Original published on Krautinvest in German: „Cannabis-Stecklinge die Zweite! Vom richtigen Umgang mit Gesetzestext und Gesetzesbegründung in Zeiten eines Paradigmenwechsels„
Cannabis cuttings the second! The right way to deal with legal texts and legal justifications in times of a paradigm shift
Continuation of the article „Not all cannabis is the same“ from Monday, June 3, 2024
by RA Kai-Friedrich Niermann, KFN+ Law Office
As there have recently been further differences of opinion on the definition of cuttings, particularly from the legal scientific community, the issue should be addressed again at this point. At least with regard to cannabis seeds, there is increasing clarity, as a spokeswoman for the Federal Ministry of Food and Agriculture (BMEL) confirmed that the commercial seed trade is permitted in Germany.
Interpretation of the term „cannabis“
Cannabis seeds and cannabis cuttings are not covered by the international agreements on narcotics and are therefore not regulated substances. The KCanG also implements these findings by excluding both seeds and cuttings from the scope of the KCanG. In the case of seeds, there is a restriction in that they may only be used for authorized home grow and cultivation associations.
The explanatory memorandum to the law in BT-Drucksache 20/8704 (page 91 on § 1 no. 6, and page 101 on § 9 para. 1), according to which cuttings or the unharvested cannabis plant without inflorescence are also to be considered cannabis within the meaning of the law, is not justifiable and cannot be understood, as this statement clearly contradicts the wording of § 1 no. 6 KCanG. A corresponding interpretation of the law cannot be reconciled with the legal canon of interpretation in grammatical, teleological, systematic and historical terms. Furthermore, individual sentences in the explanatory memorandum are not binding in the context of historical interpretation, as the Federal Court of Justice has recently made clear once again, but are at best an indication that must be weighed as a whole with the complete explanatory memorandum and with the other methods of interpretation.
The wording of the definition of cuttings is clear in this respect. As long as there is no fruiting or flowering top, a cutting is propagating material within the meaning of the law, and propagating material is expressly excluded from the definition of cannabis. The law does not recognize any other criteria that could be used for the definition, such as the size or age of the plant.
There is also a systematic argument for excluding cuttings from the definition of cannabis. It makes no sense if only 3 plants may be cultivated, but cultivation associations are allowed to supply up to 5 cuttings or up to 7 seeds to their members. If all 5 cuttings are further developed at the individual’s place of residence, the permitted number of plants would be exceeded, even though no inflorescence is yet present. In this case, criminal liability pursuant to Section 34 para. 1 no. 2a KCanG would arise at the moment the 5 cuttings are handed over.
Patzak (Patzak/Fabricius/Patzak, 11th ed. 2024, KCanG § 1 para. 8) recently commented on the issue in the new commentary on the KCanG. Patzak takes up the cited statements in the explanatory memorandum and states that
„Cuttings become seedlings when they are planted (BT-Drs. 20/8704, 89) and then fall under the definition of cannabis in § 1 No. 8 KCanG. Cuttings therefore differ from cannabis plants within the meaning of § 1 no. 8 KCanG in that they have not yet been planted.
The term „seedling“ is not used anywhere in the legal text of the KCanG. The term only appears in the explanatory memorandum to the law and therefore causes confusion at this point. If it were correct that a cutting becomes a seedling when it is planted, which can still be justified from a linguistic and biological point of view, but at the same time becomes cannabis within the meaning of § 1 number 8 KCanG, cuttings could never be supplied to end users. This is because as soon as the cutting is cut from the mother plant, it requires a planting medium into which it must then be „planted“, otherwise it will die.
According to this view, mother plant production would then be possible, as there are no fruit buds yet and the cuttings have not yet been cut and planted. However, the cut cuttings would then immediately become cannabis as soon as they are placed in a standard planting medium. This applies regardless of whether the commercial dealer plants the cutting after it has been cut, or only the person who plants the cutting in the final planting medium at home.
This contradicts the clear intention of the wording of the law, which does not differentiate between young plants or cuttings and seedlings, and which also stipulates that five cuttings can be handed over to members of growers‘ associations or third parties at the same time in accordance with Section 20 (3) KCanG. It is not surprising that Patzak finds no explanation for this in his commentary on § 20 para. 3 KCanG and does not even address this obvious contradiction to his commentary on § 1 no. 8.
Section 5(2) of the Green Party’s draft Cannabis Control Act also provided for permission to grow up to three female, flowering cannabis plants for personal home cultivation.
Flowering or living?
As a consequence, both regulations lead to the same legal result. Only when the plant enters the flowering phase is it cannabis, and only then does the legally relevant point in time occur when the restriction on the number of plants becomes relevant. Before that, the individual can decide whether the genetics have developed well and are suitable for a high-yield flowering phase, or must be destroyed before reaching the flowering phase.
A similar legal situation applies in Austria. Cuttings are not prohibited under the Austrian Narcotic Drugs Act, and there is no general ban on cultivation and breeding. According to the Narcotic Drugs Act, an „illegal narcotic drug“ only exists if the „narcotic drug-containing“ parts (flowers, fruit stems, resin) are separated from the plant. Of course, cultivation is also prohibited in Austria insofar as it is intended to produce intoxicating flower material. But in principle, the classification of the Single Convention that seeds and cuttings are not controlled substances also applies in Austria.
A teleological interpretation does not lead to a different result either. In particular, the mention of legal entities in Section 26 para. 1 no. 1 KCanG, which are to supply propagating material to growers‘ associations, clearly indicates that a commercial supply chain for propagating material is desired by the legislator. Commercial suppliers are also expressly mentioned in the explanatory memorandum to the Act. At no point in the law is it ruled out that propagating material cannot be supplied to consumers by commercial traders in Germany. The obligation to document deliveries by commercial traders on the part of the growers‘ associations was included in order to ensure that no supply from the black market takes place.
Risk assessment and protected good
Furthermore, the aim of the law is precisely to allow home cultivation as part of the strategy to combat the illegal market. If this goal is to be achieved, sufficient propagation material must also be available to consumers. A commercial supply chain generally offers the best conditions for this. There is therefore no reason, especially not for legal or health policy reasons, to adopt a stricter interpretation here and thus deviate from the intention of the wording of the law in terms of language and content. The changed risk assessment for cannabis and the newly assessed protected public goal of the KCanG must also be taken into account.
Cannabis seeds and cannabis cuttings are therefore not cannabis within the meaning of Section 1 No. 8 KCanG. They are therefore not subject to the restrictive regulations of the KCanG and can therefore be traded in Germany and can also be purchased by end consumers in Germany, provided that the seeds were previously imported from other EU countries.
Cuttings production?
Since, as explained above, cannabis is only defined as cannabis when it has flower or fruit buds, the production of cuttings can also take place in Germany, as the mother plant does not have such flower or fruit buds. Rather, the mother plant is the plant that first produces the young plants or shoot parts within the meaning of Section 1 No. 6 KCanG, which are then to be used for the cultivation of cannabis plants. It is therefore also intended for the cultivation of cannabis plants within the meaning of the law, § 1 no. 6 KCanG. There is no apparent legal argument as to why mother plant production should fall under the definition of cannabis within the meaning of number 8 of Section 1 KCanG.
A different understanding would also only allow the import of cuttings, which would deprive the German cannabis industry of considerable opportunities and options without any legal requirement.
Requirement of certainty
According to Article 103 (2) of the Basic Law, the principle of certainty applies in criminal law. According to this principle, an act can only be punished if the criminal liability was determined by law before the act was committed. The distinction between unregulated propagation material and regulated cannabis within the meaning of the law is easy to make by adopting the international definition of cannabis (inflorescence or fruiting stem: yes or no?). If this definition is applied consistently, the requirement of certainty under criminal law is sufficiently taken into account. There is no room for deviating interpretations of other elements of the offense, nor is this necessary due to the clear definition.
The same applies to cuttings that have already reached a certain size. Photoperiodic genetics respond to the light cycle. If these genetics are both illuminated for 12 hours and kept in darkness for 12 hours, the plant can be „sent into flower“. In outdoor cultivation, this process happens automatically from August, as the light conditions in our latitudes then correspond to the above-mentioned ratio.
However, this will still be followed by a flowering phase of 6-8 weeks. By this time, though, the young plants may have reached heights of up to 70 cm and more. Nevertheless, they are still young plants, as the flowering phase marks the start of the plant’s final life cycle, and the clear demarcation of the law is therefore the only decisive factor.
Result
The legal treatment of cuttings should focus exclusively on the international definition. Neither for health policy nor for legal policy reasons is it necessary to make and apply a restrictive interpretation that goes beyond the wording of the KCanG. Otherwise, as with CBD flowers, there is a risk of years of legal uncertainty, hundreds of criminal proceedings until a possible BGH ruling, and the cautious economic momentum that has resulted from the change in the law on April 1, 2024, would inevitably be stifled again.
Kai Friedrich Niermann, lawyer at KFN+ Law Office