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The Fight Over CBD Oil Continues in Germany

Anyone who thought the path to marijuana reform would be simple, was wrong. A decision in Cologne last week has confirmed that it will be difficult. It is going to take a long time and be met with setbacks, regressive skirmishes, and certain, some defeats.

This is just the most recent example. The Administrative Court in Cologne recently ruled that CBD drops, which are medical products in legal terms (i.e. CBD drops, also known as CBD extracts, are considered to be medical products. As such, they must be approved by the Federal Institute for Drugs and Medical Devices (BfArM)—Germany’s version of the American Food and Drug Administration (or FDA).

The court’s logic on this ruling is that the nutritional value of CBD is still an unknown. As stated in the legal decision the plaintiff firm could not show that CBD was available on the marketplace or that CBD can be used in a diet. The plaintiff’s suggestion that hemp tea might serve as one example was dismissed as the court maintained that cannabis tea is subject to narcotics law—thanks to the indecisive ruling on this in 2021.

It is telling that the timing of the case and the decision of the court are both important. It could potentially throw the entire German CBD business back to the dark ages—even though this is just a state-level, not a federal ruling. You can find CBD oil in every German health food shop, as well as the increasing number of CBD specialty shops.

According to Kai-Friedrich Niermann, a leading cannabis attorney in Germany, “The ruling of the Cologne Administrative Court poses a significant risk to the CBD market in Germany if further authorities and courts refer to BfArM and the ruling.”

The case, which was brought by a company with two different CBD oils on offer, was filed against the 2019 BfArM finding that such products “should be” medicinal products because CBD has a “pharmacological effect.”

This, of course is in direct contradiction to 2020’s European Court of Justice decision that CBD was not an narcotic.

To appeal the verdict, the company will need to file an appeal.

The Fight for Cannabis Reform in Germany’s Largest State

This is an important legal battle. It clearly shows how schizophrenic the laws around both CBD and cannabis are in Germany right now, not to mention how political cannabis reform—even of the CBD variety—is.  North Rhein-Westphalia, in which Cologne sits, is Germany’s most populous state. The HQ of BfArM is located in this region.

What this decision does, in effect, is uphold BfArM’s 2019 decision about CBD, which also occurred before the EU level decision at the Court of Justice. However, it does more. According to Niermann, “BfArM and the Cologne Administrative Court contradict the established case law of the European Court of Justice, which requires a significance threshold for the distinction between foodstuffs and medicinal products with regard to the pharmacological effect.”

The case is also a sign of political interference, at a moment when federal officials are stalling full recreational reform. BfArM has been confirmed by the court.

There is however a silver lining.

According to Niermann, “The decision is also likely to be difficult to reconcile with other European law. There are ongoing requests to the European Commission for the approval of different CBD ingredients as novel food ingredients. This shows that there is a problem between the Commission, member states and the Commission regarding the novelty of these ingredients but not their pharmacological impact. At minimum, the principle of free movement of goods should then once again ensure the marketability of CBD in Germany, at least for foreign EU products.”

Germany: The Backlash Against Legalization

Any patient can tell you CBD has medicinal properties. However, what are cannabinoids? This is the issue before Germany’s legal system. It is unlikely that THC legalization will solve it all. The fight over CBD of course is what will continue to prompt such cases—for now. Look for even more convoluted decisions after “federal legalization” that includes THC.

This is, of course, because cannabis of both the CBD and THC kind can be used both “medically”—namely via prescription of a doctor—and non-medically. This means that CBD and other over-the-counter products are now subject to the authority of the Medicines Agency until the new ruling is challenged.

These issues are likely to be raised in court unless there is a Federal decision on marijuana as a plant.

Right now, the unhappy producer faces a fine of 100,000 Euros. They will appeal. If there was ever a legal “straw man” to be knocked down, the precedent set in this case is certainly one of them.