On August 24, 2016, in response to Justice Phelan’s judgment in the case of Allard v Canada ("Allard"), Health Canada implemented the Access to Cannabis for Medical Purposes Regulations (the "ACMPR"), replacing the Marihuana for Medical Purposes Regulations (the "MMPR"). In Allard, Justice Phelan found the MMPR to be unconstitutional due to the restrictions it placed on a patient’s ability to reasonably access medical cannabis; however, the declaration of invalidity was suspended for six months to allow the government to establish a new regime for access to medical cannabis.
Unlike the MMPR, which require patients to access medical cannabis solely from a licensed producer ("LP") (with very limited exceptions), the ACMPR allow patients to cultivate cannabis for personal use or to designate an individual to cultivate on their behalf. The personal cultivation framework is similar to the old Marihuana Medical Access Regulations (the "MMAR"). The ACMPR also incorporate the various exemptions issued by Health Canada pursuant to the Controlled Drugs and Substances Act (the “CDSA”) in response to the Supreme Court ruling in R v Smith, which allowed patients to obtain and possess cannabis in forms other than dried marihuana. As a result of these changes, the ACMPR have expanded the ways in which patients are able to access medical cannabis.
The following are four key takeaways that medical cannabis patients, particularly those who intend to cultivate their own cannabis under the ACMPR, should consider.
Obtaining starting materials and an interim supply
To be eligible to produce or designate someone to produce cannabis for medical purposes an authorized patient must register with Health Canada (a "Registered Person"). Registered Persons will be able to purchase starting materials and an interim supply of medical cannabis from an LP. Registering with an LP as a Registered Person is a similar process to that used by an ordinary patient. The major difference is that instead of using a medical document to register like an ordinary patient, a Registered Person must submit a copy of their Health Canada registration (Registered Persons are reminded not to submit their original Health Canada registration) to the LP in order to obtain starting materials and an interim supply of medical cannabis while waiting for their own harvest. Health Canada has not placed a limit on the number of times a Registered Person can access an interim supply, provided they stay within their possession limits, and it has recognized that access to an interim supply from an LP may be necessary even after a Registered Person’s personal crop matures.
Multiple medical documents
As a general rule, the ACMPR (similar to the MMPR) prohibits a patient from obtaining their supply of medical cannabis from multiple sources (i.e. multiple LPs) on the basis of a single medical document. This requirement results in a patient being able to register with only one LP at a time. While not explicitly stated in the ACMPR, the Regulatory Impact Statement (which accompanies the ACMPR) provides that a patient may wish to discuss "splitting" a medical document with their health care provider, provided that the patient stays within their prescribed possession limits. The recognition of the desirability of accessing cannabis from multiple LP sources is a step in the right direction for patient care. As such, if a patient desires more than one source of supply, either from multiple LPs or a combination of LPs and either personal or designated production, the individual may discuss with his/her health care practitioner the possibility of obtaining separate medical documents.
The ACMPR primarily limit possession in terms of grams of dried marihuana, with the same limits used in the MMPR. Patients wishing to access derivative forms of cannabis by growing and converting it themselves (or through a designated individual) need to be very careful when performing equivalency calculations to ensure that they stay within their prescribed limits so as to not exceed the mandated possession limitations. If the input for a derivative product is dried marihuana, the patient will simply track the number of grams used. On the other hand, if the input is fresh marijuana, the patient will need to consider the “equivalency factor” (being that 5 grams of fresh marihuana equal 1 gram of dried marihuana). Anyone wishing to access a derivative of a derivative (e.g. shatter, edibles, etc.) must perform another equivalency calculation.
For illustrative purposes only (recognizing that these figures are purely hypothetical):
- if 1 gram of dried marihuana is required to create 10 milliliters of cannabis oil; and
- if 20 milliliters of cannabis oil are required to create a final edible product;
- then, the final edible product has an equivalency factor of 2 grams of dried marihuana.
Furthermore, for a Registered Person, the ACMPR provide calculations for determining the maximum number of plants that can be grown and stored. For each daily gram of dried marihuana prescribed:
- a person registered to grow indoors is able to grow 5 plants and store 225 grams of dried marihuana; and
- a person registered to grow outdoors is able to grow 2 plants and store 750 grams of dried marihuana.
A Registered Person must become familiar with the formulas prior to beginning to grow.
In connection with the implementation of the ACMPR, Health Canada issued a new Section 56 exemption pursuant to the CDSA (the “Testing Exemption”) to permit certain patients to access analytical testing services for cannabis. Depending on the particular laboratory used, the testing of cannabis can include: (i) determining THC/CBD content, (ii) microbial testing, and (iii) testing for contaminants. Health Canada has published a list of authorized laboratories that are licensed to conduct activities with cannabis. Patients are encouraged to contact these laboratories for further information about the services they offer.
The Testing Exemption is limited to patients (and individuals responsible for them) who:
- are Registered Persons; or
- were authorized to possess marijuana for their own medical purposes under the MMAR and continue to be authorized to do so by virtue of a court order.
Patients who wish to use analytical testing services should be aware that:
- testing services are restricted to fresh or dried marijuana or cannabis oil that was legally obtained, either in accordance with a person’s registration under the ACMPR or in accordance with a court order (i.e. an MMAR license that is covered by the Allard Injunction);
- the patient must provide the laboratory with a copy of their authorization before testing will be conducted;
- cannabis that is shipped to a laboratory must be packaged and tracked in accordance with the Testing Exemption;
- the quantity of cannabis shipped must not exceed the patient’s possession limit; and
- cannabis sent to a laboratory for testing cannot be returned.
The above update provides a brief overview of some of the issues to be considered by patients in light of the ACMPR. It is important to remember that medical cannabis law is complex and rapidly evolving. At Bennett Jones LLP we have a team of industry-leading professional advisors that can provide legal and strategic guidance to all industry participants (or those hoping to participate) as the Canadian medical cannabis industry continues to advance.
- Hugo Alves, Mike Lickver, Vladimir Klacar and Nic Nevins