Legal Developments in the Swiss Cannabis Market
Daniel Haymann, MBA, and Daniel Donauer, doctor of law, of MLL Legal in Zurich, discuss the liberalisation of Swiss narcotics law and the evolution of legislation in Switzerland regulating the use of so-called medical and non-medical cannabis.
Over the last five years, cannabis has proved to be an exciting raw material for various industry applications as well as for product development in Switzerland. Regulatory changes related to cannabis as well as positively evolving interpretations of already existing standards have played an important role.
In the field of medical cannabis, liberalisation of Swiss narcotics law has only recently taken place, opening a wide range of opportunities with respect to the development of this new form of therapy.
It should be noted that, as in most countries, a distinction is made in Switzerland between so-called medical cannabis on the one hand and non-medical adult-use cannabis on the other. In the field of medical cannabis, liberalisation of Swiss narcotics law has only recently taken place, opening a wide range of opportunities with respect to the development of this new form of therapy. Non-medical adult-use cannabis is still subject to a myriad of preconceptions that have existed for some time, the contours and practical application of which are currently being put to the test.
Medical Cannabis Regulation
On 1 August 2022, the Swiss Narcotics Act (“NarcA”) was amended to facilitate the use of cannabis for medical purposes. The legislative revision project was not adopted by the Swiss parliament until 19 March 2021, leaving the Federal Council just over a year to draft the corresponding ordinance law.
With the revision of 1 August 2022, a dividing line has now been drawn in the law and ordinances between so-called medical cannabis and other (non-medical) cannabis. Irrespective of its THC content, cannabis no longer qualifies as a prohibited narcotic and special authorisation by the FOPH is no longer required for the use of cannabis. As a result, market participants in the field of medical cannabis are now entitled to apply for various commercialisation licences from the competent Swiss Agency for Therapeutic Products (“Swissmedic”).
The new licensing system for medical cannabis in Switzerland now includes the following:
- a general cultivation licence;
- a single-crop cultivation licence;
- an operating licence for the handling of medical cannabis (ie, manufacturing, brokering, dispensing and trading);
- separate import and export licences; and, if applicable,
- various licences under the Therapeutic Products Act, in particular, for manufacturing, wholesale and dispensing activities (under general medical practice conditions).
The recent reform has strongly facilitated access to medical cannabis. Doctors can now prescribe so-called extemporaneous preparations (Magistralrezepturen) for their patients within the framework of their freedom of treatment, and supply patients with medical cannabis at pharmacies throughout Switzerland without obtaining any additional authorisation.
The reform also presents the industry with various challenges. Most physicians have little or no experience at all with regard to prescribing medical cannabis and extemporaneous preparations. Clinical studies that prove the efficiency of medical cannabis are not available, and reimbursement by health insurers is the exception, not the norm. Lastly, under the new laws, physicians are obliged to record patient data when prescribing medical cannabis, an activity that is not reimbursed but is an additional administrative burden. It remains to be seen what solutions will emerge to tackle the challenges mentioned.
Non-medical Adult-Use Cannabis Regulation
Cannabis with a THC content of below 1% THC (commonly referred to as the CBD market) does not qualify as a prohibited narcotic and can be used in various product categories, such as:
- human contact items (eg, e-cigarettes and chemical snus, a smokeless tobacco product);
- tobacco and tobacco-related products;
- chemicals (eg, fragrant oils); and
- pet food.
Each of the mentioned product categories has a separate regulatory framework which must be complied with, and which is subject to regular changes. For example, since 24 March 2022, all scented oils offered as chemicals must be compulsorily denatured (eg, with rosemary oil) to protect consumers from unauthorised ingestion.
One of the fastest growing areas in the CBD market is the cosmetics sector. Cosmetic care products (eg, lotions and oils) for external skin care as well as oral skin-care products that contain cannabis can be freely sold in the market under Swiss product regulation.
Legalisation of cannabis in Germany is likely to accelerate the debate in Switzerland.
Cannabis products have also gained strong popularity in the tobacco industry. In October 2021, the Swiss parliament adopted a new Tobacco Products Act, which is scheduled to come into force in spring 2024. The most important change – with regard to cannabis products – concerns alternative products such as e-cigarettes and chemical snus products, which will in future be subject to the same standards, including advertising rules, as classic tobacco products.
Lastly, on 19 October 2021, the Commission for Social Security and Health gave its approval to a parliamentary initiative that provides for the prohibition of cannabis with a THC content of 1% or above to be lifted. The first submission of this bill can be expected in late 2023 to early 2024. Legalisation of cannabis in Germany is likely to accelerate the debate in Switzerland. Against this background, legalisation of non-medical adult use of cannabis in Switzerland can be expected between 2025 and 2027.