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Germany’s Ban On CBD Flowers To Be Challenged In Ground-Breaking Court Case

AFTER failing to persuade the Government to permit the sale of CBD flowers German company Hanf Farm is turning to the courts.

Within the next two months the appellant’s cannabis lawyer Kai-Friedrich Niermann is expected to secure a preliminary guidance on whether this litigation will succeed.

The case has been initiated by Rafael Dulon, Hanf Farm’s Managing Director, and stems from its quest to import CBD flowers from Belgian company Buddy Belgium to sell in Germany.

Speaking to BusinessCann Mr Niermann, said: “CBD flowers are becoming increasingly popular in Germany but there are no legal rules, it’s a sort of regulatory black hole. One in which no-one knows the way out of.

CBD Flowers – Regulations Essential

“The authorities are confused about the status of CBD flowers and many prosecutors I talk to say they have no idea how to deal with this.

“Law enforcement is becoming increasingly intense and as a result more and more start-ups are being criminalised. There needs to be a solution.”

CBD flowers are still illegal in countries such as Germany and the UK, but increasingly popular in Switzerland, France and Belgium where, in the latter case, they are regulated under its tobacco laws.

In March this year, in an initial attempt to avoid the courts, Mr Niermann approached the Federal Office for Consumer Protection and Food Safety (BVL). 

German cannabis lawyer Kai-Friedrich Niermann.

Section 40 of the Tobacco Products Act offers the possibility to apply to the BVL for a General Decree stating that CBD flowers can be marketed in Germany.

However, in late July the BVL rejected this application saying CBD flowers are a narcotic, adding ‘misuse for intoxicating purposes could not be ruled out’. 

The primary court for hearing appeals in this arena is the Administrative Court of Braunschweig. Hanf Farm’s appeal is based on the precedent set in last year’s European Court of Justice KanaVape decision.

This ruled that CBD is not a narcotic and therefore able to be traded across European Union member states.

Mr Niermann said: “This finding, especially in connection with the free movement of goods within the member states, one of the most important legal principles of the EU, will have to be taken into account by the authorities and courts of the member states when assessing the marketability of industrial hemp.”

Whilst the court case may take several years a preliminary judgement based on written submissions is likely to be released with the next two months.

Hemp Tea Court Case, Too

This action resonates with a similar German case reported by BusinessCann earlier this year involving the sale of hemp tea.

In this case, the appellant was Daniel Kruse, President of the European Industrial Hemp Association and Managing Director of Hempro International, supported by Mr Niermann, and again a General Decree was sought.

Earlier this week it emerged that this case has likewise been dismissed and is now also set to result in a similar court action.

Hemp and cannabis activists had hoped an earlier German court case would pave the way for more liberal approach to hemp and CBD products.

Dubbed the Hanfbar case after the name of the retailer in question, it revolved around the sale of hemp tea and was eventually dealt with by Germany’s highest court – the Federal Supreme Court (BGH).

The BGH said provisions in Germany’s Narcotics Act ‘do not generally prohibit the sale of hemp flowers and leaves to end customers for consumption purposes’.

However, it went on to say a potential intoxicating effect, and, thus the potential for misuse existed in the case of oral ingestion of hemp flowers in the form of biscuits. 

Mr Niermann believes this caveat reflects the inherent prohibition mindset of the German authorities.

The German Authorities ‘Are Prohibition’

“This confusing ruling is an indication of the decades-long prohibitionist attitude of all authorities. For 70 years they have inhaled it all, they are the prohibition

“When it comes to soft law – to the grey areas – where the hard laws have to interpreted then they will always have this mindset.”

However, with Federal Election due in a matter of weeks there are more positive signs on the horizon. 

“With a new government and a new Ministry of Health we hope this attitude to cannabis regulations will change,” he added.

Signs of a more tolerant attitude to cannabis in Germany’s ruling CDU party emerged in recent week’s with Erwin Rüddel, CDU member of the Bundestag, and Chairman of the Committee on Health of the German Bundestag, suggesting that post-election a recreational trial could be undertaken similar to that being planned in neighbouring Switzerland.

These developments come as Lidl stores in Germany and Ireland have taken a number of hemp products off the shelves amidst claims they have levels of THC which are above the permissible limits.

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