All questions

Introduction

i Market

Cannabis is legally classified as a narcotic drug in Germany and is, therefore, prohibited. According to Annex I of the German Narcotic Drugs Act (BtMG), 'plants and parts of plants belonging to the genus Cannabis' and 'hashish, the secreted resin of plants belonging to the genus Cannabis', as well as the tetrahydrocannabinols (THC) and their stereochemical variants, belong to the category of non-marketable substances. Without a licence from the Federal Institute for Drugs and Medical Devices (BfArM), cultivation, production, trade, import, export, distribution, sale, other placing on the market, acquisition and possession of all parts of the cannabis plant are punishable according to Section 29 et seq. of the BtMG.

However, a licence may be granted exceptionally for scientific or other purposes in the public interest. There have been exemptions for the medical use of cannabis since the beginning of 2009. Cannabis has been marketable since May 2011, provided that it is being used for the preparation of medicinal products, and ready-to-use medicinal products containing cannabis can be prescribed. Since 2017, physicians in Germany have also been able to prescribe cannabis flowers and cannabis extracts to their patients. To ensure the supply, the cultivation of cannabis for medical purposes has been made possible in Germany. Future cultivation planning is coordinated and controlled by the Cannabis Agency, which is subordinate to the BfArM. Three companies were awarded cultivation contracts through a tendering process, covering a period of four years for a total of 10.4 tonnes of cannabis. The additional demand is covered by imports. In 2021, Germany imported around 20.6 tonnes of cannabis from 17 countries for medicinal and scientific purposes, in the form of dried flowers and extracts.

The matter of recreational use of cannabis has grown considerably in importance and prominence since 2021, with Germany's governing parties announcing the draft of a new law in 2022 whereby trade and consumption of cannabis for recreational purposes will be legalised. In October 2022, the German government presented a position paper2 in which its ambitions for a future legalisation were detailed and explained. Depending on how the European Commission views these cornerstones, the government intends to proceed to undertake the necessary legislative process. If the European Commission has no objections, a promising economic market would open up. Experts assume an annual demand of over 400 tonnes of cannabis for recreational use, a demand that German producers currently could not satisfy by themselves.

Trading in products containing cannabinoids such as cannabidiol (CBD) remains in the grey market, as the position in law has yet to be clarified satisfactorily.

ii Definitions

Cannabis and its resin are considered drugs under current German laws. Both are named in Annex I of the BtMG. As a consequence, they are non-marketable and regulated as heavily as other (hard) drugs. Cannabis is also known as marijuana and by legal definition includes plants and parts of plants belonging to the genus Cannabis, whereas the resin is also known as hashish.

However, two aspects should be kept in mind: first, consumption itself is not illegal; and second, the legislature has exempted certain cases from prohibition. This means that seeds of the cannabis plant, provided that they are not intended for unauthorised cultivation, are exempted from being generally non-marketable. As a consequence, food made from cannabis seeds, such as hemp seed salad oil, hemp seed beer or hemp seed chocolate, are not subject to the BtMG.

Cannabis originating from certified cultivation in countries of the European Union may, under certain conditions, be excluded from prohibition. Additionally, cannabis that has been grown and harvested and is being marketed for medical purposes is not considered an illegal drug, provided that it complies with relevant applicable laws here.

Medicinal cannabis is cannabis that originates from cultivation for medical purposes under state control in accordance with the UN Single Convention on Narcotic Drugs of 1961 (the Single Convention), or cannabis contained in preparations licensed as ready-to-use medicinal products.

Cannabinoids are not explicitly prohibited or named in German acts of law. However, since THC is listed in the BtMG, it is considered prohibited. Other cannabinoids, such as CBD, are not generally prohibited. Their legal classification depends on the product in which they are included and its intended purpose or use. The psychoactive effect of a substance is not per se a prerequisite for its prohibition. Instead, only those substances listed in the annexes of the BtMG or that fall into one of the categories of the New Psychoactive Substances Act are prohibited.

To evaluate whether CBD falls within the definition of a non-marketable narcotic and, consequently, cannot be sold (e.g., as a food or nutritional supplement), one must differentiate between naturally and synthetically extracted CBD.

Pursuant to the Single Convention, cannabis, cannabis resin, extracts and tinctures of cannabis have been declared to be narcotics if they are made from the entire plant, the flowers or the fruiting tops of the plant. Nonetheless, as CBD is usually naturally extracted from the flowers and whole plant, it would fall under the prohibition in this Act, whereas chemically synthesised CBD is not a narcotic and, therefore, is not subject to the BtMG or the Convention on Narcotic Drugs.

iii Government policy

In the past, the government's general approach to cannabis has been one of prohibition. The supervisory and law enforcement authorities, as well as the courts, tend to pursue a rather restrictive course. Because of a complex system of authorities and many uncertainties in the classification of products containing cannabis and cannabinoids, the handling varies depending on the product and the competent federated state.