Cornerstones 2.0 – the canceled legalization!

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Originalversion auf Deutsch erschienen bei Krautinvest


After a long wait, the German government has now presented its national cannabis strategy for the next few years. As a result, a bitter disappointment, given the actual goal agreed in the coalition agreement in November 2021, the distribution of cannabis to adults in licensed stores. With the „Cannabis Club“ and model project plan, the so-called „CARe“ solution, the proper legalization and the announced paradigm shift is postponed for years, if not cancelled altogether. The German government’s action will also disappoint many EU partner countries who had hoped for a joint approach to addressing the relevant EU law. With this decision, Germany has said goodbye to a possible pioneering role in the EU.

In many respects, the key points presented need to be improved in order to achieve any improvement at all on the current status quo. In the sense of a clear deregulation with the aim of relieving the police and the judiciary, the proposed regulations are too complicated and merely shift the control pressure instead of actually reducing it. In terms of the desired paradigm shift, cannabis should be understood as a stimulant that requires certain regulations, and not continue to be considered a „narcotic“. We need to move away from the decades-old stigma that cannabis is a dangerous drug with potential for abuse that is hazardous to health, and instead practice a relaxed, social approach to it without downplaying the dangers and neglecting prevention. We must recognize that cannabis is not just a health policy issue, but also one of social justice and human rights.

Otherwise, we will jeopardize the success of this social reform, and continue to face frustration from consumers and law enforcement.


Cannabis „social“ clubs – the threat of overregulation


On the one hand, the permitted possession quantity of 25 g is clearly too low. There is no apparent objective reason for this limit, while on the other hand the police still have the opportunity to continue their control activities. Here, a significant increase should be made, for example to 50 g, in order to remove any incentive for control.

Likewise, the ban on on-site consumption in cannabis clubs and the restricted consumption in public spaces is not comprehensible. An objective reason for this is also not apparent. Especially in clubs that have been founded specifically for the purpose of cultivating cannabis, joint consumption should be possible in the protected social space of the club, away from the public. Or should the joint consumption of cannabis be generally excluded? Should members then no longer be allowed to meet at all in order to consume together?

How one wants to define the exclusion of consumption in public in a legally secure way, so that a corresponding ban can also be implemented practicably by the regulatory authorities, I also question. This would only trigger increased control pressure, which could even result in the complete banishment of cannabis from public spaces.

For the time being, the community-based, non-profit „cannabis clubs“ are to bear the sole burden of climate-neutral supplying consumers with cannabis, although they can realistically only be one component in the overall supply chain. For the cannabis clubs, bureaucratic hurdles are being set up which are to be viewed extremely critically and which will possibly prevent many projects from setting up at all.

For example, numerous reporting and documentation requirements must be met. The maximum quantity of 50g or 30g for under 21s per month to members needs to be controlled, and thus in two different groups of members, with probably a THC cap for group of under 21s. This would open the door to control and prosecution of any misconduct by the cannabis clubs.


Health policy alarmism


These proposed regulations are health alarmism that is unnecessary and will end up being counterproductive to the whole project. Members who want to use more than 50g of cannabis per month will be the exception and will usually know what they are doing without putting themselves at risk. On the other hand, there is a deliberate acceptance of over-regulation. The danger is that only a few clubs and their management will put up with these bureaucratic hurdles.

The application of penal regulations beyond the possession of 25 g in public is to be strictly rejected. Exceeding this limit should at most be considered a misdemeanor, with the police applying the principle of opportunity. Exclusively unlicensed trafficking and/or distribution to children and adolescents should continue to be assessed under criminal law. It should also be possible to share cannabis with others free of charge.


Cannabis out of the BtMG?


As the drug policy spokesman of the SPD parliamentary group, Dirk Heidenblut, announced on Instagram on 13.4.2023, cannabis should remain in the BtMG (German narcotic act) for the first pillar of decriminalization. Consequently, this would mean that the desired paradigm shift would not occur and a stigmatizing perspective for cannabis as a narcotic would remain.

According to Federal Minister Cem Özdemir, the increase in the limit value from 0.2 to 0.3% THC is to be passed in the Bundestag in July. Beforehand, however, his ministry pointed out during the presentation of the legislative initiative that abuse for intoxicating purposes must continue to be ruled out in the case of industrial hemp.

The recommendations of the 54th Committee of Experts at the BfArM, which advises the Federal Government on Section 1 of the BtMG on amendments to the annexes to the Act, are therefore apparently not to be implemented. These proposals from the year 2021 provide for the deletion of the element „misuse for intoxication purposes“ (concerns in particular CBD flowers and hemp leaf tea) and the exclusion of preparations from cannabis up to 0.2% THC (concerns in particular CBD oils) from the scope of application of Annex 1. From a toxicological point of view, the experts of this committee see no need to maintain such strict regulations for industrial hemp. Currently, hundreds of criminal proceedings are pending throughout Germany, which were initiated on the basis of these existing regulations, and which concern the trade with the aforementioned hemp products.


Industrial hemp and the cold logic of law


Many young and innovative entrepreneurs are currently facing the courts for trading these products before the courts, with threats and sentences of several months of imprisonment and the order of personal asset confiscations of up to 300,000€. This leads so far that still in February 2023, within three weeks, for the trade with CBD oils defendants were acquitted but are also sentenced to 10 months imprisonment on and to 19 months imprisonment without probation. Whole lives and existences are destroyed by this law enforcement.

If no change is made here, criminal proceedings may no longer be initiated against consumers, but the industrial hemp industry, with its tens of thousands of jobs and its potential for a sustainable, green growth strategy, would continue to be threatened by criminal prosecution through the cold logic of the law and its existence would be permanently endangered.


Medical cannabis and model projects


Consequently, the advertising ban in § 14 V BtMG, which is much stricter than that in the Therapeutic Products Advertising Act, would continue to apply. Here, too, we are currently seeing increased investigative measures by law enforcement agencies, especially against pharmacies and medical cannabis import companies, which have to walk the fine line between the advertising ban and the necessary patient education. Prescribing will then also continue to be done under the BtMG, which will not make it any easier for potential patients to access medical cannabis.

This cannot be, and the government’s entire plan can thus hardly earn the label „legalization“! Moreover, we all know that the model projects are a long way off. The ideas of the federal government seem to be little or not at all concretized here. Until the group of participants in the model projects is determined, the study design is defined and the financing is secured, it could take several years, as we have seen in Switzerland and the Netherlands. Until then, until the introduction of the second pillar, should cannabis remain in the BtMG?

The federal government must therefore remove cannabis from the BtMG already now, and strive for the greatest possible deregulation in the sense of comprehensive legalization.

Regulations introduced to deal with cannabis must be proportionate. They must be based on whether they are actually necessary and suitable for achieving the goals of legalization, namely better health protection, but also more social justice.

I don’t see that yet with the key points that have been presented.


 Time delay unavoidable


Especially in the case of cannabis clubs, many individual aspects are mentioned, which should still be checked, for example the origin of the seeds and cuttings. This is not a very mundane undertaking, if one wants to proceed legally 100% correct. In Canada and the U.S., this issue has been left out deliberately, so as not to jeopardize the start of the commercial route. The framework conditions for dealing with cannabis clubs are therefore to be regulated in a separate law. This must not lead to the decriminalization of consumers being postponed for months until a final debate has taken place.

There are many more aspects to talk about, for example the admissibility of edibles as a gentle form of consumption and addressing the issue of social justice. Expungements of convictions above 90 daily sentences for possession of up to 25 g of cannabis or home cultivation of up to 3 plants are likely to affect only a few cases, as corresponding proceedings were usually discontinued without a verdict, and therefore does not address the issue of social justice nearly enough.

At the very least, the decriminalization of consumers and permitted home cultivation of at least up to three flowering plants must be implemented promptly, ideally before the summer break. To this end, there is already a practicable proposal from LEAP Deutschland e.V. and the parliamentary group of the Left Party, which can be quickly implemented at any time.


Lawyer Kai-Friedrich Niermann

KFN+ Law Office