New Classification of Narcotics Under Category 5 of the Narcotics Code

The Ministry of Public Health (“MOPH”), under the approval of the Office of the Narcotics Control Board (“ONCB”), issued a Notification Re: Prescribing the List of Narcotics Under Category 5 on 8 February 2022 (“Notification”), to prescribe the list of narcotics classified under category 5 of the Narcotics Code, as follows:

• 1. Opium (Paperva somniferum L and Paperva bractearum Lindl) or any plant in the same Genus that produces opium or opium alkaloid.
• 2. Magic mushrooms (Psilocybe cubensis (Earle) Singer or any other plant in the same Genus that produces psilocybin or cylobin.
• 3. Extracts from any part of the cannabis or hemp plant, a plant which belongs in the Cannabis Genus, except for the following:

a) Extact substance containing tetrahydrocannabinol (THC) not exceeding 0.2 percent per weight but only for a substance authorised to be extracted from cannabis or hemp grown in Thailand; and
b) Extract substance of cannabis or hemp seeds grown in Thailand.

In addition, the Notification also states that if the foregoing narcotics are substances used for quality control of analysis and/or drug tests in humans – and therefore considered as medical devices under the relevant laws and used under the purposes of such medical devices; they shall be exempted from being deemed as narcotics.

The Notification was published in the government gazette on 9 February 2022 and will be effective 120 days after the date of its publication.

The Notification is an amendment of the secondary law made in line with the Thai Narcotics Code previously enacted in November 2021.

Current Legislation

Narcotics in Thailand are originally governed by the Narcotics Act B.E. 2522 (1979) (“Narcotics Act”), which classifies narcotics into five categories. Narcotics under category 1 - 4 include heroin, amphetamines, methamphetamines, morphine and chemical substances, such as acetic anhydride and acetyl chloride. Category 5 contains four items which do not belong under category 1 - 4 of the Narcotics Act, e.g., cannabis, kratom (Mitragyna Speciosa), opium, magic mushrooms and any or all parts of cannabis/kratom. In order to promote the commercial use of kratom as a cash crop, there have been numerous amendments to the Narcotics Act with regard to narcotics under category 5, e.g. Narcotics Act (No. 8) B.E. 2564 (2021), which removed kratom from category 5 in May 2021.

On 8 November 2021, the government published an Act Prescribing the Use of the Narcotics Code B.E. 2564 (2021) in the government gazette, to enact the new Thai Narcotics Code, effective 30 days after its publication date or 9 December 2021. After the Thai Narcotics Code came into effect, all the previous legislations regarding narcotics, such as the Narcotics Act and amendments thereof, were revoked. Currently, the Narcotics Code is the main law which governs the manufacture, import, export, sale, possession and use of narcotics in Thailand. In this regard, it appears that cannabis has been removed from the classification under category 5 of the new Narcotics Code. The removal of cannabis is in line with the lengthy attempt to promote cannabis (and hemp) as a cash crop of Thailand in the emerging global consumption trend, such as the food and beverage market, by both private and public sectors. The MOPH has issued the Notification, as a secondary law, to provide a new classification of narcotics under category 5 of the Thai Narcotics Code in order to completely legalize Cannabis. As a result, once the Notification is in effect, cannabis will be removed from category 5 and be legalized for further usage. This, however, excludes extractions of cannabis or hemp which contain more than 0.2 percent per weight of Tetrahydrocannabinol (THC), as prescribed under the Notification.

Categories of Narcotics

Narcotics are classified into five categories under Section 29 of the Narcotics Code, as follows:

• Category 1 consists of dangerous narcotics such as heroin.
• Category 2 consists of ordinary narcotics such as morphine, cocaine, codeine or medicinal opium.
• Category 3 consists of narcotics which are in the form of medicinal formula and contain narcotics of category 2 as ingredients, in accordance with the rules prescribed by the Minister of Public Health under the suggestions of the Narcotics Control Committee.
• Category 4 consists of chemicals used for producing narcotics of category 1 or 4, such as Acetic Anhydride.
• Category 5 consists of narcotics which do not belong under category 1 – 4, such as opium.

Permission

In general, unless permission is obtained, the manufacture, import, export, sale, possession and use of narcotics in Thailand is prohibited. Any party seeking to conduct the foregoing may apply for permission from the Minister of Public Health, Secretary-General of the Food and Drug Administration or the person appointed by the latter under the rules, procedures and conditions prescribed in the ministerial regulation. The permission may be obtained for educational, medical, scientific and industrial purposes. An exemption of permission may be possible for the manufacture, import, export, sale or possession of narcotics for the purposes of certain professions, such as medical, dental, government agency and the Red-Cross Society of Thailand, subject to the rules, procedures and conditions as prescribed by the Minister of Public Health under the supervision of the Narcotics Control Committee. The possession of certain narcotics, in a limited and specified amount as necessary, by patients as prescribed by a medical, dental or veterinarian practitioner for the treatment of illness is also exempted from the permission requirements.

Penalties

Penalties under the Narcotics Code for the manufacture, import, export, sale or possession of narcotics without permission depend on the category, as follows:

a) Category 1: fine of up to Baht 5,000,000 (five million Thai baht) and life imprisonment, or capital punishment by way of a death sentence execution;
b) Category 2: fine of up to Baht 1,500,000 (one million, five hundred thousand Thai baht) and imprisonment not exceeding 15 years;
c) Category 3: fine of up to Baht 300,000 (three hundred thousand Thai baht) and imprisonment not exceeding 3 years;
d) Category 4: fine of up to Baht 1,000,000 (one million Thai baht) and imprisonment not exceeding 10 years; and
e) Category 5: fine of up to Baht 1,500,000 (one million, five hundred thousand Thai baht) and imprisonment not exceeding 15 years;

The provisions of penalties under the Narcotics Code also apply to wrongful acts involving narcotics outside of Thailand in the following cases:

• One of the accomplices is a Thai national or domiciled in Thailand;
• Acts conducted by a foreign national, the results of which will occur in Thailand or to the State; or
• The foreign national conducting the wrongful acts was not extradited to the state where the wrongdoing was conducted.

This is intended merely to provide a regulatory overview and not to be comprehensive, nor to provide legal advice. Should you have any questions on this or on other areas of law, please do not hesitate to contact:

Nuttaros Tangprasitti
Partner

Sattapat Suradecha
Attorney-at-Law