Germany is an important country for the cannabis industry, and its CBD oil market has been uniquely shaped by conflicting federal laws. The European Union recently ruled that hemp-derived CBD can be sold in all member states without restriction, but German lawmakers are still fighting over how to classify cannabinoid-containing products.
The “is hemp and CBD the same” is a question that has been asked many times. The answer is no, they are not the same. Hemp is a cannabis plant with less than 0.3% THC content while CBD oil contains up to 20%. Read more in detail here: is hemp and cbd the same.
If anybody believed the path to cannabis reform would be simple, a ruling last week in Cologne, Germany, has just reinforced that it will be a lengthy fight, waged along the way with regressive skirmishes and, without a doubt, defeats.
Here’s the most recent example. Surprisingly, the Administrative Court in Cologne recently declared that CBD drops (i.e. plain old CBD extract) are legitimate medicinal items. As a result, the Federal Institute for Drugs and Medical Devices (BfArM), Germany’s equivalent of the US Food and Drug Administration, must approve them (or FDA).
The court’s reasoning for this decision is that CBD’s nutritional benefit is yet unclear. Furthermore, the plaintiff firm was unable to show that there were identical goods on the market or that CBD could be consumed as part of a diet rather than a medical regimen, as stated in the judicial judgement. The plaintiff’s idea that hemp tea may be used as an example was disregarded by the court, which held that cannabis tea is subject to narcotics law—due to an inconclusive judgement in 2021.
The timing of this lawsuit, as well as the court’s decision, is equally instructive. Even though this is a state-level decision rather than a federal one, it has the potential to send the German CBD industry back into the dark ages. CBD oil, in varying quantities, can be found on the shelves of almost every health food store in Germany, not to mention the expanding number of CBD speciality stores.
“The judgement of the Cologne Administrative Court presents a considerable danger to the CBD market in Germany if other authorities and courts refer to BfArM and the verdict,” says Kai-Friedrich Niermann, a renowned cannabis attorney in Germany.
The action was initiated by a firm that sells two distinct CBD oils, and it was submitted in response to a 2019 BfArM ruling that such products “should be” considered therapeutic since CBD has a “pharmacological impact.”
Of course, this runs counter to the European Court of Justice’s finding in 2020 that CBD is not a narcotic.
The corporation must now submit an application to overturn the decision.
In Germany’s Largest State, the Fight for Cannabis Reform
This case is a harbinger of future judicial battles. It demonstrates how schizophrenic Germany’s CBD and cannabis regulations are at the moment, not to mention how political cannabis reform—even CBD reform—is. Cologne is located in North Rhein-Westphalia, Germany’s most populous state. It also houses the headquarters of the BfArM.
This ruling effectively upholds the BfArM’s CBD decision from 2019, which was made before the EU level decision at the Court of Justice. But it does a lot more than that. “BfArM and the Cologne Administrative Court violate established case law of the European Court of Justice, which demands a significant level for the difference between foodstuffs and medical items in terms of pharmacological action,” according to Niermann.
Furthermore, at a time when the federal government is postponing broad recreational legalization, the case reeks of political meddling. The court has done nothing more than affirm BfArM’s position.
There is, however, a silver lining.
“The judgement is also likely to be difficult to reconcile with other European legislation,” Niermann says. The continuous submissions to the European Commission for licensing of different CBD compounds as new foods demonstrate that the Commission and member states are concerned with the substances’ novelty rather than their pharmacological efficacy. At the very least, the concept of free movement of commodities should restore CBD’s marketability in Germany, at least for non-EU products.”
In Germany, there is a backlash against legalization.
While any patient would tell you that CBD has medical properties, the issue presently before the German legal system (and unlikely to miraculously vanish with the legalization of THC) is defining what cannabinoids are. Of course, the battle over CBD will continue to generate similar cases—at least for the time being. After “federal legalization” that incorporates THC, expect even more complicated choices.
This is due to the fact that cannabis, both CBD and THC, may be taken both “medically” (i.e., with a doctor’s prescription) and “non-medically.” In the case of CBD, this implies that over-the-counter medications will now be subject to the pharmaceuticals agency’s jurisdiction until the latest judgement is overturned.
It also seems to imply that, without a government judgment on cannabis as a plant and its most well-known extracts, these questions will resurface in court.
The disgruntled producer is presently facing penalties of 100,000 euros. They will, however, surely appeal. If there was ever a legal “straw man” to be demolished, the precedent established in this case is it.
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