The entire cannabis conversation in Europe is still in very sticky legal territory, no matter the ongoing victories and the ones obviously on the way. This includes, at a regional, EU level, a definition of what CBD is (namely not a narcotic substance), but a concerted failure, so far, by legislatures and regulators to honor or accept that by codifying it into national law.
This is why, much like in other legalizing jurisdictions, so many of these reforms have come first via court challenge rather than legislative leadership—and further using any aspect of EU law to create that legal challenge—even if it seems counterintuitive.
In Germany right now, a ground-breaking and well overdue case is finally headed to court. At the heart of the same, much like the Kanavape case in France, is the final definition of what CBD and hemp is, how much (or little) THC is allowed, and the right to sell not only extracts but the flower itself.
There are several reasons for this—all legal window dressing at this point. It starts with a lingering resistance to reform in many European legislatures, as well as the now trotted-out excuse that cannabis reform, even of the CBD kind, depends on reforming federal narcotics acts.
In Germany, the conventional wisdom so far, on both the CBD and full reform question, has used this as the excuse for why this may not be done quickly. Yet Germany, with a now-established medical market, and, if the new government is to be believed, full recreational reform on the way, has even less excuse for not dealing definitively with the issue.
On the CBD front, there is clearly no excuse anymore for embarrassing incidents like the police raiding mainstream grocery stores to retrieve items that may (or may not) contain CBD. This is true on a European level, as well as a sovereign one. After all, if France can do it, what is holding up the Germans?
That is, ultimately, the legal logic at the heart of a klage (lawsuit) now before the Higher Administrative Court of Lower Saxony.
The Legal Mumbo Jumbo in Germany
According to Article 34 of the Treaty on the Functioning of the European Union (TFEU)—namely the principle of the free movements of goods, German companies are supposed to be allowed to sell CBD flowers and leaves (including in products like tea)—especially if they are imported. Domestically produced products are still in a bizarre grey area.
As a result, in fact of the decision in the Kanavape case in France, where the company imported CBD produced legally in another EU country, several German companies submitted such claims to the German Federal Office of Consumer Protection and Food Safety (BVL) in April 2021.
These applications were duly rejected by the BVL.
In response, the companies filed suit last summer at the Administrative Court of Braunschweig. The Administrative Court rejected both urgent applications right before Christmas, 2021. In the opinion of the Braunschwieg Court, the BVL was allowed to deny the applications on the grounds of supposed public interest and health protection.
Keep in mind this is hemp tea that is causing all the kerfuffle. However, the official argument is that THC could be extracted from such flowers (hemp levels in Europe are in the process of transitioning from an allowable 0.02 percent to 0.03 percent.
The companies have now appealed the decision. In their favour is a pre-existing opinion by the Committee of Experts at BfArM (the German FDA) which advises the federal government on amendments to the German Narcotics Act recommended in March 2021 that CBD was not intoxicating.
Beyond this, of course, as of last September, the entire conversation about cannabis and the reform of the Narcotics Act is now front and center nationally as the Coalition begins to try to decide how to implement full recreational reform.
Case Importance and Impact
According to Kai-Friedrich Niermann, the lawyer heading up the legal challenge, this case has as much potential to change the law in Germany as the Kanavape case did in France. The case focuses on the right to first import hemp and then sell it in Germany.
“The pressure on the coalition to address these changes quickly will be maintained by these litigations. If no cannabis policy reform were to be advanced in Berlin by the new government, this case would have the potential to become Germany’s ‘Kanavape’ moment,” he said.
“If the court grants the general injunction, at least foreign products from the above-mentioned countries can be freely traded in Germany. However, domestic products would continue to be discriminated against. It would be a small step towards the liberalization of commercial hemp.”
Niermann is being slightly modest. He knows that this case will enshrine a legal principle in stone that will be incorporated into the new law and the decision may be codified directly in the new pending legalization.
Beyond this, however, it is a significant case in that other countries can also now file similar proceedings. Just as in France, similar proceedings can be launched by invoking the European free movement of goods. And for this very reason, the free movement of goods and trade, would become the engine of harmonization—starting with hemp and CBD products.
It may be a slow and ridiculously torturous path to walk. However, advocates on the ground are looking for every avenue they can to change the law—and this case certainly has not only legs, but the potential for lasting impact.
The right to sell hemp and CBD still exists in a grey area in Germany. A new lawsuit may change that—at least for imported products.
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