Objective: To present evidence that the Ministry of Health (MoH) has enforced an unduly restrictive classification of cannabidiol (CBD) via a seemingly perverse legal opinion,
While clearly legally privileged information between client and legal advisor, the facts indicate that the privilege is protecting a fraud; which in turn was necessary to deny the public material benefits they could reasonably expect to enjoy.
This decision has obstructed CBD’s accessibility in New Zealand for therapeutic and wellness purposes, particularly as food, supplement, or herbal remedy, and conflicts with international standards, internal Ministry advice, and scientific consensus. This evidence is substantive enough to justify disclosure.
Background and Key Evidence
Misalignment with International Standards on CBD Classification:
WHO’s Position on CBD: The World Health Organization (WHO) has explicitly stated that CBD does not require international control, citing its favorable safety profile and lack of psychoactive effects. This recommendation starkly contrasts with MoH’s stance of classifying CBD as a controlled substance, highlighting a departure from international best practices. The WHO’s guidance emphasizes that CBD lacks the risk profile associated with controlled drugs, making New Zealand’s position appear overly restrictive and unsupported by global consensus (WHO CBD no control).
UN Single Convention on Narcotic Drugs (UNSCN): Article 28 of the UNSCN exempts Cannabis sativa when cultivated for “horticultural purposes” from narcotic controls, challenging MoH’s interpretation that UNSCN mandates control of CBD as a narcotic. The UNSCN’s allowance for non-controlled uses of cannabis implies CBD should be similarly non-restricted, especially for food or supplement purposes.
European Court of Justice (EU CoJ) Ruling: The EU CoJ has reinforced this perspective by ruling that CBD does not exhibit narcotic-like properties, highlighting its benign nature and lack of psychoactivity. This precedent supports CBD’s classification as a non-controlled substance across EU member states, further underscoring New Zealand’s outlier status in restricting CBD access based on its classification as a controlled drug. Such a position, at odds with UNSCN, and WHO/EU CoJ findings, implies a misinterpretation or selective legal framing by MoH.
Centrality of the Legal Opinion Enabling Misclassification:
Legal Opinion as Linchpin: The Ministry’s restrictive stance on CBD fundamentally rests on a legal opinion that allegedly cites UNSCN as grounds for CBD’s controlled drug classification. However, given UNSCN’s actual provisions, which exclude Cannabis sativa from control under certain contexts, this legal interpretation appears flawed or selectively construed. Without transparent disclosure, it is impossible to ascertain if this opinion was shaped by evidence-based reasoning or other influences. The legal opinion remains the linchpin enabling MoH to establish CBD’s restrictive status, thus warranting full disclosure to ensure accountability and transparency.
Request for Legal Opinion Disclosure: The legal opinion used to justify the controlled drug status of CBD is central to this regulatory misstep. As New Zealand law allows for disclosure of privileged information when public interest is compelling, and given the vast public health and economic implications of CBD, transparency regarding the legal basis of its restriction is critical.
Internal Advice and Apparent Inconsistencies:
Internal Advice from ESR and Medsafe: Internal guidance from ESR’s chemistry team and Medsafe’s own advisor, Mr. Anthony Fake, both align with a less restrictive stance on CBD, indicating its low risk and potential as a therapeutic substance. These evidence-based positions for a non-controlled status were disregarded without specific evidence or named staff accountability, suggesting that Medsafe chose to overlook its own expertise in favor of the restrictive legal opinion.
Dr. Jessamine’s Correspondence on Elixinol: In his letter to then-Minister Peter Dunne, Dr. Jessamine discussed the possibility of food-grade CBD approval, specifically mentioning Elixinol. The letter highlights MoH’s rejection of compassionate access and its requirement for strict pharmaceutical-grade standards despite the benign profile of CBD. Dr. Jessamine noted the “challenge of increased demand for CBD products” and framed ethics approval as a mechanism for ensuring the legitimacy of applications. This correspondence underscores an internally acknowledged public demand for CBD, yet reveals the Ministry’s intent to limit access, aligning with the restrictive legal interpretation rather than evidence or international practice.
Potential Conflicts of Interest with Status Quo Interests:
Alignment with Pharmaceutical Interests: MoH’s decision to restrict CBD to pharmaceutical-only pathways appears to benefit the status quo interests, potentially at the expense of accessible health solutions through food and supplement markets. The Ministry’s reliance on a narrow interpretation of UNSCN provisions and its alignment with restrictive legal interpretations suggest that status quo interests may have influenced regulatory decisions.
Structural Conflict within Medsafe: Medsafe’s dual role in regulating and enforcing controls on CBD while overseeing pharmaceutical regulations creates an inherent conflict. This structural overlap, particularly with Medsafe’s responsibility for limiting CBD’s accessibility outside pharmaceutical channels, raises questions about the objectivity of its enforcement approach.
Health and Economic Implications Overlooked:
Therapeutic Potential Acknowledged but Unmet: Ministry health reports, such as the Woodbridge 2008 report on cannabinoid therapeutics, acknowledge the therapeutic benefits of CBD, especially for chronic pain and disease management. This internal recognition contrasts with MoH’s restrictive approach, which fails to address these known health benefits and limits public access.
Projected Economic Impact of CBD Accessibility: Restricting CBD to pharmaceutical channels stifles the potential growth of New Zealand’s domestic hemp and CBD market. Enabling CBD as a food or supplement could benefit the economy by reducing reliance on costlier pharmaceuticals, creating jobs, and boosting exports. The MoH’s stance appears to disregard these economic benefits, reinforcing restrictive policies that limit the market.
The Importance of Transparency and Accountability in Policy Justification:
Selective Withholding of Health Reports: MoH’s withholding of post-2008 health reports, which likely contain evaluations of cannabinoids, raises questions about transparency and suggests that pertinent evidence may have been intentionally sidelined. Disclosing these reports would clarify the scientific basis for the Ministry’s decisions and provide the public with a more accurate understanding of CBD’s regulatory pathway.
Public Interest in Full Disclosure of the Legal Opinion: The potential health benefits and economic opportunities tied to CBD warrant the release of MoH’s legal opinion. This legal document is pivotal to understanding the Ministry’s stance and could reveal whether the classification is based on sound legal reasoning or influenced by extraneous factors.
Conclusion and Requested Action
The Ministry of Health’s decision to classify CBD as a controlled substance appears to lack a sound, evidence-based foundation, relying instead on a questionable legal opinion that diverges from international standards and internal scientific advice. This legal opinion has served as the linchpin enabling the restrictive status of CBD, limiting access to beneficial and economically viable CBD products. Given the compelling public interest in CBD as a therapeutic and wellness supplement, there is a strong case for transparency.
We respectfully request the Ombudsman to mandate the release of MoH’s legal opinion and related communications, ensuring that CBD policies are subjected to public scrutiny. Transparent disclosure is essential to restore public confidence and to assess whether these restrictions align with public health interests or serve to protect the status quo.
Interview with Reality Check Radio below
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