Medicinal cannabis stands out from other medications because cannabis is used both medicinally and recreationally, and with recreational cannabis set to be legalized later this year, this creates a challenging regulatory environment where the government needs to balance the rights of medicinal and recreational users.
The big question: Are medicinal cannabis patients being left behind in the excitement over legalization?
Let’s look at that question by exploring the differences between medicinal and recreational cannabis, whether medicinal cannabis should be taxed, and the constitutional right to reasonable access.
Recreational vs. medicinal cannabis
Medicinal cannabis has been legal in Canada since 2001, and while recreational use is set to be legalized later this year, anything other than prescribed medicinal cannabis is still technically illegal because the Canadian government has refused to decriminalize recreational cannabis in the meantime.
In the current medicinal cannabis framework, the Access to Cannabis for Medical Purposes Regulations (ACMPR), patients can access cannabis in three ways:
Grow it themselves
Designate someone to grow for them
Buy from a licensed producer
Generally speaking, medicinal cannabis tends to have higher concentrations of CBD, whereas recreational cannabis has higher levels of THC, but with ]recreational cannabis sales on the horizon, the lines between recreational users, medicinal patients, and those self-medicating with cannabis are becoming increasingly blurred.
The federal government intends to continue its separate and distinct system for medicinal cannabis, even when recreational cannabis is legalized, and this was supported by most respondents to the government’s public consultation on the matter.
Additionally, the government will allow medicinal patients to transfer their medical documents to a different licensed producer, which aims to give patients more choice and accessibility. Before, licensed producers were required to keep a patient’s medical documents.
Should medicine be taxed?
A big sticking point in the government’s proposed cannabis guidelines was whether to implement a $1/gram (or 10%, whichever was greater) excise tax on medicinal cannabis. The majority of the public was against this proposal, as the government acknowledged in its public consultation summary:
“Most respondents to the Health Canada consultation did not support applying an excise duty to cannabis sold for medical purposes, and also argued that cannabis for medical purposes should be exempt from the federal Goods and Services Tax (GST).”
Gerald Major, president of the Canadian Spondylitis Association, disagreed with the excise tax, telling CTV News that the government is “limiting patients to what they can afford, not what their condition requires”.
Affordability is a huge issue for medicinal patients. When medicinal cannabis was first legalized in 2001, a gram ranged from $2-5. These days, patients pay closer to $8-10, and it’s common for licensed producers to have minimum orders of 5 grams.
Jonathan Zaid, founder of Canadians for Fair Access to Medical Marijuana, told CTV News, “the excise tax adds insult to injury, as cannabis patients are subject to federal sales tax, unlike prescription medicines,” and it’d worth noting that prescription medicines like codeine, oxycodone, and fentanyl have proven to be far more dangerous than cannabis.
At the same time, many licensed producers offer some form of compassion pricing and medicinal cannabis is slowly beginning to be covered by insurance, but this often isn’t enough for patients, meaning the proposed excise tax would push many to the financial brink.
Who’s exempt from the excise tax?
While it seems the federal government is choosing to ignore the people and forge ahead with their plans to keep charging GST while slapping an excise tax on top of it, there will be a few exemptions.
Low-THC oils are one of them as the government considers them “non-addictive” and “potentially therapeutic”- but if the government already recognizes THC as non-addictive, then why will the tax exemption apply to low-THC oils only? If THC is non-addictive, it’s non-addictive!
There has to be another reason… Maybe it’s because nobody would buy them in the first place? Making a small exception for a little-used product ensures the government isn’t losing too much of that precious tax money, especially since these oils can be quite expensive. Why would patients want to have to use an expensive, watered-down product? We’re not trying to do THC homeopathy after all.
There’s another point in the government’s guidelines that might infuriate you:
“Pharmaceutical products derived from cannabis will also be exempt, provided that the cannabis product has a Drug Identification Number and can only be acquired through a prescription.”
Why do pharmaceuticals derived from cannabis get an exemption, when the plant itself does not? Is it because you can’t patent a plant, but you can patent pills containing that plant’s derivatives?
Which begs another question- is this about patient safety or money?
CLN has written before on the dangers of relying on a DIN for legitimacy and how it can lead doctors to prescribe opioids instead of medicinal cannabis, which is ironic because patients often ask about medicinal cannabis because they don’t want opioids.
Recreational cannabis is more accessible than medicinal cannabis
With stores selling cannabis set to open all across the country (and many already open), it seems that recreational cannabis will be more accessible and easier to get than medicinal cannabis, and you should be asking why patients with a legitimate, medical need have to order their medicine online and then wait for it in the mail when someone who smokes recreationally can walk to their nearest dispensary.
While the mail-order system for cannabis works great for both legal and illegal cannabis (so I’ve heard), to limit a patient’s option to mail-order only is a violation of their rights to reasonable access, especially when recreational cannabis is so widely available. In the Allard v. case that made Health Canada update the MMPR into the ACMPR, Justice Phelan even said that dispensaries were at the heart of cannabis access!
Some municipalities, like Vancouver, have even regulated them as the federal government works on passing Bill C-45 in the meantime.
This has the effect of making medicinal cannabis harder to obtain for many patients than recreational.
While the government has tried improving access to medicinal cannabis by making it easier for patients to switch licensed producers, there is still a lot of work to be done to ensure reasonable access and affordability of medicinal cannabis.
If the government is to maintain a separate system for medicinal cannabis, then medicinal cannabis should be treated like a medicine instead of a recreational drug like alcohol or tobacco. That means no excise tax, which would put it on the same page as prescription medicines (as mentioned earlier) and increased access, which could include pharmacies and/or standalone medicinal dispensaries, as well as the ability to switch easily and freely between licensed producers.