Lawyers and offices in Brazil embrace cannabis

By Anita Krepp

Cannabis law, until recently, has been a challenge for law firms. However, firms building experience in this niche now and looking to provide advice to the growing number of companies in the sector has become a way to attract new business and explore an emerging market with the potential to generate millions of reals in Brazil’s economy in the coming years.

Prior to 2013, the remit of cannabis law professionals was limited to criminal cases related to drug possession and trade. However, this changed in 2013 when the families of Anny Fischer and Sofia Santos Brito, both carriers of the CDKL5 syndrome (a genetic modification that causes epilepsy especially during childhood) were granted permission by Anvisa (The Brazilian Health Regulatory Agency) to import cannabidiol oil (CBD), to start a treatment with medicinal cannabis.

At the time, lawyer Diogo Busse was chairing the Secretariat for Drug Policies in Curitiba,?capital of the State of Paraná,?when he was introduced to Anny’s family by a friend. Busse took on the case himself alongside other lawyers to fight for the cause, winning the first court decision in Brazil allowing the use of CBD oil.

The days following the decision, Busse’s phone wouldn’t stop ringing. On the other side of the line, families across the country were asking how to achieve the same outcome for carriers of rare syndromes who view medical cannabis as the solution.

“Although we have moved forward slightly, it is still frustrating and sad that it is still very restricted, bureaucratic and expensive to cultivate a plant where the extracted oil has undeniable medical benefits”, says Busse, who has since strongly advocated for the cannabis cause and other prohibited substances.

The permit for medical cannabis imports, according to Anvisa, has been granted to over seven thousand people – in a ground breaking move that law firms have been pushing for in recent years. This is a result of the high demand for cannabis based treatment through the Brazilian National Health care system, and the end of restrictions to self-cultivate the plant, also known as judicial activism.

Along with medical practitioners, cannabis law professionals are the ones who support patients in helping to open up the path for legislation that is still in its infancy in Brazil.

CANNABIS RIGHTS?

Heading the cannabis rights movement are 26 specialists that make up Rede Reforma, who are responsible for over 200 ‘habeas corpus’ writs currently issued in the country. One of the most notable occurred a few days ago, during a law enforcement operation, in which Reforma could not only prevent legal action but also guarantee the right of self-cultivation for the defendant.

“Nobody is interested in establishing a market for habeaus corpus writs. Myself included, I wouldn’t feel comfortable with it. What is the point of being part of a Justice System to only achieve the right to cultivate a plant at home? I’m ashamed of living in a country that imprisons people for seeking a medical treatment”, says Cecilia Galicio, Reforma’s lawyer who entered the debate after a personal experience with medicinal cannabis, a common occurrence for professionals who have since become involved in cannabis law.?

Emilio Figueiredo founder of Rede Reforma, well-known advocate of cannabis law in Brazil also perceived as the leader of the so-called cannabis movement title objects and points out that ‘cannabis rights’ or ‘cannabis activism’ are?more appropriate terms for the movement taking shape in Brazil. “We are just getting started, we haven’t achieved our goals yet”, assures Emilio.

Such a position puts Brazil in a significantly different direction to the US, a well-established market where law firms specializing in Cannabis law are appearing everywhere to meet a high demand in a booming market. Hoban Law Group is a firm renowned for its Cannabis law practice, with offices spread across 20 North American States and 32 countries around the world. As a result of their interest in the Brazilian market, the high-profile law firm formed a partnership with Med Brazao, a licensed professional practicing cannabis business law who offers consultancy to the group’s clients aiming to invest in Brazil.

Since the end of 2019, when the agreement was signed, the lawyer has assisted two US companies in the cosmetics and foodstuffs area studying the possibility of entering Brazil through legal channels. The rushed move, according to him, has a reason, “If every company is willing to wait for the bill in question to be passed, they will waste time and opportunity in the market.”, referring to Bill 399/2015, to be voted in the Brazilian Congress, proposing the regulation of medicinal Cannabis in Brazil.

Rodrigo Mesquita, is a lawyer who serves foreign companies interested in establishing business in Brazil, offering civil,?corporate,?commercial and regulatory consultancy, prospective policy analysis and risk assessments.?Mesquita also works as Adwa Cannabis’s Legal Director, a start up which works in cannabis genetic development, was granted Brazil’s first cultivation permit for the purpose of research, and he believes with the regulation of the market there will be a boost in agricultural interest in the new commodity, demanding more specialized legal consultancy. Due to the sector’s growth and lack of cannabis law practitioners additional legal help will be essential. In addition to legal competences, it will be necessary to master the specific competences of this market.

Lawyers have historically played a central role in advancing cannabis issues and, in the immediate future, they will continue to play a key role in promoting legal certainty for actors in this sector, such as economic agents, associations that guarantee access to cannabis for their members, prescribing physicians and health professionals. In addition, it will also be up to the law operators to provide assistance to regulatory agents in the design of this new regulation. In other words, it will be a time for new responsibilities, but also of great challenges and great possibilities for lawyers who are committed to the cause.

THE NEED FOR SPECIALISATION

If the history of cannabis advocacy in Brazil is still focused on the judicialization of the rights of patients and associations such as Apepi, Abrace and dozens that fight to ensure the popularization of access to medical cannabis to its more than 100,000 members, on the other hand, there is a movement of legal action also in advising companies that intend to adapt to the scenario proposed by resolutions such as RDC 327, which deals with the sanitary authorization granted by Anvisa for the manufacture, import and sale of cannabis products.

The resolution requires procedures familiar to large pharmaceutical companies, which generally seek advice from offices experienced in the health area, but totally unrelated to smaller companies, which do not have the required structure. Those companies tend to resort to legal professionals capable of working on RDC 335 resolution, which deals only with the importation of these products.

Because it is a very specific ecosystem, knowing the niche in depth is crucial to guide a nascent company in this sector. That's what Rafael Arcuri did, who worked at a law firm and, after getting to know the cannabis universe, he caught up with the latest studies before starting out as the Executive Director of ANC (the National Association of Industrial Hemp), a non-profit organization who brought together enthusiasts of the very desired commodity. “Hemp is much less oligopolized than medical cannabis. I was already looking for a different law practice so that I wasn't just sitting in the chair and it was the way to make a career transition while still in my original training”, he says.

AFTER REGULATION

The approval of Bill 399/2015 will be a game changer, as it will regulate the entire production chain not only for medicinal use, but also for scientific and industrial purposes.

If the challenge so far was to bring law enforcement agents into this issue, now seems to be the time to fight disputes through the legal system, since the Legislature does not exercise its regulatory power properly and the Legislature has not been sufficiently responsive to this social demand. The fact is the legal route has shown that it’s still a very important way to make medical cannabis accessible in Brazil.

After the bill has passed there will be new challenges: the creation of a?legal framework under the?terms?of?the law followed by amendments to the document to make it clearer, and the procedures it regulates less bureaucratic without it threatening the law's prerogatives for this type of activity. After that, also in terms of regulatory affairs, would come the creation of sectoral regulations, mainly?driven?by?Anvisa and the Ministry of Agriculture.

A discussion for the next five years, that we can spoil for you, will be the taxation of cannabis goods in Brazil. How is it going to work? And who is benefiting from it? What model will be followed? If it's the United States, there is hope that historic reparations will be made to communities affected by decades of war on drugs, but to be honest, that still doesn't actually happen there. There are States that have thought about collecting taxes passed on to education, others have moved towards reducing crime, others towards health. But all those achievements must be provided by legal advice, supporters of the cannabis right movements in the society.