Although it is estimated that up to 30 million Europeans are frequently enjoying the relaxing and mind-altering effects of marijuana, the female cannabis plant has been strictly prohibited for recreational purposes for decades in most European nations. While we are now definitely able to see that the cannabis movement is gaining some momentum, the legal situation of cannabis is still extremely confusing for many people.
We’ve seen a substantial wave of legislative changes in both the EU and certain nations within the EU. When evaluating the legal situation, it is important to distinguish between recreational marijuana, medical marijuana, industrial hemp and cannabidiol (CBD) for wellness purposes.
Recreational marijuana, or marijuana that is solely used for the purpose of having a good time, is subject to quite complex laws and regulations in the European Union. As stated in a recent report by the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA), that was last updated in June 2018, ‘International law obliges control of cannabis plants and products’. However, all member states of the EU have full authority to decide how cannabis should be controlled in their jurisdiction.
Moreover, the EMCDDA stated that there is actually little harmonization between the governments of European countries. Penalties for marijuana possession and consumption vary heavily from country to country. In around 50 percent of all European nations, minor cannabis possession may lead to imprisonment, whereas others completely decriminalized the possession of smaller amounts of marijuana.
According to the EMCDDA, authorities are usually obliged to control cannabis that has a considerable amount of THC, which is the main psychoactive substance in the cannabis plant. Male cannabis plants, cannabis seeds, roots and dried stems typically have either a very low THC content or no THC at all, which is why they are not subject to prosecution in most countries. Nevertheless, in some European countries, such as Cyprus and Portugal, these parts still count as controlled material from a legal perspective.
How is the legalisation going?
Several countries in the European Union started to experiment with models that incorporate a legal marijuana supply. This includes the notorious coffee shops in the Netherlands, cannabis social clubs in Spain, as well as decriminalisation measures in the Czech Republic. While these models have been at least partially considered to be a success, they still lack a proper legal framework which has often led to confusing and controversial situations in the past.
An interesting development has been initiated in December 2018, when the newly voted government of Luxembourg announced that the legalization of recreational marijuana has been added to their political agenda. As the first country in the European Union to actually legalise the possession and consumption of all parts of the cannabis plant for its residents, Luxembourg’s initiative would mark a milestone of European history.
Due to the steady advancements of the legal cannabis sector in Europe, cannabis businesses from Canada and the U.S. are already eyeing a major move into the European market. Bruce Linton, CEO of the multi-billion dollar cannabis corporation Canopy Growth, expects England to have a legal cannabis market equal to the current Canadian market within five years.
In regard to medicinal cannabis, one can definitely say that there are some strong developments going on in recent times. In fact, there has been a considerable change in the past few weeks. After the World Health Organization (WHO) changed its recommendation of cannabis in favour of medical marijuana and cannabidiol (CBD), the EU parliament voted on a new resolution in February 2019.
Related: The Effects of CBD on the Human Body
The resolution itself is a recommendation to EU member states that advises them to make cannabis available for pharmaceutical purposes, in order to ‘define the conditions required to enable creditable, independent scientific research based on a wide range of material to be conducted into the use of cannabis for medicinal purposes’. Furthermore, the EU supports the use of marijuana and hemp for the treatment of several diseases and conditions.
Many nations in the EU already legalised marijuana flowers or extracts for medicinal purposes in preceding years, including Germany, Italy, Greece and the UK. Doctors usually may prescribe cannabis for relief of symptoms arising from multiple sclerosis, AIDS, cancer, long-term neurogenic pain, Tourette syndrome, Crohn’s disease and PTSD. In Germany, for instance, cannabis may also be prescribed for ADHD, headaches, migraine and other widely spread illnesses.
How does this work out?
As stated in the report of the EMCDDA, in a lot of countries any doctor may prescribe medical cannabis, but in practice, only a small number of them actually does so. This might be due to the fact that medicinal cannabis has only been legalized in European countries for a very limited time, in which doctors were not able to obtain serious knowledge on the subject.
Aside from missing knowledge, there might be other obstacles that emerge when prescribing cannabis in European countries. During an interview with Leafly Germany, the German therapist Dr. Schlueter mentioned that there is a lot of bureaucracy involved when doctors prescribe cannabis medicine. ‘Even if that sounds bitter: I just do not have the time to take care of cannabis patients’, said Dr. Schlueter.
Industrial hemp probably has the clearest legal framework of all the variations and parts of the cannabis plant. It can be used for a variety of purposes, such as clothing, food, beauty products and fabric production. In the European Union, the cultivation and supply of industrial hemp are fully legal if the hemp plants that are used in the process do not exceed a limit of 0.2 percent THC content.
In contrast to medical and recreational marijuana, the European Court of Justice (ECJ) has clear rules that resolve how members should handle industrial hemp cultivation. In case C-207/08 (Babanov), the ECJ said that ‘the cultivation of hemp fulfilling the strict conditions above by farmers respecting all the other conditions established by the EU legislation cannot be prohibited in any Member State, if this prohibition conflicts with provisions of EU law or undermines the aims and objectives of these provisions’.
Related: Hemp Use-Cases: Unlimited?
When new countries, in which it was previously not allowed to grow any cannabis plant, joined the European Union, they have been obliged to change their law in favour of industrial hemp cultivation.
The EU first introduced limits for the THC content in 1984, and the THC content should be no more than 0.5 percent. In 1987, this limit was reduced to 0.3 percent, whereafter the EU further reduced the limit in 1999 to today’s 0.2 percent. The European Industrial Hemp Association believes that these limitations are unjustified and harm the business of European hemp growers.
‘The hemp food industry in Europe has a significant competitive disadvantage to producers in North America and Asia’, said the EIHA in a recent press release.
In 2018, the WHO eventually declared that there are no public health risks or abuse potentials found in pure cannabidiol. In the European Union, many countries actually share this opinion and allow the sale, possession and consumption of CBD-based products. The European Union does not oblige its members to regulate or legalise CBD, all states have full authority on whether CBD should be freely available or not.
There are definitely some trends that can be found when investigating the legal status of CBD in European countries. First of all, many nations only allow CBD products that are extracted from industrial hemp, not from actual marijuana. Secondly, all nations have strict rules on how much THC content may be included in CBD products. Limitations can often be found around 0.2 to 0.3 percent, while others prohibit anything above 0.05 percent. On some rare occasions, CBD products must not contain any THC at all.
In early 2019, however, the European Union made a drastic move in regard to CBD legislation. The European Food Safety Authority (EFSA) released a new guidance on handling cannabinoid-infused food products in January this year. According to this guidance, such products would need approval as a ‘novel food’ by a national food authority.
“Without prejudice to the information provided in the novel food catalogue for the entry relating to Cannabis sativa L., extracts of Cannabis sativa L. and derived products containing cannabinoids are considered novel foods as a history of consumption has not been demonstrated. This applies to both the extracts themselves and any products to which they are added as an ingredient.”
What does this mean?
This new ESFA guidance, although it is not legally binding for EU member states, is expected to have a significant impact on the European CBD market. According to law expert Nathalie Bougenies, it usually takes three years for a ‘novel food’ to be approved. Consequently, CBD containing food, which includes extracts from industrial hemp, could be erased from a considerable part of the European market for three years or more.
To this date, no European country has adopted this guidance into practice. However, it seems that this is just a matter of time. The United Kingdom, for example, announced shortly after the release of the ESFA guidance that it will ban unapproved CBD food and beverages in the very near future. Surprisingly, the authorities stated that they will do so even after the Brexit has been concluded.
What about CBD flowers?
CBD flowers became increasingly popular in the EU during the past few months, as there are already dozens of online and physical shops that decided to offer these products to their customers. They might become even more interesting to CBD users in the future, as CBD flowers would be one of the few CBD products that would be not affected by the ESFA guidance.
Unfortunately, CBD flowers are subject to a legal grey zone as well. In reality, CBD flowers need to contain less than 0.2 percent THC and must be labelled as industrial hemp, that may not be smoked or consumed in any other way. The ‘Cannabis Sativa Light’ hemp flower craze was started as a result of novel Italian laws in 2016, that regulated industrial hemp production and cultivation.
While it is technically legal to sell cannabis flowers that contain up to 0.2 percent of THC as ‘collectable’ industrial hemp, it is undoubtedly connected to a salty taste in the mouths of lawmakers. As stated in several reports, authorities in many European nations investigated companies that sold CBD flowers despite the theoretical legality.
The bottom line
Cannabis-related regulations are certainly advancing in various directions in this day and age. To give you a final overview of the current laws and expectations, here is a summary of the different legal perspectives.
Current status: Illegal in every country within the EU
Trend: Strict policies are decreasing, many countries are thinking about decriminalisation, some even about legalisation
Current status: Legal in most of Europe
Trend: Authorities are more and more open towards medical cannabis
Current status: Legal in every country within the EU
Trend: No clear trend at the moment
Current status: Legal in almost every country within the EU
Trend: Policies are expected to become more strict