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Defining Hemp Case Heads to Court in Germany

In Europe, the entire cannabis conversation is still stuck in legal territory. At a European level (regional), this includes a definition for CBD. NotIt is a controlled drug substance). However, there has been no concerted effort by regulators or legislatures to accept it by codifying the law 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.

Germany’s ground breaking case, which has been pending for years, is about to be heard in court. Similar to the Kanavape France court case, the central issue of this case is how CBD and Hemp are defined, what amount (or not) is permitted, and the rights to extracts and flowers.

There are several reasons for this—all legal window dressing at this point. This starts with resistance to reform in European legislatures. It also includes the widely-used excuse that reforming the federal narcotics laws is required for cannabis reform.

This has been the standard wisdom for Germany so far on the CBD question and the full reform question. Germany has a well-established medical market and, according to the new government, is on its way to full recreational reform. This makes it even more difficult for Germany not to address the matter. 

There is no reason to excuse embarrassing situations like police raiding grocery stores in search of CBD-containing items. Both at the European level and as a sovereign, this is true. What is stopping the Germans from doing what France has done?

This is the core of the legal logic behind a klage (Lawsuit) currently before the Higher Administrative Court of Lower Saxony.

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. It is still not clear what domestically-produced products can be sold.

Because of the French decision in Kanavape, which allowed the import of CBD legal in France by a company, many German businesses filed claims at the German Federal Office of Consumer Protection and Food Safety, BWL, April 2021. 

These requests were duly denied by the BVL. 

The companies then filed suit at the Administrative Court of Braunschweig last summer. These urgent applications were denied by the Administrative Court right in time for Christmas 2021. Braunschwieg Court ruled in favor of the BVL, who was allowed to reject the urgent requests on grounds of presumed public interest and protection for the health of the applicant.

This is hemp tea, not the marijuana. Officially, THC can be extracted from these flowers. However, hemp levels in Europe have been reduced from 0.02 to 0.03 percent.

Now, the companies appeal against this decision. They have appealed the decision.

Beyond that, however, national conversation around cannabis reform and the Narcotics Amendment reform is front-and center as the Coalition attempts full legalization.

Case Importance and Impact

Kai-Friedrich Niermann is the attorney who will be handling the legal challenge. He believes that the case can have as big an impact in Germany on the law than the Kanavape case in France. It concerns the rights to first import hemp, then export it to 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. Domestic products will still be subject to discrimination. It would be a small step towards the liberalization of commercial hemp.”

Niermann is modest. Niermann is aware that the case will set a legal principle in stone, which will be included in the new law. The decision could also be codified in the new pending legalization. 

This is not the only important aspect. Other countries may also file similar proceedings. As in France, similar proceedings could be started by invoking European free movement. And for this very reason, the free movement of goods and trade, would become the engine of harmonization—starting with hemp and CBD products.

Although it may seem slow and tedious, this is the only way to go. 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.