Clark Hill: A Stepping Stone for German Cannabis Law?

July 18, 2023

Sam Saarsteiner

The German Ministry for Health has this month published a draft bill on the subject of cannabis legalisation. The draft legislation is of course a diluted version of the original ambitious plans, which faced opposition at the European level. The bill adopts a two-pillar approach:

  1. Decriminalisation and normalisation of personal use of cannabis by adults; and
  2. A series of pilot schemes involving commercial supply chains.

The first pillar follows a popular approach in terms of reasonable limitations on personal use. The foundation of the bill is the removal of cannabis from the German narcotics law as a proscribed product. Adult personal use will thereby be decriminalised, subject to the following aspects:

  • Personal use will be permitted for persons of 18 years of age and older;
  • Such persons will be permitted to possess up to 25g of cannabis for that use;
  • Cultivation of up to three plants will be permitted;
  • Consumption cannot take place in certain locations, such as:
    • Within 200 metres of a school;
    • In the immediate vicinity of persons under 18 years of age;
    • Youth/child facilities (generally) including playgrounds and sports facilities; or
    • Pedestrian zones between 7 am and 8 pm.

Anbauvereinigungen or cannabis growers’ associations of up to 500 members (one per 6,000 inhabitants) will be permitted, with members receiving either 25 grams per day or 50 grams per month for personal use; such clubs will have the authority to provide up to seven cannabis plant seeds or five cuttings per month.

The second pillar is far more likely to draw controversy and will only be published after a review by the European Commission. It proposes limited trials of commercially available cannabis and an opening to supply chains for this purpose. In this regard, it is expected to be akin to the regimes in Switzerland and the Netherlands.

To say that politics will play a part is an understatement. That Germany is taking these steps at a federal level indicates the extent to which Europe’s views on cannabis have changed significantly since the turn of the century. Other countries are taking note. The Czech Republic is openly racing (and coordinating with) Germany to legalisation, following Malta and Luxembourg. Undoubtedly the potential breach of the UN 1961 Single Convention on Narcotic Drugs has been tempered somewhat by the removal of cannabis in 2020 from Schedule IV of that convention. In the UN’s eyes, cannabis remains in a classification alongside morphine and oxycodone in terms of the degree of abuse and potential dependency risk and so what Germany now proposes would on paper constitute a breach of that Convention.

As discussed in our earlier article, there are clearly headwinds blowing for cannabis regulation in Europe. This then is not a rapid change of direction, but a further step in an evolution that has emerged over the last 20 years.

For more information on the opportunities presented by the Irish jurisdiction and how transatlantic firm Clark Hill, with operations from coast to coast in both the U.S. and Ireland, can assist you explore your expansion options into the European cannabis industry, please contact Robert Hoban or Sam Saarsteiner.

The views and opinions expressed in the article represent the view of the authors and not necessarily the official view of Clark Hill PLC / Clark Hill Solicitors LLP. Nothing in this article constitutes professional legal advice nor is intended to be a substitute for professional legal advice.

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Julie Godard
Carl L Rowley -Thompson Coburn LLP

Jerry Chesler – Chesler Consulting

Ian Stewart – Wilson Elser Moskowitz Edelman & Dicker LLP
Otis Felder – Wilson Elser Moskowitz Edelman & Dicker LLP
Lance Rogers – Greenspoon Marder – San Diego
Jessica McElfresh -McElfresh Law – San Diego
Tracy Gallegos – Partner – Fox Rothschild

Adam Detsky – Knight Nicastro
Dave Rodman – Dave Rodman Law Group
Peter Fendel – CMR Real Estate Network
Nate Reed – CMR Real Estate Network

Matthew Ginder – Greenspoon Marder
David C. Kotler – Cohen Kotler

William Bogot – Fox Rothschild

Valerio Romano, Attorney – VGR Law Firm, PC

Neal Gidvani – Snr Assoc: Greenspoon Marder
Phillip Silvestri – Snr Assoc: Greenspoon Marder

Tracy Gallegos – Associate Fox Rothschild

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Matthew G. Miller – MG Miller Intellectual Property Law LLC
Daniel T. McKillop – Scarinci Hollenbeck, LLC

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Gregory J. Ryan, Esq. Tesser, Ryan & Rochman, LLP
Tim Nolen Tesser, Ryan & Rochman, LLP
Cadwalader, Wickersham & Taft LLP

Paul Loney & Kristie Cromwell – Loney Law Group
William Stewart – Half Baked Labs

Andrew B. Sacks – Managing Partner Sacks Weston Diamond
William Roark – Principal Hamburg, Rubin, Mullin, Maxwell & Lupin
Joshua Horn – Partner Fox Rothschild

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Teddy Eynon – Partner Fox Rothschild