Authored by: Barry Gainsburg PA

Providing legal counsel to the cannabis & securities industries

“That holy sacriment it truly change my views, from the very first draw inspiration a ooze the marijuana plant aint jus any other plant, make mi forget all my cants and moderate all my wants, dem sey it mek you rebel rebel againts what? Babylon schemes and plots, but finally this natty dread, can smoke in a peace, and me nuh haffi affi run from no police, I man was waiting, I was praying, I was hoping for the days like these ” Jesse Royal – Finally Lyrics 

The Interim Regulations (“Regulations”) for Cannabis Licensing in Jamaica was released in May 2016, shortly after the transition of power from the Peoples National Party (“PNP”) to the Jamaican Labour Party (“JLP”) in February 2016.

After a stream of news articles were provided from the Cannabis Licensing Authority (“CLA”) in the spring, the summer of 2016 appeared, from a public perspective to be a quiet period. Conclusion from appearances can be wrong. Very wrong.

From my “grass” root sources I had heard various rumors floated by over the summer – such as the CLA had received over 400 applications, that they had received over 200 applications. It appears that the CLA acknowledges the receipt of 89 applications. These applications are being processed by staff and the CLA hopes to issue conditional licenses by the end of year.

However, one may be inclined to question the wisdom of such, besides economic pressures, without having the certainty of final regulations in place. Like one of my colleagues stated to me,

“It’s like place the cart before the horse.”

It seems that the CLA, by way of Ms. Lightbourne’s statement to the press, has wisely elected to use the conditional licensing process to occur prior to the issuance of final approval. This allows the CLA and other vested ministries to conduct their due diligence applicants and conduct a satisfactory background check.  The applicant is then required to implement the necessary measures to get the actual licence to enter the industry.

I also had discussions regarding the delay being based on a prior party being in power, The PNP, and the new (old) party in power, the JLP, have issues in not wanting to push forward the legislative initiative of its predecessor on which there was broad Parliamentary support – thereby giving the PNP credit and a political achievement – while not the party in power.

Also I’ve heard that there were members of the JLP that were simply opposed to taking any action to move the finalization of the Interim Rules forward on political, economic and cultural grounds.

The Interim Regulations had provided for the issuance of tickets. For six (6) months there have been no ticket books printed by the Government of Jamaica (“GOJ”). Just recently, the GOJ has disclosed that the Ganja Tickets are now printed and ready to be issued for possession of less than two (2) ounces of ganja, as well as for smoking marijuana in public.

According to the Jamaican Observer, “[t]he law states that the police may issue a ticket to a person found in possession of the substance, who will then have 30 days to pay $500 at any tax office. Steps are now being undertaken by the National Security Ministry to design special tickets to assist members of the Jamaica Constabulary Force (“JCF”) with enforcing the country’s legislation dealing with dangerous drugs.”

Again, this comes as no surprise since it was in the original legislation. Delayed but not forgotten. Now let’s do a quick analysis of the proposed ganja tickets. As the news accurately reports the fine for possession of decriminalized (decriminalized is not legal – it is still illegal but the sanction is merely a fine, not any prison time – like a traffic ticket) non-medical ganja is J$500.

Based on the Jamaican/US dollar exchange rate US$1 = J$129.40 as of Friday, November 18, 2016. Or in other words, the true effect of the ganja ticket is US$3.85. So the question really becomes how effective is this truly as a deterrent to illicit market activity.? I shall allow you to deduce after contemplating the time involved in issuing the tickets, in training, in writing reports, in prosecuting and defending against issued tickets, police and court administration time if this truly an effective strategy.

In my humble opinion, it still seems to be a strategy for the authorities to engage in harassment and oppression – but that is an issue to be discussed at a future date.

Thankfully, the Rastafarian community should be exempt from these situations since they are permitted to grow, process, possess, transport and smoke ganja as Sacrament. But if Rastafarians “sell” to anyone they must also register with the CLA to engage in business just like any other ganja industry participants.

This may obviously lead to questions like who is to say who is a true Rastafarian? Who is to say what a designated area for Rastafarian to partake in Sacrament is? Is it just at Tabernacle – No. Is it just in the Yaad?

In September of this year I had the privilege and honor of speaking at the Canex Conference in Montego Bay. Previously I had discussed the GOJ’s news release indicating that the GOJ would be placing kiosks in the ports which would sell up to 2 ounces of ganja to tourists. Rasta Elder and CLA member Ras Iyah V informed I&I All that this was wrong. The GOJ has no intention of implementing this. Instead it was a misunderstanding of the establishment of kiosks by the GOJ which will be provided for recognizing tourists’ declarations of need for Medical Ganja at a price of approximately US$50.

One of the outstanding issues which has not yet been addressed publicly by the CLA is whether All Inclusive Resorts (“Resorts”) will be permitted to own and operate on site dispensaries. These Resorts are prominent in Negril, Montego Bay and Ocho Rios. There are vested economic interests involved in this situation. Resorts would like to keep guests on property at all times, except for excursions provided through the Resorts preferred vendors.

On the other hand, opportunities for local residents to be involved in the Ganja Industry would be severely curtailed by not being allowed access to this demographic of potential consumers. In effect the GOJ would be cutting out the local people who can benefit socially and economically from being involved in the industry. Accordingly, the economic power of the Resorts would be rewarded simply on economic power and lobbying. Remember, the poor don’t have lobbyists, but just folks like myself. But the poor and disenfranchised have many more feet than the economically blessed. In the words of Culture, “share the riches with the poor, before they share the poverty with you.”

Mr. Orville Silvera, who is the President of the Ganja Growers and Producers Association (“GGPA”), recently issued a call to action to push for the finalization of the Interim Rules. There were various issues raised in the email string discussion which I will share with all.

Silvera has  informed us that with respect to banking services for the Ganja Industry “the issue of CORRESPONDING BANKING is very important and must be addressed, rightly from a policy position directed by and from the Parliament. We have called for the Parliament to be the place that set the protective mechanism to protect the traditional farmers; and not leave the decision to ministers of government or the CLA directors. For Banking we have recommended that P C Banks be restructured, made into an INDEPENDENT bank funded by the BOJ/DBJ to serve the agriculture sector including ganja farmers. The bank would be a deposit taking institution with no link to any other bank,(local or foreign), but the BOJ/DBJ. This is NOT an impossible undertaking, due to the complete independent status this bank would enjoy. A completely LOCAL bank.”

With respect to the UN Conventions, and the potential for Jamaica to export globally I stated in my correspondences:

“Jamaica should withdraw from the convention. Especially after the elections and 7 out of 8 state cannabis referendums passing, and the stated intent of other countries to export. It is hypocrisy to claim ganja is a drug with no medical benefits. Unjust laws are no laws at all says Martin Luther King, Jr. and they don’t comport with natural law. Ganja has only been illegal for 100 years. So for 1,916 years there is plenty of written and empirical evidence of its effectiveness as medicine, amongst other discoveries that come every day…Because obviously Jamaica is, and should be the Jerusalem of Ganja – just as you suggest – for research, medicine, tourism, etc. exportation must be achieved sooner rather than later. But for exportation to legally occur either the international UN Treaty needs to be dissolved or a country would have to remove itself from the treaty. You must admit, Israel and Canada have announced this intention.  I can’t see any other way to address the issue besides comply or don’t comply.”

The response I received back simply stated “Jamaica does not need to withdraw from the UN Convention to effect the things require for a successful Medicinal Ganja Industry to flourish here.” I respectfully disagree.

I also raised some other concerns such as:

a.) When ganja is taxed by the GOJ there should also be a tax that funds a Rastafarian Community Trust Fund run by independent financial advisors and an official board to assist the Rastafarian Community in establishing self-sustainability and reparations to the community for carrying the ganja fight in Jamaica until this day where it has been legalized. The Rastafarian Community is entitled to special recognition and compensation for its historic and essential role in this struggle and the benefits that ganja will bring to all. I believe it is hard to argue otherwise;

b.)There should be a transportation license for touring;

c.) Real concern should focus on neophyte use of edible product. There should be labeling disclosures and clerks should obtain signed consents like in the US when picking up medication from the pharmacy stating that you have been advised of the risks;

d) .Potential exportation will require compliance with international protocols and a world class seed to sale tracking system that the Jamaican Culture is for the most part unfamiliar with.

Now with respect to seed-to-sale tracking, I have a slight amount of experience in this matter. Jamaica will need a robust government seed-to-sale system that will need to be accepted by the international community as essentially the industry standard. A company with a global presence and footprint will be needed to provide further comfort for the tracking of ganja industry participants to ensure that product is not diverted from or illegally introduced into the “legal medical ganja” system. There will be companies such as Microsoft, Oracle, Deloitte that will seek to make there presence known in this data driven segment of the ganja industry. The seed-to sale tracking company will also need to provide assurances to both the government and the local’s using the commercial versions that there information will be protected, encrypted, and not subject to hacking from internal government and/or external forces. As is Rasta is hesitant to provide any information to Babylon. And with good reason. So data integrity and security should become a paramount concern in the provider’s selection, whether governmental or commercial.

Although, it seemed like a lack of progress was being on the Interim Rules, the work is quietly going on and respect to all the stakeholders who are working so diligently. But as those who are familiar with Jamaican time, hurry up and wait . Grab a seat, a helmet, and strap the seat belt on this is going to be some ride!