Santamarina Steta

Unconstitutionality of the absolute prohibition of the commercialization of cannabis

Executive Summary

  • The First Chamber of the Highest Court issued the thesis “Absolute prohibition of commercialization of cannabis classified as a narcotic. Articles 234, 235, and 235 bis of the General Health Law that establish it violate the human rights to freedom of trade and work”.
  • It was resolved that the absolute prohibition of the commercialization of cannabis violates the rights of freedom of trade and work by failing the proportionality test and the degree or sub-principle of necessity.
  • The precedent lays the foundations for a new cannabis marketing market between producers and the general public creation.

On March 3, 2023, thesis 1a was published in the Federal Judicial Weekly. III/2023 (11a.) of the item “Absolute prohibition of commercialization of cannabis classified as a narcotic. Articles 234, 235, and 235 bis of the General Health Law that establish it violate the human rights to freedom of trade and work” issued by the First Chamber of the Supreme Court of Justice of the Nation when resolving the protection under review 461/2020 (consultable at the following link: https://sjf2.scjn .gob.mx/detalle/tesis/2026073).

In said precedent it is determined that the content of articles 234, 235 and 235 Bis of the General Health Law has a negative impact on the fundamental rights to trade and work, since it constitutes an obstacle for individuals to lawfully exercise , the marketing actions of hemp classified as a narcotic, considering that the proportionality test is not passed, in its nuance of necessity.

In this sense, the Supreme Court considered that the absolute prohibition of the commercialization of cannabis is an unnecessary measure, since it absolutely prevents its commercialization for industrial purposes, when in order to achieve the objectives that the prohibition seeks (health protection) it could be constrained to implement a series of measures similar to those for medical and/or scientific purposes, such as authorization, monitoring, control, prevention and phytosanitary measures.

Likewise, it is relevant to point out that when resolving the amparo under review 461/2020, the First Chamber of the Supreme Court of Justice of the Nation issued a different thesis under the heading “Absolute prohibitions contained in the General Health Law on different activities related to cannabis or marijuana. Scope of application of the proportionality test”, which can be consulted at the following link: https: //sjf2.scjn.gob.mx/detalle/tesis/2026074).

In said precedent it was determined that although it has been the criterion of the Highest Court that the legislative restrictions that affect economic freedoms must be controlled by means of an ordinary or mere reasonableness test, which is less demanding than the proportionality test, in the case of the circuit normative that is established in the General Health Law related to cannabis, it should be specified that this standard of lax scrutiny is applicable to that legislation to regulate an economic activity, not to totally prohibit it. In this sense, it was determined that in the case of the absolute prohibitions contained in the General Health Law, it is appropriate to subject them to a proportionality test as opposed to the ordinary one.

Derived from the above, we consider that the theses recently published by the Highest Court and those that determined the legality of the recreational consumption of cannabis lay the foundations for the creation of a new market related to the large-scale production and commercialization of cannabis with the general public, as long as the limits established in the applicable legislation are met.

The foregoing, given that the Supreme Court of Justice of the Nation, when applying the proportionality test, has been emphatic and consistent in determining that there are other, less burdensome measures, for the protection of people's health, as regards the activities of the previous phases of the cannabis production chain and activities related to its commercialization. 

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