CBD legality in Germany: What The Law Says And How You Can Find
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- Last updated onSeptember 22, 2020
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People who are new to CBD can easily get confused by the legal chaos surrounding it. A couple years ago, CBD was barely known. But CBD experienced a “boom”. The industry grew rapidly and became popular. What happened is similar to a phenomenon that can happen to all fast-growing industries: The industry grew too fast and the legislation could not keep up with it.
But, in this special case it is even more difficult, because many CBD products contain traces of THC. The result of this, is a legal landscape that is confusing for both, customers and producers.
CBD legality for customers
Contrary to the well-known intoxicating cannabinoid Tetrahydrocannabinol (THC), Cannabidiol (CBD) is non-psychotropic and does not fall under German narcotics laws (Betäubungsmittelgesetz – BtMG). Since CBD is not listed in the BtMG, it is legally not considered a narcotic. However, as CBD is mostly extracted from the Cannabis Sativa L. plant, which is considered a narcotic drug including its plant parts, the legal situation is somewhat more complicated. And the law leaves space for different interpretations in its current formulation.
As the situation is unclear, legal experts get to different results. But, as legislators did not specifically list CBD as a narcotic, it can be considered legal. Otherwise the law giving institutions would have specified it.
As any other traded product, CBD products are falling into specific product categories. So, besides the narcotic laws, CBD products have to comply with the corresponding trade regulations. The product category, under which the product is sold and used, is essential. In this article we take a closer look on the most occurring types of CBD products: foods or food supplements, cosmetics and vaping products.
CBD flowers
The legality varies by the type as which a product is sold as. Cosmetics are unproblematic as long as the THC content is below 0,2% and the product is extracted from an EU certified Cannabis plant. On the other hand, CBD flowers are prohibited. These flowers can be consumed like normal Cannabis and are optically not distinguishable from normal Cannabis flowers, what causes a lot of trouble for the law enforcing authorities. CBD flowers are allowed if they are used only for scientific or industrial purposes and the utilisation for intoxication is excluded. For foods and food supplements the case is more complicated.
CBD foods, food supplements and ‘Novel foods’
To answer the question if CBD containing foods or supplements like CBD oils are legal in Germany, we need to take a closer look into food regulatory. As CBD cannot be intoxicating and is non-addictive, it is not subject to narcotic law, but has to comply with general food law. To follow the food regulatory, it is important if CBD is part of ‘Novel Food’ regulations.
What are Novel Foods?
In the EU, products are referred to as Novel Foods if the product itself or ingredients were not part of regular diet before the 15thof May 1977. If a product was not commonly consumed before in the EU, it needs to be proven that the product is safe for human intake.
To be registered as a consumable Novel Food, products need to undergo a long and cost intensive application process to prove that the product is non-harmful. This proof can be delivered in form of scientific studies. Currently the EU has stopped all Novel Food applications for CBD products. In the EU it is currently under investigation if CBD products, naturally derived by plants, should be considered as narcotics. If it is considered a narcotic, CBD will be the first narcotic without the ability of intoxication or addiction.
Cannabis as Novel Food?The case for Cannabis is special: It has been proved by many sources that Cannabis seeds and seed derived products like hemp seed oil or hemp flour were consumed regularly before 1977. For this reason, they are not considered as a Novel Food and are commonly marketable.
A different case is made up for leaves, flowers and their derived extracts. On one hand, legislators argue that these extracts were not used regularly before 1977, regardless if they contain CBD or THC. But on the other hand, the EIHA (European Industrial Hemp Association) proofed that CBD containing plant parts (e.g. leaves and flowers) were consumed before 1977. They stated that naturally derived and unprocessed extracts contain the same composition of substances as the plant itself does. And due to that, it can not be considered a Novel Food. Only if the product is manipulated (e.g. artificially added CBD or other cannabinoids) it is considered a Novel Food.
Cannabis cosmeticsFor cosmetic products, the utilisation of hemp is allowed. The German Federal Institute for Drugs and Medical Devices (BfArM – Bundesinstitut für Arzneimittel und Medizinprodukte) states that producers need to ensure ‘that abuse for intoxication purposes can be excluded’. Furthermore, not all plant parts are allowed for cosmetics.
According to article 14 of the EU Cosmetics Regulation (Regulation (EC) No 1223/2009) and Annex II, cosmetics are not allowed to contain natural or synthetic narcotics and substances listed in the table I and II of the UN Single Convention on Narcotic Drugs from 1961. In this table, Cannabis, its resin and extracts are listed.
In conclusion, CBD cosmetics are marketable, if they are produced from hemp seeds, stalks or resin free flowers. They need to comply to federal drug and cosmetic laws, but do not need to meet additional laws like the Novel Food regulations.
Cannabis vapingRegarding vaping, the situation is kind of clear for producers – due to missing regulations. Manufacturers can sell vape-pens or e-liquids regularly and only need to comply with common regulations. For these products it is important to fulfil youth protection standards and keep a maximum THC value of below 0.2%.
Due to the absence of legislation for this product category, producers have a good scope of operation. But safety is missing for producers – and consumers. Due to the lack of rules, producers have no guidelines to stick to and can get thrown back by future regulations. On the other hand, disadvantaging customers, without legislation there are no standards for product safety.
ConclusionFinally, the legal situation surrounding CBD is not completely clear. The formulation of the law texts leaves spaces for different interpretations. On top of that, the legality of CBD varies by product type.
For customers it is important and calming to know that producers and distributors need to take care of the legal questions. To be safe, customers should not consume flowers and use seeds only as a food ingredient.
The case for Cannabis is special: It has been proved by many sources that Cannabis seeds and seed derived products like hemp seed oil or hemp flour were consumed regularly before 1977. For this reason, they are not considered as a Novel Food and are commonly marketable.
A different case is made up for leaves, flowers and their derived extracts. On one hand, legislators argue that these extracts were not used regularly before 1977, regardless if they contain CBD or THC. But on the other hand, the EIHA (European Industrial Hemp Association) proofed that CBD containing plant parts (e.g. leaves and flowers) were consumed before 1977. They stated that naturally derived and unprocessed extracts contain the same composition of substances as the plant itself does. And due to that, it can not be considered a Novel Food. Only if the product is manipulated (e.g. artificially added CBD or other cannabinoids) it is considered a Novel Food.
For cosmetic products, the utilisation of hemp is allowed. The German Federal Institute for Drugs and Medical Devices (BfArM – Bundesinstitut für Arzneimittel und Medizinprodukte) states that producers need to ensure ‘that abuse for intoxication purposes can be excluded’. Furthermore, not all plant parts are allowed for cosmetics.
According to article 14 of the EU Cosmetics Regulation (Regulation (EC) No 1223/2009) and Annex II, cosmetics are not allowed to contain natural or synthetic narcotics and substances listed in the table I and II of the UN Single Convention on Narcotic Drugs from 1961. In this table, Cannabis, its resin and extracts are listed.
In conclusion, CBD cosmetics are marketable, if they are produced from hemp seeds, stalks or resin free flowers. They need to comply to federal drug and cosmetic laws, but do not need to meet additional laws like the Novel Food regulations.
Cannabis vapingRegarding vaping, the situation is kind of clear for producers – due to missing regulations. Manufacturers can sell vape-pens or e-liquids regularly and only need to comply with common regulations. For these products it is important to fulfil youth protection standards and keep a maximum THC value of below 0.2%.
Due to the absence of legislation for this product category, producers have a good scope of operation. But safety is missing for producers – and consumers. Due to the lack of rules, producers have no guidelines to stick to and can get thrown back by future regulations. On the other hand, disadvantaging customers, without legislation there are no standards for product safety.
ConclusionFinally, the legal situation surrounding CBD is not completely clear. The formulation of the law texts leaves spaces for different interpretations. On top of that, the legality of CBD varies by product type.
For customers it is important and calming to know that producers and distributors need to take care of the legal questions. To be safe, customers should not consume flowers and use seeds only as a food ingredient.
Regarding vaping, the situation is kind of clear for producers – due to missing regulations. Manufacturers can sell vape-pens or e-liquids regularly and only need to comply with common regulations. For these products it is important to fulfil youth protection standards and keep a maximum THC value of below 0.2%.
Due to the absence of legislation for this product category, producers have a good scope of operation. But safety is missing for producers – and consumers. Due to the lack of rules, producers have no guidelines to stick to and can get thrown back by future regulations. On the other hand, disadvantaging customers, without legislation there are no standards for product safety.
Finally, the legal situation surrounding CBD is not completely clear. The formulation of the law texts leaves spaces for different interpretations. On top of that, the legality of CBD varies by product type.
For customers it is important and calming to know that producers and distributors need to take care of the legal questions. To be safe, customers should not consume flowers and use seeds only as a food ingredient.