parliament, and in particular s3A of the Misuse of Drugs Act.

Grey also claims.

  • Medicines containing CBD are (in my view unlawfully) treated as if Ministerial approval is required under Regulation 22 of the Misuse of Drugs Regulations, resulting in considerable bureaucratic hoops and hurdles, delay in access and unnecessary cost for patients who are typically already very ill, and their families who are typically already very stressed.
  • The complex situation is compounded by the apparent policy of Medsafe (disclosed in documents obtained under the Official Information Act) to attempt to prohibit foods or other products which contain CBD from being sold as foods or dietary supplements, apparently because CBD is also scheduled under the Medicines Regulations. I can find no lawful basis for this policy and do not understand how Medsafe can reconcile this with the law or with the FSANZ proposal to approve the sale of hemp seed foods for human use.
  • I understand from other Official Information Act responses and from recent coverage on TV3’s Story (on the use of CBD as a supplement for managing Alzheimers by Mr Robinson, father of Nicky Evans) and other documentation that I have been shown, that NZ Customs have been instructed to seize products that contain CBD at the NZ border. This is despite the expert advice to the Ministry of Health that CBD has no known harmful effects to individuals or society and it is outside the scope of the Misuse of Drugs Act schedules.
  • The current policy of Ministry of Health, and adopted by NZ Customs to treat CBD as if it is covered by the Misuse of Drugs Act to try to justify the seizure of products which contain CBD, is in my view unlawful, unreasonable and unjustified as CBD is not covered by the Misuse of Drugs Act.

Grey asks for the Court to make declarations on:

A) CBD is not explicitly prohibited under the Misuse of Drugs Act

B) CBD has a different chemical formula and different structure and function to THC and accordingly it is not restricted as “an isomer within the same chemical designation as tetrahydrocannabinols”and is not covered by Schedule 2 of the Misuse of Drugs Act ;

C) CBD does not meet the criteria of section 3A for classification under the!! Misuse of Drugs Act, as it does not cause a very high, high or moderate risk of individual or social harm;

D) Products containing CBD do not require Ministerial approval to be prescribed or recommended under Regulation 22(1) of the Misuse of Drugs Act because CBD is not subject to that Act.!!Regulation 22(1) of the Misuse of Drugs Act does not apply or is being unlawfully applied to medicines and other products containing CBD

E) The actions of NZ Customs in seizing or restricting access into or out of New Zealand of products because they contain or may contain CBD is unlawful.

It will be very interesting to see how the Court deals with this, if it has to go that far. Brown posts:

Grey has received a response from Customs minister Nicky Wagner, explaining that Customs – which has been seizing medical CBD products at the border –  is guided by the advice of the Ministry of Health, which is that “CBD is a class B1 controlled drug as it is an isomer of tetrahydrocannabinol. Customs has acted on that basis.”

“How long do we have to wait? We’ve got people who are sick now,” Grey said. “They don’t want to have to wait another six months or two years for the advisory committee to align itself with what the law already says.

“I’m still hoping that the Minister of Health will get some control over his officials and ask what are you guys doing, why don’t we just listen to what the experts are saying and accept that it’s not covered by the Misuse of Drugs Act and it doesn’t need to be? Then we won’t need to go to court. But if they don’t come to that conclusion fairly quickly, then we will file in court.”



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  1. NOEL

     /  16th January 2017

    I’ve got no problem with the importation of medical cannabis but it must be issued on prescription from a small team of pain relief experts who have reviewed the patients history of chronic pain and concur with the patients request for alternate pain relief at the patients expense.

    I don’t want to see the US experience where someone gets a prescription from a dodgy GP for any excuse.

    • The most desperate use for medical cannabinoids is as “a potential medicine for the treatment of neuroinflammation, epilepsy, oxidative injury, vomiting and nausea, anxiety and schizophrenia, respectively.”

      • PDB

         /  17th January 2017

        I’m all for legal medical cannabis use but lets not kid ourselves – it is not a ‘wonder-drug’ and tests thus far are inconclusive as to its benefits over existing drugs.

        “The editorial by two Yale University psychiatrists suggests enthusiasm for medical marijuana has outpaced rigorous research and says widespread use should wait for better evidence. Federal and state governments should support and encourage such research, the editorial says.

        The researchers pooled results from studies that tested marijuana against placebos, usual care or no treatment. That’s the most rigorous kind of research but many studies found no conclusive evidence of any benefit. Side effects were common and included dizziness, dry mouth and sleepiness. A less extensive research review in the journal found similar results.

        It’s possible medical marijuana could have widespread benefits, but strong evidence from high-quality studies is lacking, authors of both articles say.

        “It’s not a wonder drug but it certainly has some potential,” said Dr. Robert Wolff, a co-author and researcher with Kleijnen Systematic Reviews Ltd., a research company in York, England”.

        • Its 2017 not 1975.. Cannabis IS being legally prescribed in many other countries now, for a raft of illnesses & conditions.. as it was for 1000s of years prior to the ‘Reefer Madness CRAP’ came out.
          Its time to pull your head out & stop looking for any excuses to maintain the B-S status quo.

          btw; ‘marijuana’ is a slang name, that should never be seriously used in the context of Medicinal/therapeutic use.. often this is done to push the negative stereotypical nonsense you are pushing here ! 😦

          • PDB

             /  17th January 2017

            Being so defensive suggests you are driven by emotion rather than common sense…..especially as I clearly state that I’m ‘for’ medicinal cannabis usage. HOWEVER I’m aware enough (and far enough from the debate) to realise the benefits & drawbacks of its use is greatly exaggerated by both sides of the issue. It isn’t a wonder-drug and so far clinical studies have been fairly underwhelming considering the ‘hype’ it has.

    • Joe Bloggs

       /  17th January 2017

      Meanwhile, tobacco and alcohol continue to be widely available and self-prescribed by hundreds of thousands every day.

      • Gezza

         /  17th January 2017

        I just tried a few cigarettes at 14 Joe. After that the nicotine wrote the prescription.

      • Kevin

         /  17th January 2017

        The only question we should be asking is is a standard drink less harmful than the equivalent toke of pot. If it isn’t there is no reason, moral or otherwise, why marijuana shouldn’t be legalised. And that goes for any drug.

        And the argument that we shouldn’t legalise pot because we’d be just adding another harmful drug into society doesn’t cut it because we’re not adding another drug, we’re giving people the legal choice of a less harmful drug.

    • “small team of pain relief experts” – they don’t exist in NZ. We had one patient on high doses of opiates MCANZ tried to advocate for, they bounced back saying no such thing as Medicinal Cannabis. That person is now doing well on illicitly sourced cannabis, greatly reducing opiate consumption… After proving that it works for him they are now contemplating prescribing it to him. You shouldn’t have to break the law to prove a point.

    • Jeeves

       /  17th January 2017

      @NOEL- and yet you don’t have this expectation around nicotine or alcohol- you are quite happy I assume for people with chronic pain to imbibe freely of both without any need to have a GP (dodgy or otherwise) authorise it.

  2. Good job Sue Grey.. the biggest issue around cannabis (med-use or personal) in Aotearoa/NZ is that the MODA 1975 has effectively gone unchallenged, until recent changes have occurred overseas.

    If you read the UN convention 1961 & the MODA, they do NOT demand zero-tolerance… that’s a total misconception. Methinks there are ‘private interests’ that are still trying to maintain the status quo, because it suits them, not the general public, who could benefit from law reforms, similar to the situation in: Canada, 28 USA states, a few Aust. states & several EU countries etc. that have now relaxed their laws & already allow regulated cannabis uses.

  3. Alan Wilkinson

     /  16th January 2017

    Chemical illiterates obviously breaking the law since it is perfectly clear it is not an isomer.

  4. Same old Smit

     /  16th January 2017

    The time is right for a change. Any longer and NZ authorities will look to the modern world like a bunch of regressive, corrupt, hypocritical, red necks.

  5. Will it be any less regressive, corrupt, hypocritical and red-neck to allow our bizarre recreational cannabis laws to continue unchanged – “making CRIME … out of nothing at all” – while we simultaneously ‘hog-tie’ medicinal use of the “garden herb” in the over-regulation of an increasingly insidious ‘Corporate Medicalization of Life’ process?

    • Indeed, to extend the metaphor, with exaggeration for effect –

      For large swathes of the population, a Lifetime circumscribed by or divided between Legal, Public-Private ‘Corporate Criminalisation’ and ‘Multinational Medicalisation’ processess. The money-go-rounds of prohibition, policing, prosecution and imprisonment, and of diagnosis and chemically synthetized treatment … a cure for the common cold …

      One day it may effectively be a ‘crime’ to pick a medicinal herb like Evening Primrose or Kawakawa from the bottom of your garden and make a tea, tincture, salve or infusion from it – like it is cannabis – because it won’t have been tested and approved by the FDEA or Pharmac and sold to you in capsule, cream or liquid form by a Chemist or approved Health Supplement Store …

      If Righties were remotely genuine about “Freedom and Personal Responsibility” this would be a big political issue, since the crime engendered by criminalisation is costing them so much “other peoples money” … What is it? $44 million per year!

      • What’s more, the commercial, industrial, employment and tax income generating potential of sensible regulation of both recreational and medicinal cannabis is phenomonal.

        Another giant ‘Clean Green’ export industry!

        I doubt anyone has researched it yet, but I’d bet it would more than offset the possible balance-sheet ‘loses’ and reduction of employment in the police, judicial and penal systems? We could spend the $44+ million on other things … real crime …

        Heck, the Cannabis Industry would probably pay to retain the status-quo PLUS extra staff, all of whom could do better things!

      • Kevin

         /  17th January 2017

        I’m a right-winger and it is a MAJOR issue for me. In fact I go further and advocate the decriminalisation and legalisation of all recreational drugs.

  6. The main thing, the ‘nay-sayers’ (who seem to say it has no real medicinal value OR it needs more research) tend to either overlook or ignore is that; the prohibition of cannabis (aka ‘marijuana) has not only made every effort, to stop recreational use, it has done the same for research into its medicinal/therapeutic potential uses too.

    In 1972 Nixon put together the ‘Shafer Commission’ to reaffirm his WAR on DRUGS stance, with ‘marijuana’ labeled ‘public enemy #1’
    BUT; the ‘official report’ was apparently rejected by Nixon, because it said the opposite.. that cannabis use should NOT be summarily prohibited by law !

    btw: IF you dont believe it.. you can also google : The UN Single convention on ‘narcotic drugs’ 1961 (founding document to most modern drugs laws). It makes it clear in the opening preamble statement, that medical & scientific uses (also industrial hemp) are not covered by bans. BUT in the zeal of many Govts. to implement it, they went straight to ZERO-tolerance.. NZ now leading the pack on maintaining this B-S, whilst most OECD countries are stepping back from it 😦

  7. Pickled Possum

     /  17th January 2017

    Do we have anything like this in NZ. No? don’t think so and will we Ever have the choice?

  8. I support every word PDB has written thus far on this subject. I am a chronic sufferer of “neuro-inflammation” caused by my immune system reacting to the lack of blood flowing in my cardio-vascular system, and severe damage to both my cervical and lumbar spine. My orthopaedic situation is inoperable because due to the cardio-vascular situation I am unable to be operated upon. To counter the chronic pain I am prescribed Tramal and Celebrex daily at high doses that make me prone to side effects that are risky (to say the least!). My GP tells me that the next step for pain alleviation is morphine which I have resisted for years. Why? Because at present, I am able to safely drive a car for about half an hour before needing to hand over to another driver due to loss of feeling from waist down. I can walk about 200 metres before losing sensation from waist down, and I can stand on carpeted floors for 20 minutes supported by two walking sticks. I value my mobility so highly because it allows me to get out of the house and see real people, trees , birds of all types etc. If I were to be allowed to consume medical cannabinoids, I could not drive, because I would be uninsurable and ethically, (like being under the influence of Morphine,) I could not be a risk to family or any other road user. So for those looking for magic cures, please think about the wider consequences. We already have too many lives lost on the road etc.

    • @bjm1

      are you serious ?
      Do you really believe that a doctor would prescribe any drug that would do what you say. Cannabis is NOT the same as morphine, nor does it have the same analgesic effects.

      Medicinal cannabis, is not just about giving people a license to smoke the herb & ‘get stoned’ legally.. its about MEDICINAL use of the drug, to relieve their suffering !

      I think people need to actually do some research before.. spouting such nonsense. 😦

      I also think the TV networks should screen the docudrama ‘Reefer madness’ so people can see what a load of B-S we are being fed, by some politicians etc as anything like ‘reality’.

      • Kevin

         /  17th January 2017

        Morphine is for short term chronic pain. The risk of addiction is too high for long term use.

    • patupaiarehe

       /  17th January 2017

      Colonel, I hope that you are never unfortunate enough to have an accident while on a high dose of Tramadol, & have blood taken afterwards. Your insurer might take a rather dim view of that also. Just saying…

  9. Kevin

     /  17th January 2017

    No doubt Dunne will see it as a legislative oversight and is ordering an amendment to the Misuse of Drugs Act as we speak.

    • As a moderate Lefty I have to agree with you Kevin.

      This is how a government trapped in the (so-called) ‘Centre’ by our short-term, electorally driven, free-market+social welfare composite mish-mash of a political system deals with legislative ‘anomalies’, by passing retrospective and retrograde ‘tidying up’ legislation.

      True representation of the people, real ideological and financial motives and genuine ‘freedom’ are all absent in this false semblance of democracy …

  10. I watched a doco. on Al Jazeera; they are having major problems in USA with the ‘over prescribing of opioids’ (eg Oxycontin).. driven by ‘Big Pharma’, on an ongoing basis for things like arthritis & back pain. Many are becoming ‘legal junkies’.

    **Many Doctors are now recommending Cannabinoids as a safer, milder, less addictive alternative !

    • I wonder exactly how many Doctors **Many** actually means Zedd?
      Like what proportion of all Doctors in the USA?

      In a country where ONE-IN-SIX people take psychiatric drugs, I wonder how many doctors are actually “bucking the trend”?

      The numerous incentives to prescribe Big Pharma, ‘scientific’ and otherwise, must be powerful influences on doctors?

      The lobby for medicinal cannabis [Cannabinoids] to be absorbed into the Big Pharma/Government ‘Medicalisation’ program seem equally heavy and influential …

      Where will this leave the humble backyard grower of a couple of ‘own use’ plants I wonder?

      “Freedom” implies we must be able to grow and/or use cannabis in its natural form.


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