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Scope and definition of the exemption covering “hemp” in the international drug control Conventions. A total exemption – by purpose [Hemp & the Treaty, preprint]

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The exemption of drugs used in industrial contexts is a core principle of the International Drug Control Conventions. The 1961 and 1971 Conventions only address medicines and the pharmaceutical sector – thus providing repeated statements that their provisions do not apply to “drugs” when used for any other purposes that medical and scientific ones. In addition to general exemptions for all drugs, the Conventions secured the non-inclusion of “hemp” by adding specific dispositions. This report finds that these exemptions are cumulative and mutually-reinforcing, fully authorizing the cultivation, processing and further use of the harvests and derivatives of “hemp.” Their common criteria for exemption are not "fiber and seeds" but the concept of purpose, which must differ from those related to psychoactivity: pharmaceutical drugs (i.e., “legitimate use” and “abuse”/”misuse”) and scientific research. License CC BY-SA
Content may be subject to copyright.
Barcelona, October 17
th
, 2019
Kenzi Riboulet-Zemouli
kenzi@zemou.li
Contents:
1. Exemption for products used in industrial settings
1.1.
Exemption of non-drug Cannabis products from the Conventions
1.2.
Exemption of Cannabis drugs from the Convention, when used in industry
1.3.
Trace-amounts do not justify control
2. Exemption for the cultivation of Cannabis
to be used for industrial purposes
3. Conclusion
4. References
Index of boxes:
Box 1: 1961 Convention (C61), article 1(1).
Box 2: Secretary-General Commentary on C61, article 1(1)j.
Box 3: C61, article 2(9).
Box 4: Secretary-General Commentary on C61, article 2(9).
Box 5: 1971 Convention (C71), article 4(b).
Box 6: Secretary-General Commentary on C61, article 1(1)b.
Box 7: C61, article 28(2).
Box 8: Secretary-General Commentary on C61, article 28(2).
Box 9: Purposes under control of C61.
Box 10: Status of Cannabis in the Schedules of C61 and C71.
This document is under CC BY-SA Attribution-ShareAlike licence.
The exemption of drugs used in industrial contexts is a core principle of the International
Drug Control Conventions (IDCC).
1
Both the 1961 Single Convention on Narcotic drugs as
amended by the 1972 Protocol (C61) and its complementary treaty, the 1971 Convention on
Psychotropic Substances (C71) only address medicines and the pharmaceutical sector –
thus providing repeated statements that their provisions do not apply to “drugs” when used
for any other purposes that medical and scientific ones.
In addition to numerous general exemptions for all drugs, the writers of the Conventions,
respectful of the important uses of “industrial hemp” but also anticipating advancement in
technology and industry, secured the non-inclusion of “hemp” by adding specific
dispositions.
1. Exemption for products used in industrial settings
1.1.
Exemption of non-drug Cannabis products from the Conventions
As products, Cannabis
stems, roots, seeds, leaves, or any other botanical part that is not a
“flowering or fruiting top” are not considered as drugs. The only “drugs” from Cannabis
are
those listed in the Schedules (see Box 10), i.e. flowering/fruiting tops, the resin, extracts and
tinctures6
and THC7
. The rest of botanical parts are not considered drugs and do not fall
under the régime applicable to drugs under the IDCC.
Box 1: C61, article 1(1).
“(b) “Cannabis” means the flowering or fruiting tops of the cannabis plant (excluding the
seeds and leaves when not accompanied by the tops) from which the resin has not been
extracted, by whatever name they may be designated.
(c) “Cannabis plant” means any plant of the genus Cannabis.
(d) “Cannabis resin” means the separated resin, whether crude or purified, obtained from
the cannabis plant.
[...]
(j) “Drug” means any of the substances in Schedules I and II, whether natural or synthetic.”
The Commentary on C61,2 a document asked for, and edited by the Secretary-General of
the United Nations in 1973 as a guideline for the interpretation of the Convention, confirms
that the C61 Single Convention only requires the application of measures of control over the
parts of Cannabis
that are mentioned in the Schedules (and therefore “that are considered
“drugs”), plus the leaves in specific case at the discretion of each signatory country. Under
no other circumstance will the régime of the Convention apply to products or substances that
are not explicitly mentioned (see Boxes 2 and 10).
Scope and definition of the exemption covering “hemp” in the Kenzi Riboulet-Zemouli
international drug control Conventions. A total exemption - by purpose. October 17th, 2019 2
Box 2: Secretary-General Commentary on C61, article 1(1)j.
Note that “leaves” are present here because, although not being present in the Schedules,
a specific disposition of C61 allow countries that desire to apply the measures of control
prevailing for drugs. De facto
leaves have the same status as seeds (i.e. exempted) but a
country can decide to apply the measures of control prevailing for flowering and fruiting
tops if that countries considers it appropriate.
1.2.
Exemption of Cannabis drugs from the Convention, when used in industry
The exemption of drugs used in industry is a core principle of the IDCC, both C61 and C71
Treaties unequivocally allow for the use of any drug placed under the scope of their control,
as long as such use takes place within a both non-medical and non-scientific setting, i.e. for
the industrial manufacture of goods not considered as “drugs” by these Conventions.
The Commentary recognizes that not only this provision was included to cover industrial
uses of controlled drugs known at the time, but also to foresee future developments in the
uses of drugs for other than medical (including “abuse”) or scientific purposes (i.e. not
related to their psychoactivity) (see Box 4).
This is what the world has been witnessing with the increased use of products derived from
the Cannabis
plant that are used for purposes not related to the psychoactive effects
characteristics of the THC molecule, not only fibre and seed-related products but also for
instance CBD-rich extracts or other preparations with only trace-amounts of THC, and
therefore not liable to be abused or to provoke similar “ill-effects” than those of THC,
according to the assessment made by the World Health Organization (WHO)3,4.
Scope and definition of the exemption covering “hemp” in the Kenzi Riboulet-Zemouli
international drug control Conventions. A total exemption - by purpose. October 17th, 2019 3
Box 3: C61, article 2(9).
“Parties are not required to apply the provisions of this Convention to drugs which are
commonly used in industry for other than medical or scientific purposes, provided that:
(a) They ensure by appropriate methods of denaturing or by other means that the drugs
so used are not liable to be abused or have ill effects (article 3, paragraph 3) and that the
harmful substances cannot in practice be recovered; and
(b) They include in the statistical information (article 20) furnished by them the amount of
each drug so used.”
The statement of Article 2(9) is confirmed in Article 4 (referring to the general obligations
for the signatory countries). Article 4 only refers to “medical and scientific purposes” for all
the activities which involve drugs that are covered by the C61 treaty. “Recreational use” is
included as “abuse” in a subset of “medical use” (i.e. non-legitimate medical use and/or
diversion from an initial medical purpose of the use). Consequently, any drug used for any
other than medical or scientific purposes is disregarded by the control measures applying
to C61-controlled drugs.
Box 4: Secretary-General Commentary on C61, article 2(9).
Scope and definition of the exemption covering “hemp” in the Kenzi Riboulet-Zemouli
international drug control Conventions. A total exemption - by purpose. October 17th, 2019 4
Box 5: C71, article 4(b).
“In respect of psychotropic substances other than those in Schedule I, the Parties may
permit: [...]
(b) The use of such substances in industry for the manufacture of non-psychotropic
substances or products, subject to the application of the measures of control required by
this Convention until the psychotropic substances come to be in such a condition that they
will not in practice be abused or recovered”
It is worth noting that THC is currently controlled in Schedule II of C71, therefore is eligible
for exemption in case of use in industrial settings, and as long as
The WHO has emitted a recommendation4 which, if adopted, would withdraw THC from
the C71 and place it in Schedule I of C61, where it would also be eligible for exemption in
industrial settings (see Box 3).
THC, controlled under C71, falls under the exemption of this article when present in
trace-amounts (not practically recoverable nor abusable) in an industrial product (i.e. a
product not used for medical, including abuse, or scientific purposes).
1.3.
Trace-amounts do not justify control
Per se
, CBD is not included in the Schedules of C61 or C71 and therefore is exempt from
the controls of these Conventions. WHO did not recommended to schedule it, therefore no
action can be taken to include CBD in the Schedules against the assessment of WHO5 (pp.
63-4). The trace amount of THC they may contain are not, however, an obstacle to consider
products of Cannabis
with trace-amounts be under controls, as such amounts are not
present in a yield and condition that would allow in practice THC to be recovered, “abused”
and therefore fall under the controls of the IDCC.
Besides this interpretation being recently pushed forward by the WHO Expert Committee on
Drug Dependence following their assessment of Cannabis
undertaken in 20183,4, trace
amounts seem to have always been regarded as invalid justifications for control (Box 6).
Flowering or fruiting tops “from which the resin has been extracted” are not drugs, and do
not fall under the C61 régime. Pages 4-5, the Commentary discusses this exemption, and
explains that “This exclusion may be justified on the grounds that the tops from which the
resin has been extracted contain only a very insignificant quantity of the psychoactive
principle.” This statement suggests that a product obtained from the Cannabis
plant, and not
considered as a drug (“tops” from which the resin has been extracted, in this case), even
when containing trace-amounts of a clearly controlled drug (“resin” in this case), has grounds
to be treated as fully exempted from the scope of the Convention.
Scope and definition of the exemption covering “hemp” in the Kenzi Riboulet-Zemouli
international drug control Conventions. A total exemption - by purpose. October 17th, 2019 5
Box 6: Secretary-General Commentary on C61, article 1(1)b.
2. Exemption for the cultivation of Cannabis
to be used for industrial purposes
This non-inclusion of drugs destined to industry-related purposes, and its application to
Cannabis
as well, is corroborated by an exclusion of the cultivation of Cannabis
from the
scope of the Convention when such cultivation is undertaken for industrial purposes. Article
28(2) states that C61 as a whole “shall not apply to the cultivation of the cannabis plant
exclusively for industrial purposes”
Box 7: C61, article 28(2).
“1. If a Party permits the cultivation of the cannabis plant for the production of cannabis or
cannabis resin, it shall apply thereto the system of controls as provided in article 23
respecting the control of the opium poppy.
2. This Convention shall not apply to the cultivation of the cannabis plant exclusively for
industrial purposes (fibre and seed) or horticultural purposes.”
The “(fibre and seed)” present in the text is of secondary importance, as the focus of the
exclusion is that of “industrial purposes” and “horticultural purposes.” The Commentary (pp.
312-5) clearly explains that the obligations of the Convention related to cannabis cultivation
apply only to the cultivation of the cannabis plant for the production of psychoactive cannabis
and psychoactive resin sought for medical or scientific purposes. The Commentary (p. 312,
see Box 8) continues by explaining that “cultivation for any other purpose [than medical
or scientific], and not only for [industrial (fibre and seed) and horticultural purposes]
is consequently exempted”. This is corroborated by C61 art. 2(9), (see Box 3).
Such precision is nothing more than a total alignment with the principle of exemption
prevailing for drugs, explained in the first section of this document. Article 28 extends to the
processes of obtention (cultivation) of these products, such comprehensive exclusion from
the scope of controls and provisions of the IDCC.
Scope and definition of the exemption covering “hemp” in the Kenzi Riboulet-Zemouli
international drug control Conventions. A total exemption - by purpose. October 17th, 2019 6
Box 8: Secretary-General Commentary on C61, article 28(2).
It is worth noting that the presence of “fibre and seed” in the sentence has often served as a
basis to a reading pretending to restrict the exemption only to these parts. Such a statement
does not hold (i) the reading of the Convention itself, as “horticulture” is an activity involving
flowers which is exempted in the same article, and which therefore de facto extends the
exemption beyond solely “fibres” and “seeds;” and (ii) this article does not concern final
products but cultivation – and it is challenging to imagine the cultivation of only “fibre and
seeds” without all the other parts of the plant.
In an oral statement to the Commission on Narcotic Drugs mentioned in the written
proceedings issued by the United Nations Office on Drugs and Crime (UNODC)5, a
representative of the International Narcotics Control Board (INCB) declared (p. 53) “the 1961
Convention limits the cultivation of cannabis for industrial purposes to fibre and seed.”
Historically often aligned with the positions of the INCB, the delegation of the United States
of America however immediately opposed such statement (p. 10) explaining: “The INCB
stated that the industrial uses are limited to fibers and seeds. The Convention does not
expressly state a limitation. What is the basis for the INCB interpretation that the phrase
"(fibres and seeds)" means exclusively fibers and seeds?” No further explanation was
provided by the INCB on their position.
The first draft of the C61 Single Convention prepared by its Conference of Plenipotentiaries,
included “fibre and seed” as the very object of the planned exemption. At first, the
terminology was withdrawn and replaced with that of “industrial purposes.” The words “fibre
and seed” were finally added again in the last version of the Convention between brackets –
as an intent to help understand the meaning of “industrial use” while not limiting it to these
two botanical parts of the plant. The discussions of the Plenipotentiaries show no intention to
limit exclusively the exemption of this article to “fibres and seeds,” and it is clear that the
spirit given to the Treaty by its writers was that of providing enough room for the by-then
Scope and definition of the exemption covering “hemp” in the Kenzi Riboulet-Zemouli
international drug control Conventions. A total exemption - by purpose. October 17th, 2019 7
broad, diverse and global “hemp” sector to continue existing and developing as future
industrial uses appear.
The misunderstanding of the meaning of brackets must not prevent from finally
understanding and applying the spirit and letter of the Single Convention: a
non-application of its provisions to all purposes not related to medical, scientific
purposes and abuse.
Box 9: Purposes under control of C61.
Controlled under C61
Scientific purposes
Legitimate use
Medical purposes
Legitimate use
Non-legitimate use / abuse
Not controlled by C61
Direct exemption
Industrial purposes other
than fibre and seed
Industrial purposes (fibre and
seed, in the case of
Cannabis
)
Horticultural purposes
Indirect exemption
Any other purpose not listed
above
3. Conclusion
We therefore face a multi-dimensional exemption of hemp from the Single Convention:
Cultivation of the plant is disregarded when undertaken for any purpose other than
pharmaceutical production or research (Article 28(2), Commentary pp. 312-5);
b) Non-tops parts of Cannabis
are excluded from the scope of the Convention,
because they are not considered a drug (Article 1(b), Commentary pp. 2-4 and
312-5);
Cannabis
tops when deprived of “resin” (psychoactive compounds, i.e. THC) are not
considered a “drug”, and fall out of the scope of the Convention (Article 1(1)b.,
Commentary pp. 2-4, and Article 1(1)d., Commentary p. 5);
Furthermore, even Cannabis tops that are not deprived of “resin,” i.e. Cannabis
as a
“drug,” when used in industrial settings, is exempt from the Convention’s controls
(Article 2(9) and Commentary pp. 71-3),
Scope and definition of the exemption covering “hemp” in the Kenzi Riboulet-Zemouli
international drug control Conventions. A total exemption - by purpose. October 17th, 2019 8
These exemptions are cumulative and mutually-reinforcing. They authorize the
cultivation, processing and further use of the harvests and derivatives of what we commonly
call “hemp.” Their common criteria for exemption is the concept of purpose, which must differ
from those related to pharmaceutical drugs (“legitimate” and “abuse”/”misuse”) and scientific
research. In the letter and spirit of the IDCC, “hemp” is exempted by purpose of
cultivation and by purpose of use of its derivatives.
Box 10: Status of Cannabis in the Schedules of C61 and C71.
Scope and definition of the exemption covering “hemp” in the Kenzi Riboulet-Zemouli
international drug control Conventions. A total exemption - by purpose. October 17th, 2019 9
4. References
1. United Nations. The International Drug Control Conventions.
Vienna: United Nations Office on Drugs
and Crime; 2013. Available from:
www.unodc.org/documents/commissions/CND/Int_Drug_Control_Conventions/Ebook/The_International
_Drug_Control_Conventions_E.pdf
2. United Nations. Commentary on the Single Convention on Narcotic Drugs, 1961 (Prepared by the
Secretary-General in Accordance with paragraph 1 of Economic and Social Council resolution 914 D
(XXXIV) of 3 August 1962).
New-York: United Nations Secretary-General; 1973. Available from:
www.incb.org/documents/Narcotic-Drugs/1961-Convention/Commentary_on_the_single_convention_19
61.pdf
3. World Health Organization. Expert Committee on Drug Dependence: fortieth report (WHO Technical
Report Series, No. 1013).
Geneva: World Health Organization; 2018. Licence: CC BY-NC-SA 3.0 IGO.
Available from: apps.who.int/iris/bitstream/handle/10665/279948/9789241210225-eng.pdf
4. World Health Organization. Expert Committee on Drug Dependence: forty-first report (WHO Technical
Report Series, No. 1018).
Geneva: World Health Organization; 2018. Licence: CC BY-NC-SA 3.0 IGO.
Available from: apps.who.int/iris/bitstream/handle/10665/325073/9789241210270-eng.pdf
5. UNODC Secretariat to the Governing Bodies. Proceedings of the 62nd Commission on Narcotic Drugs.
Questions and answers relating to WHO’s recommendations on cannabis and cannabis-related
substances Status: 10 October 2019.
Vienna: United Nations Office on Drugs and Crime; 2019.
Available from:
www.unodc.org/documents/commissions/CND/Scheduling_Resource_Material/Cannabis/Consultations_
with_WHO_Questions_and_Answers_11_October_2019.pdf
6. International Narcotics Control Board. Yellow List 58th edition (List of Narcotic Drugs Under International
Control, Prepared in accordance with the Single Convention on Narcotic Drugs, 1961 and the Protocol
of 25 March 1972 amending the Single Convention on Narcotic Drugs, 1961).
Vienna: United Nations;
2019. Available from:
www.incb.org/documents/Narcotic-Drugs/Yellow_List/58th_Edition/Yellow_List_-ENG.pdf
7. International Narcotics Control Board. Green List 29th edition (List of Psychotropic Substances under
International Control, In accordance with the Convention on Psychotropic Substances of 1971).
Vienna:
United Nations; 2018. Available from:
www.incb.org/documents/Psychotropics/greenlist/Green_list_ENG_V18-02416.pdf
Scope and definition of the exemption covering “hemp” in the Kenzi Riboulet-Zemouli
international drug control Conventions. A total exemption - by purpose. October 17th, 2019 10
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Prepared by the Secretary-General in Accordance with paragraph 1 of Economic and Social Council resolution 914 D (XXXIV
United Nations. ​ Commentary on the Single Convention on Narcotic Drugs, 1961 (Prepared by the Secretary-General in Accordance with paragraph 1 of Economic and Social Council resolution 914 D (XXXIV) of 3 August 1962).​ New-York: United Nations Secretary-General; 1973. Available from: www.incb.org/documents/Narcotic-Drugs/1961-Convention/Commentary_on_the_single_convention_19 61.pdf
Available from: www.unodc.org/documents/commissions/CND/Int_Drug_Control_Conventions/Ebook/The_International _Drug_Control_Conventions_E.pdf 2. United Nations
United Nations. The International Drug Control Conventions. Vienna: United Nations Office on Drugs and Crime; 2013. Available from: www.unodc.org/documents/commissions/CND/Int_Drug_Control_Conventions/Ebook/The_International _Drug_Control_Conventions_E.pdf 2. United Nations. Commentary on the Single Convention on Narcotic Drugs, 1961 (Prepared by the Secretary-General in Accordance with paragraph 1 of Economic and Social Council resolution 914 D (XXXIV) of 3 August 1962). New-York: United Nations Secretary-General; 1973. Available from: www.incb.org/documents/Narcotic-Drugs/1961-Convention/Commentary_on_the_single_convention_19 61.pdf
Available from: www.incb.org/documents/Narcotic-Drugs/Yellow_List/58th_Edition/Yellow_List_-ENG.pdf 7. International Narcotics Control Board. Green List 29th edition (List of Psychotropic Substances under International Control, In accordance with the Convention on Psychotropic Substances of 1971)
World Health Organization. Expert Committee on Drug Dependence: forty-first report (WHO Technical Report Series, No. 1018). Geneva: World Health Organization; 2018. Licence: CC BY-NC-SA 3.0 IGO. Available from: apps.who.int/iris/bitstream/handle/10665/325073/9789241210270-eng.pdf 5. UNODC Secretariat to the Governing Bodies. Proceedings of the 62nd Commission on Narcotic Drugs. Questions and answers relating to WHO's recommendations on cannabis and cannabis-related substances Status: 10 October 2019. Vienna: United Nations Office on Drugs and Crime; 2019. Available from: www.unodc.org/documents/commissions/CND/Scheduling_Resource_Material/Cannabis/Consultations_ with_WHO_Questions_and_Answers_11_October_2019.pdf 6. International Narcotics Control Board. Yellow List 58th edition (List of Narcotic Drugs Under International Control, Prepared in accordance with the Single Convention on Narcotic Drugs, 1961 and the Protocol of 25 March 1972 amending the Single Convention on Narcotic Drugs, 1961). Vienna: United Nations; 2019. Available from: www.incb.org/documents/Narcotic-Drugs/Yellow_List/58th_Edition/Yellow_List_-ENG.pdf 7. International Narcotics Control Board. Green List 29th edition (List of Psychotropic Substances under International Control, In accordance with the Convention on Psychotropic Substances of 1971). Vienna: United Nations; 2018. Available from: www.incb.org/documents/Psychotropics/greenlist/Green_list_ENG_V18-02416.pdf