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This article was published 5/12/2018 (365 days ago), so information in it may no longer be current.
Dear Herb: A recent article suggested that obtaining starting materials from licensed medical growers by gifting is legal, but is that really the case?
Is legal medical cannabis a potential legal source of starting materials for recreational home growers? — Perplexed About Gifting
Dear Perplexed: I've received this inquiry from a number of people in the past few weeks. Before I answer, let's review the question to ensure everyone's up to speed.
Canadian adults in most jurisdictions are now allowed to grow up to four cannabis plants at home. Unfortunately, no licensed cannabis producers are actually selling starting materials such as seeds or clones to recreational cannabis consumers at this time. Effectively, that means there's no legal source of starting materials to grow your own weed.
A recent article in StarMetro Edmonton quoted people who suggested a solution to this problem. In short, the idea is that a registered medical cannabis patient who's licensed to grow her own supply could gift cannabis plants or seeds to another adult who wants to grow for recreational purposes. One person quoted in that article has even set up a website to facilitate this kind of gifting, although the website appears to charge a "subscription fee".
Back to the question: Is the gifting of medical cannabis plants and seeds actually legal under the Cannabis Act? I asked Health Canada's media-relations team to explain, and they ran the question by their experts before giving me a response that didn't explicitly answer the question.
The limited sharing of cannabis for personal use between individual adults is definitely permitted, wrote Health Canada spokeswoman Tammy Jarbeau in her formal response. An adult can distribute up to four cannabis plants to another adult, provided the plants are not flowering, or have buds on them. Ditto for legally-obtained cannabis seeds, which can be shared up to 30 at a time.Advertisement
There's nothing new there. But another part of Jarbeau's response did catch my eye: the government program that allows medical cannabis users to grow their own is meant only for that individual's own medical needs, she wrote.
"Under this system, it would not be expected that registered individuals would routinely have excess cannabis that they would be able to share on a large-scale or continual basis," said Jarbeau.
"In fact, the large-scale or continual sharing of cannabis by an individual registered to produce cannabis for their own medical purposes could cause Health Canada to investigate the circumstances of the registration and evaluate whether the amount the individual is authorized to produce should be reviewed."
That's significant. If Health Canada gets wind of a licensed personal medical cannabis cultivator sharing lots of cannabis plants, they might start asking questions about whether that person really needs all those cannabis plants for their medical needs — and that could lead to their cultivation licence being revoked.
Still, Jarbeau's response didn't answer the core question here, so I bugged her again for a more definitive answer: is the sharing of legally-obtained cannabis starting materials between medical growers and would-be recreational growers allowed as long as there's no direct or indirect compensation?
"Health Canada cannot speculate on whether or not the situations presented are in compliance," wrote Jarbeau in response. The regulator, deals with this kind of thing on a case-by-case basis, she said.
That's not the clarity I was hoping for, but Health Canada's responses didn't explicitly say this kind of sharing is illegal, which suggests to me that it's probably permitted. (Based on Health Canada's responses, it seems to me like the bigger risk here could be for the gift-giver, who could potentially be putting their medical cultivation licence at risk if they give away lots of plants.)
I asked cannabis lawyer Trina Fraser to cast her keen legal eye on my correspondence with Health Canada and provide her interpretation.
"There is nothing in the Act or its regulations expressly prohibiting a medical cannabis patient from sharing on the terms you have set out," Fraser wrote to me.
"Health Canada's response implicitly admits this. I have warned that I still believe these activities could impact upon a person's personal production registration and it seems that this is the approach that Health Canada is taking."
To sum up: Based on my correspondence with Health Canada and input from an expert in Canadian cannabis law, I believe the gifting of limited amounts of legally obtained medical cannabis starting materials from a licensed personal medical grower to another adult is probably compliant with the Cannabis Act and its regulations.
If you're not careful, this kind of sharing could still involve breaking the law. If you want to give or receive this kind of gift within the boundaries of the Cannabis Act, I recommend following these guidelines:
Eventually, licensed cannabis producers and nurseries will start selling cannabis starting materials to recreational growers. Until then, take care when operating in this murky area of the law.
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Updated on Thursday, February 21, 2019 at 1:22 PM CST: Clarifies that the lack of cannabis starting materials was for the recreational cannabis market only.