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Cannabis Scheduling & EU position - Elements Document - February 2020

Preprint · February 2020

DOI: 10.13140/RG.2.2.31659.18724

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Elements Document 1  
 

Elements about the vote of the WHO recommendations on rescheduling Cannabis  V.3 - 1
​ 6.II.2020​  
Kenzi Riboulet-Zemouli​ k
​ enzi.zemou.li  
and its related substances in the international drug control Conventions. 
 

SUMMARY

Current Recommended
Order of
Action recommended by WHO Action to take by CND
votation
Name(s) Régime(s) Name(s) Régime(s)

1961-IV
5.1​.0 C&CR Delete from 1961-IV More positive than negative votes C&CR
1961-I

5.2.1 ∆​9​-THC Add to 1961-I More positive than negative votes

1971-II
5.2.2 Dronabinol (and its stereoisomers) Delete from 1971-II 35 positive votes*
∆​9​-THC
THC isomers Add to 1961-I More positive than negative votes* THC isomers
5.3.1 Isomers of Δ9​ ​-THC: Δ6a(10a)
​ ​
-THC, 1961-I
​ ​ 1971-I
5.3.2 ​ -THC,
Δ6a(7) Δ7​ -THC, Δ8​ ​-THC, Δ​10-THC,
​
Delete from 1971-I 35 positive votes*
9(11)​
Δ​ -THC

E&T 1961-I Preparations of C&CR

5.4​.0 Preparations of THC isomers 1971-I Delete from 1961-I More positive than negative votes Preparations of ∆​9​-THC
Preparations of ∆​9​-THC 1971-II Preparations of THC isomers

Preparations of C&CR
n/a n/a Do not add No action
considered to be pure CBD
5.5​.0 Preparations of C&CR n/a
1961-I Add footnote to C&CR in 1961-I More positive than negative votes containing predominantly CBD
and ≤ 0.2 % of ∆​9​-THC

E&T 1961-I Add to 1961-III

(only some) (if compounded as pharmaceutical
preparation in such a way that ∆​9​-THC Some preparations of C&CR
5.6​.0 1971-I More positive than negative votes 1961-III
cannot be recovered by readily Some preparations of ∆​9​-THC
1971-II available means or in a yield which
would constitute a risk to public health)

Abbreviations: E&T Extracts and tinctures of cannabis

A positive vote on 5.2.1 is necessary as a prerequisite for CBD Cannabidiol ECDD Expert Committee on Drug Dependence
CND to take action on the items marked with * C&CR Cannabis and cannabis resin THC Tetrahydrocannabinol
CND Commission on Narcotic Drugs WHO World Health Organization
  

Elements Document 2    

Elements about the vote of the WHO recommendations on rescheduling Cannabis  V.7 - 1
​ 6.II.2020​  
and its related substances in the international drug control Conventions.  Kenzi Riboulet-Zemouli​ k
​ enzi.zemou.li  

 
 

GRULAC ​(10) EEG ​(2+4) WEOG ​(6+8)

AG ​(11) APG ​(12)
Group of Latin America & Eastern European Western European
African Group Asia and the Pacific Group
Caribbean Countries countries Group countries & Others Group

Brazil Algeria Afghanistan Russian Federation Australia

Chile Angola* Bahrain* Ukraine Canada
Colombia Burkina Faso P. R. of China Switzerland
Cuba Côte d’Ivoire India Turkey
/
Ecuador Egypt* Iraq United Kingdom*
El Salvador Kenya Japan United States of A.
Jamaica* Libya* Kazakhstan* European Union Member States ​(12)
Mexico Morocco* Kyrgyzstan Croatia Austria
Peru Nigeria* Nepal* Czech Republic Belgium
Uruguay South Africa Pakistanº Hungary France
Togo Thailand Poland Germany
Turkmenistan Italy
Netherlands
Spain
Sweden*

​*Countries joining the CND on January 1st, 2020

º Country chairing the CND in 2020
 

Elements Document 3 – No substantive basis for the proposed EU common position 

Document COM(2019) 624 final.​ Proposal for a Council Decision on the position to be taken, on behalf of the EU, 
V.3 - 1
​ 6.II.2020​  
in the 63rd CND on the scheduling of cannabis-related substances under the 1961 and 1971 Conventions.  Kenzi Riboulet-Zemouli​ k
​ enzi.zemou.li 

The recommendations do not imply any change in the measures to be taken by Member States in what concerns drug
trafficking (the main objective and content of the Framework Decision 2004/757/JHA of 25 october 2004).
In the 1961 Convention, drug trafficking is addressed in Articles 35 (action against the illicit traffic), 36 (penal
provisions), and 37 (seizure and confiscation). These articles do not mention the Schedules: their provisions apply to
all drugs, irrespective of their level of scheduling.

None of the recommendations will ​alter​ nor impact any matter relating to drug trafficking.
The ​main objective and content of the recommendations​ ​is​ that of ensuring ​access and availability of controlled
medicines for therapeutic and scientific purposes​. ​These recommendations should not even trigger the
Framework Decision on drug trafficking.

As per the terminology of the 1961 Convention, “cannabidiol preparations” are not necessarily controlled under the
entry “extract and tinctures.” “Cannabidiol preparations” is an impossible eventuality, because “cannabidiol” should
be present in the Schedules in order for its preparations to fall under control. But ​cannabidiol is not listed in the
Schedules​. Another matter is that of interpretation:
- Papaverine is an active compound of opium poppy. It is not considered a “narcotic” drug, is not listed in the
Schedules, and does not fall under control. Yet, a strict interpretation could see it as controlled under the
entry “preparation of opium” – neither the EU nor most modern democratic countries adopt such a position.
- The situation is exactly the same for cannabidiol. There is no reason to adopt a different interpretation for
cannabis, than the one prevailing for non-Scheduled substances in poppy or coca plants. ​There is no
justification for adopting a double standard​ conflicting with the general interpretation of the 1961
Convention.
- Where would the limit be set? Would ​all​ components of cannabis be considered under control, including
chlorophylle and terpenoids?
Moreover, “cannabis preparations” (disregarding any content in whatever substance) are ​exempt from the
Convention when used in industry​ for other than medical (including abuse) and scientific purposes. So none of this
can have any impact on other than medical and pharmaceutical regulations. Drug trafficking, as well as food and
cosmetic regulations are not concerned by the Convention and neither addressed by the WHO recommendations.
See chart below.

Elements Document 3 – No substantive basis for the proposed EU common position
Document COM(2019) 624 final.​ Proposal for a Council Decision on the position to be taken, on behalf of the EU,
in the 63rd CND on the scheduling of cannabis-related substances under the 1961 and 1971 Conventions.  Kenzi Riboulet-Zemouli​ k
Status of international control, if any, over cannabidiol: currently, and in the eventuality suggested by the recommendations from the WHO ECDD at its 39​th​ and 40​th​ meetings.
Type of product
Pharmaceutical or
research purposes
> 0.2% of delta-9-THC
CBD product obtained
from ​Cannabis​ plants
(cultivated under the Pharmaceutical or
exemption included in research purposes
1961 Convention Art. 28) < 0.2% of delta-9-THC
Non-pharmaceutical
and non-research purposes
(i.e., cosmetics, foodstuff...)
Type of product
Pharmaceutical or
research purposes
> 0.2% of delta-9-THC
CBD product obtained
from “cannabis”, Pharmaceutical or
“cannabis resin”, or research purposes
“extracts & tinctures” < 0.2% of delta-9-THC
(scheduled drugs)
Non-pharmaceutical
and non-research purposes
(i.e., cosmetics, foodstuff...)
 
 
V.3 - 1
​ 6.II.2020​  
​ enzi.zemou.li 
Régime of control in force Régime of control proposed by
as of December 2019 the WHO recommendations
“Narcotic” medication, controlled under Schedule I (1961)
“Narcotic” medication, controlled under Schedule III (1961)
Governments can decide which particular preparations fall under
Schedule III, if any, on a case-by-case, country-by-country basis.
“Narcotic” medication, controlled under Schedule I (1961)
Non-“narcotic” medication. Not scheduled.
Not controlled under the 1961 Convention as per Articles
1(1)b, 1(1)j, and the footnote to the entry “cannabis and
cannabis resin” in Schedule I.
Not a medication. Not a medication.
Exempted from 1961 Convention in Art. 2(9), 28(1), 28(2). Exempted from 1961 Convention in Art. 2(9), 28(1), 28(2).
No report to INCB. No reporting to INCB.
Régime of control in force Régime of control proposed by
as of December 2019 the WHO recommendations
“Narcotic” medication, controlled under Schedule I (1961)
“Narcotic” medication, controlled under Schedule III (1961)
Governments can decide which particular preparations fall under
“Narcotic” medication, controlled under Schedule I (1961) Schedule III, if any, on a case-by-case, country-by-country basis.
Non-“narcotic” medication. Not scheduled.
Not controlled under the 1961 Convention as per Art. 1(1)b
and 1(1)j.
Not a medication. Not a medication.
Exempted from 1961 Convention in Art. 1(1)j and 2(9). Exempted from 1961 Convention in Art. 1(1)j and 2(9).
Only starting materials (controlled) shall be reported to the Only starting materials (controlled) shall be reported to the
INCB, not final products (exempt). INCB, not final products (exempt).
 

Elements Document 3 – No substantive basis for the proposed EU common position 

Document COM(2019) 624 final.​ Proposal for a Council Decision on the position to be taken, on behalf of the EU, 
V.3 - 1
​ 6.II.2020​  
in the 63rd CND on the scheduling of cannabis-related substances under the 1961 and 1971 Conventions.  Kenzi Riboulet-Zemouli​ k
​ enzi.zemou.li 

Supporting only the recommendations which “would not result in a significant change in the control of these
substances” is an oxymoron. ​Changing the control of substances​ ​is the very mandate of WHO​. Opposing the
recommendations that effectively exert the mandate of WHO is opposing the system laid out in the Conventions.

The EU has repeatedly agreed common positions reiterating the importance of basing policies on evidence. The EU
insists in all fora and negotiations (from the UNGASS outcome document to the 2019 Ministerial Declaration) on the
role and mandate of WHO being cardinal within the international drug control system, to ensure a public-health
approach.

There is a ​complete​ misreading of Article 218(9) of TFEU, detailed below. It can be resumed as follows:
- “ does not apply to the 1961 Single Convention, which is not ratified by the Union per se,
- Art. 218(9) concerns the eventuality of the suspension of an agreement - not triggered here,
- Even if Art. 218 applied, it would imply that “the European Parliament shall be immediately and fully
informed at all stages of the procedure,” which has not been the case.
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Elements Document 3 – No substantive basis for the proposed EU common position 

Document COM(2019) 624 final.​ Proposal for a Council Decision on the position to be taken, on behalf of the EU, 
V.3 - 1
​ 6.II.2020​  
in the 63rd CND on the scheduling of cannabis-related substances under the 1961 and 1971 Conventions.  Kenzi Riboulet-Zemouli​ k
​ enzi.zemou.li 

Article 218(1) TFEU frames the scope of Article 218, restricting it to “agreements between the Union and third
countries or international organisations.” The 1961 Single Convention is a multilateral agreement between countries,
including Member States, preexisting the European Union. The Single Convention has no provision allowing
international entities to access it, hence only Member States can and have ratified it. The Single Convention is
therefore not encompassed by the expression “agreements between the Union and third countries or international
organisations”

The proposal mentions Article 218(9). Just before the section quoted in the proposal, Article 218(9) frames the act of
“establishing the position to be adopted on the Union’s behalf ...” only to the cases of “a decision suspending
application of an agreement.” The agreement is the Single Convention. The recommendations of WHO are ​not
suspending the agreement in any way. Article 218(9) should therefore not be triggered.

In the eventuality where Article 218(9) would still be considered to be relevant, Article 218(10) would have needed
to be triggered as well, which has not been the case. Article 218(10) states that “the European Parliament shall be
immediately and fully informed at all stages of the procedure.” Yet, no information has been transmitted to the
Parliament.

The main objective and content of the recommendations on which EU Member States are called to action concerns
public health and access to controlled medicines for therapeutic and scientific purposes. It does not concern in any
way drug trafficking, which is not in the mandate of the WHO. Any drug trafficking-oriented substantive basis is
tremendously mistaken on the content, purpose, scope and context of the WHO recommendations.