Old weed in old bags

The Netherlands - by Mr. Kaj Hollemans (KH Legal Advice) (columns KHLA)

Pursuant to the drugs paragraph in the new coalition agreement stating that the “experiments based on the Closed Coffee Shop Chain Experiment Act will be continued and expanded to include a large city” and that the government position on the evaluation report will be sent to the Houses as early as 2024 “with the outcome of the experiments leading” I only hope that under Rutte IV a different wind would blow when it comes to policy regarding the cultivation of (medicinal) cannabis and coffee shops. That hope was partly inspired by the fact that the new minister of VWS, Ernst Kuipers, is in the cabinet on behalf of D66, a party that is outspoken in favor of further regulating cannabis cultivation and legalizing soft drugs.

Parliamentary questions

Two MPs from D66, Wieke Paulusma and Joost Sneller, had asked parliamentary questions about medicinal cannabis and inadequate policy on social needs. Minister Kuipers has now responded on these parliamentary questions. The answers to these parliamentary questions are downright disappointing and are literally the same as in previous years. In addition, the answers are also incomplete and contain some notable errors.

“Cultivating cannabis, regardless of the purpose for which it is done, is prohibited in the Netherlands.”

This assertion is not correct, because the cultivation of cannabis with an exemption, for example for scientific purposes, or the cultivation of cannabis with a license in the context of the cannabis experiment, is legal. So the goal does matter.

In addition, this assertion is primarily confirmation of a political choice, in which the wishes of a majority of the House of Representatives are ignored. In 2017, the House of Representatives passed a amendment van GroenLinks, which makes home cultivation of medicinal weed possible, via an exemption for own medical use. This amendment is part of the initiative proposal by MPs Sneller and Sjoerdsma (both D66), the closed coffee shop chain Act, which has been with the Senate since 2017.

“Home cultivation is not allowed. Whether one grows cannabis for recreational or medicinal purposes, growing cannabis is prohibited by law.”

“Strict conditions are attached to granting exemptions for the cultivation of medicinal cannabis. Anyone who wants to be eligible for an Opium Act exemption will have to meet these conditions. These conditions cannot be met in the case of home cultivation for medicinal use.”

According to Minister Kuipers, it is not possible to grant an opium exemption for the home cultivation of cannabis, regardless of whether cannabis is grown for recreational use or for medicinal purposes. This is striking, especially when you consider that home cultivation of medicinal cannabis is indeed possible with a simple amendment of the Opium Act. I would like to advise the minister to take a good look at it amendment by GroenLinks from February 2017. This proposal has the support of the majority of the House of Representatives, so he can easily adopt it in the Opium Act.

Rock hard

“There is a good reason for the fact that home cultivation of cannabis is prohibited. For the grower and the neighborhood in which the cultivation takes place, there is a potential danger of, among other things, fire, flooding, groundwater pollution, odor nuisance, theft of electricity and damage to homes. That is why criminal, administrative and civil action can also be taken against home growers by the Public Prosecution Service, a mayor and landlords respectively.”

With this answer, the Minister of Health, Welfare and Sport of D66 does not in any way take into account the small home growers who grow a few plants for their own use. Not hindered by any knowledge, the policy department of the Ministry of Health, Welfare and Sport apparently assumes that home cultivation mainly involves large, illegal growers who pose a danger to their environment and society. Vigorous action must be taken against this, especially by local administrators, according to the minister.

“On the basis of Article 13b of the Opium Act, the mayor has the power to take measures when drugs are sold, delivered or provided or are present in homes or premises or on an associated property, or when objects or substances are found that are intended for the preparation or cultivation of drugs. With due observance of the requirements of proportionality and subsidiarity, the mayor can issue a warning, impose an order subject to a penalty or close a building or associated property by means of administrative coercion.”

In the meantime scientists from the State University Groningen and well-known legal commentators, such as Folkert Jensma (NRC) believe that this is going too far. Since the Allowances affair, the Council of State has also started to look more closely at the application of administrative measures by mayors. In a recent statement from the beginning of February 2022, the Administrative Jurisdiction Division comes to the conclusion that from now on it must be assessed whether a decision taken by the government does not disproportionately prejudice citizens.

Is the mayor's decision to close a house, for example because cannabis is grown there at home, proportionate to the goal that the government intends to achieve with this? Are the consequences of such a decision in reasonable proportion to the interest served by it? These are important questions that must be answered from now on, before a mayor can decide to take far-reaching measures such as closing a house. Apparently the Minister of Health, Welfare and Sport had missed this groundbreaking decision by the Council of State.

Risks

“Health risks can also be associated with the use of non-medicinal cannabis for medicinal use. Home-grown or coffee-shop-bought cannabis generally lacks a standardized and analyzed quality. This means that ingredients differ per plan and per harvest and therefore cannot be dosed, as is the case with a medicine. In addition, harmful substances, such as pesticides, are often used. Also, cannabis grown at home or grown in the coffee shop is not checked for fungi.”

First, no one is familiar with cannabis grown in a coffee shop. This is impossible, especially given the strict and regular checks of coffee shops by the police. Secondly, cannabis that is grown at home or purchased in a coffee shop "generally does not have a standardized and analyzed quality" because it is prohibited under the Opium Act to test this cannabis (or have it tested) in a laboratory.

Cannabis is the most sold soft drug in the Netherlands. However, it is unclear what it contains and how many active substances it contains. It would make more sense to also tolerate the testing of weed by coffee shops, so that consumers know what's in it and what they're buying. This unsafe situation, which according to the Minister of Health, Welfare and Sport even entails health risks, is a political choice. The minister has the option of changing the policy, for example by changing the Opium Act or by allowing coffee shops to have the weed sold by them tested in a laboratory. That would be a good first step towards further regulation of cannabis cultivation and the legalization of soft drugs and thus exactly in line with what D66 aims to achieve.

Conclusion

It is extremely unfortunate that D66's new Minister of Health, Welfare and Sport does not advocate a different policy when it comes to home-grown cannabis and cannabis testing by coffee shops, instead sticking to the rigid line of recent years. That way we don't get any further.

The hope I had that a different wind would blow under Rutte IV when it comes to policy on the cultivation of (medical) cannabis and coffee shops has been dashed with these answers. Where even a country like Germany now believes that legalizing cannabis is better than continuing the current repressive policy, because "legalization can control the quality of cannabis, prevent contaminants and protect minors better," Minister Kuipers repeats the greatest hits of the duo Donner and Opstelten. Cultivation is prohibited! The (medicinal) home cultivation is not allowed! Cannabis poses health risks! Act hard!

Instead of uttering empty phrases and repeating the repressive mantras of his illustrious predecessors, Minister Kuipers should better become acquainted with the positions of his own party and delve into the wishes of the House and society when it comes to cannabis. Other choices are also possible within the contours of the current drug policy. This requires political courage and acumen. On the basis of these answers, I conclude that Minister Kuipers currently lacks both.