Leipzig/Berlin, 2021-03-24: The cannabis industry welcomes today’s ruling by the Federal Court of Justice (BGH), case number 6 StR 240/20, regarding the “Hanfbar case.” The judges in Leipzig ruled that “CBD flowers” made from industrial hemp are considered narcotics under the German Narcotics Act (BtMG), but may legally be sold to end consumers as long as abuse for intoxicating purposes can be excluded. This is a major relief for retailers, who have frequently been affected by business-damaging police raids. The case has been referred back to the lower court, the Regional Court in Braunschweig.

In January 2020, the Braunschweig court sentenced the operators of the “Hanfbar” to suspended prison terms (case no. 4 KLs 804 Js 26499/18 (5/19)) for selling low-THC industrial hemp flowers (THC content below 0.2%) to end consumers. At the time, the court ruled that the operators were conducting illegal narcotics trafficking. This ruling must now be retried.

The BGH made clear that – contrary to the former view of the Braunschweig court – the “exception clause” for commercial sales to end users for consumption purposes does not fundamentally prohibit such sales.

According to the BGH, it must now be ensured that misuse for intoxication purposes is ruled out. From the perspective of the cannabis industry, this could be achieved through measures such as limiting sales quantities, including package inserts, printed notices on the packaging, or appropriate product preparations (e.g., tea blends). The extraction of THC or presumed abuse of industrial hemp appears economically unrealistic.

A new ruling is likely to be of great importance to many farmers, operators, and manufacturers of industrial hemp products, as there has been ongoing legal uncertainty and prosecution related to industrial hemp and its derivatives. Various administrative directives (e.g., in NRW, Hamburg, etc.) must now be updated to reflect this ruling, and enforcement pressure should ease.

Marijn Roersch van der Hoogte, Vice President of the German Cannabis Business Association (BvCW), commented:

“Cannabis is a food, a luxury good, a raw material, and a medicine with a long tradition. This ruling is a step in the right direction. To better harness the wide-ranging potential of the cannabis plant, we as an association will increasingly engage with policymakers to prevent such court cases from occurring in the first place.”

On the political implications, BvCW Managing Director Jürgen Neumeyer added:

“This ruling challenges policymakers to find a way to fully remove industrial hemp and its products from the constraints of the Narcotics Act. Despite today’s decision, we will still face BtMG-related regulations that make it difficult to unlock the many positive potentials of hemp in Germany. Other countries like our neighbors Switzerland and Austria, or the U.S. are years ahead in this regard.The assumed abuse of industrial hemp containing a maximum of 0.2% THC for intoxication is economically irrational. No one would seriously pay for that.”