Everybody is talking about cannabis and products from the cannabis plant. Gone are the days when you couldn’t even take the word into your mouth to avoid being immediately considered a useless pothead. The mainstream and the tabloid press report almost daily on cannabis and hemp, be it regarding local developments or international trends, especially from the USA and Canada. It’s time for Germany and its government to wake up and not simply oversleep and leave the field to others to take advantage of the enormous opportunities the plant offers. In his new column, lawyer, industrial consultant and cannabis expert Kai-Friedrich Niermann takes a look into the future.
Nearly all countries in the world are members of the UN Standard Convention on Narcotic Drugs, an international treaty aimed at restricting the availability of some drugs, including cannabis. According to this international treaty, cannabis is on a par with heroin because of its dangerousness. As a result of membership in this agreement, the Narcotics Law (BtMG) and its Annexes were introduced in Germany. It is still in force today and punishes the possession, trade, cultivation and importation of cannabis. That must change in the future.
The consequences of prohibition are well known: 500-800 tonnes of cannabis flowers and hashish traded exclusively on the black market, without any quality control and access restrictions for adolescents. Hundreds of thousands of criminal proceedings are conducted which, according to the decision of the Federal Constitutional Court of 1994, as a rule have to be discontinued. This ties up considerable resources in the police and judiciary.
Cannabis is not new territory
The inclined reader will already be aware of these facts. The same goes for the Greens, the FDP and the Left, which are explicitly in favour of a more modern drugs policy. As early as 2017, the Greens tabled the so-called Cannabis Control Act in the Bundestag, which, based on a free market model, legalises the trade in cannabis in a socially responsible manner and decriminalises its users. Social concepts, prevention and education have top priority in this bill. Of course this law failed at that time because of the votes of the Grand Coalition.
„The world wakes up. Cannabis is nothing new. Governments have a choice. You can ignore it, then criminals will take care of it. Or they regulate it, make money with it and educate society,“ said Bruce Linton, CEO of Canopy, one of the world’s largest cannabis companies, in a recent interview.
It is to be hoped that the remaining conservative and social-democratic doubters will reconsider their drug policy position in this sense in order to initiate the urgently needed social progress in drug policy for the future.
A look into the future: is legalisation coming, and if so, when?
However, legalisation may come sooner than we all suspect. The upheavals in the grand coalition will presumably lead to new elections more quickly than previously assumed despite all the conjurations of stability. Let’s take a cautious look at the future.
The following three scenarios with the corresponding probabilities were conceivable before the European elections:
Scenario 1: December 2019 Legalization, probability – low (10 %)
The European elections in May end in a disaster for the Grand Coalition and lead to the dismissal and new elections in September 2019. The Greens become members of the new federal government and the passing of the Cannabis Control Act by the Greens in December 2019.
Scenario 2: December 2021 Legalization, probability – high (80 %)
The Grand Coalition will rule until September 2021 and the next federal elections. At that time, cannabis was re-evaluated by the UN. And all parties, including many conservative deputies, agreed in December 2021 on legalization with the cannabis control law as a model.
Scenario 3: No change until 2025 , Probability – low (10 %)
The Grand Coalition will rule until September 2021 and the next federal elections. All parties negotiating for the next government coalition are against a fundamental change in drug policy in the field of cannabis. No change until the next elections in 2025.
So if there are early elections and a progressive coalition of the Greens (possibly with a Green Chancellor), the Social Democrats and the Left is formed, it is hard to imagine that a cannabis control law will not be passed, even if the details change or remain controversial.
Need for innovation in medical cannabis in the future
A cannabis industry, even a medical one, is currently undesirable by the government. The quantities tendered for domestic production are very small. They will hardly be able to meet the ever-increasing needs of patients. The growers who have been awarded the contract are also unlikely to be able to operate profitably with these quantities and the large number of conditions to be fulfilled.
It is foreseeable that all European countries will launch a medical cannabis programme. The demand for reliable and high quality medical cannabis products will continue to grow. A European harmonisation of the individual medical cannabis programmes would therefore, incidentally, be highly desirable, so that research and trade can develop better in Europe. Instead, however, the BfArM lets it be known upon request that it would rather destroy surplus, provoked demand than think about an export strategy.
A small ray of hope is the recent establishment of a German-Canadian research network on the initiative of the University of Hohenheim (Leafly.de reported). The funding is provided by the Federal Ministry of Economics and Technology (although only due to pressure from companies). The network currently consists of four Canadian and seven German partners and aims to optimise the cultivation of pharmaceutical cannabis in Germany. Research will focus on genetics and harvesting technology.
Regulations harm more than they use
Also the cultivation of hemp for farming purposes in Germany is still strictly regulated. The BfArM only hesitantly and rarely approves scientific research projects on cannabis. After all, it is all too understandable that the officials who for decades were responsible for enforcing prohibition now find it difficult to introduce change.
This is why opportunities for a domestic medical cannabis industry, for research and innovation, and especially many new jobs, are frivolously wasted here. Also in this respect one will have to wait possibly first for a change of government, so that at the top of Federal Ministry of Health, drug commissioner, BfArM and BfR (Federal Institute for Risk Assessment) something changes.
Regulations and laws of the day before yesterday
The already legal cannabis and hemp products are also subject to regulations from the last century. The century of prohibition. For example, manufacturers of hemp foods have to fight for compliance with extremely low limit THC-values, which were already set by the BfR before the year 2000. In the opinion of the Nova Institute, these strict limits contradict current scientific findings and must be urgently adapted in order to avoid competitive disadvantages for the German and European hemp industry. If these limits were applied to alcohol, bread or orange juice would no longer be marketable, according to the Nova Institute.
Novel Food – and now?
But it is not only the medical cannabis programmes and the THC limit values of the individual Member States that need to be harmonised. In particular, a uniform application of the Novell Food Regulation throughout Europe must be ensured. At the moment several member states of the European Union are using the Novel Food Regulation to stop the popular CBD products in particular.
Not least because the cannabis plant is still stigmatised and the emergence of these numerous products is immense, especially in countries where cannabis is traditionally used in a restrictive way. In Spain, Portugal, France and most recently Austria, there is no CBD market at all. Italy may be facing a similar development. However, the purpose of a European regulation cannot be for each country to interpret the application in its own way. Rather, a uniform and harmonised legal framework must be created for the entire EU.
CBD in cosmetics
The legal situation with CBD in cosmetics is equally absurd. Article 14 of the European Cosmetic Decree, which refers to the above-mentioned Single Convention, prohibits the use of CBD extracts in cosmetics. However, it allows the use of synthetic CBD. Companies are thus prevented from using naturally extracted cannabidiol and have to resort instead to a synthetic variant. This is also an obsolete consequence of the Conventional War on Cannabis, which should be changed in the future. (More about this in the last column. )
Many tasks for a new German federal government, but also for the new top European personnel that will form after the European elections.
Original link: https://www.leafly.de/kolumne-recht-zukunft/
Kai-Friedrich Niermann has been a lawyer since 2003 and advises companies and organisations in all questions of commercial and contract law. Already during his studies at the Philipps University in Marburg he dealt with prohibition, since in 1994 a groundbreaking judgement of the Supreme Court was issued for own needs. After medical cannabis was legalized in 2017, he started a blog on legal aspects around cannabis (canna-biz.legal) and the distribution of new cannabis products. Kai speaks regularly at international conferences on the German and European legal framework for cannabis products, next at the First Asia Hemp Summit in Hong Kong.
Most recently he spoke at the ICBC Berlin and CNBS in Dortmund on the subject of CBD. He also regularly publishes articles on the online platforms Prohibition Partners, Cannabis Law Report and is quoted by the Canadian Globe and Mail. Today Kai advises national and international medical cannabis producers and CBD manufacturers. Kai is a member of the German Hemp Association, the European Industrial Hemp Association and the International Cannabis Bar Association, an international association of lawyers advising on cannabis.