The View From Europe: Is Cannabis Regulation on the Way?
Last week in Germany the topic of recreational cannabis reform hit yet another snag. Even though all parties – with the exception of far-right Alternativ für Deutschland or AfD – expressed desire to move on past cannabis prohibition, the motion failed, yet again.
Simultaneously, in Italy, after a frantic few weeks of deliberation on the legality of the “cannabis lite” industry, the Ministry of Health moved to declare that CBD was, after all, clearly not a “narcotic.”
And on the European level, this discussion is equally divided. On the one hand, the European Commission is encouraging its member states to classify CBD as a Schedule I drug if not a narcotic. On the other, the European Parliament just charted the course for hemp in European farm policy and raised the amount of THC allowed in hemp.
Across the continent, cannabis identity politics is an amorphous gathering of a diverse group of people, across languages and motivations. However, in its own way, this very diversity is leading to successive and broad legal challenges that are moving the entire discussion forward when legislative action fails.
The German medical debate is only just getting started
The German medical market began in earnest in 2017. Yet the cannabis grown domestically is only beginning to reach pharmacies this fall. Beyond all the failures of the industry, the real story behind this saga is that patients face a 40 percent rejection rate even after a doctor writes them a prescription. That these rejections come not from their insurers directly but from the regional approvers has been one of the key obstacles to the development of the market. The Medizinische Dienst Krankenversicherungen (MDKs) still have the final word on approving patient coverage. All cannabis prescription applications from the statutory health insurers have been forwarded to them so far.
In October, a female patient with significant physical and mental disabilities won her court case against not just her health insurer but the regional body. The health insurer will now have to pay her dronabinol prescription for at least one year. However, far more significantly, the court found that the MDK, and by extension a statutory insurer, was not allowed to interfere with the basic decision of a doctor to prescribe cannabis to a patient if they meet the criteria established under law for medical cannabis. To do so, the court ruled, would infringe on her basic German constitutional rights.
While this decision is still not fully decided, and the plaintiff only won a right to cover a cannabinoid prescription for a year, it will surely be a boon to patients caught in exactly the same situation.
No matter how frustrating the legal landscape is to recreational reform advocates, this court case clearly establishes the first and most important step for further reform in Germany.
The pathway to recreational reform in Europe
Outside of the vagaries of Portugal, there are two key European countries to watch right now.
The first is undeniably the Netherlands. The Dutch government is set to license cultivators in 10 municipalities as part of its upcoming experiment. Beyond this trial, Luxembourg looms large as Europe’s first legislatively mandated recreational market, set to start as of the end of 2021.
Down in Spain, Albert Tió, a name well-known figure in the Spanish cannabis movement, is also challenging the criminal conviction he faces at home at the European Court of Human Rights (ECHR). If he wins, the implications for the domestic sector will be massive. Namely, access to the plant in a public place for either medical or recreational consumption could be considered a human right. It would also set the kind of precedent needed to move the recreational discussion forward across Europe.
Perhaps in the hopes of resuscitating an economy now starved of tourists, if not to send a vote of confidence that the ECHR case will become law in the rest of Spain if not Europe, the Canary Island’s parliament also just passed formal medical reform. With an established recreational coffeeshop trade, it will be interesting to watch how this now evolves locally and on the mainland in Spain.
The cost of change
By far the biggest problem facing the governments considering such measures is how to fund all this change. To add caution to the calls for the delay, the first example of a fully recreational market is, at best, still half-baked. There is little tolerance in Europe for the kind of scattered regulation that has occurred so far in North America.
Those answers, however opaque, will surely begin to crystallize and clarify with the economic restructuring absolutely on the agenda to revive economies after Covid. Government money is already entering the industry via various channels. This is not the stigmatized industry that it used to be.
The pace of change is escalating in Europe. No matter how slowly more regional recognition is sure to be, certainly at the international level beyond the EU, there is clearly an understanding just about everywhere that there is no other alternative left.
Marguerite Arnold is a German-American journalist who has covered the cannabis industry from Europe for the last seven years. Her second book on the topic, ‘The Inside Story of The First German Cannabis Cultivation Bid. Green II: Spreading Like Kudzu,’ will be released on December 1, 2020.
