In Germany, the birthplace of the DIN standard and the German Technical Supervisory Association (TÜV), everything must be precisely regulated. Even when growing a few cannabis plants for patients, legislators and courts are crying out for a comprehensive body of legislation that dictates every little detail in relation to handling patients' own medication. Given that the body responsible, the Federal Institute for Drugs and Medical Devices (Bundesinstitut für Arzneimittel und Medizinprodukte, BfArM), had already suffered a whole host of defeats in court without ever permitting the proposed self- growing, it can be assumed that in the case of Günther Weiglein and the two other complainants, the authority responsible for granting permission will appeal against this too.
Positive verdict only symbolic for the time being
In Germany, the birthplace of the DIN standard and the German Technical Supervisory Association (TÜV), everything must be precisely regulated. Even when growing a few cannabis plants for patients, legislators and courts are crying out for a comprehensive body of legislation that dictates every little detail in relation to handling patients’ own medication. Given that the body responsible, the Federal Institute for Drugs and Medical Devices (Bundesinstitut für Arzneimittel und Medizinprodukte, BfArM), had already suffered a whole host of defeats in court without ever permitting the proposed self- growing, it can be assumed that in the case of Günther Weiglein and the two other complainants, the authority responsible for granting permission will appeal against this too. After the administrative court in Cologne, there would be a further two potential levels of jurisdiction, so the Federal Ministry of Health, under whose jurisdiction the BfArM falls, could delay the first legal hemp plants by a further two years by exploiting the legal means. What’s more, the three patients who were certified by the court as being in a state of emergency would have to be reimbursed by their health insurance company for their medicinal hemp for the time being. This would come as no surprise given this state of affairs; after all, the health insurance company changed its mind in a similar case and has been paying for Mannheim resident Micheal Fischer’s Dronabinol, whose assumption of costs had been declined for years. Before his court hearing, during which time Fischer was not allowed to grow the plants, but was not exactly banned from doing so either, it is no wonder that the health insurance company suddenly paid for the MS patient’s vital medication. Fischer now no longer faces a state of emergency that would justify growing the cannabis. It should also be noted that health insurance companies are not actually allowed to pay for herbal cannabis at all without potentially being liable to recourse, due to the marketability and licensing of a drug. A health insurance company that remunerates its patient for the cannabis supplied is treading on very thin ice from a legal perspective. It would be up to the Federal Government to change that, such that even herbal cannabis would be registered as a marketable drug again. However Germany would also have to establish a public cannabis agency, like in Canada or the Netherlands. The UN constitution’s call for herbal cannabis to be recognised as a proper drug is far from being felt amongst those responsible from the CDU/CSU and SPD. Those responsible currently still seem to be concerned with preventing the first non-punishable, potent hemp plant on German soil. It would hardly be a surprise if the CDU/SPD coalition were to use the time when the following processes are underway and decide to grow medicinal cannabis itself from now on, thereby preventing patients from growing cannabis privately if the courts continue to realise the state of emergency that some patients are finding themselves in.
Even one small plant is too much
What not even a handful of chronically ill patients have had to fight for in court in many instances is trivial to the majority of those who grow weed at home in this country. It is irrelevant whether they grow hemp flowers on their lawns out of medicinal necessity or simply for fun. Growing cannabis at home remains a rather punishable offence for healthy individuals and most cannabis patients alike. Unlike possessing a small quantity, even growing one or two small plants is subject to paragraph 31a, which should actually protect small-scale users from persecution. The reason for this is an age-old judgement passed by the Federal Court of Justice in 1984. At the time, the courts decided that over 7.5 grams of pure THC should no longer be regarded as a small quantity, but even a single, small hemp plant usually contains more than even that 7.5 grams of active substance. Therefore for friends of the illegal plant, growing it is usually punished much more severely than merely possessing a packet of weed or pot for personal consumption. It is virtually irrelevant whether hobby gardeners come from liberal Berlin or hemp-adverse Bavaria, where the smallest bit of hash can still result in genital hemp orgies or even house searches. Micro gardeners everywhere are being brought before the courts.
As it is simply the case that a plant contains several times more than even that 7.5-gram upper limit, it is impossible to legally regulate proceedings. Germany’s neighbours often have much more liberal regulations: In the Czech Republic or the Netherlands, up to five plants are tolerated, in Belgium it’s one and in Spain even collaborative growing is tolerated in Cannabis Social Clubs. Even in Austria, what is a small quantity is defined by the circumstances in which it is found: In the absence of scales or a bundle of money in the denomination that is typical for the scene, the judge and the public prosecutor can assume that the hundred or two hundred grams of the latest harvest are intended for personal consumption. As a result, small-scale growers in some EU states come away completely scot-free or with a warning. Even non-flowering hemp plants are legal in Austria, where they are sold for “aromatherapy” purposes. The buyers simply have to prevent flowers from forming. If the plants do flower, however, the flowers may be illegal, but they are appetising and have not been prohibited as they are in this country for some time now. In Upper Austria in 2012, proceedings were instituted against two growers who had two kilograms of weed in their possession for personal consumption. Although Germany relaxed the penalties for possessing a few flowers 20 years ago, to this day, the ever-increasing phenomenon of growing weed at home is punished in the same way as a serious offence. Together with unique tough sanctions in relation to traffic law throughout Europe, which is often abused as an alternative criminal law for hemp consumers, many more resources are being used nowadays to reprimand cannabis consumers than were used to introduce the low quantity regulation in the late 1990s.
Far behind internationally
As far as cannabis flowers are concerned, Europe has virtually become self-sufficient, and imports now play a minor role. Pretty much every cannabis consumer nowadays knows a secret garden within their friendship circle from which they often look forward months in advance to sampling the produce together. The Czech Republic, Spain, Austria, Switzerland and the Netherlands don’t treat small-scale gardeners such as these any differently to consumers, whereas in Germany, those growing for personal consumption who are caught with 10 or 12 plants can often first be found in the local press as “pot plantation operators who have professional equipment”, and later before the court. Even for the smallest hemp growers, who have never sold or supplied a gram, the Narcotics Act (Betäubungsmittelrecht) does not include any exemption from punishment like it does for consumers who are caught with a few grams of weed.
The Federal Republic is well on its way to missing a development which seems to be going ahead unchecked, and not just in the USA. In its editorial on 27 July, even the New York Times, one of the largest and most influential daily newspapers in the USA, argued in favour of the national legalisation of cannabis. For US media, weed has been a hot topic rather than a taboo subject for some time now.
In Germany, on the other hand, you will find yourself in a cannabinoid Stone Age, which may mean we lose touch with the ever-increasing “green economy”. So-called grow shops regularly fall victim to police measures, without even having grown or sold weed. Good underground botanists, who are here regarded as criminals when practising their hobby, are now sought-after specialists in Colorado or in Washington State, where weed is legal. Dealers there are referred to as specialist hemp stockists. Denver is seeing record numbers of visitors and tax revenue is reaching unprecedented levels. Even the German company Bionorica already moved its cannabis research to Austria years ago, because the barriers to growing medicinal hemp flowers in this country seemed too great to overcome. Bionorica is now producing the weed there that they never dared to grow in Germany. Further processing into the active substance dronabinol, a drug containing THC for German patients, is now carried out at THC-Pharm in Frankfurt. The main thing was that the weed was grown elsewhere. In Germany at the moment, you still have to declare each individual illegal plant, and woe betide anyone who is unable to prove a chronic illness or the requisite financial emergency. Should cannabis be re-legalised in the foreseeable future, which many signs are currently indicating, Germany will have to import the weed or at least the expertise and infrastructure for production from the USA, Canada, the Netherlands or Spain.