Licencing guidelines for Cannabis (FOI)

Request

A 

In February and August 2021, FOI requests were made for the licence guidelines for the cultivation and or processing of medicinal cannabis. The response stated that the requested information was being reviewed and that once approved, it would be made public. It has now been more than two years since the first licence was issued and no guidelines have been published. Have any guidelines been approved? If so, when will they be published?  

B 

How and who determined that this was an agricultural activity rather than a pharmaceutical industry? Given that a licence is required under the Misuse of Drugs (Jersey) Law 1978 and that the majority, if not all, of the sites granted licences will process the harvested crop in some way to produce pharmaceutical products for onward sale, which is also defined as an industrial process under the law, as detailed below: 

“Industrial” process” means any process that is necessary or incidental to demolish or make an article or part of an article, to alter, finish clean, wash, pack or to adapt for sale.   

C

The Minister for the Environment stated in response to an oral question under OQ.7/2022 on 22 January 2022, “having visited two sites where businesses are seeking to set up cannabis growing facilities and subsequent to these, it was clear to me that the amount and nature of building work required to form these facilities is different to what most islanders might expect within an agricultural glasshouse. At present, many of these changes can be carried out without planning permission but in order to bring them within planning control, and as part of our response to Economic and International Affairs Scrutiny Panel’s recent report on medicinal cannabis, I consider that modest changes are required to the Order. I can confirm that I have instructed officers to prepare instructions, which I hope to receive in due course for review and submission to the Legislative Drafting Office LDO.” 

A Ministerial Decision (MD) on proposed changes to the Planning and Building (General Development) (Jersey) Order 2011 was approved in March 2022, according to a FOI response dated 30 May 2022. This MD, however, was exempt from release, but it was expected that any changes would be made after the General Election in June 2022, and that the matter would need to be re-considered by the next Minister for the Environment before any changes could be made. When are these changes expected to be made? 

Response

A

This information is exempt under Article 23 of the Freedom of Information (Jersey) Law 2011 as it is publicly available on www.gov.je in response to a previous Freedom of Information request, which can be accessed via the link below.

Licencing Guidelines for the Cultivation and Processing of Cannabis (FOI)

B

No such determination has been made. The first cannabis crops produced in the Island were field-scale Hemp crops grown for fibre, culinary oils and protein meal, none of which are pharmaceuticals.   

The subsequent progression onto topical or ingestible wellness products are not pharmaceuticals and are classified as ‘food’.  

The Misuse of Drugs (Jersey) Law 1978 makes no distinction between industrial field hemp varieties that do not have psychoactive properties, and higher THC varieties of ‘Cannabis’ (same plant / same genus) that would be grown under current licences in Jersey, often in glasshouses, either for research and development purposes or as flower-based pharmaceutical ingredients for cannabis-based medicines, rather than as a finished medicine. No licences to produce a finished medicine have been issued to date in Jersey.  

C

The Planning and Building (General Development) (Jersey) Order 2011 (known as the GDO) has not been updated since 5 May 2021.  

Any potential updates to the GDO have not yet been finalised, therefore they are exempt from release under Article 35 of the Freedom of Information (Jersey) Law 2011 as detailed in the previous Freedom of Information response which can be accessed via the link below.  

Amendments to the Planning and Building Order in relation to Medicinal Cannabis (FOI) 

Article 35 is a qualified exemption; therefore, a public interest test has been applied and is shown at the end of this response. 

Articles applied 

Article 23 - Information accessible to applicant by other means

(1) Information is absolutely exempt information if it is reasonably available to the applicant, otherwise than under this Law, whether or not free of charge.

(2) A scheduled public authority that refuses an application for information on this ground must make reasonable efforts to inform the applicant where the applicant may obtain the information.

Article 35 - Formulation and development of policies  

Information is qualified exempt information if it relates to the formulation or development of any proposed policy by a public authority.  

Public Interest Test  

In applying this article, the following considerations were taken into account.  

Public interest considerations favouring disclosure:  

• disclosure of the information would support transparency and promote accountability to the general public, providing confirmation that the necessary discussions have taken place 
• disclosure to the public fulfils an educative role about the early stages in policy development and illustrates how the department engages with parties for this purpose.   

Public interest considerations favouring withholding the information:  

• in order to best develop policy, law and provide advice to Ministers, officials need a safe space in which free and frank discussion can take place – discussion of how documentation is presented and provided is considered as integral to policy and legal development as iterations of documents are demonstrative of the development process 
• the need for this safe space is considered at its greatest during the live stages of development 
• release of the information at this stage might generate misinformed debate. This would affect the ability of officials to consider and develop policy and law away from external pressures, and to advise Ministers appropriately 
• premature disclosure of this information may limit the willingness of parties to provide their honest views and feedback. This would hamper and harm the policy–making process not only in relation to this subject area but in respect of future policy development across wider departmental business. 

Taking into account the various factors, the Scheduled Public Authority decided in favour of withholding the information