Original Version in German published on Krautinvest
A debate contribution
By Kai-Friedrich Niermann, Attorney at Law KFN+ Law Office
The debates and discussions about the legalization of cannabis in Germany are in full swing. The hearing process initiated by the new Federal Government Commissioner for Addiction and Drug Issues, Burkhard Blienert, which has already ended, has put many important detailed questions up for discussion, including whether there is a need for THC restrictions on cannabis products.
This demand is made in particular by the German addiction societies and youth protection associations, and recently the Federal Government Commissioner even called for a debate on the issue.
A stringent argumentation why a THC limitation is necessary and which goals it should pursue, however, is hardly presented. One argument is that today’s cannabis can no longer be compared to the cannabis of the seventies, because breeding has produced incomparably stronger varieties. A higher THC content is associated with a stronger high effect and automatically with stronger health risks. Whether this connection actually exists, however, may be doubted.
First of all, we have to distinguish the different recreational cannabis products. Thus, there is the dried flower, which is usually smoked by burning or inhaled by heating. To capture the potency of the flower, the THC content is tested and expressed as a percentage. It is true that THC content has increased in recent decades. In 1985, for example, the Federal Court of Justice still assumed varieties that could have a THC content of between 3% and 10% when determining what was “not a small amount” (“nicht geringe Menge”). According to Statista, the THC content of flowers available on the illicit market has increased from 10.6% in 2006 to 13.7% in 2020. The medical cannabis flowers that can currently be purchased from Germany’s leading online pharmacies range from 6% to 26%, with varieties above 20% accounting for almost all of the supply.
Edibles and beverages: measurement in milligrams
The THC content of edibles and beverages is not recorded as a percentage in the USA and Canada, but in milligrams of THC. As a rule, a unit of consumption may not contain more than 10 mg of THC, and the entire package may not contain more than 100 mg of THC. Since orally ingested THC has a different mode of action in the body, the intoxicating effect develops later than when consumed via the lungs, and initial effects can be expected from 2.5 mg THC (2.5 mg corresponds to the LOAEL – Lowest Observed Adversary Level), it makes sense to limit the quantity so that the consumer is able to precisely dose the ingested THC. Of course, these products must also contain detailed warnings about the mode of action in case of oral intake.
In the case of the so-called THC vape pens, the extract naturally results in a very high THC content in percent, but this is harmless because e-liquids typically do not allow such high concentrations of THC to be absorbed through heating and vaporization, and these products are used more for microdosing.
For the other products such as hashish and extracted THC oils, the THC content should also be indicated in percent and milligrams per drop so that the consumer can adjust his dosing behavior accordingly.
Medical cannabis has been legal in Germany since 2017. A discussion among prescribing physicians, dispensing pharmacists or the otherwise involved experts on the high THC contents in the medical cannabis varieties has not yet taken place. In the medical cannabis field, THC levels above 20% are not considered problematic. Especially pain patients need a lot of THC, which is quickly accessible for the body, in their treatment.
Flowers: the market demands higher THC content
Restricting the THC content in dried flowers to be sold to consumers is not expedient. The market demands higher THC contents. If a restriction were to be introduced, for example at 15%, flowers with higher THC content would continue to be traded in the illicit market. In addition, the police would then have to continue to carry out checks to determine whether the THC content is below or above 15%. Since this determination can only be clarified by an extensive analysis, theoretically all cannabis flowers would still have to be seized from the user and submitted for analysis. Such an analysis currently takes up to 6 months due to the overload of laboratories. This does not mean a relief of the police work and an improvement of the situation of the user. And we know that as soon as a control offense has the force of law, it will be applied by the investigating authorities. In the past, the cannabis prohibition has been used again and again by a wide variety of police authorities to shape day-to-day police work and to carry out measures and controls.
An objective reason for this restriction is also not apparent. On the one hand, the need for high-percentage THC flowers is only present in a part of the consumers, many consumers also want just lower values, for example, to be able to do without the admixture of tobacco. That cannabis flowers with a THC content, for example, over 15% cause health damage, such as increased psychological dependence or extraordinary psychoses, and thus go beyond the normal dangers of the use of cannabis and the consumption when smoking, is not scientifically proven.
Labeling: choose form of consumption and dosage
Rather, it can be assumed that the vast majority of consumers are already accustomed to the products that have been on the market for years, and have no problem at all with the high THC content. What positive effects this market restriction is supposed to have with regard to the protection of minors, consumer protection and general health protection cannot be convincingly explained even by its proponents. As long as the consumer can see through the labeling what percentage THC is contained in the product, he can choose the appropriate form of consumption and the dosage that is also suitable for him. Rather, it would be expected that the high-percentage varieties would then exclusively continue to give the illegal market a field of activity.
As a milder measure instead of a complete ban of higher-percentage cannabis varieties, education and prevention work about cannabis and its mode of action should rather be improved, namely by the state offices for addiction prevention as well as by the industry. An educated user, especially a first-time user who is sufficiently informed about the different ways of ingesting and „enjoying“ cannabis, is less likely to put himself in danger of overdosing than a user who relies on the illicit market.
Quantity limits on sales, advertising-free packaging, restricted opening hours, restrictions on the number of Cannabis shops, THC limits, state cultivation and operation are all proposals to avoid incentivizing and inciting use. Every effort is being made to prevent cannabis use from increasing in the population. However, we also know that neither in the U.S. nor in Uruguay or Canada has consumption increased in the population. Rather, it has actually decreased among young people, while age groups 40 and older are increasingly trying cannabis. On the other hand, such measures would create a completely overregulated, bureaucratically bloated and unattractive market that would have a hard time competing against the illegal market from the start. The industry or the private sector is willing and able to organize this new, legal market. However, a functioning, licensed and regulated market, which in the best case scenario should completely push back the illicit market, then also needs attractive framework conditions and a liberal regulatory environment in order to be able to capture the largest shares from the illegal market. Whether the state would actually be willing and able to take on this task and successfully and effectively drive forward and complete the fight against the illegal market may be doubted.
When the state interferes with the fundamental rights of citizens and economic operators, it can not do so as an end in itself, but requires extensive justification. For most of the proposed restrictive regulations, such a justification, which would also satisfy constitutional requirements, is not apparent.