Legalised Cannabis Cultivation and Sale Under the Label of Science
In Switzerland, it is fundamentally forbidden to cultivate, import, produce or sell non-medical cannabis. With the Ordinance on Pilot Trials for the Controlled Dispensing of Non-Medical Cannabis (BetmPV), a legal basis has now been created for the implementation of scientific pilot trials for dispensing cannabis products of all kinds to adult study participants. Specifically, since 15th May 2021, applications for the testing of pilot trials with non-medical cannabis can be submitted to the Federal Office of Public Health (FOPH).
II. Legal Basis
Based on the newly created Art. 8a of the Narcotics Act (BetmG) and the BetmPV, the Federal Office of Public Health may, after consulting with the cantons and municipalities concerned, authorize pilot trials with narcotics of the cannabis type under the following conditions, which must be met cumulatively:
- The trials must be limited in terms of location, time and subject matter. The area of the pilot trial must be limited to a few municipalities. In addition, up to 5’000 adults who have already used cannabis and reside in the participating canton may participate in the project. The time limit for a project is 5 years per trial, although it can be extended by two additional years upon request.
- The trials must make it possible to gain knowledge about how new regulations affect the use of cannabis for non-medical purposes and how the health of the participants develops. It is mandatory for a recognized research institute to be involved in the project. The research question defined by the respective research project is also subject to the approval of the responsible ethics committee.
- Experiments must be conducted in such a way as to ensure the protection of health, the protection of minors, the protection of public order and public safety.
- Cannabis products that are of Swiss origin and comply with the rules of the Swiss organic landscape must be used in the experiments.
III. Implementation of Pilot Trials
The pilot trials are not only open to those who conduct the trials, cultivate cannabis, produce and sell cannabis products, but also to adult cannabis users as study participants. Study participants will be counseled and decriminalized as part of the trial.
The framework conditions for the pilot trials are strict and therefore require a considerable amount of organisational and administrative effort. This even extends beyond the duration of the trial, especially since the study participants must be cared for even after the experiment has been completed. In the run-up to the experiment, close cooperation with the municipal and cantonal authorities is required to clarify issues relating to the protection of public safety and order and to obtain the necessary permits.
As mentioned above, the cannabis offered must meet high quality standards and be organically grown. Supply chains are monitored and strictly controlled from seed to product distribution to prevent products from entering the black market. In addition, the cannabis must not exceed a total tetrahydrocannabinol (THC) content of 20%. Even the packaging is subject to strict rules and there is an absolute ban on advertising.
Sales are only permitted at locations approved by the authorities. This is to ensure that the sales staff is adequately trained and qualified. Furthermore, the point of sale must have an appropriate infrastructure. This includes, in particular, theft-proof storage of the products. After the trial has ended, the remaining cannabis products must be handed over to the authorities.
The sale price of the cannabis products must be based on the black market price. The higher the THC concentration, the more the product can be sold for. However, as mentioned above, the THC content must not exceed 20%. The amount that can be distributed per person is limited to 10 grams of total THC per month.
IV. Legal Alternatives to Participation in a Pilot Trial
Those who shy away from the aforementioned administrative hurdles to participate in a pilot trial and still want to cultivate cannabis have the opportunity to grow so-called CBD. The abbreviation CBD stands for cannabidiol and, in contrast to the active ingredient THC, it has a calming, analgesic, anti-inflammatory and anti-spasmodic effect.
Since CBD is not subject to the Narcotics Act, there is no legally defined limit in Switzerland. In contrast, the THC content is always decisive. Cannabis with a THC content of less than 1% has been legal in Switzerland since 2011. The distributors of such products must, however, comply with the relevant Swiss legislation under which his or her product falls (e.g. Foodstuffs Act, Tobacco Regulation, Chemicals Act, etc.). In addition, he or she is obliged to report the products to the FOPH before placing them on the market.
Based on the information provided above, the cultivation and sale of cannabis products is legal in Switzerland under certain conditions. However, before implementing a project, it is always advisable to obtain detailed information about its legality and to ensure that the necessary conditions are met and that the required permits are obtained.
-MLaw Sämi Meier, Attorney at Law and Partner at Studhalter & Meier Rechtsanwälte AG
-MLaw Raphael Gautschi, Legal Intern at Studhalter & Meier Rechtsanwälte AG