CBD Flower is an Illegal Narcotic in Germany. Is Germany Ignoring EU Law?

This is a case in which a young woman with NO LEGAL TRAINING analysed EU law better than GERMANY’S HIGHEST COURT – changing English law in the process.

EU law in England

Before BREXIT CBD Flower Prosecution in England was governed by EU law. Below, we have a copy of the original transcript used by a defendant in the Royal Courts of Justice London, accused of selling CBD flower. The prosecutor said CBD flower was a narcotic – the accused said “no it’s not”. In June/30/ 2023, after years in the lower courts the case reached The Royal Courts of Justice where it was held CBD flower is not a narcotic under EU law. The defence sets out clearly and simply why CBD flower is not a narcotic and makes the Bundesgerichtshof decision, Germanys highest court, seem poorly considered.

The Bundesgerichtshof, Germany’s High Court – is uncompromising in its view – CBD flower is a narcotic. Is this wrong? The London Courts disagree with the Bundesgerichtshof, most EU countries disagree with the Bundesgerichtshof – and so do the courts of the European Union. In fact it now seems the politicians in Germany disagree with the Bundesgerichtshof as hemp legislation is currently being drafted to delete from law things made possible by the Bundesgerichtshof. So it would seem fair to say that yes, embarrassingly, Germany’s highest court has got the law wrong.

The Accused Defended Herself in Court

This is the court case of a person selling CBD flower in the England where it was claimed by the prosecution CBD flower was a narcotic – as it is in Germany. Having already spent in excess of 70 – 80k on legal fees and not trusting the integrity of defence lawyers, the accused, a young woman, said “enough is enough” and went to court by themself. With no lawyer and no defence team, like a scene from a Hollywood movie this girl stood alone in court, armed only with the truth – and won.

Prosecutors Abusing Legal Process

The police prosecutors paid by taxpayers to uphold the law and serve the public, were found by the judge to be abusing the court process to ensure easier convictions. This is a story of determination and courage and a reminder that all government agencies including judges and prosecutors, while pretending to be honest, must be monitored closely to prevent corruption.

David and Goliath

The paragraphs below are actual selections of the defence argument read out in the Royal Courts of Justice in London. We feel privileged to have a copy of the original transcript. In this court case that went on for 4 years or more, a simple person was forced to battle the might of the English legal system with no legal training. Having only a fine knowledge of EU hemp law and the truth this young woman rolled up her sleeves and refused to be intimidated. She defeated a team of expert prosecutors and in doing so changed English law.

Rule Of Law

This case also stands as a reminder of the legal process and its purpose: how judges in some countries are free to and will apply the law without fear of repercussion while in other countries the State has a vested interest in judicial outcomes and steers decisions accordingly.

The Defence Argument

The defence begins by insisting that hemp and hemp flowers which are legally produced in one EU country and tradeable throughout all EU member states according to EU law 34 -36 TFEU. Furthermore TFEU 34 -36 prohibits one EU country from stopping or restricting the entry of goods legaly produced in another EU country. This is precisely what Germany is currently doing and why the arguments below are relevant.

Germany is restricting hemp goods from other EU countries being traded in Germany. And Germay has claimed hemp flower is a narcotic contrary to EU law. We have removed large sections of the original text which is specific to the UK law to keep this post EU relevant. This is why the paragraphs are numbered out of sequence.

Defence to Accusation of CBD Flowers being Narcotics.

Legal argument as presented:

34. The fact that hemp flowers are legally permitted as a food ingredient, are regulated as a smoking product in at least two member states (Belgium and Luxembourg), can be cultivated, harvested, extracted and sold in other European member states and that the cultivation and possession of hemp must not be precluded in any member state according to ECJ case law, places hemp, including the flowers, leaves and all parts of the plant, in a fairly legally unambiguous state across the EU.

35. These undeniably lead to the conclusion that hemp flowers are being legally produced and placed on the market in other European member states, which therefore leaves them in the position of being subject to provisions of the Free Movement of Goods, EX9. This fundamental principle of the single market means that goods which are lawfully produced or placed on the market in another European member state must enjoy access to the market in all other member states, EX9. Articles 34 and 35 of the TFEU prohibits any form of quantitative restrictions on imports and exports and any measure having the equivalent effect of quantitative restrictions.

36. These legal maxims have been tested in several key cases heard at the ECJ, most notably in Dassonville, C 8/74, EX6, in 1974 ruled that ‘all trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade’ constituted quantitative restrictions and were therefore prohibited by Articles 34 and 35, of the TFEU, EX8.

37. In the case of Cassis de Dijon, C-120/78, (1979), EX7, the principle of ‘mutual recognition’ was introduced which concluded that ‘where a good was lawfully manufactured and marketed in one Member State, another Member State could not impose additional requirements’.

38. There is a mechanism by which a member state may prohibit a certain good by way of Article 36 of the TFEU, EX8. However, if a member state does choose to impose such a prohibition or restriction then it is bound by its treaty obligations to inform the European Commission of its intention to do so and must provide evidence that the prohibition or restriction is necessary and proportionate. They must also publish the prohibition clearly so that it informs companies and individuals of the prohibition or restriction so that there is no ambiguity in terms of what is prohibited or restricted. Procedures for the exchange of information and a monitoring mechanism were introduced in order to facilitate supervision of such national exemption measures (as provided for in Article 114 and Article 117 of the TFEU, EX8 and Council Regulation No. 2679/98, EX9.37/

40. Despite several attempts to prohibit the cultivation, possession or utilisation of the whole plant the European Court of Justice have consistently ruled that True Hemp is not a narcotic drug, that its use as a food ingredient is lawful and that extracts from the whole plant cannot be prohibited on the grounds that they constitute a narcotic drug as an extract of cannabis.

41. In fact the cultivation of cannabis for industrial or horticultural purposes is specifically exempt from the provisions of the 1961 UN Convention on Narcotic Drugs by Article 28.2, EX12, of that convention. That is to say that the cultivation of cannabis for industrial or horticultural purposes falls entirely outside of the remit of control at an international level. Since the definition of cannabis exists in the convention, which does not apply to the cultivation of cannabis for industrial or horticultural purposes, the flowering head material of cannabis cultivated for industrial or horticultural purposes is not subject to control as cannabis.

42. This is why we see a legal Cannabidiol (CBD) hemp extract industry whose products are not controlled as an extract of cannabis. This is because where the CBD has been extracted from cannabis cultivated for industrial or horticultural purposes it is extracted from plant
material which is not controlled by the international drug conventions. Conversely, where CBD is extracted from cannabis cultivated for medicinal or research purposes, it is controlled as an extract of cannabis, as confirmed at Section 17 of the World Health Organisations review of CANNABIDIOL (CBD) Critical Review Report carried out by the Expert Committee on Drug Dependence, EX13.

43. Essentially, it is the purpose of the cultivation which determines the legality of a cannabis product at an international level. As the European Union follow international law, the flowering heads of True Hemp cannot be considered to be cannabis as they are grown under a complete exemption, by purpose. In C-663/18, EX14, the ECJ ruled that even with a literal interpretation of the convention whereby extracts of the entire hemp plant, including
the flowering heads could be considered extracts of cannabis, it could not be consistent with the spirit of the convention (who’s stated intention is the preservation of human health) to control non-psychoactive extracts of the hemp plant as extracts of cannabis, as the plant material does not contain sufficient psychoactive substances to constitute cannabis as a controlled drug.

44. The ruling points out that the 1961 convention defines cannabis as the flowering heads from which the resin has not been extracted, therefore accepting that flowering head
material with negligible levels of psychoactive substances remaining after the resin had been extracted would not constitute a drug under the international conventions. The same can be seen in respect of the leaves of the cannabis plant, which are not controlled as cannabis when separated from the flowering tops, although the leaves do contain, on average,  between 1-2% THC, as confirmed the the WHO Critical Review of Cannabis and Cannabis Resin, in the Chemistry section at 2.8, EX15.

45. It is widely accepted that cannabis with a THC content of less than 0.3% in the upper third of plant (including the flowering head) is incapable of producing illicit cannabis or cannabis resin drugs as the active constituent of THC is not high enough to produce material suitable for abuse as an illicit drug. In its recent critical review of the scheduling of cannabis and cannabis resin the WHO Expert Committee on Drug Dependence, in Chemistry at section 2.7, they provide their expert opinion on the abuse potential of cannabis cultivated for industrial or horticultural purposes;

Small et al. established a limit of 0.3% of Δ9-THC in dry weight content in the inflorescence and this criterion was subsequently adopted in the European Union (Δ9-THClevels were lowered to 0.2% from 0.3% in 2001), Australia and Canada. A level of about 1% Δ9-THC is considered the threshold for cannabis to have intoxicating potential, so jurisdictions such as Switzerland have permitted the cultivation of cultivars with this level. Even though, in the illicit market, the part of the plant with the highest Δ9-THC content is selected, a 0.3% Δ9-THC level in the flowering parts of the plant is too low in intoxicant potential to actually be used for illicit production of marijuana or other types of cannabis drugs. EX15

49. It is therefore the [ Germans and] United Kingdom who have demonstrably been in breach of European law since at least 2002, when the Hammarsten judgement made it clear that national legislation which classified all cannabis as a narcotic drug directly undermined the common organisation of the market in the hemp sector.

48 In that regard, it must be stated that it is true that much thought is currently being given both to the use of products derived from cannabis whose THC content does not make them narcotics, and on their use, where they are narcotics, for therapeutic or even recreational purposes. In that regard, the legislation of some Member States has itself already evolved or is in the process of evolving.

49 The fact remains that, as the Board of Appeal rightly noted in paragraph 21 of the contested decision, ‘in many countries of the European Union (by way of example, but not exhaustively, Bulgaria, Finland, France, Hungary, Ireland, Poland, Slovakia, Sweden and the United Kingdom)’, products derived from cannabis with a THC content exceeding 0.2% are regarded as illegal narcotics.

50. EU law does not govern the use of products derived from cannabis where they are narcotics. The third subparagraph of Article 168(1) TFEU provides that the Union is to complement the Member States’ action in reducing drugs-related health damage, including information and prevention. As regards Regulation No 1307/2013, it states, in Article 32(6) thereof, that areas used for the production of hemp shall be eligible hectares only if the varieties used have a THC content not exceeding 0.2%. By Delegated Regulation 2017/1155, the Commission adopted legislation enabling the implementation of that provision.

51. The truth about the legality of hemp (and extracts of hemp) can be seen, stated very plainly, in the transcript between the World Health Organisation and member state signatories to the 1961 Convention on Narcotic Drugs in their Question and Answer sessions regarding the rescheduling of Cannabis.

52. These question and answers were held between the WHO and member states of the UN drugs control treaties and confirm that;

1. cannabis cultivated for industrial or horticultural purposes is completely outside of the scope and remit of the treaties,
2. that trace amounts of THC in cannabis cultivated for industrial or horticultural purposes were not subject to control,
3. that CBD extracts from these plants (containing trace levels of THC) were legal and did not qualify as extracts or tinctures of cannabis, due to the exemption.
4. that CBD extracts from cannabis cultivated for medicinal or research purposes were controlled as extract or tinctures of cannabis.

53. The motivation for the continued prohibition on the utilisation of the whole plant ofdomestically cultivated, non-psychoactive hemp varieties, one might assume, therefore does not lie in the U.K’s obligations under the UN Drug Control Conventions, as they have no obligation to control the cultivation of cannabis for industrial or horticultural purposes. The United Kingdom have also been made aware that prohibition of cultivation and possession of true hemp are against EU law by the ECJ and that extracts of True Hemp should not beconsidered extracts of cannabis (C-663/18).

54. Nevertheless, a vast hemp flower industry has been allowed to set down roots in the U.K. without any notable comment, intervention or direction from the government to stop it. Rather, a patchwork of arrests and investigations have been initiated at a local police level, with some forces recognising that imported hemp products are not subject to the Misuse of Drugs Act, while others relentlessly pursue an objective of criminalising individuals who have purchased a non-psychoactive, non-intoxicating agricultural product which is lawfully produced and marketed in other member states and sought to offer this to customers in the U.K. in the full belief, supported by rulings of the ECJ, that to do so is lawful.

55. There is clearly no equality before the law being shown in respect of hemp products, and it would be an abuse of process to allow this prosecution to go ahead given the fact that there is overwhelming evidence that the crown’s position is faulty as hemp is a legal substance, due to EU Regulations, rulings of the ECJ

79. Free Movement of Goods and EU Regulation 1307/2013 and 1308/2013 classify true hemp as an agricultural commodity and that European community regulations allow the exploitation and movement within the European Community. These provisions, and rulings of the ECJ, override national legislation which identifies hemp as a controlled drug,  because of the doctrine of supremacy of European law, as specified in Hammarsten (C-462/01) where the learned judge ruled that by setting the acceptable level of THC in hemp at 0.3% in the upper third of the crop that;
“the risks to human health constituted by the use of narcotic drugs have been specifically taken into account within the framework of the common organisation of the market in the hemp sector.”
The United Nations Single Convention on Narcotic Drugs, 1961.

80. Furthermore the European Union observes the entire UN convention on narcotic drugs (1961) EX12, which specifically exempts the cultivation of cannabis for industrial or horticultural purposes at article 28.2. It is worth noting that no reservations were permitted for this article and therefore the provisions of article 28.2 should be fully respected as the convention clearly states; This Convention shall not apply to the cultivation of the cannabis plant exclusively for industrial purposes (fibre and seed) or horticultural purposes.

81. At the time of drafting the 1961 Convention on Narcotic Drugs, THC had not been identified as the principal psychoactive component of cannabis. However, subsequently when the protocol to aid in the interpretation of the convention was written the authors discussed the exemption under 28.2. As a THC limit on the cultivation of cannabis for industrial or horticultural purposes had not been set, there was a risk that cultivation of psychoactive varieties may have resulted in diversion of the flowering parts of the plant into the illicit market. The protocol discusses how cultivation for industrial or horticultural purposes was not without risk and provides examples of some of the solutions that were considered to combat this risk, the inevitable solution was the selective breeding of plants that were practically drug free and the European Union were commissioned to carry out this objective.

82. Whereas the flowers of cannabis cultivated for industrial or horticultural purposes were never of much interest in the commercial sphere at the time of writing the 1961 Convention or the later protocol, the growth of CBD as a popular wellness product has lead to utilisation and exploitation of the whole plant and a huge increase in demand for all types of hemp products. The development of practically drug free varieties has been hugely successful and worldwide the cultivation of cannabis for industrial or horticultural purposes is strictly limited to the use of non-drug type cultivars, with THC limits between 0.2-1% in the upper third of the flowering portion of the hemp plant.

83. These types of cultivars are referred to as fibre-type cannabis, as they are not capable of producing narcotic drugs. The United Nations Office on Drugs and Crime are charged with upholding the provisions of the international drugs control conventions and also supplying information to signatories about the identification of substances controlled by the conventions. In their handbook, EX23, Recommended methods for the identification and analysis of cannabis and cannabis products, Manual for use by national drug analysis laboratories, which is provided to all member states to the conventions, they provide details of how to distinguish between drug-type and fibre-type cannabis. At page 28, subsection 3.5 they provide the helpful formula, also known as the psychoactivity index;

X = [THC]+[CBN] % [CBD].

84. Where the ratio is greater that 1, the cannabis is described as drug-type cannabis and where the ratio is less than 1, it is described as fibre-type cannabis. This method is useful in determining the psychoactivity of a product, as fibre-type cannabis has quite obviously not been cultivated for the purposes of production or use as a controlled drug and therefore the applicable industrial or horticultural exemption should be applied.

85. The European Industrial Hemp Association hold the same interpretation, providing comprehensive information about the legality of hemp derived products, in the context of the 1961 Single Convention on Narcotic Drugs, EX24, EX25.
86. The 1961 Single Convention on Narcotic Drugs clearly and unambiguously exempts from the provisions of international drug control treaties the cultivation of cannabis for industrial or horticultural purposes, thereby exempting non-psychoactive hemp varieties and products derived from them.

87. Cannabis cultivated for industrial or horticultural purposes is therefore not a drug and therefore there can be no illicit traffic in this substance as it is not a controlled drug, as the learned judge also held by the court of appeal in regard to the poppy straw at issue in Marwaha v UK Border Revenue Agency. To suggest that the 1961 Convention or for that matter the MODA sought (or seeks) to control substances that are non-psychoactive, non-addictive and not liable to abuse is not only disingenuous but also plainly irrational.

89. With this recent case law of the court of appeal we seek to exemplify that the 1961 Convention on Narcotic Drugs is the primary legislation in relation to the MODA and that signatories to the conventions have a duty to interpret the treaties in good faith in accordance with the stated objectives of the treaty, which in the case of the 1961 Convention is for “the protection of human health and welfare of mankind”. This sentiment is explained clearly in the ruling of C-663/18 at the ECJ;

66. As regards the interpretation of an international convention such as the Single Convention, it should be recalled that, in accordance with settled case-law, an international treaty must be interpreted by reference to the terms in which it is worded and in the light of its objectives. Article 31 of the Vienna Convention of 23 May 1969 on the Law of Treaties (United Nations Treaty Series, vol. 1155, p. 331), and Article 31 of the Vienna Convention of 21 March 1986 on the Law of Treaties between States and International Organisations or between International Organisations (Official Records of the Conference of the United Nations on the Law of Treaties between States and International Organisations or between International Organisations, vol. II, p. 91), which express, to this effect, general customary international law, state that a treaty is to be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose (see, to that effect, judgment of 10 January 2006, IATA and ELFAA, C-344/04,EU:C:2006:10, paragraph 40).

67. It follows from the preamble to the Single Convention that the parties declare themselves to be, inter alia, concerned with the health and welfare of mankind and conscious of their duty to prevent and combat drug addiction.

90. It is unclear how the prosecution or for that matter the Government could consider hemp flowers that contain almost exclusively the non-controlled cannabinoids CBD or CBG, that are utilised for health and well-being purposes, could be controlled under a drugs control convention which stated objective is the protection of health and welfare of mankind. Cannabis cultivated for industrial or horticultural purposes is strictly exempted from control under the UN conventions, by way of article 28.2 of the 1961 Single Convention on Narcotic Drugs.

91. As, in the case of the poppy straw at issue in Marwaha v UK Border Revenue Agency, the only potential misuse of hemp would be as a result of selective extraction and purification of the trace amounts THC from the plant material, which would require very specialist equipment and knowledge that would not be available to the ordinary person and would be uneconomical in practical terms due to the extremely low concentration of the controlled substance in the material.

Dr. Ernest Small

96. Dr Ernest Small is the most pre-eminent scientist in the field of hemp and has carried out extensive research authored many scientific articles, advised governments and courts about the biochemistry of industrial hemp species. His work has driven legislation and regulations in many countries, including the European Union.

97. In 1976 Dr Small co-authored A Practical and Natural Taxonomy for Cannabis, EX28, which identified non-intoxicating hemp plants as those that yield less than 0.3% THC in the upper leaves of the plant, which drove hemp regulations worldwide.

98. Dr Small has been interviewed extensively regarding hemp within the sphere of whether it has the intoxicant potential to be utilised as a drug. He has provided his expert opinion regarding industrial hemp strains and has confirmed that species with a THC content exceeding 0.9-1% are those that have the potential for intoxication and misuse. He also confirmed that 0.3% in the upper third of the leaves and flowering material of female plants roughly equates to the 0.9% THC once considered minimal to produce marketable drug type cannabis, confirming that 0.3% THC was reasonable for allowing the industrial hemp industry to develop while controlling the narcotic industry. EX28, EX29.

How other jurisdictions in the European Union have dealt with the same allegations.
99. There are a number of rulings that have been made in respect of the same allegations of being concerned in the unlawful evasion of a prohibition on importation and alleged possession with intent to supply a controlled drug.

100. In order to illustrate that the legal arguments that we have put forward in these applications for an abuse of process are being interpreted in the same way, we draw your attention to the decision of JENKINS V DIRECTOR OF PUBLIC PROSECUTIONS & ORS (APPROVED), EX30, which details extensively, all of the applicable case laws and regulations in relation to hemp derived products. This case law that is from the High Court in Ireland, shows how countries within the European Union, that have identical Misuse of Drugs Acts, have ruled that there is a right to import and sell these products as they are non-psychoactive and that domestic legislation is at fault.

101. The defence submit that this ruling will assist the court in the proper interpretation of the law, as it stood at the time of the alleged offences, and as it still stands today, in the absence of any statutory instruments that override retained EU law, that now exists as domestic legislation by virtue of the European Union Withdrawal Agreement 2018 and European Withdrawal Act