If anyone thought the road to cannabis reform would be easy, a decision last week in Cologne, Germany, just confirmed that this will be a protracted battle, fought all the way with regressive skirmishes and certainly setbacks.
Here is the latest example. Surprisingly, the Cologne Administrative Court has just ruled that the legal classification of drops of CBD (i.e. a good extract of old CBD) are medical products. As such, they must be approved by the Federal Institute for Drugs and Medical Devices (BfArM), the German version of the American Food and Drug Administration (or FDA).
The court’s logic on this ruling is that the nutritional value of CBD is still unknown. Furthermore, as stated in the legal decision, the plaintiff was unable to demonstrate that there were comparable products on the market or that CBD could be used as part of a diet rather than a medical regimen. The plaintiff’s suggestion that hemp tea could serve as an example was rejected, as the court held that cannabis tea is subject to the narcotics law, thanks to the undecided decision on this in 2021.
The timing of this case, not to mention the court’s conclusion, is also revealing. Maybe the whole German CBD business could go back to the dark ages, even if it’s just a statewide decision, not a federal one. Enter all health food stores, not to mention the growing number of CBD specialty stores in Germany, and it is possible to find CBD oil, of various concentrations, on the shelves.
According to Kai-Friedrich Niermann, a leading cannabis lawyer in Germany, “The Cologne Administrative Court ruling poses a significant risk to the CBD market in Germany if more authorities and courts refer to BfArM and the ruling.”
The case, which was filed by a company with two different CBD oils on offer, was filed against the 2019 BfArM which found that these products “should be” drugs because CBD has a “pharmacological effect”.
This is, of course, at odds with the European Court of Justice’s 2020 ruling that CBD is not a narcotic.
The company must now file an application to appeal the judgment.
The fight for cannabis reform in the largest state in Germany
This case is a key legal confrontation. It clearly shows how schizophrenic the laws around CBD and cannabis are in Germany right now, not to mention the political reform of cannabis, even the CBD variety. North Rhine-Westphalia, where Cologne is located, is the most populous state in Germany. It is also the headquarters of BfArM.
What makes this decision, in effect, is to uphold the 2019 BfArM decision on CBD, which also took place before the EU-wide decision in the Court of Justice. But it also does more than that. According to Niermann, “BfArM and the Cologne Administrative Court contradict the established jurisprudence of the European Court of Justice, which requires a threshold of importance for the distinction between food and medicine in terms of pharmacological effect.”
In addition, the case smells of political interference at a time when the federal government is delaying full recreational reform. All the court has done is just confirm BfArM’s opinion.
However, there is a silver lining.
According to Niermann, “the decision is also likely to be difficult to reconcile with other European laws. Ongoing applications to the European Commission for the approval of various CBD ingredients as novel foods show that the Commission and the Member States “They have a problem with the novelty of the ingredients, but not with the pharmacological effect. At the very least, the principle of free movement of goods should again guarantee the marketing of CBD in Germany, at least for EU foreign products.”
The backlash against legalization in Germany
While any patient will tell you that CBD can have medicinal effects, the problem now with the legal system in Germany (and it is unlikely to go away like magic with the advent of THC legalization), is what they really are. cannabinoids. Of course, the fight for CBD is what will continue to cause these cases, for now. Look for even more complicated decisions after “federal legalization” that includes THC.
This is, of course, because both CBD and THC cannabis can be used both “medically”, that is, by prescription, and not medically. In the case of CBD, this means that over-the-counter products will now go under the heading of the drug agency until this new ruling is challenged.
It also seems to indicate that unless there is a federal decision on cannabis as a plant, as well as its best-known extracts, these issues will appear repeatedly in the courts.
The disgruntled producer is currently facing fines of 100,000 euros. However, they will certainly appeal. If ever there was a legal “straw man” to be overthrown, the precedent set in this case is certainly one of them.