The current status on the debate regarding the legalisation of recreational cannabis
Recreational cannabis and cannabis for medicinal purposes must be strictly separated under German Law: Since 2017, it is permitted to grow, sell and import cannabis for medicinal purposes in Germany. In contrast, cultivating of or trading with recreational cannabis is currently strictly prohibited. The current legal situation of cannabis in Germany can be found in our CMS Expert Guide to cannabis law and legislation.
Legalisation plans of the German government
The coalition parties of the German government elected on 26 September 2021 have agreed to allow a “controlled distribution of cannabis to adults for recreational purposes in licensed shops”. According to the German Federal Minister of Health, Prof Karl Lauterbach, the main goal of the legislative process will be to provide the best possible health protection for consumers and to ensure the protection of children and young people. Risks currently come especially from a large black market for cannabis without quality standards and controls, which results in contaminated cannabis products entering the illicit market. The new cannabis law shall be evaluated for social effects after four years.
The legislation project is intended to cover the entire supply chain, from cultivation and production to sales in licensed shops. This also effects numerous national laws, such as criminal law, road traffic law and tax law.
Consultation process and expert hearing
Starting in mid-June 2022, over 200 experts from the fields of addiction medicine, addiction support, law, economy and of social interest groups as well as representatives of the federal states, the federal ministries and authorities discussed relevant aspects of the planned legislation in four non-public expert hearings: (1) health and consumer protection, (2) youth protection and prevention, (3) supply chains, economic and ecological issues and (4) criminal liability, inspection measures and licensing. As far as can be seen, no paper with the results of the non-public hearings has been published so far.
Inconsistent worldwide developments
In the following (public) international expert hearing on 30 June 2022, numerous international experts from Malta, Canada, Colorado (U.S.A.), South Africa, Uruguay, Luxembourg and the Netherlands reported on their countries´ experiences with the legalisation of cannabis. It was particularly noticeable that there is no consistent trend in the U.S.A., Canada and Uruguay, but that the developments following the legalisation of cannabis strongly depend on the specific national provisions and the objectives of the legislation. This is also confirmed by the current World Drug Report 2022 of the United Nations (UN), which was also discussed at the hearing. The UN-representative stated that there was no reliable connection between legislation of cannabis and increasing numbers of users.
Numerous questions raised
In the final international hearing on 30 June 2022, it became clear that there are currently more questions than answers as to how the draft law on recreational cannabis should look like.
For example, the following questions were discussed controversially:
- Should recreational cannabis for the German market come from local cultivators or be imported?
- Will recreational cannabis be distributed through pharmacies or will special shops be set up? Should it only be possible to buy recreational cannabis in local stores or also online? How to ensure advise by a qualified person?
- Should there be quantity restrictions (e.g., daily maximum quantities per consumer) and/or THC-limits in the product?
- How high should the retail price and taxes on cannabis products be?
- Should a strict ban on advertising apply?
- How can effective protection of minors be guaranteed? Should minor be banned from licensed stores?
Controversy over advertising ban, pricing and taxes
Especially the question of a ban on advertising was discussed controversially by the experts: Some were in favor of a strict ban (especially regarding advertising by influencers) to protect young people. Others argued that a minimum of advertising will be required so that it is possible to publicly inform consumers where they can purchase high-quality and safe cannabis legally.
In order for the distribution of recreational cannabis through licensed stores not to become unattractive compared to the black market due to cost reasons, the prices should not be too high in relation. Dirk Heitpriem, vice president of the Cannabis Business Industry Association (BvCW) suggested as conceivable option to tax cannabis products on the basis of the THC-content, e.g., EUR 10.00 per 1 gram of THC.
International and European law needs to be considered
International and European law makes the legalisation of recreational cannabis rather complicated since Germany is a party to the UN Single Convention on Narcotic Drugs (1961). In this convention, the member states explicitly commit themselves to prohibit, among other things, the cultivation and trade of cannabis outside of medical or scientific purposes. European law also refer to the UN Single Convention. Various options are currently being discussed in public, including a (temporary) withdrawal from the UN Single Convention as in Bolivia. Another option discussed is that Germany, like Canada and Uruguay, could consider a violation of international law and legalise recreational cannabis anyway. Others suggest that Germany should aim for an amendment to the UN Sigle Convention.
What happens next?
The international hearing on 30 June 2022 has once again made clear that the legislative project is ambitious but no longer an impossible goal due to political will. However, answers to the questions raised must now be found in the legislative process. At present, it is probably only clear that in any case the entire supply chain from cultivation to licensed shops must be under state control. The Drug and Addiction Commissioner of the Federal Government, Burkhard Blienert, summarised the findings from the expert hearing, among others, that it is going to be a “learning process/system” since interactions between the individual legal provisions are not yet be foreseeable.
The Federal Minister of Health, Prof Lauterbach, announced a key issue paper for autumn 2022, to be followed by a draft cannabis legislation in December. The draft legislation would then have to be coordinated between several ministries (Federal Ministries of Health, of Agriculture, of Justice, of Economic Affairs and of Finance). Parlamentary consultations are apparently scheduled to start next year, after which the German Federal Council (Bundesrat) would also have to approve the draft. Thus, it is not realistic to expect the draft to be passed by the German Parliament before the end of 2023. It is therefore likely that recreational cannabis will not be legally available on the German market until 2024 at the earliest.