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#CBD 101

Legal status of CBD in Germany: What you need to know as a consumer

21/04/2020 5 MIN. READ Tim Dresemann
21/04/2020 5 MIN. READ Tim Dresemann

Maybe you have already noticed that there is quite a mess around the topic of the legality of cannabidiol (short: CBD). This is true, but most of it mainly affects the manufacturers who offer such products, i.e. who want to put them on the market. Nevertheless: to answer this question in a more or less exhaustive way, one cannot avoid to go a little bit deeper into the topic.

Before we start, just a little clarification: We have dealt with the topic in detail, but since there is not only black or white in such a complex legal situation, the respective view of things always flows into the presentation, in this case our own view. And, just to be clear, the following text does not constitute legal advice.

Is CBD legal for you as a consumer?

The most exciting question first. However, to answer it, you really have to go a bit further. Basically, it can be said that CBD as an active substance is not listed as a narcotic (BtM) in the German Narcotics Act (BtMG) and thus is not considered BtM in the legal sense. So far, so clear. But now CBD is usually extracted from the cannabis plant. Cannabis and its plant parts are subject to the BtMG, unless one of the (sometimes complicatedly formulated) exceptions applies.

And it is precisely in this area of tension that the dispute among lawyers with different judgments arises. From our point of view, CBD as an active substance is and remains no BtM and is therefore legal. Our argument: If the legislator had wanted to ban CBD, he would have included it in the list of banned substances. But he did not. Therefore, CBD products are legal from our point of view. But: Two lawyers, three opinions.

Cannabis remains illegal - with and without THC

As mentioned above, cannabis (as a plant genus) is basically illegal in Germany. However, there is one notable exception: seeds are okay, but of course only as long as you don't use them for illegal cultivation, but want to benefit from their excellent nutritional value.


Just grow it yourself?

You are only allowed to grow cannabis in Germany if you are a farmer and have a license. The license is only valid for certain varieties - and the magic limit of 0.2% THC must never be exceeded. For comparison: the bestselling medicinal strains have around 20% THC content, i.e. 100 times as much.

However, the products of such cultivation are not generally harmless (at least legally); the trade with them must be exclusively for commercial or scientific purposes and any misuse for intoxication purposes must be excluded. So if CBD flowers are offered for sale in your kiosk or (online) store, they are obviously meant for microscopy or as an exotic addition to your herbarium and not for smoking or vaporizing in a vaporizer.

What about vaporization?

Speaking of vaporizer: Suction. Diffuser Pens, thus the small liquid evaporators in ball-point pen format, are legally seen for consumers likewise harmlessly and therefore also legally available - naturally only under consideration of the protection of children and young people. Of course, this only refers to CBD vaporizers. The upper limit of 0.2 % THC naturally also applies here.


Current status: THC clearly illegal, CBD not - but cannabis is...

So far, so good. So as long as you do not plan to use the valuable seeds to start an illegal cannabis plantation, you have nothing to fear. And yes, your plantation would still be illegal even if you only grow CBD varieties.

Too easy? Don't worry, it can be even more complex

A large part of the question of legality, however, revolves around the approval process for end products containing the CBD. Depending on who you ask, this may be interesting, but it is not really relevant for you as a consumer.


Manufacturer

In addition to the BtMG and its relevance in terms of criminal law, public commercial law ("Regulatory") is also of great importance for manufacturers. In order to clarify the legality or admissibility of individual CBD products in this respect as well, another factor is therefore of decisive importance: the product category, i.e. what the CBD-containing product is marketed as and in all probability will be used. The special category of drugs/medical devices is to be left out of consideration here for the time being.


What remains are food (supplements), cosmetics and other products such as diffuser pens. In the case of food (supplements) (and only here) it is still important whether they are classified as so-called "novel foods" or not.


Novel Food - Food (supplements) only

You may have heard of these so-called "novel foods". Well-known examples are stevia, chia seeds, algae oil and cloned meat. Novel Foods are foods and ingredients that were not on the market or were not consumed before May 15, 1997; at least not in any significant quantity.

As simple as things are with, say, cloned meat, they are controversial with cannabis. Since the use of cannabis seeds before 1997 can be sufficiently proven, seeds, the oil, hemp flour and defatted hemp seeds are not considered as novel foods and therefore do not fall under the "Novel Food" regulation. These products are therefore "normally" available on the market.

However, leaves, flowers and extracts made from them, whether they contain THC, "only" CBD or no cannabinoids at all, were not used extensively before 1997 in the view of the authorities - all foods to which such ingredients have been added are therefore considered "novel foods" and must be approved after appropriate testing.

However, this view is not shared by all participants. For example, the European Industrial Hemp Association (EIHA) recently presented a paper in which a whole collection of evidence is presented to demonstrate extensive use even before 1997. It is not an easy task to retroactively attest such use to a plant. Especially not if the history of its use in the last decades was mainly characterized by extensive prohibition policies. The fact that, historically speaking, this prohibition is not the normal case, but rather an absolute exception, makes the matter even more piquant.

The fact that there is no reliable data on the use of a plant that has been banned for decades does not seem very surprising. But the fact that the assumed non-use is also applied to pre-banned periods (which are largely not, or only very incompletely, documented) may seem a little too simple to some people. Also, the often emotionally charged and ideologically influenced debate culture that is still encountered when it comes to cannabis (and also the CBD) does not make an objective evaluation any easier. At the moment, no product containing CBD has been approved as novel food. Foods that contain parts of the cannabis plant (with the exception of the seeds), or extracts from it, are therefore currently not approved.

Cannabis in cosmetic products

The legal situation of hemp extracts in cosmetic products is comparatively clearly regulated: their use is basically allowed, however, only leaves and seeds of the plant should be used for extraction. A product is considered a cosmetic product if it is intended for external use or comes into contact with teeth and oral mucosa and is used to cleanse, perfume, change the appearance, protect, keep in good condition or influence body odor.


Cannabis in vaporizers

In the case of vaporizers (diffuser pens), the situation is then also halfway manageable for manufacturers. However, not because their legal status is clearly regulated, on the contrary - they are simply not (yet?!) subject to their own regulation, but are covered by general product regulations. Of course, the manufacturer has to observe the restrictions regarding the protection of minors and the upper limit of 0.2 % THC at all times.


Conclusion - It is complicated

We have learned that the question of legality is not so easy to answer with yes/no. The good for you: The more complicated intricacies of jurisprudence are hardly relevant for you as a user. If you want to be on the safe side, you should definitely avoid flowers and use cannabis seeds to enhance your muesli or provide variety in your aviary. With our products you are safe in any case.

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