How does the Federal Court of Justice rule in the case of the Hanfbar?
31.March 2021 | Manuela
The sun is shining in Braunschweig and colorful flowers are hanging in front of Villa Sack in Leipzig. It is the 24.03.2021; the day on which the Federal Court of Justice (BGH) decides on the criminal liability of the sale of hemp tea.
Act 1 - The operators of the hemp bar in court
Until now, the distribution of cannabis flowers to end users in Germany has been categorically excluded by case law and criminal prosecution. Despite this initial situation, CBD products are available in many places in Germany. This is also the case at the Hanfbar.
Hanfbar was the first company in Germany to be taken to court for selling CBD hemp flowers. The Regional Court of Braunschweig sentenced the operators of the Hanfbar to prison terms of several months each. The convicts were not satisfied with the decision and appealed. The next act was to be written in the Federal Court of Justice (BGH) in Leipzig.
Act 2 - The decision of the Federal Supreme Court
Tensely the cannabis industry waited for the decision of the BGH on March 24, 2021. And the BGH decided, somehow, but somehow not. The ruling against the hemp bar operators was overturned and referred back to the previous instance.
Until then, German prosecutors had criminalized the sale of CBD hemp flowers to end users for consumption purposes. So did the district court in Braunschweig. In its press release, the BGH has now clarified that the sale to end consumers is not illegal per se. A first glimmer of hope. However, the BGH states that abuse for intoxication purposes must be excluded. What does that mean exactly?
Braunschweig refers in its ruling mainly to the possibility of processing the hemp tea of the hemp bar into an intoxicating substance by baking it. What may sound absurd to the ears of experienced users, remains a sticking point in the further development of cannabis jurisprudence. The BGH has not ruled out the sale of cannabis to end users, but by rejecting the ruling, it has handed the interpretation of intent with regard to possible abuse back to the Regional Court of Braunschweig. A step in the right direction, but not quite the paradigm shift that many had hoped for.
Act 3 - What happens after the BGH's decision?
Basically, the BGH said two things with its press release:
Hemp is a narcotic and accordingly falls under the Narcotics Act.
The distribution to end consumers is not excluded under certain circumstances.
However, the general conditions for this distribution are not yet set and can still be interpreted in various ways. If you ask three legal experts, you will get seven different opinions. It is important to wait for the publication of the BGH's decision in Leipzig and, in a further step, to keep an eye on the proceedings in Braunschweig.
Basically, Germany is in a bind, because in most of the surrounding countries industrial hemp with < 0.2 %, respectively < 0.3 % THC content is already approved as a tobacco substitute and the question remains how long Germany can cling to this trade barrier.
Epilogue - Can we celebrate a victory?
The corks may pop a little. But if you want to enjoy the good wine to the full, you should chill it a little longer. Germany is taking a step towards a more progressive cannabis policy with the decision of the Federal Supreme Court in Leipzig. Nevertheless, some uncertainties remain and the epic towards a regulated CBD delivery will include a few more chapters.
Sources and further links
Cannabis Law Report - Selling hemp Tea Is Injurious To One's Freedom in Germany
High Times - Is It All In The Tea Leaves? The Hemp Tea Ruling in German Federal Court
Deutscher Hanfverband – CBD: Eintscheidung des BGH zu Nutzhanfblüten
NDR Nachrichten – Bundesgericht kippt Urteil zu Braunschweiger «Hanfbar»