Expert Seminar: Costs and benefits of cannabis regulation models in Europe

Transnational Institute
October 31/November 1, 2013

The Transnational Institute (TNI) organized an expert seminar on Costs and Benefits of Cannabis Regulation Models in Europe in Amsterdam, The Netherlands on October 31/November 1, 2013. The objective of the seminar was to identify and map existing and possible future cannabis regulation models in Europe, looking at the local, provincial and national levels and the po­tential impact of such models on the illicit cannabis market.

The costs and benefits of differ­ent existing or proposed regulation models – such as the coffeeshop model in the Nether­lands, proposed hash shops in Denmark (Copenhagen), cannabis social clubs in Spain (nota­bly the regulation of these clubs in Catalonia and the Basque country), initiatives for canna­bis regulation in the French parliament, etc. – were explored and compared.

The seminar was guided by the Chatham House rule and aims to be an open-minded exchange of opinions and experiences of policy officials and non-governmental experts in the field. See the Agenda of the meeting.

1. Overview of developments in cannabis regulation

The legal regulation of the cannabis market in Uruguay and the successful referenda in the US States of Washington and Colorado, have accelerated cannabis policy developments worldwide. So far in Europe policy trends have focused on various forms of cannabis decriminalization, the introduction of medical marijuana, the Dutch coffeeshop model and the more recent innovative Cannabis Social Clubs (CSCs) model in Spain. In Europe, the central governments oppose calls for change in cannabis policy from local and regional authorities in several countries that advocate for different kinds of regulation models of the cannabis market. In the Netherlands municipalities that al­low for coffeeshops want a regulation of the backdoor of the coffeeshops. In Copen­hagen (Denmark) and Germany, local authorties advocate for coffeeshop-like facilities with a regu­lated supply. In other countries (Spain, Switzerland) regional and local authorities want to allow cannabis social clubs, while in others (Belgium, Portugal, France and the UK) grassroots movements advocating cannabis clubs are gaining ground.

Inputs from the seminar were used for the briefing Cannabis policy reform in Europe: Bottom up rather than top down, by Tom Blickman, Series on Legislative Reform of Drug Policies No. 28, December 2014

2. Costs and benefits of cannabis regulation

An important element in the debate about cannabis regulation is the financial cost and benefits. The seminar looked the difficulties in calculating the costs and benefits, and the contribution of these assessments in the national and local debates on regulation. The ses­sion gave short overviews of existing financial cost and benefits assessments and their strengths and weak­nesses, in particular the latest report of the Beckley Foundation, Licensing and regulation of the cannabis market in England and Wales: Towards a cost benefit analysis, the fiscal impact assessment of Initiative 502 in Washington State (US) and the potential tax benefits of regulating the back-door of the coffee-shops in the Netherlands.

3. Cannabis regulation and the UN drug control conventions

Decriminalization, including schemes in which posses­sion, purchase and cultivation for personal use are no longer punishable offences, operates reasonably comfortable inside the confines of the UN drug control conventions. Although the treaties permit softening the criminal sanction requirements, authorities cannot create a legally regulated market for cannabis. Proscriptions laid out in the conventions clearly do not authorize the supply, production, manufacture or sale of con­trolled drugs, for non-medical and non-scientific purposes, which is to say recreational use.

Questions addressed at this session included: What exactly are the limits of latitude in the conventions? What are the prospects for changing or amending the conventions and what can countries do if they con­sider the conventions to be an obstacle for democratically decided policy re­form? Would it be possible to delete cannabis completely from the 1961 Single Convention, or move it to a lighter control schedule from its current classification on lists I and IV? Will cannabis policy developments appear at all on the agenda of the High-Level Seg­ment of the 57th ses­sion of Commission on Narcotic Drugs (CND) in March 2014 and what are the prospects for cannabis reform at the UN General Assembly Special Session (UNGASS) on the drug problem in 2016? What outcomes can be expected from the regional debate in the Americas and the impact of the reports of the Organisation of American States (OAS). Is there a possibility to create a group of like-minded countries to initiate a cannabis reform agenda at the interna­tional level?

Limits of latitude in the UN drug control conventions

The present system of worldwide drug control is based upon three international con­ventions. These are 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.

Recent years have seen a growing unwillingness among increasing numbers of States parties to fully adhere to a strictly prohibitionist reading of the UN drug control con­ventions, in some cases at a sub national level, with a range of tolerant policy approaches. Prominent among these are harm reduction interventions aiming to reduce the link between injecting drug use and HIV/AIDS (particularly drug consumption rooms/safe injection facilities), medical marijuana schemes and the ‘decriminalization’ of drug possession for personal use.

Despite interpretative tensions around some policy approaches, inherent flexibility within the UN drug control conventions allows members of the drug control regime some policy space at the national level. Decriminalization, including schemes in which posses­sion, purchase and cultivation for personal use are no longer punishable offences, operates reasonably comfortable inside the confines of the UN drug control conventions. Also harm reduction services, including drug consumption rooms, can operate lawfully under the drug control treaty system. All controlled drugs can be used for medical purposes, including heroin prescription and ‘medical marijuana’; what constitutes medical use is left to the discretion of the parties. Some judicial experts argue the concept of ‘medical purpose’ could be interpreted as broadly as to include any policy measures, including a legal regulation of the cannabis market that can be justified on the basis of its positive contribution to public health. However, the Commentary does not seem to support such a broad interpretation.

A legal regulated market for non-medical use of cannabis or any other scheduled drug is not permissible within the treaty framework. Proscriptions laid out in the conventions clearly do not authorize the supply, production, manufacture or sale of con­trolled drugs, for non-medical and non-scientific purposes, which is to say recreational use.

It is important to take international law seriously. Tension with international law is obvious in the Dutch cannabis coffeeshop system. CSCs are a smart invention, but with commercial CSCs, the tension with international law increases. Also current drug law reforms in Uruguay and the US seem to be in conflict with the treaty framework. However, legal tensions exist with other international legal obligations such as those stemming from human rights or indigenous rights. The INCB often increases tensions around interpretations instead of resolving them, though the Board should be guided ‘by a spirit of co-operation rather than by a narrow view of the letter of the law’.

Now is the time to improve the treaty system. Growing doubts and inherent inconsistencies and ambiguities provide legitimate ground for demanding more space for experimentation with alternative control models than the current systems allows.

Input: The Limits of Latitude: The UN drug control conventions, Dave Bewley-Taylor & Martin Jelsma, TNI-IDPC Series on Legislative Reform of Drug Policies Nr. 18, March 2012

Revision of the UN Drug Control Conventions and like-minded groups

It may be helpful to also look beyond drug policy what’s happing in international law. From this we can learn it is possible to reach change without a big state in the opposition. We should probably look for an amendment about cannabis. However, an amendment is easy to block. The challenge is to frame the issue in such a way that it will get support from various states. Here, sequencing is important.

Within the current environment, the following three groupings are the most plausi­ble:

1) A technical group focusing on system-wide coherence and the inconsistencies of treaties.
2) A group focusing on traditional and religious uses.
3) A group focusing on the benefits of cannabis regulation.

However, it will be hard to get a group willing to take this forward. Moreover, a large group will be favouring the status quo.

India tried to prevent cannabis from getting into 1961 convention. In some regions in India and Pakistan, the use of cannabis is relatively safe. The Czech Republic could be interested in forming a grouping for cannabis policy reform depending upon the cur­rent drug czar at that moment. Latin America could be interested, but most countries do not seem to want to go much further than only discussing the topic at the moment. However, change is going to come. It is better to manage this change than try to oppose it. 

Input: Towards revision of the UN drug control conventions: The logic and dilemmas of Like-Minded Groups, Dave Bewley-Taylor, TNI-IDPC Series on Legislative Reform of Drug Poli­cies nr. 19, March 2012

OAS report and its prospects for cannabis policy reform

On 17 May 2013, the Organization of American States (OAS) released its report on the drug problem in the Americas after a year-long review launched at the Sixth Sum­mit of the Americas. The low expectations of what might be accomplished were greatly exceeded. The report marks the first time in history that a high level multi­lateral agency has given serious consideration to the failings of the current War on Drugs and has suggested potential alternative approaches, including decriminalisa­tion and legal regulation. President Santos of Colombia turned out to be the perfect person to make this push against the US. Because the report was an opportunity of prestige for the OAS, some risks were taken.

The report provides a groundbreaking visualization of alternatives to the existing regime – in the form of four scenarios of how drug policy and law could develop between now and 2025. The report calls for flexibility for member states to experi­ment with legally regulated markets for some currently prohibited drugs and explores how the international drug control system evolves to incorporate these develop­ments. In the second half of 2014 a new OAS session on drug policy will be held. 

WHO cannabis review

The basic principle of the 1961 and 1971 conventions is the health and welfare of man­kind. Therefore, the WHO is the starting point for evaluation of substances.

We already know that criminalization of users does not make sense in terms of public health. Evidence shows that alternatives to criminalisation exist that attain many desirable outcomes for governments, whilst minimising the unnecessary conse­quences of criminalising the individual user. However, currently, there is not enough data on harm under various policies. The WHO needs evidence to start an apolitical scientific process. For example, it would be useful to obtain evidence on whether the recreational use of one drug will reduce (the harm of) using another drug. Such data will be very useful in making harm assessments of drugs.

It is interesting to focus on New Psychoactive Substances (NPS). There is a large demand for evaluating NPS at the WHO. The UN leaves many possibilities to move policy about NPS in various ways. This enables the possibility to consider the trial of alternative policy and legislative approaches to drug control.

4. Prospects for initiatives at the European level

Cannabis regulation policy shifts in Europe are mainly taking place bottom up at the muni­ci­pal and regional level and are initiated either by municipalities and/or grassroots initiatives. National governments tend to be an obstacle often actively discouraging cannabis policy reform. How to unravel this stalemate and what is the role of European institutions (Com­mission & Parlia­ment)? What can be done to strengthen and coordinate the different local and grassroots initiatives?

The discussion focused on difficulties to connect initiatives for change at the local and regional level and the inertia at national and European level regarding cannabis policy reform. There is an effort within the EU to speak with one voice. This can limit some member states in speaking out for alternative drug policies. Additionally, the EU presidency changes every six months. This causes a lack of continuity. Therefore, it is not always possible to keep issue on agenda. There currently is a lack of discussion about drug policy reform in the EU. The debate is at the moment almost only about how maintaining current regulations. However, a momentum is building up. There should be discussion on the role for Europe in the drug policy debate. Although this will probably not lead to EU legislation or changes in UN conventions, it is important to discuss how Europe should respond to initiatives of individual mem­ber states and how Europe should talk with the US. Currently, Europe usually has no opinion. Every discussion at the is abolished or blocked.

Differences remain be­tween and within EU Member States, reflecting their social and political institutions, different public at­titudes, social and cul­tural values and traditions, and varying financial and human resources. Drug control policies in the EU vary significantly, from a liberal pragmatic harm reduc­tion ap­proach – notably in the Netherlands, Portugal and the Czech Republic – to a restrictive prohibi­tionist approach in Sweden, which makes a common EU drug policy difficult to imagine.

In 2010 there already has been a conference on “Urban Drug Policies in the Globalised World” in Prague. However, at the moment, there is little exchange between the various existing local initiatives. Local authorities are often more aware of the negative effects of current policies and are likely to promote change favour of local initiatives. In the 1990's a network of cities and regions in Europe con­stituted Euro­pean Cities on Drug Policy (ECDP) to promote a more pragmatic, less prohibitionist drug policy including the decriminalization of cannabis, and initiated a set of innovative harm-reduction meas­ures – such as: heroin-substitution programmes, social inclusion through housing-and-work pro­gram­mes, drug-consumption rooms and heroin prescription. Such a network provides opportunities to ex­change experiences and best practices as well as fund­raising and sharing human and financial resources needed for policy change. While the ECDP is now defunct after achieving its goals, it might be an example for a future initiative of cities and regions that want cannabis policy reform in Europe to advocate for the regula­tion of the recreational cannabis market in Europe.

Currently, many local initiatives are being taken, such as CSCs. There have not been any empirical studies on CSCs yet. There is a need for evidence. Although an EMCDDA study does exist, this study does not go deeply into the costs and benefits of CSCs. CSCs can be regarded as a harm reduction intervention, resembling substitution treatment.

The seminar is part of the New Approaches in Drug Policy & Interventions (NAPDI) project.

This project has been executed with the financial assistance of the Drug Prevention and Information Programme (DPIP) of the European Union and the Open Society Foundations (OSF). The contents of this project are the sole responsibility of TNI and can under no circumstances be regarded as reflecting the position of the donors.