Katelyn Baker
Well-Known Member
Over a year ago Parliament brought about significant reform to our local legal landscape with regards to the governing of ganja through the enactment of the Dangerous Drugs (Amendment) Act the (DDA). Among other things, the DDA decriminalised the possession of up to two ounces of ganja and the smoking of ganja in specified circumstances, and authorised the introduction of a scheme of licences for handling ganja for medical, therapeutic or scientific purposes. This heralded a seemingly radical policy shift from a prohibitionist stance to a more relaxed approach.
Following its passage, expectations ran high for the potential economic benefits to be derived from the development of a local medical ganja industry. Many geared up for what they perceived to be a potential economic windfall, only to be taught a lesson in patience as, while the DDA provided for the establishment of a licensing regime for medical ganja, it entrusted that responsibility in the Cannabis Licensing Authority the (CLA), which was not established until months later.
After the establishment of the CLA, stakeholders waited with bated breath for it to develop the regulations to support the ganja licensing regime. Such regulations have recently been issued as the Dangerous Drugs (Cannabis Licensing) (Interim) Regulations 2016. Though only "interim regulations", they now complete the circle of the legal and regulatory infrastructure required to enable a local ganja industry for medical, scientific and therapeutic purposes.
Not All Individuals Will Qualify
The regulations provide for five different types of licences: a cultivator's licence, processing licence, transporting licence, retail licence, and a research and development licence.
In order to apply, an individual applicant may be any person over 18 years who is ordinarily resident in Jamaica and has been for at least three years immediately preceding the application. Corporate entities may also apply if they are a company incorporated or business registered under the laws of Jamaica, which is substantially owned and controlled by individuals ordinarily resident in Jamaica, or if they are a cooperative or friendly society registered in Jamaica.
By including residency requirements, the CLA appears to have relented to initial concerns voiced by some stakeholders that the new regime must not oust the role of small farmers or local investors who may not be able to effectively compete with large-scale growers or foreign interests. Foreign investors will therefore need to partner with locals in order to apply.
However, it will be interesting to see how many of the people who qualify will actually have the financial and administrative resources to meet the significant application requirements. These requirements include:
- A completed Form 1 Application Form;
- Proof that the applicant is a proper applicant;
- Payment of a non-refundable application fee of US$300 for individuals applying for a cultivator's licence, and US$500 for all others (this is additional to the annual licence fee which ranges from US$2,000 to US$10,000 and a required security bond of up to US$3,000);
- A current tax compliance certificate;
- A police report in respect of an individual applicant or of a company or society, in respect of each of its directors or members, as the case may be;
- Proof of ownership of all registered or unregistered lands to be used for the purposes of the licence, or a completed Form 3 Consent of Property Owner, together with a survey diagram of the land and proof that all applicable taxes in respect of the premises have been paid;
- Where the applicant is a company or registered business, a copy of the Certificate of Incorporation or the Business Registration Certificate, as the case may be;
- Where the applicant's business will involve employees, a completed Form 2 list of employees, together with a photograph, proof of age and recent police report in respect of each employee; and
- Any other documentation that may be required under Part III for a particular licence.
Another hurdle an applicant will face is that their criminal history may disqualify them from applying within a certain time or any at all.
If an applicant has been convicted of a criminal offence, he or she may not apply unless five years have elapsed since the completion of his or her sentence or payment of the fine (if sentenced to a fine). That is, provided that the applicant has not during that time been convicted of any other offence involving violence or dishonesty.
However, if the offence was one under the Dangerous Drugs Act, 10 years must have elapsed, and in the case of an applicant who has been convicted of a money-laundering offence under the Proceeds of Crime Act, or any of the range of offences listed in the Third Schedule of the Criminal Records (Rehabilitation of Offenders) Act (which includes murder, attempted murder, kidnapping, robbery, burglary, extortion, most firearm offences, certain sexual offences, etc), there is a permanent disqualification from applying or holding a licence.
It also appears that if any director of an applicant company, proprietor of an applicant business, or member of an applicant cooperative or friendly society has been convicted of any of the aforementioned offences, then that may also lead to the disqualification of the applicant company, business or society, as the case may be.
These provisions demonstrate that the Government is mindful to ensure that the lawful ganja industry is not manipulated by people of ill repute, though they may have the effect of preventing individuals from transitioning from the illicit trade to the lawful industry.
Licensees Will Be Subject To Onerous Obligations
Once the application is granted, there will be ongoing reporting and compliance obligations for the licensee. This includes adhering to the terms and conditions of the licence, as well as codes of practice and directives which may be issued by the CLA from time to time.
This is fairly standard for any statutory licensing regime. However, there are other requirements, some of which are particular to certain licences, which smack of over-regulation. For example, all licensees will be expected to periodically provide a full accounting of all their transactions as well as a weekly reconciliation statement of all ganja handled and disposed of by the licensee.
Perhaps the most onerous of all the licences is the cultivator's licence, which, depending on the tier, requires the licensee to, among other things, maintain a log of all people entering and exiting the premises, implement a system to monitor, track and trace each ganja plant - which must also be tagged with a unique number issued by the CLA - erect a chain-linked perimeter fence of at least 2.0 to 2.5 metres in height, ensure that the premises are secured by a panic alarm system operated by one of a list of approved security companies, and is monitored by off-site Web-enabled surveillance.
Additionally, all ganja harvested must be packaged in special bags purchased from the CLA and can only be sold directly to the CLA, which will then on-sell to downstream buyers.
While these strict regulatory requirements may be disappointing to most, it is important to note that the hands of our Government were tied in this matter by our international treaty obligations.
Jamaica is a party to all three United Nations drug control treaties: the 1961 Single Convention on Narcotic Drugs (as amended by the 1972 Protocol); the 1971 Convention on Psychotropic Substances; and the 1988 Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.
These treaties mandate a system of strict legal control of the production and supply of all controlled drugs, including ganja, and require considerable monitoring and oversight to limit their use to medical and scientific purposes. Though many consider these treaties as no longer fit-for-purpose, Jamaica remains bound to their current terms until external geo-political influence results in a shift in the international consensus on cannabis regulation.
Indeed, our Government is deserving of commendation for navigating and balancing the legal tension between our international commitments and our domestic policy goals (through the DDA) in a very careful and creative way.
Nonetheless, it is now clear that the expectations of many who were hoping to participate in the promised lawful, regulated, medical ganja industry will go up in smoke or remain a mere pipe dream (all puns intended).
This is particularly the case for less sophisticated small farmers who may not be able to meet the burdensome requirements and foreign investors who had hopes of exporting product.
Nevertheless, the possibilities remain promising for those with the financial and organisational wherewithal, whose primary desire is to serve tourists and the domestic market.
The purported small size of this market, however, means that inescapably, it will be dominated by a small number of large actors. It also means that the illicit ganja industry will not shrink, but will no doubt continue alongside the lawful ganja industry for medical, scientific and therapeutic purposes.
News Moderator: Katelyn Baker 420 MAGAZINE ®
Full Article: Smoke Clears On Cannabis Licensing Regime
Author: Rene Gayle
Contact: rene.gayle@mfg.com.jm
Photo Credit: None Found
Website: Jamaica Observer
Following its passage, expectations ran high for the potential economic benefits to be derived from the development of a local medical ganja industry. Many geared up for what they perceived to be a potential economic windfall, only to be taught a lesson in patience as, while the DDA provided for the establishment of a licensing regime for medical ganja, it entrusted that responsibility in the Cannabis Licensing Authority the (CLA), which was not established until months later.
After the establishment of the CLA, stakeholders waited with bated breath for it to develop the regulations to support the ganja licensing regime. Such regulations have recently been issued as the Dangerous Drugs (Cannabis Licensing) (Interim) Regulations 2016. Though only "interim regulations", they now complete the circle of the legal and regulatory infrastructure required to enable a local ganja industry for medical, scientific and therapeutic purposes.
Not All Individuals Will Qualify
The regulations provide for five different types of licences: a cultivator's licence, processing licence, transporting licence, retail licence, and a research and development licence.
In order to apply, an individual applicant may be any person over 18 years who is ordinarily resident in Jamaica and has been for at least three years immediately preceding the application. Corporate entities may also apply if they are a company incorporated or business registered under the laws of Jamaica, which is substantially owned and controlled by individuals ordinarily resident in Jamaica, or if they are a cooperative or friendly society registered in Jamaica.
By including residency requirements, the CLA appears to have relented to initial concerns voiced by some stakeholders that the new regime must not oust the role of small farmers or local investors who may not be able to effectively compete with large-scale growers or foreign interests. Foreign investors will therefore need to partner with locals in order to apply.
However, it will be interesting to see how many of the people who qualify will actually have the financial and administrative resources to meet the significant application requirements. These requirements include:
- A completed Form 1 Application Form;
- Proof that the applicant is a proper applicant;
- Payment of a non-refundable application fee of US$300 for individuals applying for a cultivator's licence, and US$500 for all others (this is additional to the annual licence fee which ranges from US$2,000 to US$10,000 and a required security bond of up to US$3,000);
- A current tax compliance certificate;
- A police report in respect of an individual applicant or of a company or society, in respect of each of its directors or members, as the case may be;
- Proof of ownership of all registered or unregistered lands to be used for the purposes of the licence, or a completed Form 3 Consent of Property Owner, together with a survey diagram of the land and proof that all applicable taxes in respect of the premises have been paid;
- Where the applicant is a company or registered business, a copy of the Certificate of Incorporation or the Business Registration Certificate, as the case may be;
- Where the applicant's business will involve employees, a completed Form 2 list of employees, together with a photograph, proof of age and recent police report in respect of each employee; and
- Any other documentation that may be required under Part III for a particular licence.
Another hurdle an applicant will face is that their criminal history may disqualify them from applying within a certain time or any at all.
If an applicant has been convicted of a criminal offence, he or she may not apply unless five years have elapsed since the completion of his or her sentence or payment of the fine (if sentenced to a fine). That is, provided that the applicant has not during that time been convicted of any other offence involving violence or dishonesty.
However, if the offence was one under the Dangerous Drugs Act, 10 years must have elapsed, and in the case of an applicant who has been convicted of a money-laundering offence under the Proceeds of Crime Act, or any of the range of offences listed in the Third Schedule of the Criminal Records (Rehabilitation of Offenders) Act (which includes murder, attempted murder, kidnapping, robbery, burglary, extortion, most firearm offences, certain sexual offences, etc), there is a permanent disqualification from applying or holding a licence.
It also appears that if any director of an applicant company, proprietor of an applicant business, or member of an applicant cooperative or friendly society has been convicted of any of the aforementioned offences, then that may also lead to the disqualification of the applicant company, business or society, as the case may be.
These provisions demonstrate that the Government is mindful to ensure that the lawful ganja industry is not manipulated by people of ill repute, though they may have the effect of preventing individuals from transitioning from the illicit trade to the lawful industry.
Licensees Will Be Subject To Onerous Obligations
Once the application is granted, there will be ongoing reporting and compliance obligations for the licensee. This includes adhering to the terms and conditions of the licence, as well as codes of practice and directives which may be issued by the CLA from time to time.
This is fairly standard for any statutory licensing regime. However, there are other requirements, some of which are particular to certain licences, which smack of over-regulation. For example, all licensees will be expected to periodically provide a full accounting of all their transactions as well as a weekly reconciliation statement of all ganja handled and disposed of by the licensee.
Perhaps the most onerous of all the licences is the cultivator's licence, which, depending on the tier, requires the licensee to, among other things, maintain a log of all people entering and exiting the premises, implement a system to monitor, track and trace each ganja plant - which must also be tagged with a unique number issued by the CLA - erect a chain-linked perimeter fence of at least 2.0 to 2.5 metres in height, ensure that the premises are secured by a panic alarm system operated by one of a list of approved security companies, and is monitored by off-site Web-enabled surveillance.
Additionally, all ganja harvested must be packaged in special bags purchased from the CLA and can only be sold directly to the CLA, which will then on-sell to downstream buyers.
While these strict regulatory requirements may be disappointing to most, it is important to note that the hands of our Government were tied in this matter by our international treaty obligations.
Jamaica is a party to all three United Nations drug control treaties: the 1961 Single Convention on Narcotic Drugs (as amended by the 1972 Protocol); the 1971 Convention on Psychotropic Substances; and the 1988 Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.
These treaties mandate a system of strict legal control of the production and supply of all controlled drugs, including ganja, and require considerable monitoring and oversight to limit their use to medical and scientific purposes. Though many consider these treaties as no longer fit-for-purpose, Jamaica remains bound to their current terms until external geo-political influence results in a shift in the international consensus on cannabis regulation.
Indeed, our Government is deserving of commendation for navigating and balancing the legal tension between our international commitments and our domestic policy goals (through the DDA) in a very careful and creative way.
Nonetheless, it is now clear that the expectations of many who were hoping to participate in the promised lawful, regulated, medical ganja industry will go up in smoke or remain a mere pipe dream (all puns intended).
This is particularly the case for less sophisticated small farmers who may not be able to meet the burdensome requirements and foreign investors who had hopes of exporting product.
Nevertheless, the possibilities remain promising for those with the financial and organisational wherewithal, whose primary desire is to serve tourists and the domestic market.
The purported small size of this market, however, means that inescapably, it will be dominated by a small number of large actors. It also means that the illicit ganja industry will not shrink, but will no doubt continue alongside the lawful ganja industry for medical, scientific and therapeutic purposes.
News Moderator: Katelyn Baker 420 MAGAZINE ®
Full Article: Smoke Clears On Cannabis Licensing Regime
Author: Rene Gayle
Contact: rene.gayle@mfg.com.jm
Photo Credit: None Found
Website: Jamaica Observer
