There are increasing signs that cannabis will be legalised – albeit under narrow conditions. In addition to private cannabis cultivation, it will also be possible to cultivate cannabis for personal consumption in a community. The prerequisite for this is the association in an officially approved cannabis cultivation association. In this article, we present the extent to which and the conditions under which the cultivation and distribution of cannabis in the so-called “Cannabis Social Clubs” will be permitted according to the current status and what needs to be taken into account when founding such an association, which is already possible.
The topic of legalising or at least decriminalising cannabis is not wafting across the very big political stage for the first time. For a long time now, hardly any politician in the haze of Görli, Hasenheide and Co. can deny that the current prohibition policy is not serving its purpose.
Nevertheless, previous attempts to take a new path in drug policy have largely fizzled out due to the concerns of the CDU/CSU parties. in 2011, for example, an initiative of the Left Party to introduce the release of 30 grammes of cannabis for everyone failed. in 2015, the Greens, with the support of the Left Party, attempted to convince the Bundestag to pass a cannabis control law that would allow both home cultivation and the distribution of up to 30 grams of cannabis in a strictly controlled legal market. This plan also went up in smoke.
However, the topic did not lose its relevance over the years, rather the opposite. And so, in the context of the 2021 federal election, it became one of the central campaign issues, not only for the Greens. Now it is becoming more and more apparent that the traffic light coalition will actually implement the campaign promise to legalise cannabis. At least to some extent – because the first draft law by Federal Health Minister Prof. Lauterbach provides for strict rules for the cultivation and distribution of cannabis. This is not least due to EU and international legal requirements, which have given the ministries involved in drafting the legalisation bill a lot of smoke.
Two-pillar model for legalisation
A key point paper of the federal government, first presented in October last year, stipulates that legalisation should take place gradually and essentially be based on two pillars:
- private and communal, not-for-profit self-cultivation, and
- regional model projects with commercial supply chains.
The draft of the “Act on the Controlled Use of Cannabis and on the Amendment of Other Regulations (Cannabis Act – CannG)”, which is still being coordinated within the government and has been finalised on 28.4.2023, initially regulates only the first pillar, namely controlled private and communal cultivation for non-commercial purposes.
Even though the draft law is a draft version, which may still be subject to changes in content, it already gives an idea of the extent and conditions under which the cultivation and distribution of cannabis could be permitted in Germany in the future. The draft law attributes a central role to the so-called “cultivation associations”, which are to be registered (ideal) associations with legal capacity.
Cannabis cultivation associations as the core of the 1st pillar
For those who lack green fingers, their own garden or balcony, membership in a cannabis cultivation association is the golden path. The cannabis cultivation clubs – the term “cannabis social club” has already become established in the vernacular – are the core of the first pillar of the planned legalisation.
Only they are to be allowed to cultivate cannabis collectively for the purpose of personal consumption and to distribute propagation material (seeds, cuttings) in larger quantities. This is because only cultivation associations are to be granted the official permit required for these activities under Section 9 of the Cannabis Act. Other legal forms, such as cooperatives, companies, unincorporated associations or associations based abroad, are expressly excluded according to the explanatory memorandum. The actual collective cultivation is also to be permitted only to members or employees of the cultivation associations who are subject to social security contributions; commissioning third parties is thus prohibited.
According to the current state of the draft, a maximum of 500 persons of legal age are allowed to grow, each of whom may only be a member of one growers’ association. Furthermore, a residence or habitual abode in Germany is a prerequisite for membership. In addition, persons who have been convicted of certain criminal offences in the last five years before applying for a cultivation permit shall not be allowed to act as a member of the board of directors or any other person authorised to represent the cultivation association. Otherwise, the cultivation permit may be refused or withdrawn.
Even if the term “Cannabis Social Club” gives the impression of sociable togetherness, there will probably be no communal consumption of fresh crops in the clubhouse: according to the current state of the draft, Section 6 (3) No. 3 CannG provides that the consumption of cannabis is prohibited within a radius of 250 metres around the entrance area of cultivation clubs, adjacent premises and pacified property of the cultivation clubs.
Distribution of cannabis and financing of the association
According to § 3 of the newly created CannG, such a cultivation association may distribute up to 25 grams of cannabis per day and up to 50 grams of cannabis per month to adult members for personal consumption. To members between 18 and 21 years of age, the distribution shall be limited to 30 grams of cannabis per month with a maximum THC content of 10 percent. The distribution of seven seeds or five cuttings per month would also be permissible. The prerequisite, however, would always be that the distribution only takes place among those present in person; according to the draft version, mail order, distance selling and internet trade with cannabis would be expressly prohibited for cultivation associations.
The cultivation associations should basically be ideal associations. This is because, according to the ideas of the traffic light coalition, they should work exclusively on a non-profit basis and limit themselves to the cultivation and distribution of cannabis directly to their members. Accordingly, the draft law provides in Section 21 (3) that the cultivation associations cover their costs solely through membership fees, whereby these can be structured as basic fees with an additional dispensing price in relation to the quantities of cannabis and propagation material dispensed to the respective member. Apart from the membership fees and the additional fee, the associations may not charge any other costs to their members.
However, the current draft version allows for a small exception to this basic principle: for the supply of propagating material to persons who are not members of the association, the cultivation association shall be allowed to demand reimbursement of the cost price incurred for the production or acquisition of the propagating material supplied. The exchange of propagating material between growers’ associations, on the other hand, should only be free of charge.
What other requirements should there be for the cultivation and distribution of cannabis by associations?
On the basis of the draft law, it can already be guessed that extensive requirements will have to be fulfilled in connection with the cultivation and distribution of cannabis by associations.
On the one hand, the associations have to check the quality of their products. They have to ensure by spot checks that the cannabis and the propagation material do not contain any harmful substances and that they do not exceed the prescribed maximum quantities of pesticides and fertilisers. Likewise, they have to ensure that the regulations applicable to the cultivation of crops and to soil, water and environmental protection are complied with.
In addition, the draft law provides for various documentation and reporting obligations. According to this, the associations have to continuously document where they have received the propagation material from, how many plants are in their greenhouses or on their premises and to which members they have supplied how much cannabis. Furthermore, the associations must annually report to the authorities how much cannabis and propagating material of which variety and with which active ingredient content was produced, dispensed or destroyed in the past year and what quantities were in stock at the end of the calendar year.
For the purposes of the protection of minors and the prevention of addiction, the associations shall also ensure that rooms and properties in or on which the products are stored and cultivated are fenced off, secured by burglar-proof doors and windows or other protective measures. Cultivation areas and greenhouses set up outside of indoor areas must be protected against outside views by fences or similar. Minimum distances from schools, day-care centres and playgrounds, for example, are also provided for. In addition, each association shall appoint an addiction and prevention officer who must be able to demonstrate appropriate knowledge.
Finally, certain requirements are to apply to the distribution of cannabis and propagation material to members. For example, an instruction leaflet should always be handed out, on which the weight, harvest date, best-before date, variety and active substance content (THC and CBD) in percent must be declared. In addition, the drug may only be distributed unpackaged or in a neutral package, which is intended to prevent the creation of consumption incentives, especially for children and adolescents.
How do I found a cannabis cultivation association? What do I have to bear in mind?
From a legal point of view, the foundation of a cultivation association first requires the foundation of an association not aimed at an economic purpose and its registration in the register of associations of the competent district court. In order to establish a registered association, it is generally necessary that
- at least three founding members
- hold a founding meeting at which
- adopt articles of association with certain minimum contents and
- the organs of the association are elected.
For registration in the register of associations it is then necessary that the association has at least seven members at the time of registration. The application to the register of associations, to which a copy of the minutes of the foundation with the appointment of the executive board as well as a copy of the articles of association must be attached, requires notarial certification. Even if the formation of an association appears to be trivial in view of the comparatively low formation effort, “beginner’s mistakes” occur again and again, which must be avoided.
In the case of a “Cannabis Social Club”, it is also necessary to apply for a permit from the competent Land authority. According to the draft law, for the granting of the permit, the club board has to prove, among other things, that it has the necessary reliability for handling cannabis and propagating material, that protective measures are taken against access by unauthorised third parties as well as children and adolescents, and that compliance with the provisions of the law on the protection of health, children and adolescents as well as the fight against the illegal market is guaranteed. In addition, the application should be accompanied by, among other things, the statutes of the cultivation association, proof of entry in the register of associations, information on the expected cultivation quantity and the premises used by the cultivation association as well as certificates of good conduct of the board members.
Already when drafting the statutes of the association, special requirements arise due to the strict rules to be expected for cannabis cultivation associations, which go beyond the aspects usually to be considered when founding an association. The correct drafting of the statutes is not only decisive for the ability to be entered in the register of associations, but also for the granting of permission to cultivate cannabis. In this respect, the foundation of a cultivation association must be prepared in detail with careful consideration of the extensive legal framework of the CannG.
Is the foundation of a cannabis cultivation association already possible now?
The answer is “yes”. A cannabis cultivation association, or more precisely the structures under association law, can already be created now. When drafting the statutes, however, it must be taken into account that the purpose of such an association must be subject to the entry into force of the legal basis. At present, the purpose of communal cannabis cultivation and all other related processes is simply illegal and registration of an association pursuing this purpose (already now) is inadmissible.
However, it is not yet possible to apply for registration as a cannabis cultivation association. Of course, at the moment, cannabis may not be cultivated, nor may cannabis seeds or cuttings be obtained in order to prepare for cultivation.
Nevertheless, it can be advantageous for interested persons to found the cultivation association already now or at least to prepare the founding. Because once a legal basis for the cultivation of cannabis for personal consumption has come into force, a “run” on the registry courts and authorities and correspondingly long waiting times can be expected.
We are at your disposal if you would like to found or prepare the founding of a cannabis cultivation association or if you have any questions on this topic.
As soon as a corresponding law is passed, we will also be happy to advise you on the application for a cultivation permit and all related questions.
Feel free to contact us without obligation!