Cannabis Update for South Africa – Commentary

introduction
Cannabis master plan
Legislative developments
Application for a hemp planting permit
Intellectual property considerations
Comment

introduction

The Department of Agriculture, Land Reform and Rural Development (DALRRD) presented its cannabis master plan to Parliament in late August 2021, detailing how cannabis could be incorporated into South Africa’s business sector. as part of the government’s pursuit of legalization and commercialization. It is estimated that the potential size of the cannabis industry in South Africa is around 28 billion rand, and that up to 25,000 jobs could be created through the development of this industry. A lucrative cannabis industry in South Africa is also expected to serve to attract foreign investment to South Africa and to build local businesses and the export market for South African cannabis products.

Cannabis master plan

However, DALRRD indicated that a number of issues must first be addressed – including regulations, seed distribution and education initiatives – and defined a number of pillars on which to build the plan:

• developing a new regulatory framework for hemp and marijuana;
• develop a sustainable seed supply system, which will include:
  • registration required;
  • certification programs;
  • import and export control systems;
  • control and list of varieties; and
  • seed testing;
• support research and development programs for the South African cannabis industry;
• mobilizing and supporting farmers to participate in cannabis value chains;
• develop new domestic and export markets for the South African cannabis industry;
• assist a wide range of suppliers, including indigenous producers and sellers, to participate in cannabis value chains for the sustainable growth and development of the industry;
• supporting the growth and development of the cannabis product manufacturing sector;
• provide a framework on education and training issues in support of the cannabis industry; and
• implement information and awareness programs.

The master plan is currently under discussion at the National Council for Economic Development and Labor.

Legislative developments

Although both hemp and marijuana belong to the species Cannabis sativa, the growth and use of varieties of marijuana with tetrahydrocannabinol (THC) levels greater than 0.2% are regulated separately from those with lower levels, and are subject to the provisions of the Medicines and Allied Substances Act and the Drug and Drug Trafficking Act. Legislation relating to the use, possession and cultivation of cannabis with THC levels above 0.2% by an adult for personal (i.e. recreational) purposes is already under development. . The Cannabis for Private Use Bill, which was tabled in Parliament in September 2020, seeks to give effect to a judgment of the Constitutional Court which ruled that certain provisions of the 1992 Drug Trafficking Act and of the Drug Trafficking Act and the Drug and Related Substances Control Act 1965 are unconstitutional and which gave Parliament 24 months to correct.

Application for a hemp planting permit

In connection with the master plan, the Minister of DALRRD recently announced the opening of a hemp planting permit application process effective October 29, 2021. This follows the declaration of hemp as an agricultural crop under the South African Plant Breeding Act, which provides for the control of imports and exports of certain plants and materials. multiplication, aimed at maintaining the quality of these plants and multiplying. equipment for agricultural and industrial use.

Intellectual property considerations

It will soon be possible to obtain a plant breeder’s right in South Africa for the declared varieties of Cannabis sativa which meet the requirements of a breeder’s right. However, further amendment of the regulations, including the regulations on plant breeders’ rights, is also necessary, for example with regard to the provision of a certificate for hemp plants certifying that the propagating material of varieties of hemp intended for cultivation for agricultural and industrial purposes has a low THC content, not exceeding 0.2%. It remains to be seen whether varieties of marijuana that have THC levels above 0.2% will also be declared as a prescribed plant under the Plant Breeders’ Rights Act and, if so, what additional regulation could be put. implemented with respect to these varieties.

In the context of trademarks, there is Update to the Guidelines for the Review of Cannabis Trademark Applications. According to these guidelines, applications for trademarks related to cannabis will be accepted, provided the applicant agrees that the products meet the standards set by the Minister of Health. Failure to comply with these standards would render the sale of the product and its trademark applications against the law. It is likely that further updates to the trademark guidelines will be needed once the regulatory framework for hemp and marijuana is finalized in terms of the cannabis master plan.

Comment

There is now a global awareness of the benefits of cannabis products based both on existing traditional knowledge and use, and on exciting new innovations in the space. This provides a great opportunity to take advantage of the South African climate, existing South African growers and sellers, and traditional knowledge relating to the cultivation and use of cannabis. However, it is necessary to act not only in a responsible and equitable manner with regard to the regulation of this space, but also quickly, so that South Africa is not left behind in the advances in the rest of the world.

For more information on this topic, please contact Joanne van Harmelen to Edward Nathan Sonnenbergs Inc by phone (+27 21 410 2500) or by email ([email protected]). Edward Nathan Sonnenbergs Inc’s website can be accessed at www.ensafrica.com.