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Will Suing Governments For Cannabis Legalization Work In Europe?

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Large, multi-state operators in the US are teaming up to sue the federal government over reform. Will the same strategy work in Europe?

Several large U.S. companies are teaming up to sue the U.S. federal government over what they claim are unconstitutional limits on their commercial operations across the US. One of the suits will focus on the federal government’s prevention of intrastate commerce. Another will challenge the 280E tax provision blocking the industry from taking tax deductions for state taxes from their federal returns.

The approach is certainly a novel one in the history of cannabis reform.

The question is, could such a tactic work in Europe, and at what level?

Lawsuits Move Policy – But Only So Far

In Europe, legal challenges have already begun to move policy – and on both a country and EU level – but it has been unpredictable so far.

For example, in Germany, a patient legal action directly led to national medical reform in 2017. A current lawsuit hopes to do the same to determine, finally, the legal status of hemp. Recreational legislation may settle this out of court, but lawsuits clearly help to focus legislative attention right now on this issue.

Beyond this, at the EU level, the decision to normalize CBD – namely to redefine it as a non-narcotic substance – went through the court system, rather than being decided initially as policy in a national legislature.

A French case on imported CBD vapes also helped set policy at the EU level about the cross-border trade in CBD.

That said, the European Court of Justice refused to accept the case of Albert Tio in Spain, who was criminally charged and convicted for being a central part of the club movement, presumably because of its implications for recreational reform.

What Happens When Germany Legalizes?

There is clearly a place for such lawsuits after Germany legalizes recreational use. This development will absolutely drive policy across the EU – as Luxembourg has already noted. But when will this translate into similar kinds of lawsuits?

For now, it is too early to tell what might land first. However, with several countries in the EU on the brink of legalizing recreational use, even of the home grow kind, and both Germany and Switzerland in a trade alliance that goes beyond the EU, there is certainly a window of opportunity for legal challenges of this ilk, starting with the free movement of goods.

A non-pharmaceutical provider in Holland, for example, might be able to sue to gain access to the German market. So might a Swiss company. Beyond this, growers in countries like Portugal, Spain and Greece might be able to try to litigate market access for their high THC product, even if of pharmaceutical quality.

Market access is a powerful incentive for change. This in turn is also likely to instigate litigation to allow trade in the first place.