Puff, Puff, Pass: The right to health and people who use cannabis | Karen Mamo, Felipe Neis Araujo

In 2024, people in Malta, Germany, Luxembourg, the Netherlands, Uruguay, Canada, South Africa, and many US states live in jurisdictions that have recently enacted legislative and regulatory changes removing or reducing criminal consequences for personal cannabis use.

Most significantly, these jurisdictions have meaningfully removed cannabis from the domain of unsustainable and damaging prohibitionist policies. By embracing evidence-based and human-centred drug policy frameworks, these jurisdictions are setting a precedent. If the outcomes of these cannabis reforms are positively impactful, this experience could – and arguably should – lead to a broader revision of the legal status of all banned substances. Such a shift would challenge long-standing drug policies, which have often been rooted in ideology rather than science and pave the way for more rational and compassionate approaches to substance regulation.

The UN World Drug Report of 2024 estimates that globally, there are more than 220 million cannabis users. After alcohol, tobacco, and caffeine, cannabis remains the most popular psychoactive substance. Mirroring global trends, the European Union Drug Report of 2024 estimates that around 1.3% of adults in the European Union are daily or almost daily users of cannabis. This widespread use highlights the need for regulatory systems that prioritise public health, social equity, and harm reduction over punitive measures. It is high time for drug policy approaches that prioritise people’s right to health.

Enshrined in the WHO Constitution, the right to the enjoyment of the highest attainable standard of physical and mental health provides for a state of complete physical, mental, and social well-being, not merely the absence of disease. This right is also enshrined in Article 25 of the UN Declaration of Human Rights (1948) and in Article 12 of the International Covenant on Economic, Social, and Cultural Rights (1966). While the UN Declaration of Human Rights was heralded as the first global attempt at championing a more just world, the International Covenant further reinforced the indivisible, interdependent, and interrelated nature of human, social, economic, and cultural rights. Defining human rights as interdependent, indivisible, and interrelated, the WHO Constitution declares that a violation of one right results in the impairment of other rights. Therefore, the progressive realisation of the right to health needs to ensure a holistic approach, incorporating health, social, cultural, and economic rights.

In this context, the right to health is not simply about access to healthcare services but also about the broader determinants of health, including social conditions, economic policies, and legal frameworks. It is a recognition that the health of individuals and communities is shaped by a complex interplay of factors, and that policies must be designed with this complexity in mind.

The right to health and legislative changes linked with cannabis use

Although cannabis in Malta remains a prohibited narcotic listed under the Dangerous Drugs Ordinance, the partial decriminalisation of cannabis in 2021, as well as the introduction in 2015 of the Drug Dependence (Treatment Not Imprisonment) Act depenalising small amounts of drugs, are, in part, reactions to the unintended consequences of prohibition and criminalisation. The Maltese government, like many others, recognised that punitive approaches were not only failing to curb drug use but were also causing significant harm to individuals and communities.

The cases of Daniel Holmes and Christopher Bartolo underscore the devastating impact of cannabis prohibition. Neither individual had addiction-related problems nor were involved in violent or criminal activity. As a kidney patient, Mr Bartolo’s life was at risk when he was imprisoned on cannabis-related charges. His imprisonment not only endangered his health but also highlighted the disproportionate impact of drug laws on vulnerable individuals. Similarly, Mr Holmes was robbed of family life and lost a dear friend to suicide in prison. These two persons were not Al Capone or Tony Montana, nor were they threats to society. By locking them up, the criminal justice system was in direct conflict with the universal right to health, negatively impacting the health, social, economic, and cultural rights of both Mr Bartolo and Mr Holmes and their respective families.

These cases raise critical questions about the role of the State in compensating individuals who have been unjustly punished under outdated drug laws. Should the State offer financial compensation to individuals such as Holmes and Bartolo? If so, how should this compensation be quantified? Should it be based on lost productive years and economic opportunities, or should it also account for the emotional and psychological toll, as well as the legal costs incurred?

In various regions across the world, the past 10 years have been decisive for the realisation of health, social, cultural, and economic rights for people who use cannabis. These developments reflect a growing recognition that drug policies must be aligned with human rights principles. Locally, the successful establishment of Cannabis Harm Reduction Associations has been a key part of this shift. These associations, particularly the availability of cannabis strains with different THC levels, democratic participation by members, the capping of 500 members for each association, and informative labelling included on each cannabis package, are all measures emanating from the interdependent nature of the right to health.

Members of these associations – and also those who produce their own cannabis at home – now have the right to access their cannabis without having to engage with illegal suppliers. They can know exactly what product of which strength they are consuming. They no longer have to wonder if the product is related to organised criminal groups, violence, and human rights violations. It is not anymore. This shift not only protects the health of cannabis users but also reduces the social harms associated with the illicit drug trade.

One may, therefore, observe that the regulation and non-commercialisation of cannabis for non-medical use build upon the interdependent and indivisible right to health. By reducing criminal consequences for personal cannabis possession and cultivation, and by allowing individuals to become members of philanthropic cannabis associations founded on harm reduction principles, people using cannabis are now in a better position to prevent health, social, economic, and legal risks. This approach represents a significant departure from the punitive models of the past and offers a more humane and effective way of addressing drug use in society.

Is it enough to decriminalise personal cannabis use? Not exactly!

Due to the interrelated and interdependent nature of the right to health, one cannot assume that these legislative changes and regulatory frameworks are sufficient to fulfil the interdependent nature of the right to health. While these reforms are an important step in the right direction, much more needs to be done to fully realise the right to health for cannabis users.

In various countries allowing the regulation of cannabis, two of the most pressing issues are advancing restorative justice tools and financial compensation for communities negatively impacted by prohibition. These communities have borne the brunt of harsh drug policies, often suffering from systemic discrimination, economic deprivation, and social marginalisation. Addressing these historical injustices requires more than just decriminalising cannabis; it requires a commitment to restorative justice, which involves acknowledging the harm done, offering compensation, and creating opportunities for healing and reconciliation.

Thirdly – and this will be decisive in preventing the infiltration of corporate players into essentially not-for-profit systems – is the development of regulation and technical standards designed by and for people who use cannabis. These regulations must reflect the needs and aspirations of recreational cannabis users, ensuring that the cannabis market remains accessible, safe, and equitable. This includes setting limits on corporate influence, promoting small-scale, community-based production, and ensuring that cannabis products are accurately labelled and free from harmful additives.

The ongoing challenge will be to ensure that the benefits of cannabis legalisation are shared equitably and that the voices of cannabis users, particularly those from marginalised communities, are heard in the policy-making process. Only then can we truly say that the right to health for cannabis users is being realised in a meaningful way.