Brazilian court decision could encourage other cannabis companies to seek approval for cultivation

After Brazil’s health authority shelved a proposal on domestic cannabis cultivation this week, a court decided in the opposite direction, allowing – for the first time in Brazil – a company to grow hemp commercially.

The court’s decision could spur other cannabis companies to appeal to the judicial system for permission to cultivate domestically.

The ruling of the Federal Court of the Federal District authorized Schoenmaker Humanko, part of the Terra Viva group – a large Brazilian floricultural company – to import hempseeds of varieties with less than 0.3% THC to grow in Brazil.

In his decision, the judge allowed the company to “sell the seeds, leaves and fibers exclusively for industrial purposes, including as inputs,” under supervision of the Ministry of Agriculture and ANVISA, the Brazilian Agência Nacional de Vigilância Sanitária (National Sanitary Surveillance Agency).

Judge Renato Coelho Borelli said in the ruling that hemp cannot be treated as “marijuana” because the company “doesn’t intend the authorization of its use for medicinal or pharmaceutical purposes, but only to import and grow the seeds for subsequently selling various products for industrial purposes.”

However, Arthur Ferrari Arsuffi, one of the lawyers defending the company, told Marijuana Business Daily that his interpretation is that the ruling allows the company to “supply the pharmaceutical industry.”

The court decision is preliminary and can be appealed.

Rodrigo Mesquita, a Brazilian lawyer specializing in Supreme Court cases, told MJBizDaily that the court’s decision “may lead to a strong reaction from the government, which could appeal the ruling claiming that it may cause ‘serious damage to public safety, public health and the economy.'”

“This was an argument already used by ANVISA Director Antonio Barra Torres to deny the regulation of cultivation, so it wouldn’t be surprising to see the executive power using it again,” Mesquita said.

Cultivation legal but unregulated

Brazil’s Law 11,343 of 2006 prohibits cultivation of plants from which “drugs could be produced or extracted,” but it also says the government could authorize such activity “exclusively for medicinal or scientific purposes.”

The problem is that this law was never implemented, with ANVISA notably refusing to do it last Tuesday, after months of debate.

According to Mesquita, “companies have good chances (of obtaining cultivation permits) in the judiciary system.”

The reason is that “unregulated domestic cultivation can only be explained due to the government’s lack of interest in creating the rules for something that is legal according to Brazilian law and international treaties, evidencing an omission from the Brazilian state,” he said.

In fact, Mesquita cited an ongoing lawsuit filed by a political party seeking the declaration of omission by the Brazilian state to implement the law that allows medical cannabis cultivation.

ANVISA’s latest “unwillingness to regulate domestic production could motivate the Supreme Court to accelerate this judicial process, potentially setting a deadline for the Parliament to fully legislate and regulate medical cultivation, something comparable to what the Mexican Constitutional Court did,” Mesquita said.

Increased ‘judicialization’ expected

William Dib, ANVISA’s director-president, was the only member of ANVISA’s collegiate directory who voted last Tuesday in favor of regulating cultivation.

But he was outnumbered by the other directors. After that vote, Dib told BBC Brazil that by not approving the domestic cultivation regulations, ANVISA opened the door to “a multiplication of judicial actions to grow.”

More than 50 patients and one patients association already were granted an authorization from the courts to grow. Dib’s reasoning is that if the government regulates controlled cultivation, those authorizations for home growing, which ANVISA currently can’t control, could be terminated.

Emilio Figueiredo, a Brazilian lawyer who helped defend patients in more than half the court cases that approved home growing, also expects “judicialization” to increase.

“ANVISA’s current decision to ease import and distribution rules doesn’t solve the problem the vast majority of Brazilian patients have, which is not being able to afford these cannabis products,” Figueiredo said.

He added that “the only solution that patients have is to grow at home or create patients associations, so we will overwhelm the judicial power until patients’ rights are recognized.”

Alfredo Pascual can be reached at [email protected]

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