Co-Author: Cao, My Anh
A recent decision of the BGH dated June 23, 2022 (Ref.: 5 StR 490/21) concerns CBD flowers with the active ingredient cannabidiol, which has a THC content of only 0.2%. In principle, CBD products with less than 0.2% of the active ingredient THC fall under the exemption provision of the Narcotics Act.
The BGH sentenced two defendants to prison terms for trafficking in CBD flowers and rejected the defendants' appeals. This is because abuse for intoxication purposes is possible, which is why the exception provision does not apply.
With the help of a defendant and a third party, the main defendant acquired a total of 120 kg of flowers from cannabis plants with a high content of the active ingredient cannabidiol (CBD). He resold the CBD flowers for profit to wholesalers, who in turn sold them to late-night outlets and CBD stores.
According to the BGH, the exemption regulation for cannabis does not apply. It is true that the limit value of the exemption regulation is not exceeded, since the flowers have a THC content of 0.2%. However, the misuse of CBD flowers for intoxication purposes could not be excluded. In particular, the resale of parts of the cannabis plant in unmodified form, which contain THC and whose THC content can be further increased, represents a potential for abuse, as it contains a not entirely insignificant amount of the psychoactive substance. This is because certain forms of preparation, such as heating during baking, release additional THC and produce a cannabis intoxication when consumed, of which the main defendant was aware.
According to the BGH, there was no violation of the free movement of goods under European law. The matter does not fall within the scope of Article 34 TFEU, as the flowers are narcotic substances. The fact that the CBD flowers were legally produced in Spain does not lead to a different result. The harmfulness of the narcotic substances is generally known so marketing is prohibited in all Member States for the protection of public health unless it serves medical or scientific purposes.
The BGH did not consider it necessary to obtain a preliminary ruling from the ECJ on compatibility with European law pursuant to Article 267 TFEU, since the relevant legal standards for assessing the standards under European law were clear and had been clarified by the case law of the ECJ.
The ruling of the BGH shows that the distribution of cannabis components is associated with a significant risk of criminal liability even if these cannabis components have a THC content of only 0.2% and thus do not have a hallucinogenic effect per se. However, the BGH took into account that it is possible to increase the THC content in such a way that ultimately a hallucinogenic effect results after all. As long as the federal government's cannabis legalization efforts have not yet been implemented, this restrictive case law will have to be followed.