Urgent Need for Patent Law in Law Reform Process
4.38. Apart from considerations of legal liability for users and traders, any law reform on marijuana must, in the future, consider the issue of patenting. This is in view of the huge interest in marijuana as a medicinal substance and also information that varieties of cannabis grown in the region are of superior, sometimes unique quality, even in terms of recreational use. There is a view that much of the interest by large foreign companies in the region is for the purpose of acquiring stakes in the seeds and related materials unique to the region, which can, if not protected by patent and other laws, be exploited without adequate benefit to CARICOM states. If patent opportunities are lost, there are likely to be foreign patents of regional substances and products, as is already occurring,90 with considerable detriment to the potential market value and usage of the region. In view of concerns for patenting, the Jamaican model makes specific provision for seeds, but it is limited. In general, this is an issue that has not often been debated, but one with considerable implications.
Regional Law Reform Initiatives
4.39. Three countries in the region have now taken steps to remove prohibition status from marijuana , beginning with Jamaica in 2015,91 then Belize,92 with the latest being Antigua and Barbuda.93 There is a common trajectory in all of the three jurisdictions, that is, the decriminalisation for the offence of possession where small amounts of cannabis are involved, although the prescribed amounts vary. In Antigua and Barbuda, for example, the excepted amount is 15 grams, whereas it is 2 ounces in Jamaica (equivalent to 56 grams) and 10 grams in Belize.94 4.40. In truth, while these new regimes self-label as ‘decriminalisation’ models, they are hybrid constructs, incorporating some elements of legalisation and other elements of decriminalisation. For example, it is now de jure legal to have 5 plants in the household in Jamaica and 4 plants in Antigua and Barbuda. 95 The Antigua and Barbuda law now makes provision for the institution of ticketable offences for fines for any current offence under the parent statute, by way of Regulations created by the Minister.96 This provision makes it possible for all criminal penalties to be removed from the law without the need for a new statute.97 4.41. There is also provision for the expungement of criminal records for marijuana offences. For example, in Antigua and Barbuda, the new section 39 reads: “Notwithstanding the provisions of the Criminal Records (Rehabilitation of Offenders) Act 2013, No. 19 of 2013, any notation on the criminal record of a person prior to the passing of this Act for conviction of offences involving the drug Cannabis or Cannabis resin in a quantity of 15 grams or less, shall be regarded as spent and expunged accordingly.” 4.42. Special provisions have also been included to automatically refer children (defined as persons under 18 years) for counselling and rehabilitation where found in possession of marijuana.98 4.43. The Jamaican model made provision for a licensing regime for the growing of cannabis and the arrangements for commercial transactions of the substance for medicinal purposes, concurrent with the thrust toward decriminalisation. However, reports are that the regime has not yet worked as envisaged and the Licensing Board was dissolved in May, 2018. The need for an appropriate regulatory framework that is both realistic and responsible, remains. See, e.g. the controversial Monsanto patent for “specialty cannabis”: http://www.pbs.org/wgbh/nova/next/evolution/patenting-pot/Carrie Arnold, ‘The Rise of Marijuana TM (Patent Pending) G4. 91 Dangerous Drugs (Amendment) Act 2015 of Jamaica. 92 Misuse of Drugs (Amendment) Act 2017 of Belize. 93 In Antigua and Barbuda, it is the Misuse of Drugs (Amendment) Act, 2018, which amends the parent statute, the Misuse of Drugs Act, Cap. 283. Cayman Islands and Bermuda, Associate Members of CARICOM, also amended their laws recently to decriminalise (for medicinal purposes). 94 Under the Misuse of Drugs (Amendment) Act 2017. S 7 – 10 grams or less is now a ticketable offence with a prescribed fine of $100. 95 See s 8 (1A) of the Misuse of Drugs (Amendment) Act, 2018 of Antigua and Barbuda. 96 S 13A, ibid. 97 In Belize section 26 protects against a criminal record, while section 28A makes provision for the expungement of criminal convictions for cannabis. 98 S.6C in the Antigua and Barbuda Act. 90
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