In its ruling of 24 March 2021, the German Federal Court of Justice (BGH) stated that the sale of hemp flowers and leaves to end consumers is not prohibited. The ruling strengthens the legal position for the sale of industrial hemp products in Germany.
In its media alert on 25th of March 2021, the European Industrial Hemp Association (EIHA) calls this ruling, together with the European Court of Justice ruling from November 2020, a landmark decision for the successful development of the hemp industry in Europe.
The BGH acknowledges and safeguards the rights of German farmers and producers, as well as wholesalers and retailers of commercial hemp products.
In its ruling of 24 March 2021, the BGH stated that the sale to end consumers of hemp flowers and leaves is not prohibited. Accordingly, the distribution to end consumers and possession of unprocessed commercial hemp products does not fall under the Narcotics Act, as long as there is no intentional misuse for intoxication purposes. The decision of the 6th Criminal Senate of the BGH comes after a judgment of the Regional Court of Braunschweig on the criminal liability of selling hemp tea.
The Braunschweig case
The defendants in the Braunschweig case have been sentenced to several months of imprisonment on probation for the narcotic drug trade. They sold cannabis plant parts obtained from EU-certified industrial hemp with low THC contents (0.08% to 0.33%) as hemp tea. The expert at the Braunschweig Regional Court determined that the consumers can get intoxicated with the product in case they do not pour water on it, but use it as a baking ingredient.
According to the German Narcotics Act, cannabis from the EU may exceptionally be sold if it “serves exclusively commercial or scientific purposes that exclude abuse for intoxicating purposes”. The district court had said that the sale “to end-users for consumption purposes” was fundamentally prohibited. According to the BGH ruling, this is not the case. However, the Supreme Court pointed out that the abuse of the cannabis product for intoxication must be ruled out. The ruling means that selling hemp tea to consumers is legal as far as nobody gets intoxicated with it.
A step forward in achieving legal security
EIHA considers the judgment of the German Federal Court of Justice as a significant milestone for the European industrial hemp sector, as it means a step forward in achieving legal security.
“The ruling of the BGH is in line with the judgment of the ECJ of November 2020. Both rulings clearly determine that industrial hemp and parts of the industrial hemp plant are per se not narcotic and thus not subject to the Single Convention or national narcotics laws. This is not only a legal paradigm shift for Germany in the assessment of industrial hemp and the BtMG (German narcotic law), but it leads the way for a correct scientific approach regarding THC”, says Mr. Daniel Kruse, EIHA President.
“Low-THC industrial hemp is no longer to be criminalized. It is clear now that it is rather the actual intake of the psychoactive substance THC that matters. The ruling of the German Federal Supreme Court is hence a landmark decision for the successful development of the hemp industry in Europe.”