Updated: Dec 14, 2022
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On October 26, 2022 the Associated Press announced that Germany has unveiled a "cannabis liberalization plan," or set of regulatory guidelines, to manage upcoming adult-use marijuana legalization in the nation. These regulations would, optimally, take effect in 2024—but many significant hurdles lie between the new plan and actual implementation of a system to legally produce, distribute, and tax cannabis for adults 21 and over in the Federal Republic of Germany.
The country's Health Minister, Karl Lauterbach, presented a plan to "decriminalize the possession of up to 30 grams of cannabis and to allow the sale of the herb to adults for recreational purposes in a controlled market."
The cannabis regulations also include a home grow provision that would allow adult Germans to grow a maximum of three plants. For cannabis businesses, the current regulatory framework features a ban on advertising, echoing Canada's strict rules that prohibit celebrity endorsement of marijuana products.
If the current plan is implemented as is, Lauterbach said that it would be "the most liberal cannabis legalization project in Europe," but that it would also be "the most tightly regulated market" in the European Union. The minister explained that a key goal of the legalization is to better protect "youth and health."
Following the announcement of the publication of the draft cannabis regulations, the CEO of Germany's largest cannabis company, Bloomwell Group, stated that THC limits "may play into the hands of the illegal market."
Lauterbach, himself a previous cannabis legalization skeptic, noted his belief that prohibition has been a dysfunctional approach to the regulation of cannabis and that the underground market has flourished as a result. He reported that four million of Germany's 84 million citizens used cannabis in 2021 and that about one-fourth of 18-24-year-olds in the country have used marijuana. The minister said that Germany wants to avoid the model practiced by the Netherlands, it's northwestern neighbor, which has embraced cannabis decriminalization and minimal market regulation.
But not all Germans agree with Lauterbach's perspective and effort to legalize adult-use cannabis in the nation. Friedrich Merz, the Chairman of the CDU Deutschland (Christian Democratic Union of Germany) political party, responded with cynical defiance.
"Karl Lauterbach now wants to legalize intoxicants on a large scale. I ask myself: What did the man smoke? We will mobilize everything so that this doesn't happen," said Merz during a speech posted in a video to YouTube on October 29 (in German).
Bloomwell Group's Kouparanis Weighs In
Following the announcement of the publication of the draft cannabis regulations, the CEO of Germany's largest cannabis company, Niklas Kouparanis from Bloomwell Group, stated that the THC limits proposed in the plan "may play into the hands of the illegal market," indicating his belief that such an approach would hamper the ability of legal players to compete with underground marijuana cultivators who obviously face no such limits.
Kouparanis lends insight to the announcement from the German government, projecting a tone of cautious optimism. "It is important to note that the draft that leaked to the media is not necessarily the final version of the regulatory framework," said the CEO in a prepared statement to the press.
Kouparanis said he was pleased that the German government is seeking to create "a nationwide supply [of cannabis] at prices analogous to the illegal market in order to curb illicit operations and thus ensure more protection of minors and quality control with the health of the consumer in mind."
No Cannabis Consumption Lounges or Edibles
While consumption lounges will be examined, the current proposed regulatory scheme does not allow for them. As many states in the U.S., including Nevada, New York, and California, continue to push forward with plans to allow an infrastructure of tightly regulated cannabis consumption lounges, Germany will not—at least at first—support this progressive approach to legalization.
Similar to most U.S. jurisdictions, German retail outlets that dispense cannabis and cannabis products will be prohibited from selling alcohol or tobacco products. Another consistency with the cannabis regulations of other nations will be setbacks, or minimum distances of cannabis businesses from certain types of organizations, including schools. In addition—and to the chagrin of many patients who require potent portions of pot to satisfy their medical needs—the percentage of delta-9 tetrahydrocannabinol (THC) allowed in cannabis loose-leaf flower would be capped at 15 percent.
Competing with the Cannabis Underground
The German government has not decided whether to impose an excise tax in addition to its standard sales tax. It stated that cannabis and cannabis products "shouldn't be made so expensive that [they] can't compete with the [underground] market."
Regardless of its exact form when it potentially goes into effect in 2024, the three major political parties in Germany have agreed to analyze the "social effects" of the marijuana legislation following four years of operation.
Cannabis Permissible Under EU Law?
Some observers, however, have noted that Deutschland's plans to regulate legal adult-use cannabis may defy numerous laws of the European Union, in addition to infractions of important international treaties. In response, Lauterbach retorted that Germany's new recreational marijuana system could serve as "a model for Europe."
German leaders have stated that they will "check with the European Union's executive commission whether the plan approved by the German government is in line with EU laws."
German leaders have stated that they will "check with the European Union's executive commission whether the plan approved by the German government is in line with EU laws" and that they will proceed only if they receive "the green light," said Lauterbach.
Transnational Institute Responds
On October 28, the Transnational Institute (TNI), an international research and advocacy organization located in the Netherlands, published an article entitled "German Cannabis Regulation on Thin Ice" that featured the critical subtitle "The government's risky approach to international legal obstacles puts the entire [cannabis] project in jeopardy."
"The German government has released its 'Eckpunktepapier,' a concept note laying out the key points to shape the regulation of the recreational cannabis market," reported the article. It noted that one of the "trickiest issues" is legal challenges presented by both international drug treaties (via the United Nations) and EU law.
Will the EU Green Light German Cannabis?
The TNI article reported that, if the European Commission rejects Germany's "interpretative solution," regulations controlling legal cannabis will be moot "unless another legal accommodation can be negotiated." It noted that the country's marijuana legalization plan "risks bringing the whole regulation project onto legally very thin ice, for several reasons."
Germany's marijuana legalization plan "risks bringing the whole regulation project onto legally very thin ice, for several reasons."
The article noted that TNI has worked "for several years now with a group of international lawyers, treaty experts, and government officials to explore the most viable options to accommodate the legal regulation of cannabis markets under international law."
As such, the group has developed a detailed list of legal risks "and available compliance options" with respect to nations that wish to legalize cannabis and the restrictions placed on this goal by treaties and legal forces outside of their borders. It observed that "a fully closed domestic regulation model is seen as the best bet to get EU buy-in."
The report noted that some good news in terms of Germany's current plan is the fact that the United Nations treaties in question do not feature a "strong enforcement mechanism." However, this does not negate the credible and immediate threats to the country's cannabis plans that come instead from "much more robust EU enforcement procedures."
German Cannabis Plan Not Viable
The TNI article reported that the plan announced by Health Minister Lauterbach on October 26 "does not appear on the menu of viable solutions elaborated by the group of treaty experts we convened" and that the proposed marijuana regulations can be "easily contested and dismissed on legal grounds."
The organization stated that the German government "seems to think that it can get around the legal obstacles of the UN drug control conventions and EU law simply by issuing an 'interpretative declaration' [stating] that the planned regulation is compatible with Germany's international legal obligations." It reported that this reasoning on the part of the country does not offer "any legal justification for state-controlled production, distribution, or sale [of cannabis]."
The group criticized the German government for not explaining how cannabis legalization "would address the restrictions imposed by the general obligation of the 1961 Single Convention on Narcotic Drugs."
The group criticized the German government for not explaining how cannabis legalization "would address the restrictions imposed by the general obligation of the 1961 Single Convention on Narcotic Drugs to limit controlled drugs, including cannabis, to medical, scientific, and certain industrial purposes."
In addition, the TNI reported that the German government's marijuana plan is void of "any social justice, developmental, or environmental considerations."
The Upside for German Legal Cannabis
The group noted that, despite its criticism of the details of the German government's plan, it supports cannabis legalization and its rational regulation. "Health protection and crime prevention are good reasons for moving from failed prohibition to legal regulation," it explained.
The article reported that, if countries can devise a way to "genuinely reconcile their treaty obligations with a legal regulation of their cannabis markets," nothing would stand in the way of them not only legalizing cannabis within their own borders, but also entering into mutual trade agreements with other nations that had abandoned prohibition. Such nations would "only need to have the proper controls in place to ensure that the [cannabis] does not end up in countries where it remains illegal," noted the report.
"An earlier version of the government cannabis regulatory plan included outdoor cultivation, passages that were omitted in the version presented in October."
It observed that an earlier version of the German government's Eckpunktepapier included references to outdoor cannabis cultivation—passages that were omitted in the version presented in late October by Health Minister Lauterbach.
"Little More Than Wishful Thinking"
The group advised the German government to not only significantly update its current plan, but to begin work on Plan B "if they really want to avoid criticism and potential consequences of their upcoming infractions." It proposed that the current plan is "little more than wishful thinking" in terms of assuming that the European Commission, other European nations, or the European Court of Justice "will just follow Germany's 'interpretation.'"
If written correctly, the organization claims that updated regulations "do not necessarily mean scaling the ambitions back to only decriminalization and home-grow" and that they could be more ambitious and even allow international trade. However, it emphasized that the current plan, which invests the fate of Germany's pot legalization effort with the European Commission, "is a risky endeavour" because the Commission does not possess "the competence to rule whether or not the regulation is in compliance with the UN conventions."
"A more principled course of action would be to indeed explain carefully the reasons for the policy change, appealing to health protection and crime prevention, to human rights principles and the aims of the convention," explained the report. It noted that this strategy was productive for Uruguay in its cannabis legalization effort.
The report concluded that Germany's cannabis legalization plan is troublesome and lacks strategic value due to "conflicts with certain obligations in the UN drug control treaties which are also reflected in EU law." It noted that Germany and other countries that legalize adult-use cannabis at the federal level will face the reality of adapting their international treaty obligations and potentially negotiating amendments.
The report concluded that Germany's cannabis legalization plan is troublesome and lacks strategic value due to "conflicts with certain obligations in the UN drug control treaties."
"Those scenarios are not easy and require active diplomacy," noted the organization, adding that "in the end, [they] will have a better chance of success compared with a legally indefensible 'interpretative declaration' that does not alter anything with regard to the prohibitive terms of the [international] treaties."
It stated that it believes that a proactive approach and working with "like-minded countries" could result in "an inspiring example for the world" that includes health and crime prevention, social justice, and environmental sustainability—including sensitivity to carbon emissions resulting from cannabis cultivation and processing.
Bloomwell's Kouparanis believes that to meet initial demand from consumers, the German government should embrace imported cannabis. "Domestic production alone will hardly be able to meet Germany's demand for adult-use cannabis from day one," said the CEO.
Read the original report.
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