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Berlin, 10/14/2022 The Federal Court of Justice (BGH) has confirmed the sentences of two commercial dealers of CBD flowers to several years in prison, among other penalties, in case 5 StR 490/21. The decision was already issued on 23.06.2022, but was only published on 12.10.2022. Now hundreds – possibly even thousands – of further convictions are threatened and a traffic ban in relation to numerous hemp products present on the market is confirmed.

“Thus, jobs in an emerging industry are being destroyed and taxpaying entrepreneurs who have harmed no one are being unnecessarily imprisoned at taxpayer expense. There is an urgent need for political action here!”, makes Jürgen Neumeyer, Managing Director of the German Cannabis Business Association e.V. (BvCW), clear.

CBD flowers” are cannabis flowers that cannot induce intoxication even when smoked in large quantities due to their very low THC content (less than 0.2%, stimulant cannabis has an average of about 13.7%). Instead, these contain a higher level of the non-intoxicating active ingredient CBD. “The 6th Criminal Senate of the BGH has now ruled that CBD flowers – as long as they have not been disintoxicated or contain only traces of THC in vanishingly small quantities – are narcotics, since abuse for intoxication purposes cannot be ruled out with these products,” said Dr. Ferdinand Weis, a lawyer specializing in the industry.

The BGH assumed that unprocessed CBD flowers in particular could be used to produce an intoxicating cookie and that the risk of intoxication was also not based on “purely hypothetical considerations”. The BvCW, on the other hand, had already comprehensively documented in February that the assumption of a real risk of intoxication is “out of touch with life, uneconomical and practically impossible” In the “Lidl” case, the Heilbronn public prosecutor’s office had also most recently documented in its discontinuation decision of August 19, 2022 that there was only a theoretical potential for abuse with regard to commercial hemp products, because abuse was virtually ruled out in practice. The penalties imposed by the BGH are as high as those for trafficking in high-proof illegal narcotics.

“In view of the fact that hemp products practically always contain residual amounts of THC, but the Federal Court of Justice in its current decision does not name a nominal limit value as of when a vanishingly small amount of THC in the trace range is to be assumed for the avoidance of narcotic status, the Federal Court of Justice has failed to at least draw a clear line with regard to the remaining marketing possibilities,” says attorney Dr. Ferdinand Weis.

Yet the solution has long been on the table: the “Expert Committee for Narcotics pursuant to Section 1 (2) BtMG and New Psychoactive Substances pursuant to Section 7 NpSG” of the Federal Institute for Drugs and Medical Devices (BfArM) already recommended changes on March 15, 2021. “This recommended resolution must now be urgently implemented by the Federal Government. Waiting for full cannabis regulation could ruin many livelihoods, as thousands now face raids, business closures, criminal proceedings and job losses on a daily basis,” said Jürgen Neumeyer, executive director of the BvCW. The BvCW notes an increase in criminal prosecutions and therefore appeals to Federal Minister of Health Karl Lauterbach to finally implement the expert recommendation from the BfArM, which reports to him.

In Germany alone, 889 farms grow industrial hemp, plus numerous processing companies, traders and service providers. Already in the last legislative period, all parties except the AfD confirmed the need for reforms, but postponed them. Recently, there was even a seizure of a complete commercial hemp field. The BvCW therefore demands the immediate removal of industrial hemp from the Narcotics Act (BtMG).

Publications of the BvCW on this subject:
ELEMENTE Vol. 21: Why it is practically impossible that industrial hemp is misused for intoxicating purposes.
ELEMENTE Vol. 16: The marketability of commercial hemp flowers and leaves – positions and demands from the field of cannabidiol (CBD) and other cannabinoids
ELEMENTE Vol. 15: Dealing with Cannabis and Cannabis Products in the EU – Translation of an Overview of Legal Requirements
ELEMENTE Vol. 7: Members of the Bundestag (MdB): Statements on cannabidiol (CBD)
ELEMENTE Vol. 4: For a regulated CBD market! – Positioning and Proposals of the German Cannabis Business Association (CANNABIS BUSINESS ASSOCIATION e.V.)
ELEMENTE Vol. 2: Questions to & Answers from WHO, INCB & UNODOC on Cannabidiol (CBD) and Medical Cannabis

Further documents on this subject:
Heilbronn public prosecutor’s office: discontinuation notice against Lidl dated Aug. 19, 2022.
Committee for Food and Agriculture: Decision recommendation and report of 23.06.2021
Federal Institute for Drugs and Medical Devices (BfArM): Expert committee recommendation of 15.03.2021