EDITORIAL | Is prohibition wise or will it drive cannabis edibles underground in SA?

Chocolates, tea, muffins, milkshakes, honey, lollipops, biscuits, peanut brittle, vanilla fudge and nougat, infused with an assortment of cannabis strains, have been sold openly in shops and malls for years across South Africa. 

So it's understandable that health minister Aaron Motsoaledi's surprise ban on cannabis-containing foodstuffs has ignited a fierce debate. Why only now? What is the rationale behind the briefly worded ban that was gazetted? Why has it taken so long for government to develop a framework to regulate the country's apparently booming “recreational” cannabis industry?

Why is the health minister seemingly at odds with President Cyril Ramaphosa who in his latest state of the nation address said the country had the potential to be a leader in the commercial cannabis and hemp industry? There are, at this stage, many unanswered questions. 

“No-one may sell, manufacture or import, processed or unprocessed, foodstuff containing: any part of the plant or component of the genus Cannabis which include C.sativa, C.indica and C.ruderalis, or hemp-seed oil or powder from any component derived from the genus Cannabis sativa L, and various species or sub species in the genus Cannabis sativa,” reads the notice in the gazette issued on March 7. 

Rewind to the landmark 2018 ruling by the Constitutional Court which paved the way for adults to cultivate and use cannabis in private, away from children — but retained its status as being illegal to sell.

While medical cannabis has been strictly regulated, the absence of a clear guidelines on recreational cannabis use, and an apparent lack of law enforcement against the sale of products containing the psychoactive compound tetrahydrocannabinol (THC), created what has been described as a “free for all” as retailers and dispensaries, many unlicensed, flooded the market with imported and locally made edibles.

South Africa’s National Cannabis Master Plan released in 2021 estimated that a formal cannabis industry could be worth R28bn and had the potential to create up to 25,000 jobs. 

Globally, there has been a shift to decriminalise cannabis for medical and adult use, in addition to carefully regulating how it is sold. This includes oversight of how edibles are manufactured, labelled and marketed. Consumers, rightfully, expect the relevant authorities in a country to ensure their food is manufactured in hygienic conditions, not contaminated and is safe to consume.

And therein appears to be part of the reason Motsoaledi imposed the latest ban — albeit without public consultation — under the Foodstuffs, Cosmetics and Disinfectants Act.

Health deputy director-general Dr Anban Pillay cleared up some of the confusion when he told News24 the aim was to ensure such products comply with specific standards and will not harm consumers. Public health and safety should, rightfully, be a top priority, particularly in light of the health and safety scares witnessed at unregulated spaza shops in South Africa. Children, in particular, need to be protected, though one could argue existing legislation does not allow them to purchase alcohol or cigarettes yet they still obtain these products. 

Does the new ban mean an adult 'manufacturing' edibles to eat in private, as opposed to smoking (an arguably unhealthier but legal option) is guilty of an offence and liable to a fine or imprisonment? Is a pensioner with arthritis making a cup of cannabis tea now flouting the law?

Some would argue that many of the illegal “dispensaries” mushrooming around the country took advantage of poor oversight or law enforcement in pursuit of a quick buck — and thus have only themselves to blame for the crackdown. 

But one has to question whether outright prohibition, instead of working with the industry during the “free for all” years to put proper rules in place, is an appropriate solution or a stalling tactic because the government has been dragging its feet on the issue.

Critics point out that many thousands of jobs are now at risk when the country needs to create jobs and boost economic growth. They also warn an outright ban, if enforced, will simply drive the recreational cannabis industry, aimed at consenting adults, underground and it will backfire, as happened with the ban on alcohol and cigarettes during the Covid-19 lockdown. There is an abundance of information readily available on how to make edibles, thanks to the lockdown.

The ban, without providing context and a public explanation as to the rationale behind it, and the way forward, has left consumers and businesses confused. As per the 2018 Constitutional Court judgment, an adult may cultivate and consume cannabis in private — away from children. Does the new ban mean an adult “manufacturing” edibles to eat in private, as opposed to smoking (an arguably unhealthier but legal option) is guilty of an offence and liable to a fine or imprisonment? Is a pensioner with arthritis making a cup of cannabis tea now flouting the law?

What is needed is clear, concise communication from the health minister and the cannabis industry to explain the latest twist in what has turned into a drawn-out process, backed by rational arguments and scientific evidence. We cannot spend years developing a master plan and risk driving an emerging industry, potentially worth billions of rand, underground.

A clear framework regulating the recreational aspect of the industry is needed urgently. We learnt our lessons during the pandemic. Let's not make the same mistakes again.