To be clear, the recent court decision is not specifically related to hemp in food, but by clearing hemp tea sellers of trafficking charges, the German court ruling opened a door to allow hemp products in food.
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Germany and cannabis
Before getting into how a German court ruling on drug trafficking could allow hemp in food, let’s take a look at how cannabis is governed in Germany. According to Germany’s Federal Narcotics Act, cannabis possession is illegal and offenders can face up to five years in prison. Use crimes are not specifically mentioned in the Act, and therefore, offenders are usually sent to some kind of program instead of prison, at least for small amounts. In Germany, the term ‘small amount’ is judged not by the quantity held, but the quantity of THC within the product. And different regions of Germany use different amounts to denote this ‘small amount’. Generally speaking, it means in the neighborhood of 6-15 grams.
Cultivation, sale, and supply crimes are all illegal. Most of these crimes can earn an offender up to five years in prison, although supply crimes can go up to 15 years, depending on the specifics of the case. Supplying to minors, using weapons, and/or having very large quantities are some of the extenuating factors that can lead to higher prison sentences.
Germany does have legal medical cannabis. This started in 1983 with nabilone – a synthetic derivative of THC. In 1998, the pharmaceutical THC medication dronabinol was also approved. However, it wasn’t until 2017 that the country instituted a real medical cannabis program, opening the door for more disorders to receive treatment with cannabis medications. Since 1996, Germany has also allowed the legal cultivation of industrial hemp.
In 2019, Germany passed a law to institute a regulated system for the export of medical cannabis products. In that same year, Germany was both the biggest importer AND exporter of cannabis oils in the EU. Obviously, there’s a disconnect here, as Germany is putting precedence on its export market, rather than supplying itself first.
In 2019, Germany paid out approximately $240.9 million for cannabis oil imports, making up 7.8% of the market that year. It was second only to the US. That year it also exported $229.8 million, making it the 4th biggest global exporter of cannabis oil, and the biggest out of the EU, accounting for 8% of the global market.
What is this hemp tea case?
The German hemp tea case involves Marcel Kaine and Bardia Hatefi, operators of the store Hanfbar, in Braunschweig, Germany. Hanfbar was a retail store that was selling hemp tea. It was announced in 2020 that prosecutors in the case were seeking jail time of three years, and 2.5 years respectively, according to the newspaper Braunschweiger Zeitung. Hanfbar had been selling CBD oil, as well as hemp food and drink products since 2017.
The meat of the case is in the idea that hemp tea is technically banned under the German Federal Narcotics Act. The reason for this, is that the law states that hemp products can’t be used for the purpose of intoxication. Ingestible products are generally regulated by (BfArM) the German Federal Institute for Drugs and Medical Devices, which follows rules set by (BfR) Germany’s Federal Institute for Risk Assessment. BfR is a part of the Ministry for Food and Agriculture which offers scientific advice for food consumption regulation. The Ministry of Food and Agriculture set the following guidelines about THC use in ingestible products:
- Beverages can have up to 5 micrograms per kilogram of beverage
- Oils can have up to 5,000 micrograms per kilogram
- Food products can have up to 150 micrograms per kilogram
The defendants in the case argued that the charges were unjust, and that similar products were already widely available. Hanfbar is actually a vegan café, and the products being sold were hardly meant for intoxication. In fact, the view on hemp according to Hanfbar, is that its “the key to a sustainable and conscious lifestyle.”
Prosecutors claimed the defendants showed a “blatant lack of understanding about the illegality of their actions”, and were unable to be worked with given their indifference to previous police raids. The defendants in question were originally charged with drug trafficking…for selling hemp tea, and found guilty! As it turns out, the prosecutors are now eating their words.
German court ruling now allows hemp in food products
On March 26th, 2021, it was reported that (BGH) Germany’s Federal Court of Justice, annulled charges against both Kaine and Hatefi. They did so on the basis that the Narcotics Act does not actually ban the sale of hemp leaves and flowers directly to consumers for consumption. By overturning this case, going against a regional court ruling, and setting this new legal precedent, the high court of Germany just opened the door for hemp to be used in food products throughout Germany.
The Federal Court of Justice didn’t come down on lower courts for an error in judgement, but it did state that regional courts had not fully examined whether the defendants had meant their products to be used for intoxication purposes.
According to Hempro International GmbH, one of Germany’s leading hemp companies, “From now on it is more a matter of the actual intake of the psychoactive substance THC… The supply and possession of unprocessed industrial hemp products to end consumers is therefore not subject to the Narcotics Act as long as deliberate abuse for intoxication purposes is excluded.”
Hempro, for its part, has current legal proceedings of its own regarding cannabis. The company is actively suing the city of Düsseldorf after it banned marketing and sales of CBD products in extract form. It also has a case against the city of Braunschweig since 2019, which contests the city’s use of a stop-sell order that was levied against one of the company’s wholesale buyers. In light of this legal reversal for Kaine and Hatefi, Hempro hopes that its own cases will be resolved soon.
The verdict was also celebrated by (BvCW) Germany’s Cannabis Industry Association, which released the statement: “This means a great relief for the sellers, who have so far been often affected by raids that damage their business.”
What next?
It’s possible this verdict will, in fact, influence the cases Hempro has in the works currently. The more substantial outcome, however, is that the highest court in Germany just said that so long as the intention is not to cause intoxication, that hemp leaves and flowers can be used in food and beverage products at will. As most people don’t go to hemp when looking for intoxication, this would include pretty much any edible hemp-based product.
The case also highlights how a ruling in one specific avenue, can have resounding effects throughout an entire industry, and beyond. This is similar to France vs the EU, where the EU’s ruling that France cannot restrict imports of CBD oil into France by other EU countries – that were made in compliance with EU law, made CBD legal throughout all of the EU. In the current case, by Germany trying to put a couple guys out of business, what the country actually ended up doing, was expanding the legal boundaries of the hemp industry to include food and beverage products.
Conclusion
There’s something special about a case like France vs the EU, or the German hemp tea case. Maybe because the intent was so malevolent, that the opposite and stronger outcome feels that much more like a victory. And in both instances, new case law was essentially formed by governments trying to impose unnecessary and unfair restrictions on their people, and losing. So, here’s to Marcel Kaine and Bardia Hatefi, two of today’s current cannabis heroes, who successfully fought to overturn their verdict, and in doing so, elicited a German court ruling that now allows hemp to be used in food.
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Disclaimer: Hi, I’m a researcher and writer. I’m not a medical professional, I have no formal legal education, and I’ve never been to business school. All information in my articles is sourced from other places, which are always referenced, and all opinions stated are mine, and are made clear to be mine. I am not giving anyone advise of any kind, in any capacity. I am more than happy to discuss topics, but should someone have a further question or concern, they should seek guidance from a professional in the relevant field for more information.