Medical Cultivation OK’d in Brazil

On June 14, the Sixth Panel (Sexta Turma) of Brazil’s Superior Court of Justice (Superior Tribunal de Justiça, or STJ) issued a decision allowing cultivation of cannabis for medical purposes. The STJ is responsible for uniformizing the interpretation of Brazilian federal law across the country, and serves as the court of final appeal for cases that do not involve constitutional matters. While the STJ decision applies only to the three plaintiffs in the case at hand, it establishes a precedent that lower courts can follow.

Back in March 2021, in Cannabis for Brazilian Pets and Their Humans, we noted that Brazilian courts were granting habeas corpus petitions made by citizens seeking to grow their own cannabis for medical purposes, adding that it would be interesting to see if the trend resulted in judicial decisions of broader application. The STJ has now provided an answer, and one that represents good news for medical cannabis users.

Brazil legalized the prescription of cannabis products for medical use in 2014, but an ongoing prohibition on cultivation under Brazil’s Drugs Law (Law 11.343/06) forced consumers to rely on expensive imports. The three plaintiffs in the STJ decision had authorization from the Brazilian Health Regulatory Agency (Agência Nacional de Vigilância Sanitária, or Anvisa) to import cannabidiol (CBD), but high import costs compromised their access to their medication.

Explaining the STJ’s reasoning for protecting the plaintiffs against application of the Drugs Law, Minister Sebastião Reis Júnior argued that the legal treatment of cannabis cultivation activities cannot be divorced from their purpose. Where cultivation is part of the pursuit of the right to health, criminalization is unjustified. On this note, the Sixth Panel’s justices criticized the regulators’ failure to provide for legal cultivation for medical and scientific purposes. For Minister Rogerio Schietti Cruz, “this regulatory omission creates a segregation between patients who can afford treatment, importing cannabidiol-based drugs, and those who cannot.”

As noted earlier, the STJ decision applies only to the three plaintiffs in the case. And while the decision could pave the way for similar decisions by lower courts, this would require medical cannabis users to file for relief in the first place. It is possible that the STJ decision, perhaps coupled with a growing number of granted habeas petitions by courts across Brazil, could lead to de facto decriminalization of home cultivation for medical purposes. Ideally, however, regulators will take notice of this call by a top court, and put into place rules that facilitate access to medical cannabis for Brazilians.