Ban on CBD flowers challenged in Germany in unprecedented court case
After failing to convince the government to allow the sale of CBD flowers, the German company Hanf Farm is turning to the courts. Over the next two months, cannabis lawyer Kai-Friedrich Niermann is expected to get a preliminary opinion on the outcome of this litigation.
The case was started by Rafael Dulon, the managing director of Hanf Farm, and stems from his desire to import CBD flowers from the Belgian company Buddy Belgium for sale in Germany.
Speaking to BusinessCann, Mr Niermann said: “CBD flowers are becoming more and more popular in Germany, but there are no legal rules, it is kind of a regulatory black hole. A regulatory black hole that no one knows how to get out of. “
An essential regulation for hemp flowers
“Authorities are confused about the status of CBD flowers and many prosecutors I have spoken to say they have no idea how to deal with this issue. Law enforcement is becoming more and more intense and, as a result, more and more start-ups are criminalized. We must find a solution. “
CBD flowers are still illegal in Germany and the UK, but increasingly popular in Switzerland, France and Belgium where, in the latter case, they are regulated by tobacco laws.
In March this year, in a first attempt to avoid the courts, Mr. Niermann appealed to the Federal Office for Consumer Protection and Food Safety (BVL). Section 40 of the German Tobacco Products Act offers the possibility to apply to the BVL for a general decree stipulating that CBD flowers may be marketed in Germany.
However, at the end of July, the BVL rejected this request, declaring that the CBD flowers are a narcotic, adding that “misuse for the purpose of intoxication cannot be ruled out”.
The main court responsible for hearing appeals in this area is the Braunschweig Administrative Court. Hanf Farm’s appeal builds on the precedent set by last year’s KanaVape decision of the European Court of Justice which established that CBD is not a narcotic and therefore can be marketed in Member States of the European Union.
Mr Niermann said: “This conclusion, in particular with regard to 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 marketing possibilities for industrial hemp. “
While the case may take several years, a preliminary judgment based on written submissions is likely to be released within the next two months.
A lawsuit for hemp tea
This action resonates with another German case, 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 requested.
Earlier this week, it emerged that this case was also dismissed and is expected to lead to a similar lawsuit.
Hemp and cannabis activists had hoped that a previous German court case would pave the way for a more liberal approach to hemp and CBD products.
Dubbed the Hanfbar case, after the retailer in question, it involved the sale of hemp tea and was ultimately dealt with by Germany’s highest court, the Federal Supreme Court (BGH).
The BGH has stated that the provisions of the German Narcotics Act “do not generally prohibit the sale of hemp flowers and leaves to end customers for consumption”.
However, he went on to say that a potential intoxicating effect, and therefore the potential for abuse, existed in the case of the oral ingestion of hemp flowers in the form of cookies. Mr. Niermann believes that this warning reflects the spirit of prohibition inherent in the German authorities.
German authorities “are prohibition”
“This confused decision is an indication of the prohibitionist attitude of all authorities for decades. For 70 years, they have inhaled everything, they are prohibition … When it comes to soft law, gray areas, where hard laws must be interpreted, they will always have this state of mind. “
However, with the federal election slated for a few weeks, more positive signs are on the horizon.
“With a new government and a new health ministry, we hope that this attitude towards cannabis regulation will change,” he added.
Signs of a more tolerant attitude towards cannabis within Germany’s ruling CDU party have emerged in recent weeks. Erwin Rüddel, CDU member of the Bundestag and chairman of the German Bundestag’s health committee, suggested that after the elections a recreational trial could be undertaken, similar to the one planned in neighboring Switzerland.