Cannabis law and legislation in Peru

Medical use

In general, Peruvian laws and regulations prohibit the growing, import and commercialisation of cannabis. Those activities are exclusively reserved for the Peruvian State when there are medical or scientific reasons that support such activities.

Law N° 30681, enacted on November 2017, (Cannabis Law) allows individuals and legal entities to use, investigate, produce, import and commercialise cannabis and its derivatives, which are destined exclusively for medical and therapeutic purposes.

Currently, the Peruvian regulation is in a transition time. To date, the Regulations of Law N° 30681, approved by Supreme Decree 005-2019-SA , published on February 2019 is valid and will still be valid until 31 August 2023 (First Cannabis Regulations). However, on 28 February 2023 a new regulation was enacted by Supreme Decree 004-2023-SA and will be valid from the 1st September 2023 (6 months after its publication, as stated in said Supreme Decree) (New Cannabis Regulation).

According to the First Cannabis Regulation, there was a distinction between psychoactive cannabis and non-psychoactive cannabis based on the quantity of THC, where:

(i) Psychoactive cannabis is defined as the flowering or fruiting tops of the cannabis plant (excluding seeds and leaves not attached to the top) of which the resin has not been extracted, whatever their denomination, whose content of THC is equal to or greater than 1% (dry weight), and that are destined for medical or therapeutic purposes, as palliative therapy for some diseases. Combusted use or smoking of psychoactive cannabis is excluded. This type of cannabis is designated as “cannabis for medical use”.

(ii) Non-psychoactive cannabis is defined as the cannabis plant, and any part of such plant, whose content of THC is less than 1% (dry weight). This term is designated as “cáñamo” or “hemp”.

The consequences of the distinction were that:

  • activities related to “cannabis for medical use” are subject to the granting of licences for scientific research, import and/or commercialisation, and the production of such licences is regulated in the Cannabis Law and Cannabis Regulations;
  • activities related to “cañamo” or “hemp” are not within the scope of the Cannabis Law and the Cannabis Regulations and are therefore not subject to the granting of the licences referred therein and
  • although the Ministry of Agriculture has issued regulations for the granting licences for scientific investigation in favour of universities and/or agriculture research institutes, further regulation relating to the criteria and conditions to be met for the growth and industrialisation of “cañamo” or “hemp” are still pending approval.

However, the New Cannabis Regulation indicates that the definition of “Cannabis” comprises both, psychoactive cannabis (THC equal to or more than 1% in dry weight) and non-psychoactive cannabis (THC less than 1% in dry weight). Although, the general definition of cannabis excludes the seeds and leaves without flowering tops.

According to the New Cannabis Regulation, the distinction between psychoactive cannabis and non-psychoactive cannabis has the following consequences:

  • The sale of psychoactive cannabis products or their derivates requires a Special Medical Prescription, this type of prescription has characteristics that allow to identify and individualize it. The non-psychoactive cannabis products or their derivatives can be prescribed by a normal medical prescription.
  • The import of psychoactive cannabis products or their derivatives requires an Import Official Certificate and an Analysis Certificate, while the import of non-psychoactive cannabis products or their derivatives requires an Analysis Certificate.

As to authorisations, Peruvian law provides for different types of licences, including: (i) licences for scientific investigation - to be granted in favour of universities and/or agriculture or health research institutions; (ii) licences for import and trade which can be granted in favour of individuals or legal entities; (iii) licences for production which are granted exclusively in favour of public entities and certified laboratories and (added by the New Cannabis Regulation) licences for the artisanal growing of cannabis to be granted in favour of associations of patients duly registered and certified, this association can be constituted by two (2) or more patients. In fact, one of the main modifications included by the New Cannabis Regulation is that the growing of cannabis for medical and therapeutical purposes will be allowed to associations of patients duly registered in the National Registry of Cannabis and Derivatives Users Patients for Medical and Therapeutical Purposes – RENPUC.

Patients shall be registered in the “Registry of Patients that consume cannabis for medical and therapeutic purposes”. The commercialisation of products derived from cannabis should be in the charge of authorised pharmaceutical establishments.

Any violation to such law can be sanctioned by: (i) the cancellation or suspension of the licence granted; and/or (ii) any civil, administrative or criminal sanction that may correspond.

In the case of (i) public servants granting licences irregularly, or (ii) medical doctors, pharmaceuticals, or any health professional, prescribing or facilitating cannabis to patients not duly registered (in the “Registry of Patients that consume cannabis for medical and therapeutic purposes”), criminal consequences will apply.

The Criminal Code of Peru sanctions: (i) the acts of promotion, facilitation financing, or growing cannabis without the corresponding licence, with a prison sentence not less than eight years and no more than 15 years, and with a 180 to 365 day fine, and professional disqualification; and (ii) the act of trading and transferring seeds of cannabis without the corresponding licence, with a prison sentence of not less than five nor more than 10 years, and with a 120 to 180 day fine, and professional disqualification.

Recreational use

In Peru it is not possible to produce, sell and import cannabis for recreational use. The production, import and commercialisation of cannabis are only permitted for medical and therapeutic purposes.

Industrial use

Pursuant to the Cannabis Law and Cannabis Regulations, the permitted uses for industrial cannabis are limited to the production of cannabis (and its derivates) for medical and therapeutic purposes only. With the approval of the New Cannabis Regulation this limitation extends to the psychoactive cannabis and the non-psychoactive cannabis.

None of the local laws or regulations contain specific regulations concerning CBD concentrations. The Cannabis Law and the Cannabis Regulations make a distinction based on THC content. However, existing regulations enacted before the Cannabis Law and the Cannabis Regulations that prohibit the growing, import and commercialisation of drugs and psychotropic substances (for uses other than medical and therapeutic) define cannabis in a very general way with no specific mention of CBD concentration or content. In addition, the Criminal Code, when typifying specific cannabis related crimes, does not consider there to be a distinction based on the quantity of THC or CBD.

Patentability

Applicable intellectual property laws and regulations provide that patents on inventions, whose commercial exploitation should be prevented in order to protect public order or morality, will not be granted (there is no specific mention of patents on inventions involving cannabis).

Considering that: (i) the growth, use, import, commercialisation and production of cannabis is prohibited and has criminal consequences; and (ii) the only exception (for the application of criminal consequences to such activities) is that the growth, use, import, commercialisation and production of cannabis is duly licenced; it is probable that the competent authority will not grant a patent unless the proposed commercial exploitation of cannabis is duly permitted.

Latest developments

There is a Bill of Law which was filed with the Congress in September 2022, which promotes the production and industrialization of the cáñamo, understood as the seeds, plants and its components (stem, leaves, tops, roots) of the non-psychoactive cannabis plant, which content of THC is less than 1%. However, if approved, the New Regulation of Cannabis should amend the definition of “cannabis” in order to exclude those products comprised by the mentioned definition of cáñamo, or vice versa.

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Maria Delia Oxley
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