The Portuguese language, in its vast richness, presents us with a universe of words endowed with precise meanings and capable of clearly transmitting the nuances of our ideas. However, the frequent repetition of certain terms can, over time, generate new interpretations and even equate the meaning of different expressions.
When we seek guidance in dictionaries and regulations, we find the official record of the meanings and uses of words from a semantic and legal point of view, respectively. It is in this context that we can analyze the differences between the expressions “drug” and “plant”, which carry important distinctions.
Drug, etymologically, comes from French drogue and means ingredient of dye or pharmaceutical chemical substance [1]. According to the sole paragraph of article 1 of Law No. 11,343/2006 (Anti-Drug Law), “drugs are considered to be substances or products capable of causing dependence, as specified by law or listed in lists periodically updated by the Executive Branch of the Unity”.
The same law, in its article 66, establishes that, “for the purposes of the provisions of the sole paragraph of article 1 […], until the terminology of the list mentioned in the precept is updated, narcotic substances, psychotropic substances, precursors and others under special control are called drugs, from Ordinance SVS/MS nº 344, of May 12, 1998”. Therefore, the meaning of what a “drug” is comes from the aforementioned ordinance, which specifically defines it as a “substance or raw material that has a medicinal or health purpose”.
Plant, etymologically, derives from the Latin plantae and means common form of organisms in the plant kingdom, mostly autotrophic, fixed to a substrate and characterized by the presence of chlorophyll and cellulose in their cells [1]. The plant used to prepare medicines is classified as medicinal, defined by the National Health Surveillance Agency (Anvisa), through Resolution RDC nº 654/2022, as a “plant species, cultivated or not, used for therapeutic purposes”.
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When we analyze the official definitions, the fundamental distinction between drug and plant becomes clear. While drug has a chemical meaning when referring to a substance, plant has a biological meaning when referring to the form of living beings in the plant kingdom. To illustrate, in the same way that Kelsen’s famous Pyramid graphically represents the legal system of norms through segments, the organization of living beings also involves hierarchical levels of complexity, starting from the atoms and molecules (substances) at the base to the organism at the bottom. top.
In 1998, the plant known as cannabis sativa, or marijuana, was included in list E of the technical regulation on substances and medicines subject to special control. This list is made up of plants for prohibited use that can produce narcotic and/or psychotropic substances, that is, substances that can cause physical or psychological dependence. According to article 61 of Ordinance SVS/MS nº 344/1998, “plants included in list E cannot be prescribed and manipulated allopathic and homeopathic medicines”.
In addition, article 2 of Law 11,343/2006 establishes that “drugs are prohibited throughout the national territory, as well as the planting, cultivation, harvesting and exploitation of vegetables and substrates from which they can be extracted or produced drugs, except in the event of legal or regulatory authorization […]”. The aforementioned article provides for both the prohibition of certain drugs and the prohibition of the planting, cultivation or harvesting of vegetables that could produce drugs previously classified as prohibited.
The substances prohibited for use in Brazil are listed on list F of Ordinance SVS/MS No. 344/1998, including tetrahydrocannabinol (THC), one of the main components of marijuana, responsible for its hallucinogenic effects. However, in 2016, Anvisa issued Resolution RDC No. 66 to exempt permission for the prescription of registered medicines that contain plants of the genus cannabis sp.their parts or substances obtained from them, including THC.
A year later, in 2017, Resolution RDC No. 156 officially recognized marijuana as a medicinal plant by including its scientific nomenclature in the list of Brazilian common denominations (DCB), which lists the official names of drugs, medicinal plants and other substances for approved use. in Brazil. In the same year, the registration of the first medicine based on cannabiswith the trade name Mevatyl, containing THC at a concentration of 27 mg/mL and cannabidiol (CBD), 25 mg/mL, substances obtained from plant raw materials, with defined chemical structures and pharmacological activity [2].
Cannabis for medicinal purposes
In 2019, Anvisa published Resolution RDC nº 357, which provides for the procedures and sanitary requirements for the manufacture, import, commercialization, prescription, dispensing, monitoring and inspection of health products. cannabis for medicinal purposes. The resolution establishes in its article 4 that “products of cannabis containing exclusively plant derivatives or phytopharmaceuticals from Cannabis sativa as active ingredients, must predominantly contain cannabidiol (CBD) and no more than 0.2% tetrahydrocannabinol (THC)”.
Article 5 establishes that “products of cannabis can be prescribed when other therapeutic options available on the Brazilian market have been exhausted”. Data published in 2022, on the Anvisa portal, shows that there are currently 23 cannabis approved, 9 of which are based on extracts of cannabis sativa and 14 of cannabidiol [3].
It remains clear, therefore, that marijuana has the official status of a medicinal plant and not an illicit drug for banned use; its use for medicinal purposes must comply with legal and regulatory provisions, since medicines and products intended for the prevention and treatment of diseases must follow strict standards of safety, quality and effectiveness; there are several medicines and health products cannabis registered with Anvisa, legally prescribed and sold on the national market, indicating that, like marijuana, its derivatives also do not have the status of proscribed substances. And there is no express regulatory prohibition for the non-medical use of marijuana in Brazil.
The Proposal for Amendment to the Constitution is being processed in the National Congress – PEC nº 45, of 2023, which amends article 5 of the Constitution, to provide as a criminalization warrant for the possession and possession of narcotics and similar drugs without authorization or in disagreement with legal determination or regulatory, already approved in two rounds in the Senate and forwarded to the Chamber of Deputies, pending a vote. The proposal, from what we read, does not criminalize plants, more specifically marijuana or its natural derivatives.
On the other hand, the plenary session of the Federal Supreme Court (STF) is judging Extraordinary Appeal (RE) 635659, which discusses whether or not possession of drugs for personal consumption can be considered a crime. The discussion is about the constitutionality of article 28 of the Anti-Drug Law, which provides for sanctions for those who acquire, keep, deposit, transport or carry, for personal consumption, drugs without authorization or in violation of legal or regulatory determination. The rule also subjects those who sow, cultivate or harvest plants intended for the preparation of small quantities of products or substances capable of causing physical or mental dependence to the same penalties.
Despite the well-founded arguments, it is clear that there is a distinction between the terms drug and plant and that considering them as synonyms constitutes an artificial resource of social control and promotion of the war on drugs.
There is currently no way to classify marijuana as an “unauthorized drug”, since the regulatory changes promoted by Anvisa throughout the post-1998 period highlight the repositioning of sanitary control, changing its status from a plant for proscribed use to a medicinal plant.
There is also no way to classify the non-medical use of marijuana and its derivatives as “in disagreement with legal or regulatory determination” due to the absence of a rule that explicitly prohibits the non-medical use of the plant or that defines the parameters for such use.
[1] HOUALISS, Antônio; VILLAR, Mauro de Salles. Houaiss electronic dictionary. Rio de Janeiro: Objective, v. 1, 2009.
[2] ANVISA. Opinion R1, dated January 25, 2017. Public opinion evaluating the approved drug Mevatyl. Available at: . Accessed on: April 22, 2024.
[3] ANVISA. Anvisa approves new Cannabis product to be manufactured in Brazil. Available at: . Accessed on: April 22, 2024.
