In July, Germany submitted a draft of its Industrial Hemp Liberalization Act, a bill that promises to do away with the baffling and controversial ‘intoxication clause’.
The fact that what has been called an ‘incomprehensible clause’ was not scrapped in the initial Cannabis Act (CanG) on April 01 has been widely criticised, and has meant that hemp producers across the country have continued to be under threat of criminal prosecution.
Despite the fact that high-THC cannabis for adult-use purposes can now be legally grown at home, some businesses continue to be prosecuted, even with the draft bill now making its way through the legislative process.
Speaking to Business of Cannabis, one business, who asked to remain anonymous, claimed that courts are now ‘prosecuting at double speed’ to ensure convictions before the law changes, though this has been contested by legal professionals.
What happened?
The so-called ‘intoxication clause’ has led to the confiscation of hemp fields and the criminal prosecution of many traders for years.
Effectively, it states that farmers are only able to produce industrial hemp with a THC content of 0.3% or below if misuse for intoxicating purposes is ruled out, wrongly assuming that it is possible to get high from hemp.
While the recent rise of substances like HHC, which are synthetically derived from low-THC hemp to create intoxicating substances has added a new element to this debate, numerous landmark legal cases across the EU give significant weight to the broader legality of hemp cultivation and production.
Among others, this includes the European Court of Justice KanaVape decision, which ruled that CBD is not a narcotic and therefore able to be traded across European Union member states.
The continuation of prosecutions of hemp businesses in Germany has been made even less sense since the country moved to decriminalise adult-use cannabis, which is by its very nature intoxicating.
According to one CBD flower business owner, they were raided by German police after being granted permission by German border control to enter Switzerland with the express purpose of purchasing CBD products.
They have now been informed that their court case will take place soon, likely before the new draft bill makes it into law, alongside having around €50k worth of produce and cash confiscated under Proceeds of Crime.
“I think you would be surprised at how many of these convictions are going on across Germany, but they just aren’t reported,” they explained.
“Most people pay the fine and say nothing. It’s expected here. My last lawyer tried to force me to plead guilty and say nothing. It’s why these issues are seen as isolated because most people won’t contest them out of fear.”
“I also don’t think they are isolated cases, they are limited because police harassment and prosecutions have killed the CBD industry totally and now no more cases are popping up because 90% of the businesses are closed, mine included. It used to be everywhere and is now virtually non-existent.”
Kai-Friedrich Niermann, a lawyer with extensive experience in dealing with hemp and CBD prosecutions in Germany questioned this assessment, stating that he believed courts were now finding ‘appropriate solutions’.
He told Business of Cannabis: “I can’t say this is happening across the board. These are isolated cases.
“I also see many courts that are now trying to find appropriate solutions, for example, by not ending the proceedings with an acquittal, which would not be possible at the stage right now, but by discontinuing them without further action.
“This is possible if all sides see only a small degree of guilt in the course of events. Then, although one is not officially acquitted, there is no entry in the register and further conditions, such as a monetary payment, are not to be fulfilled.
“In any case, I have not a single case in which the handling of CBD flowers or oils was at issue that has already been legally concluded. Rather, the cases are now gradually being closed as described above, if one argues accordingly with the entry into force of the new law.”
The Industrial Hemp Liberalisation Act
The bill effectively aims to dispel the current perceived legal grey area, providing clarity and creating an environment that is broadly supportive of Germany’s hemp industry, which has shrunk in recent years.
It directly references the ‘intoxication’ or ‘missuse’ clause, which it says has created uncertainty and led to bans, raids and legal challenges against hemp products.
Specifically acknowledging that there is no evidence of hemp misuse for intoxicating purposes, suggesting this view is now obsolete, the bill says this clause will be removed.
Furthermore, it will establish concrete definitions of ‘industrial hemp’, namely hemp plants with a THC content of 0.3% or less as a final product, allowing for THC levels of up to 1% during production.
Individuals will also now be allowed to grow up to three hemp plants, and possess up to 50g of hemp flower, as seen with cannabis for recreational purposes.
For businesses, the bill aims to encourage indoor cultivation of hemp, introducing it as a new opportunity for businesses.
Farmers will be required to register their indoor cultivation activities quarterly with the Bundesanstalt für Landwirtschaft und Ernährung (Federal Office for Agriculture and Food), but the reporting requirements for both indoor and outdoor hemp cultivation will be simplified.
This monitoring will reportedly cost an estimated €8,251.50 annually, covering the inspection costs, administrative work, and communication with other regulatory bodies.
