Dentons: Legalization in Germany – Concrete Draft Law Leaked

Author: Peter Homberg Contact Peter https://www.dentons.com/en/peter-homberg https://www.linkedin.com/in/peter-homberg-90618519/   Germany is currently in the process of implementing the plan to legalize cannabis for recreational purposes. In April 2023, Federal Minister of Health Karl Lauterbach presented a new “Key Points Paper”, outlining the further steps. The “Two-Pillar-Plan” includes the legalization of self-cultivation (at home, as well as in cannabis clubs) as a first step, and the establishment of scientific model projects as a second step. In perspective, the German government also intends to continue its efforts to promote its approaches to European partners to obtain a change of relevant EU law to enable full legalization. Originally, the draft law was announced for April 2023, however, it has not been officially published yet. Now, Legal Tribune Online in Germany (“LTO”)  has published a leaked concrete draft law. What does the draft entail? Which aspects of the draft are unexpected, or questionable?  

Main Aspects of the Draft Law

Article 1 of the drafted “Cannabis Dispensing Act” (Cannabisabgabegesetz, “CannG”) concerns the creation of a new law for the controlled dispensing of cannabis. According to § 1 CannG, the aim of the law is to contribute to improved child, youth, and health protection, to strengthen cannabis-related education and prevention, and to curb the illegal market for cannabis. To protect consumers, the quality of cannabis is to be controlled and the distribution of contaminated substances prevented. This is to be implemented by the CannG, through general regulations on the protection of health, children and young people, and the prevention of addiction (Chapter 2 CannG). The draft law also contains special provisions on controlled private production (Chapter 3, Section 1, CannG), controlled collective production and distribution in cultivation associations (Chapter 3, Section 2, CannG) and cannabis for medical purposes (Chapter 4, CannG). Penal and fine provisions are intended to ensure compliance. Articles 2-9 CannG concern amendments to various laws, in particular the Narcotics Act (BtMG). Medical cannabis is currently already legally regulated as a marketable narcotic and is legal if the legal requirements are met.    

Most Important Changes in Medical Cannabis Law

The CannG removes cannabis with a THC content of more than 0.3 as well as THC from the scope of the Narcotics Act (Betäubungsmittelgesetz, “BtMG”) and transfers them to the CannG. In the future, this will result in medical cannabis qualifying as a medicine, but no longer as a narcotic. In practice, therefore, a narcotic prescription will no longer be necessary for the prescription of medical cannabis. Prescriptions will thus be redeemable for longer and cannabis would probably also be prescribable by e-prescription in the future. This is currently not yet possible for narcotics. In addition, § 5 para. 2 CannG provides for an absolute ban on advertising cannabis. In contrast to the current legal situation due to the classification as a narcotic, however, in the future a violation of this would only be punished as an administrative offense and would no longer constitute a criminal offense. Apart from this, however, Chapter 4 CannG contains a number of legal provisions for medicinal cannabis that largely correspond to those of the current legal situation (dispensing only by pharmacies on the basis of a prescription, necessary permits for import and export, record-keeping and reporting requirements, etc.).    

Rules to Obtaining Cannabis in the Future

Cannabis can be obtained for non-medical personal consumption from so-called cultivation associations (i.e. associations with legal capacity, registered in the Register of Associations, with their registered office in Germany, whose statutory purpose is exclusively the collective production and distribution of cannabis for personal consumption to their members). The prerequisite is membership in the cultivation association (only membership in a cultivation association is permitted), which in turn is reserved for persons over 18 years of age with residence or habitual abode in Germany. Dispensing is possible in exchange for payment and only allowed in case of personal presence of the delivering person and the acquiring member. Acquisition for third parties, as well as mail order and distance selling are prohibited. The amount is limited to 25 grams per day and up to 50 grams per month. In deviation from this, adolescents (18-21 years) may obtain a maximum of 30 grams per month and only with a THC content of no more than 10 percent. Cultivation associations are subject to strict regulations regarding control, documentation, safeguards, etc.    

Rules to Individual Cultivation at Home

Private self-cultivation (i.e., non-commercial production of a total of up to three female flowering plants per calendar year for the purpose of personal consumption) of cannabis is permitted to persons aged 18 and over. Approved propagation material can only be purchased personally from cultivation associations (maximum of seven seeds or five cuttings per month) or can also be obtained by adults from suppliers based outside Germany for the purpose of private self-cultivation. Adolescents may only purchase or obtain propagating material which, according to its biological properties, may have a THC content of no more than 10 percent in further stages of development. In addition, special safety measures must be taken to protect children and adolescents, i.e., the plants and the harvested flowers must be specially protected from access by children and adolescents. If private cultivation of approved propagating material results in more than three female flowering plants per calendar year, these must be destroyed.    

Questions Remaining

Several questions remain unresolved. One issue is the concrete price structure and, if applicable, the effects of different prices and price ranges for cannabis flowers between cultivation associations. The price structure and availability of recreational cannabis in contrast to medical cannabis will also majorly influence the growth of the medical cannabis market, as a portion of patients is currently not being reimbursed by their health insurance. If recreational cannabis would be available for cheaper and less bureaucratic effort, self-paying patients could in the future prefer recreational cannabis from cultivation associations over medical cannabis from a pharmacy. This aspect could also be problematic when it comes to achieving the goal of health protection, as the quality standards of medical cannabis are strictly regulated. Furthermore, it remains unclear how the official goal of youth protection will be implemented in practice, as a wider availability of recreational cannabis in the general population could unavoidably cause a “trickle-down effect”, potentially leading to cannabis consumption by minors increasing. The draft law is now reviewed and discussed by all ministries involved in the law-making process and will be presented to the cabinet for further consideration. It will be indeed interesting to see how the final draft will look like.  

This aspect could also be problematic when it comes to achieving the goal of health protection, as the quality standards of medical cannabis are strictly regulated. Furthermore, it remains unclear how the official goal of youth protection will be implemented in practice, as a wider availability of recreational cannabis in the general population could unavoidably cause a “trickle-down effect”, potentially leading to cannabis consumption by minors increasing. The draft law is now reviewed and discussed by all ministries involved in the law-making process and will be presented to the cabinet for further consideration. It will be indeed interesting to see how the final draft will look like.