Key points paper of the federal government on cannabis legalization

It's getting more concrete: The federal government sets out key points for the planned legalization of recreational cannabis

In the coalition agreement, the coalition parties agreed to allow "controlled dispensing of recreational cannabis to adults in licensed stores". Following the consultation process conducted in the summer of 2022 with numerous expert hearings, the federal government has now published a key points paper on the planned legalization. This sheds some light on how the federal government envisages the planned legalization in concrete terms. However, whether these plans for legalization will become reality, is subject to a preliminary legal assessment of the key points paper by the EU Commission. After all, there are still hurdles to overcome under International and European law.

The most important key points at a glance

• Central points The core change is that cannabis and tetrahydrocannabinol (THC) shall no longer be legally classified as narcotics. The purchase and possession of up to a maximum quantity of 20 to 30 grams of cannabis for personal consumption shall be possible without penalty. In addition, the private cultivation of up to three female flowering plants shall be permitted. With regard to products containing cannabidiol (CBD), the key points paper remains vague and only states that these may call for separate rules and regulations. On the other hand, the existing regulations on cannabis for medical purposes shall not be adjusted. Medical cannabis shall continue to be able to be prescribable as a medicine in accordance with the social law requirements already in force. In contrast to an internal preliminary draft that became known a few days earlier, the current version of the key points paper does not set out a maximum THC level for legal cannabis for adults. However, such a limit is still being considered for adolescents aged 18 to 21.
• Dispensing and distribution The distribution of recreational cannabis shall take place in licensed stores with the sole purpose of sale and consultation of recreational cannabis and, where appropriate, in dispensaries. Some players in the cannabis industry are probably disappointed that online trade with cannabis shall not be permitted - deviating from the internal preliminary draft of the key points paper. The German government sees a need for further consultation here. The general ban on advertising for recreational is also a bitter pill to swallow for the cannabis industry. The German government is relying solely on cultivation in Germany for the distribution of recreational cannabis. Apparently, the federal government deems the legal prerequisites in connection with the import of recreational cannabis as too high. The key points paper states that, according to a preliminary assessment, international trade in recreational cannabis is not possible in accordance with the existing international legal framework. However, it is generally questionable whether the demand for recreational cannabis can be met by domestic cultivation alone.
• Cultivation and supply chain

The cultivation as well as the further supply chain should be subject to strict state supervision within the framework of a licensing system. Authorities of the federal government or the federal states will act as licensors. Natural or legal persons who meet the relevant requirements, in particular in terms of reliability and expertise, should be able to obtain a license.

International and European legal hurdles

However, it remains to be seen whether the German government's plans can actually be implemented. International and European regulations on the handling of cannabis could stand in the way of legalization in Germany. Germany is party to the UN Single Convention on Narcotic Drugs (1961), which prohibits the cultivation and trade of cannabis outside of medical or scientific purposes. European law also refers to the UN Single Convention.

The German government deals with these hurdles in unusual detail in the key points paper. For example, the key points paper states that the legal framework offers (only) "limited options for implementing the coalition project." The German government would like to overcome these hurdles with an "interpretative declaration" vis-à-vis the other parties of the international conventions. In this interpretative declaration, the legalization is declared compatible with the purpose and legal requirements of the conventions.

To establish this compatibility, the government argues that legalization shall only take place within a narrow state-controlled framework. In addition, the cultivation, distribution and consumption of cannabis shall mitigate health risks and hence support compatibility. Furthermore, another goal of the legalization, namely the fight against drug-related crime, is also compatible with the UN Single Convention.

However, it is yet unclear whether the international community will follow this interpretive approach.

What's next?

The German Minister of Health, Karl Lauterbach, announced that he will now present the key points paper to the EU Commission for a preliminary review, seeking to avoid possible subsequent infringement proceedings. Lauterbach expressly emphasizes that he does not want to risk a political impasse as in the case of the toll. Only if the EU Commission gives the "green light" in the course of the preliminary review, a bill will be drafted on the basis of the key points paper.

According to Lauterbach, such a bill could be available as early as the first quarter of 2023 - subject to rapid feedback from the EU Commission. However, the legalization is not expected before 2024.