Update on cannabis legalisation: working draft of a cannabis law

This contribution follows on from a Quick Read on the white paper of the Federal Ministry of Health by Dr Daniel Tietjen and Dr Martin Jäger.

It became clear on the evening of the last federal election in September 2021 that a so-called traffic light coalition consisting of the SPD, the Greens and the FDP was on the cards for the first time at federal level. Shortly afterwards when a selfie featuring Annalena Baerbock, Christian Lindner, Dr Robert Habeck and Volker Wissing spread across Germany’s social media streams, there was reason to believe that there could be a U-turn in cannabis policy.

Federal Health Minister Karl Lauterbach announced prompt legalisation, but then nothing followed for a long time and he hid behind international and Union law. It was only after the intervention of his ministerial colleague Cem Özdemir, who once completed the Ice Bucket Challenge next to a hemp plant, that things began to move forward.
The restrained Lauterbach white paper from October 2022 was recently revised. Cannabis legalisation is to be implemented in two steps: first, private cannabis use is to be decriminalised and, in the second step, commercial distribution is to be tested in model regions.

A first draft of a cannabis law was recently presented which mainly deals with the decriminalisation of private cannabis use (Pillar 1).

Content of the draft cannabis law (CannG-E)

Controlled distribution and consumption of cannabis

• In future, cannabis is to be cultivated by cultivation associations and supplied to members of legal age for non-medical personal consumption with residence or habitual abode in Germany (Section 3 (1) CannG-E).
• Cultivation associations are associations with legal capacity, registered in the register of associations, whose statutory purpose is exclusively the collective production and distribution of cannabis for personal consumption to their members. (Section 2 number 10 CannG-E).
• The quantities to be supplied are limited to 25 grams per day and up to 50 grams per month, but for young people (18-21 years) a maximum of 30 grams per month (Section 3 paragraph 3 CannG-E). In addition, the harvesting of marijuana plants grown for individual own use is limited to three per year.
• Cannabis may not be dispensed in combination with alcohol, tobacco, food or other flavours and additives (Section 4(2) CannG-E).
• Advertising of cannabis is prohibited (Section 5 (2) CannG-E). The prohibition of advertising is based on the regulation of the Tobacco Products Act, i.e. advertising on the radio, in the press, at publicly funded events and in outdoor areas is prohibited.
• The consumption of cannabis within a radius of 250 metres around schools, children’s and youth facilities, day-care centres, publicly accessible sports facilities, in pedestrian zones between 7 am and 8 pm, is prohibited. Likewise, consumption in and adjacent to the premises of the cultivation association is prohibited (Section 6(3) CannG-E).
• Membership per cultivation association is limited to 500 persons and is prohibited in more than one cultivation association (Section 21 paragraph 1 sentence 2 CannG-E).
• Distribution is only allowed upon presentation of a membership card and an identity card, as well as upon handing out a leaflet with hard facts about the product, but also the health hazards (Section 19 CannG-E).

Protection of children and young people

• Minors may neither acquire nor possess cannabis, nor may they stay on the premises of cultivation associations.
• There shall be early intervention programmes, especially for young people who violate the aforementioned prohibition (Section 6 (1) CannG-E).
• The Federal Centre for Health Education shall develop a prevention programme (Section 7 CannG-E).

Requirements for cultivation by cultivation associations and private individuals

• Cultivation associations may only distribute seeds or cuttings at cost price (Section 8 (2) No. 2 CannG-E). No membership in the cultivation association is required for the distribution of this propagation material.
• The THC limit for cannabis (products) that may be distributed to young people is 10%.
• Privately cultivated cannabis may not be passed on or even resold, unless the passing on takes place within one’s own home to persons of full age for joint personal consumption (Section 8 (5) CannG-E).
• Cultivation associations require a permit, which is limited to five years but can be extended (Sections 9 (1), 11 (5) CannG-E). The requirements for a permit include
  • Registration of the association in the register of associations
  • Written application
  • Protection against unauthorised access to cannabis products by unauthorised third parties.
  • Recording of personal data and submission of a certificate of good conduct of the board and the persons working in the cultivation association.
  • Indication of the expected quantities and forms of presentation of cannabis.
  • Development of a health and youth protection concept.
• Among other things, the permit is to be refused if members of the board or other persons authorised to represent the company have been convicted with final effect with regard to certain criminal offences or do not possess the necessary reliability which is the case if the person misuses cannabis (Section 10 CannG-E).
• The commissioning of third parties with regard to cultivation is prohibited (Section 13 (1) CannG-E).
• It is to be examined whether cultivation methods (outdoor or greenhouse cultivation, foil tunnels) are to be specified.
• The cultivation associations must not only record the receipt or quantities of the stock of seeds, cuttings and cannabis ready for consumption, but also to which members which quantities of cannabis were delivered.
• The import of cannabis that has not been produced in Germany is prohibited. Likewise, the export of cannabis and propagating material is prohibited (Section 18 CannG-E).

Miscellaneous

• There are various exceptions for medicinal cannabis. It may (still) only be dispensed in pharmacies with a personal procurement permit from the Federal Institute for Drugs and Medical Devices, and medicinal cannabis may - after a permit has been granted - also be imported from abroad (Sections28 et seq. CannG-E).
• The competent authorities have far-reaching rights to monitor cultivation associations, which are regulated in Section 22 CannG-E. This includes not only monitoring of the associations based on the documentation and notification obligations and any resulting measures but also the right of the authorities to carry out physical inspections (in case of imminent danger also outside business hours - Section 24 (1) sentence 2 CannG-E) at the premises of the cultivation associations and to inspect all documents, files, etc, as well as to take any other measures that may be necessary. In addition, the Land government can determine the details of physical controls.

Criminal and administrative offence provisions and other regulations

• Entries in the Federal Central Register due to acts that are no longer punishable under the draft law can be erased upon application (Section 52 CannG-E).
• In addition, a dedicated catalogue of penalties and administrative offences is to be introduced. The range of punishment is between a fine up to three years’ imprisonment in the basic offence (above all possession and cultivation above the maximum limits, import/export and illicit marketing of cannabis), imprisonment of not less than one year in the qualifying offence (above all commercial activity) and imprisonment of three months to five years in the particularly serious offence (above all commercial activity or if this leads to a health risk, relates to children and adolescents or to a quantity that is not small - Sections 41 et seq. CannG-E).
• In addition, punishment may be waived or execution of the sentence deferred if an offence was committed due to a cannabis-related dependency disorder (Sections 48 et seq. CannG-E).
• The limits in road traffic remain the same for the time being. However, the Ministry of Transport wants to check whether the limits have to be adjusted.

Summary and conclusion

The German coalition government seems to be serious: it has turned away from the drug policy of previous administrations and is pushing ahead with decriminalisation. The proposed regulations would lead to a very liberal approach to cannabis - at least in the private sector. Possible opportunities for commercialisation are excluded by the planned regulations for the time being. For example, the cultivation associations may only sell the products to cover their costs and cultivation may not be carried out by third parties. At the most, the secondary market with products for cultivation and so on would benefit.
Unfortunately, the former approach of the state-controlled levy has taken a back seat to freeing up private consumption and cultivation. Prioritising Pillar 1 may be more significant for the casual consumer, but the coalition government is thus preventing a new industry (and potential tax revenue). It also remains to be seen whether the liberalisation of private consumption and cultivation is the right decision in view of the dangers of cannabis consumption, which should not be underestimated. However, those who call for a restrictive approach to cannabis must also ask themselves whether a more restrictive approach to alcohol is also required, because the dangers of the number one socially accepted drug should not be underestimated either. Decriminalisation is also consistent because it is questionable whether the ban on cannabis, which is punishable by law, is at all constitutional. Several courts are of the opinion that the relevant provisions in the Narcotics Act (BtMG) are unconstitutional and have initiated specific proceedings before the Federal Constitutional Court to review the law. The decisions of the Federal Constitutional Court are still pending, but are expected to be issued this year.