Thai Law: Foreigners and the Medical Marijuana Law, Explained

Gary Coughlan stands between two police officers Jan. 16 on Koh Samui after police accused him of cooking tom yum goong with cannabis.
Gary Coughlan stands between two police officers Jan. 16 on Koh Samui after police accused him of cooking tom yum goong with cannabis.

Marijuana was legalized in Thailand in the closing days of 2018 when the National Legislative Assembly passed the Narcotics Bill in its third and final reading. Now it awaits publication in the Royal Gazette to become law, which should happen by March 25.

The upcoming general election, which had been expected in the new year’s first quarter, might have been a factor in the decisive enactment of the law, especially considering who it benefits most. People in rural areas constitute the largest pool of voters eligible to form licensed agricultural groups to cultivate hundreds of acres of the new economic crop. Some of these folks will also be able to earn extra income by obtaining licenses to prescribe medical marijuana as Thai traditional medicine practitioners and village healers.

Marijuana For Most – But Not All

People with illnesses requiring marijuana treatment will be allowed by the new law to consume the now-lawful drug provided they can produce a prescription issued by a properly licensed medical practitioners specifying the limited amount they can carry on their person, subject to medical formulations permitted by the Public Health Ministry.

Government research institutes, medical schools, pharmacy schools, pharmaceutical laboratories, public and private universities, hospitals and clinics will all directly benefit in the name of science and medicine, after they are licensed by the Food and Drug Administration.

Foreigners have been expressly excluded from the new law. Foreign companies and foreign-majority companies incorporated in Thailand are prohibited from producing, selling, importing, exporting and possessing cannabis. The restrictions on foreign involvement understandably resulted from a recent “Thailand First” sentiment that resulted from an outcry against foreign applicants with advanced technology and capability applying for Thai patent protection prior to the opening of the domestic market.

Foreigners Not Fully Shut Out

Acknowledging that cooperation with foreign advancements in research and development could add value to the Thai market, the ban on foreigners benefiting from the new law is not absolute and exceptions do exist.

First, easy exceptions are built in for weed medical tourism, that is to say international travelers coming in and out of Thailand with illnesses that can be treated by marijuana. Visitors coming for ganja therapy must first obtain a license from the FDA to “import, export and possess” the necessary amounts of marijuana prescribed for treatment. There’s not much clarity on what that means, yet.

To boost Thailand as one of the world’s major tourism destinations, international airlines, ships, cruise ships or other cross-border vehicles can likewise apply for an FDA license for those amounts of marijuana they need to transport on their craft for first aid and emergency treatment of passengers.

Companies established under Thai law that have a local office qualify for licenses to “produce, sell, import, export and possess” marijuana, if Thai nationals own at least two-thirds of the capital and if at least two-thirds of their directors are Thai. The lawmakers were hoping that one-third foreign ownership in a Thai company could result in the transfer of some technology and know-how for developing marijuana-based pharmaceutical products for local distribution and export.

FDA Leads the Way

The Narcotics Bill differs greatly from the Narcotics Act of 1979 that it amends in that it shifts the licensing authority from the Public Health Ministry to the FDA. This is a significant change from the rare policy approvals for drug use from the minister – which happened on a difficult, case-by-case basis – to mass licensing by the FDA, which means an easier routine basis that treats the substance no different from other types of lawful drugs that require licensing to go to market.

The FDA is bracing for what’s expected to be an overflowing new workload.

Without FDA licensing, marijuana remains an illicit drug, with possession of 10 kilograms or more deemed intent to sell, a crime punishable by up to 15 years in prison and a fine of 1.5 million baht (USD$45,000).

Clearly, only medical and pharmaceutical marijuana area allowed, and the public is not free to consume marijuana for pleasure.  Consumption of marijuana in violation of the new Narcotics Bill carries a jail term of one year and a fine of 20,000 baht (USD$600).

The Narcotics Control Board will continues to play a pivotal, supervisory role over the FDA under the bill, just as it did over the ministry under the original act. One major exception is that for marijuana legalization, the board’s membership has expanded from law enforcement-heavy authorities such as police, prosecutors and military rep by adding over half a dozen new members drawn from the medical, industrial, agricultural, pharmaceutical and Thai traditional medicine sectors — a priming of the pipe, if you will, for long-term, large-scale industrial pharmaceutical production of medical marijuana formulas for medical use to potentially involve investors and banks.

Not the Only Law

Under the bill, seven types of applicants can apply for FDA licenses to produce, sell, import, export and possess marijuana. After five years, the narcotics board will review the types of applicants and their licensing requirements on top of semi-annual assessments of the law’s implementation.

Producing includes cultivating, growing, making, processing scientifically, altering and packaging.

As the focus of the new law is on helping the grassroots – meaning low-income, rural folks – as well as the public at large become marijuana-income earners and users, there are a number of laws applicable: the Narcotics Bill, the Narcotics Act, the Act on Professional Thai Traditional Medicine of 2013, the Act on Promotion of Community Enterprises of 2005; the Sanatorium Act of 1998, as well as other laws and regulations.

Operators of marijuana businesses need to obtain their authorizations consistent with these separate pieces of legislation as well to enable them to finally handle marijuana under the Narcotics Bill.

Wirot Poonsuwan is senior counsel and head of special projects at Blumenthal Richter & Sumet in Bangkok and can be reached at [email protected].