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Criticism for Legalizing Cannabis in Thailand

The medicinal use of cannabis has been legalized in Thailand since Thailand pulled cannabis of less than 0.2% tetrahydrocannabinol (THC) from its list of narcotics from Narcotics Act B.E.2522(1979) and the Cannabis Act B.E. 2477 (1935) on 9 June 2022. This legalization means people can grow, possess, sell and use cannabis plant without any license/permit from any regulator in addition to hemp, which was earlier legalized. However, cannabis and hemp extracts of more than 0.2% tetrahydrocannabinol (THC) are still regulated.

At the same time, a new draft law on cannabis control, includes information of production and its commercial use, is currently being considered by the Parliament.          

In the first session considered by the Parliament as proposed by Public Health Minister, it was to make cannabis accessible to everyone after registering with Thai Food and Drug Administration on the designated application. It can also grow cannabis plant at home. This modification marks Thailand as the very first nation in Asia to largely decriminalize the plant for industrial, medical, and personal use but recreational use is still discouraged.

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Critics argue that cannabis legalization has concerns of cannabis use among children and adolescents. Also, entrepreneurs opening up stores that sell marijuana and more people turning to it for multiple purposes. The day after cannabis went legal, Ministry of Public Health, heard of concerns over cannabis free use, issued Notification of the Ministry of Public Health, designated marijuana and hemp as controlled plants, legalizing cannabis with the aim of promoting it for medical and health purposes and limiting its possession and use to people aged 20 years and above. Also, under the regulation proposed by the Department of Thai Traditional and Alternative Medicine, smoking in public place is considered as public nuisance.

Sale of cannabis or hemp to people under 20, pregnant woman, breast-feeding woman, and certain types of people, as specified by the Public Health Minister is also prohibited. Several other rules launched including banned cannabis from schools and public places. Despite these restrictions, it still has an impact on the society such as growing numbers of cannabis addict with broad impact on society.

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The government quickly followed up on 26 July 2022, Ministry of Public Health has issued an urgent open letter to the Royal Thai Police that researching, disposing, importing, exporting of cannabis, or processing controlled traditional Thai herbs, cannabis and hemp require permission from authorities.  To conclude, cultivating cannabis and hemp plants and trading of unprocessed parts of them are non-regulated. However, industrial extraction, producing and importing of cannabis and hemp or cosmetics with cannabis or hemp based ingredients are subject to separated legislations.

To restrict impact on the society, strong legislation measure provided with clear information of rules and regulations on cannabis liberalization created by government shall be applied. Examples of possible options are:

  • Strengthened laws and appropriate enforcement responses – as establishing a successful legalization regime would strengthen the law which will minimize or eliminate criminal involvement.
  • Enforcement tools for cannabis-impaired driving – this should be complemented by public education campaigns that emphasize risks associated with drug-impaired driving and advocate preventive measure in the case of drinking and driving.
  • To restrict of consumption to the home or a limited number of well-regulated publicly-accessible sites – this could serve to minimize normalization of cannabis and protect against the exposure of non-users of second-hand smoke and vapors.

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PDPA – Procedures for Filing Complaint

Personal Data Protection Act B.E. 2562 (2019) (“PDPA”) is a new law in Thailand, fully effective on 1 June 2022, which was enacted for the purpose of protecting personal data of data subjects.

Data subject is a person who owns his/her personal data and is the one who gives away his/her necessary personal data to a service provider (called data controller) in order to have them perform according to what both parties agreed under the contract. Therefore, personal data is something that can be used to identify individual the data subject directly or indirectly. However, the data subject does not include a juristic person and deceased person.

Rights of data subject are right to access, right to rectification, right to data portability, right to erasure, right to restriction, right to object, right to withdraw consent and right to complain.

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For the data subject’s right to complaint under Section 73 of PDPA, one may file a complaint to the Office of Personal Data Protection Committee (“Office”) against an offender (i.e., data controller, data processor or any person who violates his/her rights) if his/her personal data is violated.

On 12 July 2022, there was a subordinate regulation which is the Criteria for Filing, Refusal of Acceptance, Dismissal, Consideration and Timeframe for Consideration of Complaint B.E. 2565 (2022)(“Subordinate Regulation”)specifying procedures, timeframes and documents required for filing the complaint to the Office. However, since this Subordinate Regulation has been enforced for a month, people still question the practical procedures regarding filing the complaint.

There is no fixed complaint form and there is only a list of required documents specified in the Subordinate Regulation. However, the complaint must be made in a letter consisting of the complainant’s name, address, telephone number or email address, facts with details and related information, details of damage or effects, evidence, and things that the data subject requests to do, together with a sentence certifying that the information in the letter is true.

Once a complaint letter and all documents have been well prepared, the data subject can either send the complaint by registered mail to the Office or submit it in person at the Office. Also, the Subordinate Regulation stipulated that a complaint can be submitted via an electronic channel.

An identification card of the data subject must be presented at the time of submitting the complaint. In the case that the data subject appoints an attorney. A power of attorney with a completed specifications of assigned duties and correct stamp duty together with the attorney’s certification of a copy ID card, passport or any identity document issued by the government must be submitted together with the complaint.

For the timeframe for consideration, the Subordinate Regulation has divided it into three stages as follows:

  • The competent official shall review and check the completeness of complaint and evidence within 15 days from receipt whether they will accept the complaint for further consideration.
  • After the competent official accepted such complaint, the complainant shall receive an acknowledgment receipt and complaint’s number. Then, the competent official will consider the matter as follow within another 15 days.
  • Whether the action specified in the complaint violates the provisions of PDPA.
  • Whether the complaint has grounds as specified by PDPA and it is reasonable to make a complaint.
  • Whether the expert committee has the authority to consider the complaint.
  • The competent official will then pass such complaint to the expert committee for further consideration. At this stage, the duration is not specified.

If the complaint is complete and accurate, the expert committee will further consider the complaint and result shall be categorized as one of the follows:

  • Dismissing, if the expert committee considers that it has no ground under PDPA.
  • Not accepting complaint, if the evidence is incomplete and has not been considered as a data breach.
  • Setting a conciliation session, if the complaint can be settled by conciliation proceedings
  • Rendering the punishment as an administrative fine.
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If there is any question during the above period, for example, incorrect or incomplete evidence, the competent official will contact the complainant until they receive all required information and documents. The complaint letter and evidence must be well prepared and sufficient to show the competent official that there is an actual violation. Please note that the expert committee will not consider the complaint if details and documents are not complete and accurate. Such complaint shall be deemed invalid, and the expert committee may dismiss the complaint.

In conclusion, for the data subject, your personal data is important, and it is something that you should keep confidentially. You should consider and select to give away your personal data to the service provider who is able to comply with PDPA and has high-security measures to collect and process your personal data.

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Thailand – Royal Decree on Controlling the Online Service Platform Business

Thailand faces the similar problems as EU due to COVID-19 pandemic where people shift from physical sale to online sale. Throughout the operation of online platform for business, both producers and customers counter several troubles such as details of the product, ambiguous service terms, limited choices of delivery, delay in delivery, damages, products are not as advertised, fraud, unable to track the orders of products, unfair prices, or the problems of complaint system and their quality to tackle the complaint sent in. On the service providers’ side, they are in need of certain standard or guideline to a clearer operation from the governmental units. Another issue is the foreign or international online service platforms that have not registered their identity in Thailand making it harder to follow up of feedback or dispute arise in which sometimes create bias or unfair treatment and protection of international service providers and Thai service providers.

As such the regulator introduces legal instrument to govern this online platform and digital service business especially such as the EU implement platform to business regulation (P2B) to attend operation of online intermediation services and business users. Leads to process of commencing a guideline to govern the online platform in Thailand, currently there is no rule or regulation issued to attend this matter but only a drafting of Royal Decree on Controlling the Online Service Platform Business that Must Be Registered B.E. …. (“Royal Decree”) as a scope of controlling to ensure security, safety, creditability in giving service to the customer which can develop a certain standard or qualification in giving fair and quality service.

Before introduction of this draft, the service provider must register under Business Registration Act B.E. 2499 (1956) as certified of legal existence where the noncompliance result is in a form of fine. Under the Direct Sale and Direct Marketing Act B.E. 2560 (2017), online sellers with sales over 1.8 million baht per year must register the business as noncompliance result is in a form of fine and imprisonment. Not only the registration compliance, but the providers must also display the products or services in an appropriate manner as stated under Rule 4 of Announcement of the Central Committee on the Price of Goods and Services No. 70 B.E. 2563 (2020). However, the mentioned existing laws cannot solve the current problems, therefore, the new draft will come up to assist these existing laws.

The draft royal decree introduces similar but new and different contents with clearer and wider range of definition and information of the business conducting on the digital platform, for instance define the term of online service platform, service providers on the online platform, users of the online platform. The draft emphasis clearer details of the types and characters of online service platform that need to notify Electronic Transactions Development Agency (ETDA) before operating the business of the details regarding the businesses and services or products display, relative data of users, complaint mechanisms, terms and conditions of services and products offer to the users, service terms and conditions, suspension or ban from using services of service providers. All these clauses introduce to endorse and support transparency and fairness.

The essence of this draft Royal Decree is to create standard of service that ensure fairness, transparency and protection to the customers. The service providers governed under this draft Royal Decree will be depending on their gross income and numbers of platform users under Section 8 and the foreign service providers for Thai user in Thailand will be under Section 9. The service providers notify the ETDA of the details and information regarding the operation of online platform business will be under Section 11. The service providers under Section 15 must notify the users of service agreement and conditions in accordance with Section 16. Where the service providers do not hold Thai nationality but give services to consumers in Thailand, there must be a Thai representative acting in compliance with this regulation to ensure no bias treatment measures implemented such as complaint channels, dispute resolutions, compensation measures, conditions of displaying, advertising, and categorising products and services.

The P2B and the draft Royal Decree set to promote fair, transparent, and predictable business environment for smaller businesses and traders on online platforms. The P2B applies to the providers of online intermediation services and search engines with certain set of rules. Providers subjected under the P2B is obliged to the conditions and qualifications set forth such as languages of terms and conditions and their informative characters, procedures in amend or change of terms and conditions of services, rights and obligations of the providers under the P2B, voluntary actions that could be done by the providers and notifying to the service providers and customers.

Both P2B and draft Royal Decree have similar purposes and directions. Both oblige the platforms to implement conditions and terms regarding suspension or band of using the services from the platforms. But the P2B provides more details and specifications by categorising providers and conditions for each provider. It also concerns the users of services and contribute provisions to notify them of their rights and obligations.

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Benefit of Outsourcing DPO

According to the Personal Data Protection Act B.E. 2562 (PDPA) fully enforced on 1 June 2022, baseline standard of the law is to strengthen and reinforce the rights of the individual and create a much need harmonization of data protection law. Under the PDPA, most organisations are required to designate at least one individual, a natural person or a legal entity, as the data protection officer (DPO).

Currently, while the Personal Data Protection Committee (PDPC) has issued several sub-regulations, it has not yet prescribed qualifications of DPO. PDPA only sets out its roles and responsibilities. DPO roles are, among other things, to uphold the rights of data-subject which may vary from   an organization to another one and to ensure legal compliance of PDPA.

Who needs a DPO?

  • Company’s activities requiring regular and systematic monitoring of a large scale of personal data (The Draft PDPA Sub-Relations suggests that “large scale” means data controller or data processor has in its possession of personal data of more than 50,000 data subjects or 5,000 data subjects in case of sensitive data processing within 12 months)
  • Public authorities including governmental agencies, state enterprises, local administrative agencies, and other state agencies.
  • Company’s core activities concerning collection, use or disclosure of sensitive personal data.

To have an in-house DPO might benefit from fully conversant with processes within the business entity. However, to have outsource DPO provides you an expert knowledge on specifical field and experience of working with numbers of organisation and avoids a possible conflict of interest within an organization. A DPO, under PDPA, must be independent enough to challenge the management of the organization on existing vulnerabilities. Since Thailand is still new to PDPA, to hire an in-house DPO, who is a highly qualified on PDPA, may be difficult. Thus, outsourcing this task to a qualified external firm is an option.   

To outsource the Data Protection Officer (DPO), the company would benefit from:

  • Timesaving; while, the organization can focus on core businesses.
  • Meeting the independence requirements for the DPO role without compromising existing internal duties or roles.
  • Assurance regarding the correctness of decisions made.
  • Quickly access specialized, skilled and experienced consultants in the event of a personal data breach, supervisory authority investigation or other privacy impact events.
  • It is not accessary to set up an individua workplace, employment’s benefits and to integrate a new staff member to the cohesive work environment.

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Thailand – Electronic Performance of Administrative Function

Technology has drastically changed from time to time causing the rapid growth of communication . Since then, the Electronic Transaction Act B.E. 2544 (2001) has been enacted, it supports the legal effects of electronic and commercial electronic transactions conducted electronically, as well as electronic transactions of public sector.

Even though under Section 35 of the Electronic Transaction Act B.E. 2544,  it endorses applications, registrations, payments or any acts by way of electronic transactions in the public sector, most government entities prefer to remain to their own traditional way – that is non-electronic transaction. Now, the government would like to drive the digital government faster by way of issuing a new law accepting applications, registrations, payments or any acts by way of electronic in the public sector. Once it is enacted, no government entities can deny any electronic applications or transactions.

The Cabinet of Thailand recently has approved the draft Act on Electronic Performance of Administrative Function B.E. …. (“Draft Act”). This Draft Act would revolutionize how Thai citizens interact with government agencies and make a big step toward the digital government.

The Draft Act ensures the validity of applications or communications from a private sector to official or public sector via electronic method.

The Draft Act sets the same standard of suitable technology to be applied to all government entities and  validity of the following which is done electronically:

  1. Filing an application, payment or contact the public sector can made through the electronic method, except some registrations such as immoveable property, marriage, divorce, adoption or applications for ID card and passport.
  2. In the case where an application has been made  electronically, it shall be deemed that the government sector would reply electronically; unless, the applicant requests otherwise.
  3. A government sector shall provide a copy of document and certifies for accuracy of such copy and  governmental agency cannot charge the applicant any governmental fee to certify such documents.
  4. In the case where matters required by law to obtain a license by applying to a regulator, an applicant can  submit an application, document, or evidence via an electronic method.
  5. This Draft Act shall apply to all state agencies which are not in a legislative branch, judiciary branch, independent constitutional organization, public prosecutor organization and other state agencies as specified in the Ministerial Regulation.

Currently, the Draft Act has been submitted to the House of Representatives for consideration. Procedurally, it will take a couple of years before the Draft Act becomes enforced.

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New PDPA Subordinate Regulations

According to Section 16(4), 73 paragraph 2, and 90 paragraph 2 of the Personal Data Protection Act B.E. 2562 (2019) or “PDPA”. The PDPA is Thailand’s very first law in relation to protection of personal data and put in place effective remedial measures for data subjects whose rights to be protected if their personal data are violated. The PDPA established the Personal Data Protection Commission or PDPC to govern the PDPA and also established the Office of the PDPC or OPDPC to act on the administrative matters and act as the secretariat of the PDPC.

On 29 June 2022, the two legislations under the PDPA were approved by the PDPA and published in the Royal Gazette on 17 July 2022 namely;

  1. The Criteria for Filing, Refusal of Acceptance, Dismissal, Consideration and Timeframe for Consideration of Complaint B.E. 2565 (2022)
  2. The Qualifications and Prohibitions, Term of Office, Vacate Office, and Other Operations of the Expert Committee B.E. 2565 (2022)

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The Criteria for Filing, Refusal of Acceptance, Dismissal, Consideration and Timeframe for Consideration of Complaint B.E. 2565 (2022)

1. In case that any data controller and the data processor and their employees and contractors breach any provision of PDPA, the data subject is able to report to the expert committee by filing a complaint either in a form of hard copy or electronic (hard copy can be either directly submitted to the PDPC or sent by a registered mail).

2. Details of complaint shall include name, address, phone number, email of the reporter or attorney, copy of the reporter’s ID card, passport or any identity document issued by the government.

In the case that the data subject has authorized the attorney, the power of attorney with a complete specification of assigned duties and correct stamp duty together with the attorney’s certification of a copy ID card, passport, or any identity document issued by the government must be submitted together with the complaint.

The complaint must specify facts and details of the data breach in which the data controller and the data processor and their employees and contractors have committed against any provision of the PDPA and also specify the effect of such breach. All relevant evidence must be attached in order to support such a complaint. Moreover, the reporter must specify the request of ordering the data controller or data processor to comply in accordance with the PDPA. There must be a statement certifying that the statements in the complaint are true.

Please note that the reporter can be data subject, attorney or any person who is the holder of parental responsibility over the child (parents), custodian and curator of the data subject.

3. The competent official shall review the complaint and all evidence within 15 days since they receive such complaint to consider whether they will accept the complaint for further consideration. The competent official will contact the reporter in case of more information is needed. Please note that the competent official will accept the complaint and pass it to the expert committee only if all information is correct and complete. After accepting such complaint, the reporter will receive an acknowledgement receipt and number of complaints.

The matters that the competent official must consider within such 15 days are as follows:

  • Whether the action specified in the complaint is violation of the provisions in PDPA.
  • Whether the complaint has grounds as specified by PDPA and it is reasonable to make a complaint.
  • Whether the expert committee has the authorization to consider the complaint.

The competent official will then pass such complaint to the expert committee for further consideration. After receipt of the complaint, the expert committee will consider such complaint and the results may categorize as follows:

  • Dismissing, if the expert committee considers that it has no ground under the PDPA.
  • Not accepting complaint, if the evidence is incomplete and has not been categorized as a data breach.
  • Setting a conciliation session, if the complaint is seen to be settled by conciliation proceedings
  • Rendering the punishment as an administrative fine.

In the case that the expert committee deems that consideration of such a complaint is an important legal issue, the expert committee shall pass this complaint to the PDPC for further consideration.

The expert committee must inform the reporter of the result of the complaint with its reason in relation to the result.

The Qualifications and Prohibitions, Term of Office, Vacate Office and Other Operations of the Expert Committee B.E. 2565 (2022)

  1. The PDPC shall appoint a group(s) of expert committees in accordance with their expertise. Each group consists of one chairperson and at least 4 members.
  2. A person to be appointed as chairperson of the expert committee and its members must have qualifications such as being Thai nationality, not lower than 25 years old, not being bankrupted or having been previously dishonestly bankrupted, not being an incompetent or quasi-incompetent person, not having been previously fired, dismissed or discharged from official service, government agency or state enterprise or private agency on the ground of dishonest performance of duties or having committed severe wrongful conducts.
  3. Moreover, the chairperson and members shall be vacated from office if death, resignation, imprisonment by the court verdict, disqualification as specified above or dismissing by the PDPC due to failure to pass the performance evaluation or commit disgraceful.
  4. The chairperson of the expert committee and the members shall hold office for a term of four years.
  5. The meeting of expert committee shall consist of one-half of all members to constitute a quorum. The decision of the meeting shall be made by a majority of votes and each has one vote. In the case of equal votes, the chairperson shall have the casting vote. The meeting may be taken placed by an electronic mean.
  6. Any member who has any interest in the matter being considered in the meeting must inform all members regarding such interest prior to the meeting and such member shall be prohibited from attending such meeting.
  7. The Secretary-General of PDPC shall appoint a maximum of two secretaries to each expert committee.
  8. If there is a joint meeting of more than one expert committee. The chairperson of the expert committee holding the most senior level shall preside over the meeting. This joint meeting of the expert committee shall all consist of not less than 6 members and the members attended the meeting must be from all committee invited to attend the meeting in order to constitute a quorum.

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Thailand Promotes Electric Vehicle (EV) by Reducing Excise Tax

On 12 May 2022, the Cabinet of Thailand has approved in principle a draft Royal Decree Reduction of  Yearly Excise Tax Rate for Completely Built Electric Vehicles B.E. …. (“Draft Royal Decree”)  as proposed by the Ministry of Transport . The Draft Royal Decree will be reviewed by the Office of the Council of State with consultation of the   Office of the National Economic and Social Development Council. Afterwards, the Ministry of Transport and other related ministries shall take suggestion from the Ministry of Transport, Ministry of Industry and Office of the National Economic and Social Development Council into consideration.

The tax measure in reducing the excise tax rate under Motor Vehicle Act B.E. 2522(1979) to  80% is applied for completely built EV cars registered between 1 October 2022 to 30 September 2025 for 1 year since their registration date. The incentives vary depended on the types and models of vehicle as follows:

Please note that the yearly excise tax rate for completely built electric vehicles for item nos. 2-8 will be reducing for 50% of the rates as specified in the Motor Vehicle Act B.E. 2522(1979).

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Intercountry Adoption for Children

Intercountry adoption is when an individual or a couple becomes a legal parent of children by adopting and raising them in another country. Those children will have better opportunities to live in a healthy environment and good education which has an excellent effect on children themselves and society.

Thailand ratified the Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption B.E. 2536 (1993) (“Hague”) to ensure that the intercountry adoption is in the child’s best interest and the adoption process is legal. For this purpose, the Thai government established the Child Adoption Centre of the Department of Social Development and Welfare (DSDW), a central authority, who will make a final decision on allowing for adoption.

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For adoption of child in Thailand, the overseas adoptive parents must submit an application to the central authority or agency of their own country. Then, the central authority or agency will contact and coordinate with the competent authorities in Thailand (i.e.  Sahathai Foundation, Friends For All Children Foundation, Pattaya Orphanage and Thai Red Cross Children Home). These Thai authorities will consider the qualifications of overseas adopters under the Thai Civil and Commercial Code. For example, the adoptive parents must be at least 25 years old and must be at least 15 years older than the adopted child. Moreover, one of the important qualifications of adopters is that they must be a married couple or a single female who is qualified to adopt the child under the law of their own country.

The Thai competent authority will consider the qualifications of overseas adopter under many factors such as age difference, health and mind. Then, the Thai authority will send the documents and its opinion to the DSDW for final approval. The consideration process and decision of adopting Thai child is required to be taken place in Thailand as mentioned above.

Please note that currently Thailand is still not accepting the legal status of homosexual marriage and the intercountry adopter must have married status (between man and woman), so it is still impossible for LGBTQ couples to adopt the Thai child. However, there is a draft civil partnership bill allowing a legal homosexual status providing the right for adoption as a married couple. If the draft civil partnership bill is approved and become enforced and related laws have been revised to be in line with, the LGBTQ couple is able to apply for adopting the child in Thailand under the conditions as specified in such relevant Thai laws and approval of DSDW.

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Long Term Resident Visa (LTR Visa)

  • Categorizing to be under the tourist visa
  • Aiming to attract foreigners with capacity of wealth and talent to contribute and generate income to Thailand’s domestic market and support the local economic growth subject to the relevant regulations.
  • Targeting size of the LTR visa is about 1 million of wealthy or talented foreigners who aim to get resident in the kingdom for the next 5 years.
  • Revocation of the LTR visa can be due to incompliance to the Ministry of Interior’s announcement and unable to meet with the qualifications as prescribed.
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Qualifications

TypesQualifications
Wealthy global citizens  1.       Owning at least 1 million USD assets globally; or
2.       Having at least 80,000 USD income for 2 years continuously; or at least 500,000 USD investment in assets in Thailand
Wealthy retirees  1.       Owning at least 80,000 USD assets globally; or in case of owning assets between 40,000 – 80,000 USD, they must invest in Thai property for at least 250,000 USD; or
2.       Having 50 years older with annual pension or stable income
Work-from Thailand professional  1.       Owning assets between 40,000 – 80,000 USD for 2 years continuously; or having at least master’s degree or owning intellectual property or receiving a series of funding; or
2.       Working for a SET-listed corporation or business operates for at least 3 years with total revenue of 150 million USD in the last 3 years; or
3.       Having at least 5 years of experience in the specified fields over the past 10 years.
Highly skilled professional  1.       Highly skilled professional holding of assets between USD 40,000 – 80,000 for 2 years continuously; or having at least a master’s degree in science and technology or having special expertise relevant to the job assignment in Thailand; or
2.       No work experience required for PhD degree in the relevant fields of the targeted industries; or
3.       Working in the business in any targeted industries with at least 5 years of experience 
Highly skilled professional working with government agencies  1.       No minimum personal income; or
2.       No work experience required; or
3.       Employing with higher educational institution, research institution, specialised training institution or Thai government agencies
Dependants  Spouse and children under 20 years old of LTR visa holder (maximum of 4 dependents in total per one LTR visa holder)  

Key privileges for LTR visa holders

  1. 10 years renewable visa.
  2. Fast track service at international airports in Thailand
  3. 90 days report extending to 1 year report and exemption of re-entry permit
  4. Permission to work in Thailand (digital work permit)
  5. Immigration and work permit facilitation service at one stop service center for visa and work permit

Relevant Authorities

Board of Investment, Immigration Bureau and Ministry of Labour.