The “Defining Hemp” case goes to court in Germany

The entire cannabis discussion in Europe is still in a very sensitive legal area, regardless of the ongoing victories and the obvious ones to come. This includes a regional EU level definition of what CBD is (namely not a narcotic), but a concerted failure to date by legislators and regulators to recognize or accept this through codification into national law.

It is for this reason, similar to other legalizing jurisdictions, that so many of these reforms have come first through judicial challenge rather than legislative guidance – and further using any aspect of EU law to create that legal challenge – even if it seems counterintuitive .

In Germany, a groundbreaking and long overdue case is finally coming to court. The focus, 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 just extracts but the bud itself.

There are several reasons for this – all legal window dressing at this point. It begins with continued resistance to reform in many European legislators, as well as the excuse now put forward that cannabis reform, including the CBD variety, depends on reform of the federal Narcotics Act.

In Germany, conventional wisdom on both the CBD issue and full reform issue has used this as an excuse as to why this may not happen quickly. But Germany, with a now well-established medical market and, if the new government is to be believed, major recovery reform on the way, has even less excuse not to take a final look at the issue.

On the CBD front, there is clearly no longer an excuse for embarrassing incidents like police raiding mainstream grocery stores to source items that may (or may not) contain CBD. This applies both at the European and at the sovereign level. Because if France can, what’s stopping the Germans?

That is ultimately the legal logic on which a lawsuit before the Lower Saxony Higher Administrative Court is based.

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 movement of goods – German companies should be allowed to sell CBD flowers and leaves in particular (also in products such as tea) if they are imported. Products from domestic production are still in a bizarre gray area.

As a result of the decision in the Kanavape case in France, where the company was legally importing CBD manufactured in another EU country, several German companies filed such claims with the German Federal Office of Consumer Protection and Food Safety (BVL) in April 2021.

These applications were duly rejected by the BVL.

On the other hand, the companies filed a lawsuit with the administrative court in Braunschweig last summer. The Administrative Court rejected both urgent applications shortly before Christmas 2021. According to the Braunschweig Regional Court, the BVL was allowed to reject the applications for reasons of alleged public interest and health protection.

Keep in mind that this is hemp tea that’s causing all the kerfuffle. However, the official argument is that THC could be extracted from such flowers (hemp content in Europe is in the process of moving from the allowable 0.02 percent to 0.03 percent.

The companies have now appealed the decision. In their favor is a pre-existing opinion from the BfArM (the German FDA’s) Expert Committee, which is advising the federal government on changes to Germany’s Narcotics Act, which recommended in March 2021 that CBD was non-intoxicating.

Additionally, of course, since last September, the entire conversation about cannabis and narcotics law reform has taken center stage nationwide as the coalition begins trying to decide how to implement full-scale recreational reform.

Case Importance and Impact

According to Kai-Friedrich Niermann, lead attorney on the legal challenge, this case in Germany has as much potential to change the law as the Kanavape case in France. The focus of the proceedings is the right to first import hemp and then sell it in Germany.

“The pressure on the coalition to address these changes quickly is maintained by these lawsuits. If the new government in Berlin didn’t push cannabis policy reform, this case would have the potential to become Germany’s ‘kanavape’ moment,” he said.

“If the court issues the general decree, at least foreign products from the countries mentioned above may be traded freely in Germany. However, domestic products would continue to be discriminated against. It would be a small step toward liberalizing commercial hemp.”

Niermann is somewhat modest. He knows that in this case there will be a legal principle set in stone that will be written into the new law and the decision can be codified directly in the new pending legalization.

In addition, however, it is an important case in that other countries can now initiate similar proceedings. Similar to France, similar procedures can be initiated with reference to the European free movement of goods. And this is precisely why the free movement of goods and trade would become the engine of harmonization – starting with hemp and CBD products.

It can be a slow and ridiculously torturous path. However, local lawyers are looking for all sorts of avenues to change the law – and this case certainly has not only legs, but the potential for lasting repercussions.