Cannabis edibles ban: impact on businesses and regulatory confusion

The Minister of Health Dr Aaron Motsoaledi opened a can of worms when he issued a government gazette prohibiting the use of cannabis-infused edibles as the decision has not only created a political headache for him, but also affected a number of businesses.

The gazette, signed on March 16, imposed the regulations under the Foodstuffs, Cosmetics, and Disinfectants Act (1972) prohibiting the sale, import or manufacture of all foodstuffs – commonly known as edibles – containing any part of/component derived from the cannabis and/or hemp genus, Cannabis sativa L.

In an interview with The Mercury, the Department of Health said the aim of the notice was to introduce a process whereby these products can be vetted and are regulated through the South African Health Products Regulatory Authority (SAHPRA).

Department spokesperson Foster Mohale said: “The Department of Health is committed to ensuring the safety of South African consumers, especially in light of concerns over cannabis in food products.

“Currently, South Africa’s food control legislation under the Foodstuffs, Cosmetics and Disinfectants Act does not provide for the pre-market approval of food containing cannabis. This is why we are introducing a process through the South African Health Products Regulatory Authority to assess such products before they can be sold,” he said.

Mohale said the notice would require manufacturers to disclose the amount of cannabis in food products, allowing consumers to make informed choices.

“The aim is to regulate the use of cannabis in foodstuffs and ensure that these products are safe for consumption.”

Webber Wentzel lawyers Rodney Africa, Adriano Esterhuizen, Daveraj Sauls, and Danica Jonker said that there have been significant developments in the South African cannabis legal framework over the years, but that while it has created optimism, it has also caused uncertainty to what is legally permissible.

“Although it is legal for an adult to use, possess, and cultivate cannabis in a private place for a private purpose, there are still limitations as to the use, possession, and cultivation of cannabis which, if contravened, may constitute an offence which may result in a fine or imprisonment on convictions.”

The Cannabis for Private Purposes Act 7 of 2024 (the Act) was published on June 3, 2024, in Government Gazette No. 50744 and allows for the use, possession, and cultivation of cannabis by an adult in a private place for a private purpose.

“The Act does not specify the maximum quantity permitted for private use. The Minister of Justice is required to prescribe the maximum amounts by way of regulations.”

The firm explained that to this end, the South African Police Service has also issued a directive clarifying to police officers that there are no prescribed quantities of cannabis that may be possessed or cultivated, and that the amount of cannabis found in possession of a person for private consumption or cultivation cannot be used to presume that the person is in fact dealing in cannabis.

In regards to medical cannabis, SAHPRA regulates the use, cultivation, and import of cannabis for medicinal research purposes.

“While there has been significant progress in regulating the use and possession of cannabis for private purposes there still remains uncertainty among South African as to what is allowed and what is not allowed,” the firm said (read more here).

The uncertainty is what GOOD Party Secretary-General, Brett Herron, criticised the minister for, saying that the lack of a policy framework to organise and regulate South Africa’s cannabis industry since it was decriminalised is placing the future of the industry, and up to a million people’s livelihoods, at risk.

“Minister Motsoaledi should know that colonial and apartheid authorities, who began banning the use of cannabis products in the 1800s to increase worker productivity, singularly failed to curtail the industry which, by 2003, was rated the fourth largest in the world by Interpol.

“Incoherent decriminalisation does not work. Users of edible cannabis products have the right to know that what they consume is safe, which requires regulations, not a ban. Driving the industry underground does not enhance safety but achieves the opposite,” Herron said.

“Because of the policy void, the field is being left open to politicians and bureaucrats of a conservative bent – including the Minister of Health – to do their best to throttle the industry and the vast majority of those livelihoods to death.

“Due to policy uncertainty, tens of thousands of South Africans have been arrested for possession and/or sale of cannabis, only for 90% of those charges to be withdrawn.”

Western Cape Agriculture MEC Ivan Meyer said: “The cannabis industry in South Africa has a staggering potential size of R28 billion, with the capacity to create 10 000 to 25 000 jobs across the value chain, according to the national government's own estimates.

“The criminalisation of the sale of cannabis- and hemp-infused food products is not just a threat to jobs, it's a direct assault on economic growth and job creation.”

He added that the ill-considered move by the national Department of Health will harm economic growth and jobs “at a time when the government should be fostering growth and providing regulatory clarity for the cannabis and hemp industries”.

When asked for further comment on the edibles ban, Mohale said: “The matter is still being discussed, and we will communicate the final decision once finalised.”

The general manager (GM) of Cannabis Life, who did not wish to be named, explained that their store is a part of a bigger network in the cannabis industry, and dispensaries like theirs are registered with SAHPRA and require prescriptions from professional health practitioners. As laws state, it is decriminalised.

The GM explained that since 2023, it has sparked a sort of a snowball effect in the industry, while also opening many employment opportunities, with new growth experiences for the local economy, but unclear laws or defining regulations, led to the industry and public generally taking it as weed (cannabis) was fully legal.

“Certain places require prescriptions, while other private spots only require a sign-up fee and that usually covers you for a certain timeframe. Whereas with us, that prescription covers you to be a legal cannabis patient intended for the use of an unregistered medicine (refer to the Medicines Act).

"It is an internationally recognised scrip, and you’re able to carry and travel with your cannabis, provided that the visiting country laws are also permitting."

He added that ultimately, they are seeking to break the stigmatism and negative connotations, stating that the various cannabis products they stock are all provided from licensed and approved facilities, as required by SAHPRA, and they are more focused on catering to the health and wellness of the customers.

“This is a specific form of natural medicine, and I feel that we should treat it with caution and respect. It is also our human right to have access to alternative health care and its benefits."

He explained that it is not a recreational drug, although a lot of people do use it as such.

He said that Cannabis Life acts as a dispensing agent, as they do not sell, but are dispensing to registered patients, who have done the sign-up process, and agreed to the terms and conditions.

The GM explained that the new regulations have definitely had a direct impact on the revenue of the business in terms of the daily operations.

“We're not necessarily shut down in terms of operating the store, but we have had to clear out any supplies that were not compliant by the new changes in regulations.”

The GM added that the uncertainty in the laws has been frustrating for many people, and has also caused confusion in the public.

“Patients require a trustworthy and reliable source, whether it's product-related, staffers with knowledge and expertise, honest communication, and open-mindedness, to help guide them on the cannabis journey.”

He explained that ultimately while there were a lot of regulations regarding the flower, which is cannabis bud, there were less defining regulations surrounding the edibles and extracts (such as oils and concentrates).

“In an overall perspective, we are looking at this as a wellness factor, as something that can aid society, in terms of going about alternatives to pharmaceuticals.

"We hope to see a positive change unfold from all of this and we're proudly working together as activists of its healing properties and benefits.”

Zoë Trumpeter, one of the store’s ‘budtender’ (a play on the word bartender) summed it up stating that people often ask what to do.

“There’s this stigma surrounding cannabis, because people don’t know how to indulge in it properly, and that is why people can get sick or paranoid. There is a specific way in which you take an edible. You don’t just take one. Go through the process, and ask the people. Like I always say, ask your ‘budtender’ as they’re somebody who knows more than you do, so ask them.”

theolin.tembo@inl.co.za