Dentons: Cannabis Legalization in Germany: Official Draft Law Published

Author: Peter Homberg

On 16 August 2023, the German federal government agreed on a draft law for a cannabis law (Cannabisgesetz, CanG). In this first step on the road to cannabis legalization, private and communal non-commercial self-cultivation and consumption are to be regulated. The focus is on curbing the black market and improving the protection of young people as well as health protection. In addition, the quality of recreational cannabis is to be controlled and the transfer of contaminated substances shall be prevented.

The government draft builds directly on the draft law of the Federal Ministry of Health published on 06 July 2023 and contains essentially the same regulations.

Summary of the Draft law

The main focus of the CanG is the Consumption Cannabis Act (Konsumcannabisgesetz, KCanG) regulated in Article 1. The core of the KCanG is composed of the legalization of

individual self-cultivation and
communal self-cultivation through cultivation associations.

Any person over the age of 18 may privately cultivate up to three cannabis plants for personal consumption or up to three hemp plants for non-commercial use at the same time at their place of residence or habitual abode in Germany. The cannabis from private self-cultivation may not be passed on to third parties. The propagation material, seeds or seedlings, may be obtained from the cultivation associations even as a non-member. Home-growers may purchase a maximum of seven seeds or, five seedlings, or a mix of seven seeds and seedlings per month. Growers must take appropriate safety precautions to prevent access by minors and third parties.

Cultivation associations are registered non-profit associations whose purpose is the collective cultivation and distribution of cannabis and propagation material for personal consumption. The operation of cultivation associations is subject to a permit, which is to be granted upon application if the specified requirements are met. Cultivation associations may pass on to each member a maximum of 25 grams of cannabis per day and a maximum of 50 grams per month. For adolescents (18-21 years old), the amount is limited to 30 grams per month; moreover, only cannabis with a THC content of up to 10% may be passed on to adolescents. Only persons over the age of 18 may become members. Each growers’ association may have a maximum of 500 members, and a person may only be a member of one cultivation association. Cannabis may only be cultivated by members or “mini-job” employees (earning no more than EUR 520 per month) of the cultivation association. The commissioning to other third parties for cultivation is expressly prohibited.

Cultivation associations shall ensure the principles of good professional practice. The Federal Ministry of Food and Agriculture is authorized, in agreement with other competent federal ministries, to specify further requirements for quality, cultivation methods and maximum quantities. For quality assurance purposes, the cultivation associations shall take regular random samples for testing. Cultivation associations must fulfill extensive documentation and reporting obligations. The associations must also ensure comprehensive security and protection measures to prevent unauthorized third parties from accessing the products. They must also have a qualified authorized person to take care of matters relating to the protection of minors and addiction and prevention issues. The cultivation associations are subject to control by the authorities. The competent state authority regularly takes random samples and examines them for compliance with the law. The authority has far-reaching powers in the event of infringement, e.g., it can issue temporary bans on cultivation.

According to the draft law, there is an absolute advertising ban on cannabis and cannabis associations. A violation would result in an administrative offense.

The only significant change between the federal government’s draft law and the referendum draft of the Federal Ministry of Health from July is the added regulation that the transfer of privately cultivated cannabis is now to be completely prohibited after all. Originally, the free transfer of cannabis to persons of legal age “in the area of the home of the person cultivating the cannabis for communal consumption immediately following the transfer” was permitted.

Consequences for the Medical Cannabis Sector

Cannabis, THC and all the individual substances contained therein will be deleted from the Narcotics Act (Betäubungsmittelgesetz, BtMG), which means that medical cannabis will no longer qualify as a narcotic, but only as a prescription medicine. In practice, therefore, a narcotic prescription will assumedly no longer be necessary for the prescription of medical cannabis. Prescriptions will thus likely be redeemable for a longer period of time and cannabis would probably also be prescribable by e-prescription in the future, which is not yet possible for narcotics.

Medical cannabis law is restructured in the Medical Cannabis Act (Medizinal-Cannabisgesetz, MedCanG). However, there are no major, significant changes in content compared to the current legal situation. Relevant permits continue to be required for the distribution and importation of medical cannabis. Due to the removal of cannabis from the BtMG, the legal basis for the required permits will now be contained in the MedCanG. However, the provisions of the MedCanG mirror the previously applicable provisions.

Open topics

Rules for the a clearer definition of THC limits in road traffic are missing in the current draft. Cannabis in road traffic, however, is also a matter for the Federal Ministry of Transport.

The limit value for a misdemeanor according to Section 24a para. 2 Road Traffic Act (Straßenverkehrsgesetz, StVG) for the cannabis active substance “THC” is currently 1 ng/ml blood serum. However, this value does not say anything about whether a person is roadworthy or not, as is the case with alcohol. Consumption a few days before, can still be detected later in the blood in high concentration. Therefore, an increase of this value has been discussed for some time, with an increase to 3.5ng/ml being under discussion. Currently, it is to be examined how this limit value can be determined on a scientific basis. To this end, a new interdisciplinary working group is to be set up at the Ministry of Transport with experts from the fields of medicine, law and traffic.

Evaluation of the Law

The current draft law was prepared taking into account the intensive and confidential discussions with the EU Commission as well as the balancing of national political interests. The fact that cannabis cultivation and distribution will initially be possible exclusively on a non-commercial basis has resulted in many bureaucratic and impractical hurdles. In addition, it is still questionable in which spatial capacities the cultivation should take place and who will provide the infrastructure and the necessary expertise to meet the quality requirements. Finally, it is also unclear whether state authorities will even be able to approve and monitor cannabis associations. It is also questionable whether the law will actually relieve the burden on the courts. In fact, the German Judges’ Association (Deutscher Richterbund) fears an additional burden on the judiciary and the authorities, especially due to the high bureaucratic hurdles.

Time Frame

The law still has to pass through the Bundestag and may be through the Bundesrat. The first reading in the Bundestag is scheduled for this fall. In the Bundesrat, at least according to the Federal Ministry of Health, the law does not require approval – although this is controversial. In practice, this question is highly relevant, as opposition is to be expected from the Christian Democratic Union/Christian Social Union (CDU/CSU) parliamentary group in the Bundesrat. CDU/CSU politicians in particular are currently voicing a great deal of criticism of the legalization project, with reference to the protection of minors, among other things.

For the time after the parliamentary summer break, the Federal Ministry of Health has also announced the “second pillar” of the legalization project. This envisages regional model projects with commercial supply chains. In the model regions, production, distribution and dispensing are to be made possible in specialist stores. However, the upcoming law will likely be submitted to the European Commission for review, the Federal Ministry said.

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