Hempro Int. and Hemp Farm vs. BVL
Marketability of CBD flowers as a herbal smoking product and hemp leaf tea as a foodstuff will now be examined by the Higher Administrative Court of Lower Saxony
In contrast to Germany, unprocessed commercial hemp products such as CBD flowers and hemp leaf tea are freely marketable in Luxembourg, Austria and Belgium.
Therefore, Hanf Farm GmbH and Hempro International GmbH also invoke the principle of free movement of goods according to Art. 34 of the Treaty on the Functioning of the European Union (TFEU) when they want to market CBD flowers or hemp leaf tea. In order to give full effect to the validity of European law, the member states have introduced procedures in accordance with a corresponding EU regulation to have the marketability of products that are freely tradable in another EU member state determined quickly and unbureaucratically. High-priced CBD flowers in retail quantities are herbal smoking products to be regulated under the Tobacco Products Directive, as is also the case in Belgium and Luxembourg. For this purpose, Section 40 of the Tobacco Products Act and Section 54 of the German Food and Feed Code (LFGB) offer the possibility of submitting an application to the BVL for the issuance of a general ruling establishing that these products are also marketable in Germany.
We submitted these applications to the responsible Federal Office of Consumer Protection and Food Safety (BVL) through our law firm KFN+ on March 26, 2021 and April 22, 2021. After these applications were rejected by the BVL in the summer of last year, we filed both an action for commitment against the Federal Republic of Germany, represented by the BVL, and a so-called regulation order with the Administrative Court of Braunschweig.
The Administrative Court of Braunschweig rejected both urgent applications before Christmas. According to the Administrative Court of Braunschweig, the BVL was able to invoke reasonable grounds of public welfare and health protection in its decision, as misuse for intoxication purposes could not be ruled out for both CBD flowers and hemp leaf tea. This is because, according to the BVL and the Administrative Court, there is a possibility that the THC could be removed from the commercial hemp in order to subsequently process it in baked goods.
We have now filed and substantiated appeals against both decisions. Both proceedings are now pending before the Higher Administrative Court of Lower Saxony.
The court of first instance wrongly rejected both applications. In our opinion, the dangers that commercial hemp could pose to the health of the population have been ruled out. Even the expert committee at the BfArM, which advises the German government on amendments to the Narcotics Law, recommended in March of last year that the criterion of abuse for intoxicating purposes be deleted. Because only with extremely high costs and lengthy procedures would it be possible
to extract the psychoactive THC from commercial hemp in order to then achieve a theoretically possible extremely low intoxicating effect in baked goods. Such an assumption is unrealistic.
The fact that, in addition to intended use, there could always be the theoretically conceivable possibilities of misuse (at great expense in terms of time and money) cannot be a suitable criterion in the present proceedings for restricting the invocation of the European free movement of goods on the grounds of health protection in accordance with Article 36 TFEU. Otherwise, a large number of foodstuffs or other products (caffeine, nicotine, alcohol, poppy seeds, nail polish, nail polish remover, adhesives, thinners, soap, fertilizers, etc.) would have to be banned from German retail shelves.
In order to protect against only extremely remote and hypothetical dangers for the population, a ban on entire product groups made from hemp, such as herbal smoking products and tea foods, is completely disproportionate. In addition, the court disregarded the European law requirements for the free movement of goods.
The matter will now be decided in the next higher instance. Corresponding decisions are expected in the next few months. The case will then proceed to the main proceedings.
Hempro International GmbH
Daniel Kruse | Managing Director (V. i. S. d. P.) Rebecca Kruse | Managing Director
Rüdiger Tillmann | Press Spokesman Fon +49 171 3677028 email@example.com
About Hempro International
Hempro International, as one of the leading companies in Europe, produces a comprehensive range of raw materials and products from hemp in certified organic quality. Customers are the hemp industry as well as producers and suppliers of food, cosmetics, textiles and accessories made from hemp.
Hempro International, based in Düsseldorf, Germany, consistently advances the use of hemp for natural and climate-friendly products. Hemp is one of the oldest useful plants in the world and can be used in many ways as a renewable raw material with high environmental compatibility.
This post was translated from DeepL.