German Bundesrat On 17 June 2016, the German Bundesrat, the chamber of the federal states, debated the Law on the Medicinal Use of Cannabis recently presented to Parliament. In order to establish a legal basis for medicinal cannabis flowers, the law has to pass through both chambers.
On 17 June 2016, the German Bundesrat, the chamber of the federal states, debated the Law on the Medicinal Use of Cannabis recently presented to Parliament. In order to establish a legal basis for medicinal cannabis flowers, the law has to pass through both chambers.
The Bundesrat approved the law in principle and called on the Bundestag to render anonymous the accompanying study of patients, as well as to enshrine in the law the standardisation of THC content. To date, there had been no provision for either in the draft law. Should the Bundestag now adhere to its timetable following approval by the Länder, medicinal cannabis will be eligible for issue on prescription as from 2017. The Federal Institute for Drugs and Medical Devices (BfArM) has not yet decided when and how the first patient, who had successfully instituted proceedings against the German government for his own home-grown medicine, will be given permission to cultivate cannabis, possibly because, since the ruling, more than 130 registered patients have filed similar petitions. After all, the law was in fact established to prevent patients from growing their own cannabis.
Legal Highs – a deadly consequence of the cannabis ban
But while medicinal cannabis is on the rise, as far as re-legalisation is concerned, very little is happening in Germany, with the exception of a few local initiatives. Weed is often hard to obtain; consequently and based on the lack of market traceability, increasing numbers of young people are resorting to dangerous weed blends, often falsely labelled as synthetic cannabis. The only thing these highly dangerous drugs have in common with cannabis flowers is the colour green; otherwise, what they contain is not found in natural cannabis. The number of “Legal High” fatalities in Germany has risen sharply, whilst legislators continue to lag behind both the newest developments and prohibiting these New Psychoactive Substances (NPS) by a period of one to two years.
The attempt to bring the production and sale of what often constitute dangerous substances, (on account of the lack of research into their effects), under the scope of the Medicines Act failed miserably before the European Court of Justice in Luxembourg. Since then, it has been virtually impossible to prosecute NPS producers and vendors, as the colourful packages they sell have not yet been included in the Narcotics Act (BtmG). It takes many years from the time a substance first emerges to institute a ban, if only because the narcotics committee, whose expertise is necessary for a change in legislation, is very rarely in session. However, the German government intends to soon bring an end to the legal status of these substances. Consequently, it has presented a draft law to the Bundesrat, which, for the first time in the 45-year history of the BtmG, makes provision for a substance group ban. However, the newly established “Act against the distribution of new psychoactive substances” is so complicated that consumers are barely able to understand it. According to some, they do not need to either. After all, it is supposed to put a stop to producers and dealers only, which is why the draft bill so far contains no penalty for possession and purchase. Only those involved in dealing and production shall be subject to prison sentences of up to 10 years.
The doubtful implementation of a ban
The draft law adopted by a majority in the Bundesrat bans artificial cannabinoids, cannabimimetics and compounds derived from 2-phenethylamine. The Bavarian Government even presented the Bundesrat with a request to investigate “in the further legislative process whether prohibited purchase and possession of new psychoactive substances should be established as a criminal activity or at least as an infringement.” As though consumers of chemo weed were not being punished enough already. How is somebody, who seemingly has little understanding of safe consumption, supposed to actually understand a law of this kind which makes reference to a “carbonyl group at the beta position to the nitrogen atom” or “occurring substituents with a continuous chain length of a maximum 10 atoms (without including hydrogen atoms)”? Surprisingly, the radical proposal from Munich did not gain acceptance, despite the recommendations of, and majority support in, the responsible committee.
The basis of the new law is a report by the committee of experts on a substance group ban. Yet, since 2011, even its members have stressed on several occasions that inclusion of the substance group ban into criminal law is only a good idea if it is clear that “these substances are brought into circulation with the express intent to create narcotics.” Such an addendum is lacking thus far in the draft bill and in many other respects. The draft also differs from the experts’ proposal; they have nothing against a substance group ban in principle, provided freedom of research is not affected.
Consequences for cannabinoid research?
Despite the doubts expressed, the German government has decided to take this step, which many people believe could restrict medical research. After all, substances are now going to be criminalised for the very first time. Thus, because a substance can also have a psychoactive effect, the research into its possible medical potential in future will be limited at the very least. For instance, even artificial cannabinoids were not developed by dealers, but by doctors for medicinal application. At one time, New Zealand chose to take a third approach, classifying NPS in accordance with their relative risk potential and then deciding on a ban or authorisation. However, the international headwind was great and New Zealand went on to adopt the prohibitionist policy of other countries.
Even the misgivings of those who have analysed, categorised and evaluated the substance groups for the German government give no cause for the Federal Commissioner for Drugs, Marlene Mortler, to doubt the rigorous prohibitionist policy for one moment. If the substances become illegal, they will, like all others, soon be found on the dark web or among domestic dealers for a significantly higher price. They will not require much advertising, either, thanks to the ban on cannabis and the stories about legal highs that have been circulated for decades by various media.
To date, there is no evidence of any education and, therefore, genuine prevention when it comes to legal highs. Prohibition only serves to make NPS even more attractive, as has been the case with cannabis and other drugs for the past 40 years. How is a control system supposed to function for NPS if it already has 40 years of failure behind it? Particularly when the necessary laws are becoming increasingly complicated and are formulated in a way that is incomprehensible to members of the public? Legal highs have very clearly shown us the limits of the BtmG in its current form; many experts have recognised that the new law will indeed concern most substances for which there have been loopholes thus far, but it will thoroughly fail to resolve the fundamental issue.
Cannabis solves the problem by itself
In view of the fatalities, there is a definite need to take action and saving lives must be the top priority here. To this end, hospitals and emergency health care professionals should first be trained to recognise which substance is sold in which colourful package. Everything would have to be categorised, analysed and published, while in parallel the availability of the really dangerous substances is established. All the details of how this could be organised is set out in the Alternative Drugs Addiction Report composed by NGO experts, to whom Mortler is not interested in listening. Their strategy is perceived more as a threat than a solution in the drug commissioner’s office. When, in 2007, “Spice”, the first of many NPS, emerged on the scene, insiders warned of the new trend and called for a rethinking of the drug policy. At the time, there had not yet been any fatalities and the experts went unheard. Since then, the German government has turned to repression, but has neglected to inform the public about the dangers of NPS. Now, with the deaths of a few hundred people, criminal law will be tightened further still, though education and information continue to be available from NGO experts only. Who knows how many of those who died might still be alive today if careful action had been taken when Spice & co. emerged on the scene, or if there had even been cannabis regulation in place.
But let us not fool ourselves. It is in the places where weed is most heavily prohibited that the most horrendous drugs are smoked; either because there is no cannabis, or because someone is not allowed to smoke pot for precisely 12 months as stipulated by the conditions of probation or as demanded by the driving licence authority. The scenario arguably most feared by NPS dealers is the creation of a regulated cannabis market. For instance, in Colorado, where weed has been legal since 2013, the problem has virtually resolved itself.