Is everything in the tea leaves? The hemp tea judgment before the federal court

At the end of March a strange case came before the Federal Court of Justice (BGH). Hemp tea sellers were charged by the city of Braunschweig for selling hemp flowers and leaves for tea and were convicted in January by a regional court under the Drug Trafficking Act.

However, contrary to the regional court, the BGH ruled that the German Narcotics Act does not “generally prohibit” the sale of hemp flowers and leaves for human consumption. They also overturned the conviction on the grounds that the regional court had not fully established whether the defendants had deliberately sold their products for the purpose of poisoning.

The question is how such a strange case got before a federal court. Especially when, as mentioned by the plaintiff’s lawyer, other much larger companies in Germany do the same and get away with it. And will this type of challenge (literally in court) be the next transition to change in the face of the continued failure of both regional authorities (EU and sovereign levels) to set rules that more localized states must follow? ?

A story of the hemp tea case

Hanfbar is a retail store that has been selling hemp foods, beverages (including hemp tea), and CBD oil since 2017 (the year that German law was changed to allow health insurers to cover medical cannabis). They caught the attention of both the local police and the public prosecutor, who eventually convicted them earlier this year of violating the German Narcotics Act. In the trial, experts claimed that even small amounts of THC can have an intoxicating effect if they are smoked in large amounts or processed into food. According to the prosecutor, the defendants also appeared to show an “apparent lack of understanding of the illegality of their actions”.

The BGH did not disagree. For this reason, they sent the case back to the regional court in Braunschweig. The case is also based on the fact that the plants used in hemp tea apparently also ran “hot” when tested (in other words, they contained more than the THC limit of 0.02% permitted in hemp in Germany).

Where this all gets more complicated

As smaller companies and even industry associations across Germany, if not Europe, celebrate with the news because this is an intriguing twist, leading industry law experts like Peter Homberg, a partner at Dentons LLP and head of the company’s European cannabis practice, are leading the way. that this case is not all that matters. According to Homberg, the more influential jurisprudence on this topic was already established at the European level by the European Court of Justice for CBD last autumn.

While hemp tea technically involves an “extraction process” – namely, the inefficient process of dissolving cannabinoids in hot water for ingestion – it doesn’t move the needle at all when it comes to whether novel food applications are still needed in the country for food.

However, it is precisely because of these complications that Homberg warns that this is not the open door that many had hoped for. In order not to motivate regions and cities to embark on their own kind of anti-cannabis NIMBYism, as can also be seen here, “real regulatory clarity, if not regional homogeneity”, is indeed required.

Without this development, the whole issue of local government resistance to broader reforms, if not individual vendor orientation, will begin to affect the entire cannabis debate in Europe in a similar way as it does in the US states. And if nothing else, it can get complicated, if not legally chaotic.

Next steps and needs

The reality is that until a coordinated policy is established, this type of complaint will be widespread across Europe – on multiple fronts. All of this comes and has even evolved during the pandemic – including the landmark decision at EU level last fall.

With the restrictions lifted and the industry back to work, here’s what you should expect:

  • Separation of definitions between Cannabis Sativa L. This has started to happen. For example, as in the USA, the THC values ​​for “hemp” are set at a regional level. These in turn are taken over by the individual sovereign states within the EU. The discussion on THC will begin next, starting with food in both Luxembourg and Switzerland, and will likely be guided, if not determined by existing medical contributions on THC.
  • Clarification of ahat is a “novel food” when it comes to the inclusion of cannabis extract. While the focus is currently still solely on CBD, the same debates about THC should be raging in the above two markets (at least) if not in Holland from next year. The 100 mg THC gummy bear (much less a 20 mg gummy bear) is unlikely to hit any of these markets anytime soon.
  • Identify the levels at which THC becomes “intoxicating” for both patients and casual users.
  • Consolidation of which standards will apply both to the medical market (GMP) and also to the burgeoning non-medical market (both for hemp products and for products containing lead), which will be adopted and followed across regional borders. The reality is that there is no such thing as conformity – starting with the obvious interaction, as in this case between last fall’s judgment and the German Narcotics Act. But it doesn’t end here. There are major problems between the European countries, from cultivation to processing and packaging standards to the medical market. The consumer discussion is likely to get just as complicated if it is not tied to real data.

There is a local urge to organize the industry itself in order to focus on some of the bigger discussions at the European level. But until that happens (and so far the efforts have been plagued by the same feuds, territorial ownership, and market access battles, if not expansion particularly in early American state markets), look for stranger court rulings that raise more questions than answers.

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