Portugal progresses toward integrated cannabis regulation
In recent years there has been much talk of the so-called “Portuguese model,” based on an initiative that led to the use of illicit drugs being decriminalised in 2001. In fact, it is often said that Portugal was the first country in Europe to decriminalise drug use de jure, while Spain, for example, took that step de facto for the first time in 1974, except that it was not through a specific law but rather as a result of a Supreme Court ruling.
In any case, the decriminalisation process taken forward in Portugal undoubtedly serves as a clear example of the fact that showing greater tolerance to drug users does not lead to an increase in consumption. On the contrary, in Portugal’s case all the indicators show a reduction in the use of illicit drugs following this move, while the problems associated with such use also declined.
Nevertheless, Portuguese-style decriminalisation has immense loopholes and contradictions, such as the fact that the illicit growing of psychoactive plants (of which cannabis is the most common) is still considered a crime, even when it is destined for personal use. This contradiction, which permits the possession and use of small quantities but not self-supply, means that drug users are forced to depend on the illegal market. Furthermore, possession for personal use is punishable as an administrative offence. Dissuasion Commissions (whose members are legal advisers, psychiatrists and social workers) have been established and are able to impose fines or community service. Another of their roles is to persuade addicts to enter treatment programmes. Most of their rulings have led to the legal proceedings brought against non-addicted drug users being suspended. Around ten per cent of cases have been settled with a fine.
They prefer clubs in Portugal too
The Bloco’s new proposed law covers all aspects of cannabis, from production to distribution.
For some time, various groups have been arguing that further steps need to be taken on the road to decriminalisation, by means of coherent regulations that would cover all aspects of the matter and permit a system of supply that offers an alternative to the illegal market. A few years ago, the Bloco de Esquerda (Left Bloc), a leftist party very similar in origin and ideology to Syriza in Greece, and which in the last election obtained about 10% of the vote and 16 seats in the Legislative Assembly (Portugal’s only house of parliament, since the senate no longer exists), came up with a different proposal along the lines of the so-called “Dutch model,” which suggested that drugs could be supplied through commercial establishments similar to Holland’s coffee-shops.
Nevertheless, the appearance of Cannabis Social Clubs in Spain has led to a shift in attitude among many groups that used to support a commercially-oriented regulatory model. The Bloco de Esquerda itself decided to abandon that proposal in view of the advantages of the model based on non-profit associations. These include greater transparency, self-management by the consumers themselves, the absence of commercial interests (thus reducing the risk of drug use being promoted), elimination of the so-called “back door,”[1] and the possibility of introducing the arrangement without needing to reform UN treaties beforehand, since the cannabis clubs fall within the sphere of personal consumption.
What the proposal contains
The Bloco’s new proposed law (which has not yet been presented to parliament) covers all aspects of cannabis, from production to distribution. Its justification mentions the failure of the repressive model consecrated by the UN, the manifest success of decriminalisation – which silenced the arguments of the prohibitionists by demonstrating the viability of more tolerant approaches – and the internal contradictions in the current legislation, which indirectly help to sustain drug trafficking.
The text of the proposal defines the legal arrangements applicable to the growing, consumption and acquisition of cannabis and its by-products, and the possession of these for personal use without the need for a doctor’s prescription. In fact, the initiative’s promoters have avoided mingling medical use with so-called “recreational use,” since they believe that the two debates should be kept separate. They also believe that the defence of the right to use cannabis should not be based on its medicinal properties but rather on individual freedoms.
The proposal – the text of which is not yet definitive – imposes limits on acquisition, growing and possession. It stipulates that the acquisition of cannabis products for personal use should not exceed the amount required for one month’s consumption. This is defined on the basis of Decree 94/96 (26 March), which stipulates estimated daily doses for different illicit drugs. Thus, the amounts someone can obtain each time may not exceed 75 grams of marijuana, 15g of hashish or 7.5g of hash oil. Growing would be limited to a maximum of ten plants per person, while possession would not be allowed to exceed the above-mentioned amounts. In other words, if people choose to grow their own they may store the output from the ten plants, and if they obtain their supply through a club (or on the illegal market) they may only keep enough for one month.
The proposal also includes a system of authorisations, which would be non-transferrable and may be withdrawn in the case of failure to comply with the legal obligations they entail, but would not affect personal use. Therefore, if the proposal goes ahead, the consumption, growing, acquisition and possession of cannabis and cannabis products destined for personal use would not only cease to be a crime but would also no longer be considered an administrative offence, thus leading to full depenalisation, in contrast to what has been the case up till now.
A concrete proposal for regulating CSCs
Chapter II of the proposed law deals with the Cannabis Social Clubs (CSCs), which are regulated in some detail. In the proposed text, a club is defined as “a not-for-profit civil-society association for the purposes of study, research and debate on cannabis, as well as the growing of cannabis plants, the production of cannabis substances or preparations and the provision of these to its members, in properly authorised establishments and under the conditions set out herein.” In other words, it outlines a type of organisation almost identical to the model currently being discussed in Spain. In this sense, the Bloco proposal is ground-breaking because, despite being based on an existing model, Portugal could become the second country with a law that permits cannabis clubs. In Uruguay the proposal is that the state would issue licenses to producers, whether they be home-growers or members of growers’ clubs, as is the case in Spain.
The proposed law goes on to establish a series of limits and conditions for the clubs to operate: members must be over the age of 18 and will be invited to join by another club member; the clubs will not be allowed to serve alcohol, and gaming machines are banned; they must be at least 300 metres away from the nearest school; and non-members will only be able to enter the club if they are accompanied by a full member. The clubs will not be able to advertise, and the products they dispense may not have a brand or a trade name.
As far as the acquisition of cannabis products by members is concerned, the proposal stipulates that minors and people who have “an obvious mental illness” will not be allowed to enter the club and may not be provided with any substance whatsoever. The club will make available to its members only the quantity required to cover their monthly needs. The receptacles in which the products are dispensed must indicate the origin and the quantity of the substances they contain, the effects and risks associated with their use, and the international common name as defined by the World Health Organisation.
Oversight mechanisms
With regard to oversight of the clubs’ activities and cannabis growing and distribution in general, the proposal gives INFARMED (the national pharmaceutical drugs and health products authority) the power to approve and withdraw authorisations to grow cannabis, although these will not be necessary in the case of possession for personal use. The CSCs must also request permission to extract active ingredients.
INFARMED will also be responsible for “overseeing the growing, extraction and manufacture, distribution, import, transport, acquisition, delivery and possession of substances to be made available to the members of Cannabis Social Clubs.” Responsibility for enforcing the ban on alcohol, gaming, minors, advertising, etc, would fall to local governments. Both they and INFARMED would be able to inspect the clubs’ activities at any time.
As far as infractions are concerned, unauthorised trading in cannabis would be punishable by a prison sentence of up to four years in the case of minor offences and between 4 and 12 years in serious cases, with severity being defined in terms of quantity and circumstances. Other infractions (alcohol consumption, the presence of minors in a club, etc) would be punished as an administrative offence, with fines that in most cases range from 2,500 to 25,000 euros.
Does the proposal have a chance?
The proposed law of the Bloco de Esquerda (BE) to legalize the creation of self-cultivation and cannabis social clubs was discussed at a public hearing in Parliament.
At the end of September I was invited by the Bloco de Esquerda to travel to Portugal on behalf of the FAC to explain what the CSC model consists of and how it operates. During my visit I was able to participate in various events, including a parliamentary hearing that was also attended by a Socialist Party representative, Elsa Pais, who was president of Portugal’s Drugs and Drug Addiction Institute (IDT) from 2000 to 2002.
At the hearing, João Semedo, a doctor and Bloco MP (who will also be responsible for presenting the proposal when the time comes), spoke of the need to gather support, which is why they have chosen the formula that seems most acceptable to the rest of Portugal’s political parties. Pais’s role is therefore essential, and she gave quite a forceful speech in which she argued that these issues must not be sidelined in the political debate, especially bearing in mind that individual rights and freedoms of this sort tend to be less respected in times of crisis.
In Pais’s opinion, the Bloco proposal is very positive, because it solves the problem of how drug users are to obtain supplies without resorting to the illegal market. In her view, the CSC arrangement has a number of advantages: it is based on a risk prevention strategy, it respects the seemingly untouchable UN treaties, it gets rid of traffickers by depriving them of customers, and it is a proven model that reinforces informed decision-making and the responsibility of individual users. At the end of her speech, Pais made a commitment to try to convince others in her party to support the proposal. This will be essential, since the Socialists are the largest party in parliament, with 97 seats.
Nevertheless, the Bloco and the Socialist Party together have a total of 113 votes in parliament – slightly less than the 116 needed for an absolute majority. Even if Pais does manage to convince her party colleagues, which is by no means certain, the support of another party would still be needed. This might be the United Democratic Coalition (CDU), an alliance of communists and greens, whose position does not yet seem to be decided. So, a lengthy debate can be predicted before we see concrete results.
It will also be interesting to see what stance is taken by João Goulão, president of the IDT and the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA), to whom I was able to explain in person how the cannabis clubs operate, and who showed himself open to discussing them as a possible alternative to the current regulations. If Goulão – one of the originators of Portugal’s successful decriminalisation policy – was to support regulation along the lines of the Bloco initiative, it might be more likely to succeed. Because if one thing is certain, it is that right now the likelihood of it being approved un-amended is slight. In any case, the debate promises to be interesting.
Martín Barriuso Alonso is a representative of the Federación de Asociaciones de Personas Usuarias de Cannabis (FAC) and author of Cannabis social clubs in Spain: A normalizing alternative underway, Series on Legislative Reform of Drug Policies Nr. 9, January 2011
See also Barriuso’s previous blogs:
Cannabis reaches parliament: The debate on regulating Cannabis Social Clubs in the Basque country, TNI weblog, 26 June 2012.
Between collective organisation and commercialisation: The Cannabis Social Clubs at the cross-roads, TNI weblog, 9 August 2012
More information in Highs and lows in cannabis policy reform: Recent developments in cannabis regulation
[1] The “back door” problem refers to the fact that the coffee-shops in Holland can sell up to five grams of cannabis to their customers (the “front door”), but they have to obtain their supplies on the illegal market (the “back door”). For the coffee-shops to be able to operate in a way that avoids any activity classified as a crime, the growing of cannabis would have to be regulated.