Lawyer CBD | Is CBD legal?

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CBD in legal consideration | What is CBD exactly?

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CBD is an abbreviation for cannabidiol. This is more precisely a substance that is extracted from the hemp plant. The big and best-known difference between CBD and THC is the non-intoxicating effect. Cannabidiol therefore does not have a psychoactive effect. The actual properties of cannabidiol are an anti-anxiety and sedative effect. It is also said to have anti-inflammatory and antibacterial effects. It is also popular for use against menopause. Above all, CBD is equally known to be used partially for the treatment of diseases.

However, it should not be forgotten that the proof of improvement of pain in treatments with cannabidiol has yet to be proven. Thus, medical evidence and proof of the effectiveness of cannabidiol is still often lacking. However, the constant demand for CBD-containing substances is consistently high. Users are particularly attracted by the calming effect. Meanwhile, even drugstore chains carry products with cannabidiol. However, in most cases, these are sold as cosmetics.

The reason for this is that cannabidiol has not yet been granted the necessary approval as a food. Cannabidiol as a novel food, which it has so far been classified as, must first undergo a review. The necessary applications, at least 50 to date, have been submitted, but approval has not yet been granted. This Novel Food Regulation of the European Union governs the approval of novel foods. Cannabidiol was also included in this regulation. The competent authority (European Food Safety Authority) may be considering approval of dietary supplements containing no more than 130 mg of CBD for adults.

CBD as a medicine

Lawyer CBD | The drug cannabidiol

Furthermore, it is possible to give CBD in the form of medicinal products. The dispensing of cannabidiol as a medicinal product is regulated by the German Medicines Act (AMG). According to § 48 I 1 AMG, dispensing may only take place if a medical, dental or veterinary prescription has been handed over to the consumer. However, CBD is also available as a prescription drug.

The difference from the normal prescription is that in the prescription drug or preparation is precisely tailored to the needs of the patient. Thus, it may be that certain patients require a different dosage, dosage form or special needs, which is why industrially manufactured drugs are not advisable. The medications are then manufactured separately for the patients.

Different manifestations of CBD

Lawyer CBD | The different manifestations of cannabidiol

Cannabidiol now exists in several forms. Besides the flower, the sale of which is prohibited, there are also other products. These include CBD oil, ointments, beauty products, hemp and CBD tea, various foods (in hemp form - not CBD) or products for animals up to isolates or extracts.

However, the promised effect of cannabidiol remains the same. Normally, the cannabidiol does not remain in the body for longer than seven days. The cannabinoids are stored in the body fat of the user, but remain detectable in the urine or blood for up to several weeks, depending on the type of use. It is also problematic that a common test for THC may be positive, even if the user has only consumed cannabidiol.

The reason for this is that while most cannabidiol products are advertised as "THC free," it is precisely because they are under 0.2 % THC content but are not 100 % truly THC-free. If the police use a very sensitive cannabis (THC) rapid test, for example, it can quickly become problematic for the person concerned. Especially if a high amount has been consumed.

The difference between full spectrum CBD, broad spectrum CBD and CBD isolate

Advocate CBD | Full Spectrum Cannabidiol, Broad Spectrum and Isolate

Full spectrum cannabidiol, as the name suggests, has all the compounds that occur naturally in the cannabis plant. Thus, also compounds that can be very similar to THC. The purest form of cannabidiol is CBD isolate. Because it is a pure isolate, it does not contain any other substances or compounds that could indicate the use of THC.

A drug test conducted by the police would therefore be negative here. Cannabidiol broad-spectrum items include the commonly known cannabidiol oils and other products. These may contain other compounds and thus also those of THC, but in very small quantities. So here too a test for THC probably turn out to be negative.

The difference with THC?

Lawyer CBD | The difference between CBD and THC

THC is the "big brother" of CBD. THC is known to fall under the psychoactive drugs and has an intoxicating component. The THC itself is a component of the female hemp plant cannabis. THC is listed in the narcotics law. Various consequences that a constant use of cannabis can bring is, among other things, psychosis, memory loss or dependence. For these reasons, cannabis is still illegal. A possible legalization is currently being worked on by the federal government. As soon as cannabis is legal, some things will also change with cannabidiol.

The medical effect of cannabis cannot be ignored. Due to its calming effect, Tourette's syndrome, for example, has been successfully treated.

Is CBD legal or illegal?

Lawyer CBD | Legal or illegal?

Sometimes the biggest question a potential consumer may ask is the legality of CBD. It depends more specifically on the name under which the cannabidiol is sold. Cannabidiol as a substance on its own is not illegal. Due to the fact that it has a THC content of less than 0.2 %, it does not fall under the regulations of the Narcotics Act (BtMG). Due to the fact that the THC content is below 0.2 %, there is also no psychoactive effect of cannabidiol.

However, considering the fact that CBD could also be sold as a food supplement, this must not be done with misleading advertising statements that actually say exactly what cannabidiol stands for. An example would be that it must not be advertised that cannabidiol can be anti-inflammatory, anti-anxiety or even analgesic. However, if these effects are soon proven, this could change. So far, however, such advertising statements are prohibited.
The sale of cannabidiol in its flower form is particularly tricky.

The customer runs the risk of criminal liability here. The permanent jurisdiction still has its problems with cannabidiol and actually classifies this as a narcotic. This happens for the reason that nevertheless a small part of the THC seems to be present. The 0.2 % limit of the THC content is undercut in most cases, but this exception of the BtMG only applies if it can be excluded to 100 % that the cannabidiol flowers are not abused for intoxication, which however seems almost impossible -. BGH decision dated 23.06.2022 - 5 StR 490/21. Therefore, the sale in flower form is prohibited.

Opinion of the Federal Court of Justice on the trafficking of CBD in the form of commercial hemp

Lawyer CBD | Trafficking in commercial hemp

In other words, commercialization of CBD in the form of commercial hemp is understood to be the commercialization of cannabis flowers with a high cannabidiol and a low THC content. The 6th Criminal Senate of the Federal Supreme Court had to deal with the question of criminal liability for trafficking in CBD hemp. In the specific facts of the case, the defendant had sold 60 kg of cannabidiol flowers for profit to other dealers in September and October 2019. These have revoked the flowers to stores and sales outlets sold.

The Berlin Regional Court then sentenced the defendant. The verdict was for trafficking in narcotics in a not insignificant amount in two cases with a total term of imprisonment of three years and nine months. Another defendant was sentenced to a total suspended prison term of ten months for aiding and abetting. The appeal before the BGH was unsuccessful.

The BGH's reasoning was, among other things, as follows:
[...] The CBD flowers traded here had not been deprived of the resin, nor did they contain only a "completely insignificant amount of the psychoactive ingredient" (ECJ, loc. cit. para. 74; cf. also Rottmeier, ZLR 2021, 77, 84 et seq.). Rather, the THC content achievable by certain forms of preparation of the flowers was, according to the findings of the Regional Court, which were free of legal errors, precisely not completely insignificant, but suitable to produce a cannabis intoxication. [...]

CBD and the police control

Lawyer CBD | police control and cannabidiol

In the first moment a police control, if you don't have it often, is always something frightening and disturbing, even if you have nothing to reproach yourself for. Especially, however, if you have not consumed cannabis but perhaps cannabidiol. As already mentioned, it is possible that a rapid test for THC may be successful, but not necessarily or is unlikely. This depends, as explained, on which form of CBD was consumed. Therefore, it is advisable to remain calm at first.

The CBD products (not flowers) purchased (legally) in Germany are in almost all cases well below the 0.2 % proportion THC. The cannabidiol dosage itself (such as in oils) has for the first time nothing to do with the amount of THC that is ingested. An ingestion of cannabidiol has no influence at least on the ability to drive. In general, however, it is recommended to pay attention to high quality and the manufacturer's specifications when buying cannabidiol products. Also, the consumer can carry a sample or the sample product to clarify any questions and grievances in case of any queries from the officials. Likewise, unpleasant situations can be avoided in this way.

However, what should not be done when the police express initial suspicion of possible narcotic use is to panic. Therefore, do not talk directly about hemp / THC or CBD and possible consumption.

Final

CBD is an active ingredient extracted from the cannabis plant. The difference with THC is known to lie in the nature of the effect. It is not psychoactive and has a calming effect. Attention must be paid above all to the type of dosage form and active ingredient content of cannabidiol. Thus, flowers are problematic in any case. Other legally obtained products are not. In addition to the form of cannabidiol, the THC content is also relevant. In Germany, this may not exceed 0.2 %.

If you have been charged with a criminal offense involving cannabidiol and narcotics, we are the appropriate contact when it comes to goal-oriented and good criminal defense.

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Lawyer CBD | Is CBD legal?

Law firm for criminal law in Kerpen, Cologne and Witten

Criminal law | Your criminal defense lawyer, reliable and specialized

CBD in legal consideration | What is CBD exactly?

Law firm for criminal law in Kerpen, Cologne and Witten

Lawyer for - Labor Law | Criminal Law | IT Law | Data Protection

CBD as a medicine

Lawyer CBD | The drug cannabidiol

Different manifestations of CBD

Lawyer CBD | The different manifestations of cannabidiol

The difference between full spectrum CBD, broad spectrum CBD and CBD isolate

Advocate CBD | Full Spectrum Cannabidiol, Broad Spectrum and Isolate

The difference with THC?

Lawyer CBD | The difference between CBD and THC

Is CBD legal or illegal?

Lawyer CBD | Legal or illegal?

Opinion of the Federal Court of Justice on the trafficking of CBD in the form of commercial hemp

Lawyer CBD | Trafficking in commercial hemp

CBD and the police control

Lawyer CBD | police control and cannabidiol

Final

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Law firm for criminal law in Kerpen, Cologne and Witten

Lawyer for - Labor Law | Criminal Law | IT Law | Data Protection