Hemp And CBD To Be Removed From German Narcotics Act Bringing An End To Business Prosecutions

WHILE the draft of Germany’s cannabis laws has received a mixed response, those in the country’s hemp industry have welcomed developments.

Earlier this month the Federal Court of Justice (BGH) confirmed the suspended prison sentences of two commercial traders of CBD flowers. 

This was the latest in a long list of similar rulings with possibly hundreds more similar cases due before the country’s courts – which continue to view hemp/CBD as having narcotic properties.

However, it is understood that the country’s new cannabis regulations are set to finally remove hemp/CBD products from the German Narcotics Act.

Removed From Narcotics Law

This direction of travel has been welcomed by Jürgen Neumeyer, Managing Director of the Cannabis Business Industry Association (BvCW). 

He told BusinessCann that it appears that ‘in the future, cannabis – and thus also commercial hemp and CBD – will be completely removed from the Narcotics Act in Germany’.

He added: “The complete removal of cannabis from the BtMG is welcomed as a constructive proposal by the cannabis industry. In addition to the regulation of stimulants, a reliable legal framework for medical cannabis and industrial hemp products, including products with non-intoxicating cannabinoids such as CBD, is important for the BvCW.”

The full key points paper was released publicly yesterday following last week’s leak, providing some further clarity into the Government’s plans regarding CBD and industrial hemp.

It confirmed that adult-use cannabis, medical cannabis and industrial hemp will ‘no longer be legally classified as narcotics’ should the proposals pass into law, and that the legal framework conditions will be ‘set out in a separate law’ to the Narcotics Act.

The document (translated into English), also said: “The maximum THC value for industrial hemp should be set at 0.3 percent, for example, in accordance with EU law that will apply from January 1, 2023. Special regulations may have to be made for handling cannabidiol (CBD) products.”

German cannabis lawyer Kai-Friedrich Niermann told BusinessCann he had had access to the Federal Ministry of Health’s briefings on the subject.

He explained: “A new cannabis control law, as proposed in the key issues paper, would completely remove cannabis from the existing narcotics law and re-regulate it, as the draft cannabis control law of the Green Party already provides. 

“Everything above a THC content of 0.3% is then cannabis, and is subject to the regulations of the new law, i.e. cultivation and distribution must be licensed. 

‘Abuse For Intoxication’ Eliminated

“Everything below this threshold is industrial hemp and is no longer subject to restrictions as we have known them up to now. Industrial hemp would still be allowed to be grown exclusively by farmers, but trade would then be possible without a licence and restriction. 

“In particular, the previous element of the offence in Annex 1 to the Narcotics Act, ‘abuse for intoxication purposes’, would then be eliminated and could no longer be used by law enforcement authorities to criminalisze commercial hemp and its derivatives.”

On October 14, the Federal Court confirmed the convictions of two commercial traders of CBD flowers, with their suspended sentences including several years in prison. 

German Cannabis Business Industry Association

At the time, the BvCW warned more convictions were imminent along with a marketing ban on numerous hemp products on the market.

With almost 900 hemp farms in Germany the BvCW warned it threatened their livelihood and criminal convictions for hundreds possibly thousands of people in the industry

In a press release it went on to say: “The BvCW has noticed an increase in criminal prosecution measures and is therefore appealing to Federal Health Minister Karl Lauterbach to finally implement the expert recommendation from the BfArM, which reports to him.”

The press releases quoted cannabis lawyer Dr Ferdinand Weiss, saying: ”The 6th criminal senate of the BGH has now decided that CBD flowers – as long as they have not been de-resinized or only contain traces of THC in negligible amounts – are narcotics, since abuse of these products for intoxicating purposes cannot be ruled out.”

The Hanfbar Case

Precedents for this punitive action had been set in an earlier hearing – dubbed the Hanfbar case – which revolved around the sale of hemp tea.

In this case 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. 

In relation to on-going criminal cases and possible amnesties for those already convicted Mr Niermann added: “Ongoing criminal proceedings can already be terminated immediately upon entry into force of the new law under the current provisions of criminal procedural law.” 

And, in relation to cannabis convictions he said retrospective amnesties are now being considered: “The key issues paper mentions the possibility of erasing convictions from the Federal Central Register that would no longer be punishable under the new law and confirms that further-reaching rehabilitation or amnesty provisions are being examined.”

According to the key points paper, when the new regulations come into force ‘ongoing investigations and criminal proceedings’ will be terminated.

Furthermore, ‘registered convictions from the Federal Central Register which exclusively are registered for an act for which the law no longer provides for a penalty in the future (in particular possession, acquisition and cultivation of cannabis up to a maximum quantity of 20 to 30 grams or of three female flowering plants)’ will be eradicated.

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