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.

NOTICE OF INTENDED LEGAL CHALLENGE RE STATUS OF CANNABIDIOL “CBD” UNDER THE MISUSE OF DRUGS ACT

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.”