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Hemp tea - the fine line between food and narcotics

Published on 2nd Jul 2021

The first article from our series "Cannabis - the 'green gold' from a legal perspective"

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The question of the legal use of cannabis and cannabis-containing products is currently on everyone's lips. Movements for the full legalisation of cannabis are making headlines repeatedly. But many other uses for cannabis that have become fashionable recently are also occupying the media and courts. Products containing cannabis, such as CBD oil, are currently being heavily advertised and raise legal questions about their legal classification and permissible advertising.

The legal classification of cannabis and cannabis-containing products ranges from narcotic and medicinal products to (novel) foods and cosmetics. Our multi-part series of articles "Cannabis – The 'green gold' from a legal perspective", gives an overview of the respective classifications and the resulting legal consequences of cannabis products, especially for distribution and advertising.

In the first part of our series of articles "Hemp tea - the fine line between food and narcotic", Tim Reinhard and Anika Quak give an insight into the qualification of cannabis as a narcotic on the basis of the most recent case law of the Federal Supreme Court (BGH) (Federal Court of Justice (BGH) ruling of 24 March 2021 - 6 StR 240/20) on the criminal liability of selling hemp tea to end consumers and outlines the significance for the practice of companies.

The versatile uses of cannabis and their legal consequences

Cannabis - hardly any other plant is used in as many ways as the green hemp plant with its characteristic hand-shaped leaves. The uses range from industrial hemp, from which, for example, ropes are made, to essential and edible oils, to cosmetics. Dried cannabis flowers and products made from the cannabis plant (derivatives) are also used as medicines for the treatment of chronic pain, among other things. While dried cannabis flowers have been prescribed by doctors in other countries for a long time, the prescription of dried cannabis flowers in Germany has only been possible since 2017.

As wide ranging as the use of the hemp plant is, as diverse is the legal assessment of the respective product. From a legal perspective, the products can be classified as narcotics, medicines, food or cosmetics.

The correct classification is of great importance, because different legal consequences for distribution and advertising are linked to it. The boundaries are often very narrow and the legal situation is in part not yet established. This is made particularly clear by the recent ruling of the German Federal Court of Justice (the Bundesgerichtshof (BGH)) of 24 March 2021 - 6 StR 240/20. In this case, the BGH ruled on the question of whether hemp tea is a freely available food or a non-marketable illegal drug that falls under the regime of narcotics law.

On the legal background

According to Section 1 paragraph 1 of the German Narcotics Act (the Betäubungsmittelgesetz (BtMG)), narcotics are all substances and preparations listed in Annexes I to III of the BtMG. It should be emphasised that the list in the annexes alone is decisive, without the need for a concrete consumption capacity or a so-called intoxicating quality.

Cannabis is listed in Annex I of the BtMG and, therefore, is a narcotic. Thus, the traffic in cannabis (marijuana) and cannabis resin (also known as hashish) is generally prohibited, unless it qualifies as medical cannabis. We will discuss this in a later article. The reason for this prohibition is the tetrahydrocannabinol (THC) contained in cannabis. This has a psychoactive effect, that is, it influences the central nervous system of humans. It is mainly known for its relaxing effect.

Cannabis plants are exempt from the prohibition if:

  • their THC content does not exceed 0.2%,
  • the traffic in them (except cultivation) is exclusively for commercial or scientific purposes, and
  • misuse for intoxication purposes is excluded.

Until now, the (erroneous) belief was widespread that as long as the THC content did not exceed 0.2%, it was not a narcotic. As the judgement of the Federal Supreme Court now makes clear, the limit value of 0.2% THC alone cannot be taken as a basis. Rather, it is important whether abuse for intoxicating purposes is excluded. The Federal Supreme Court has now decided in detail how the requirements of the exception are to be understood.

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* This article is current as of the date of its publication and does not necessarily reflect the present state of the law or relevant regulation.

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