Poland: The government's intentions to explore (or not) the hemp industry

Major changes are taking place in the hemp industry in Poland, mainly due to the various changes proposed by the Ministry of Health in the latest draft amendment to the Drug Addiction Act. I have been warning for severals years for the problems related to the lack of adequate regulation regarding legal products from 'cultivated hemp' and 'fibrous hemp', as they are called in the language of Polish legal acts, which, for the sake of simplicity, I will simply call 'CBD products'.

I am probably also the only author who has discussed this topic in the specialized scientific press and you can read my text here. 

It was actually quite simple to come up with a set of ideas for regulating the cannabis market. The problem is that no one in the Polish government has listened to the experts for a long time. And that is the case this time too.

Concerns about regulating industrial hemp

The draft amendment to the Law on Combating Drug Addiction by the Ministry of Health emerged in mid-2024 and is already in the consultation phase. It can be expected that it will soon be submitted to the Sejm, the Lower House of the Polish National Assembly. It contains valuable provisions on substitution therapy, which the addiction treatment community has been waiting for, and which non-governmental organizations have long sought. But alongside these measures are also extremely worrying regulations regarding hemp. According to the drafters, the aim of these provisions is to tighten regulations on the cultivation and trade of fibrous hemp. 

“In Poland, the European regulations regarding hemp were not particularly well received, because in practice they form the basis for the liquidation of the hemp industry in our country in its current form”

According to the currently applicable art. 45 section 3 of the Drug Addiction Control Act, hemp cultivation can be carried out, among others, for textile, cosmetic, pharmaceutical and food purposes. The main hemp products sold in hemp shops are inflorescences (flowers) and oils (inflorescence extracts). The problem is that the flowers are used for smoking (this is the main form of cannabis consumption, including Indian cannabis – sold in pharmacies as a pharmaceutical raw material). Oils are not a food product according to European legislation in compliance with EU food safety procedures. Since 2019, the New Food Catalogue (Novel Food) includes CBD and other cannabinoids, as well as products containing them, plant extracts and synthetic cannabinoids. This means that all these substances and products containing them cannot be placed on the market as food or as ingredients in food products.

Of course, oil producers have submitted several hundred applications to register their products as food, but the European Commission is still in the process of assessing their safety (for several dozen). This is handled by the European Food Safety Agency (EFSA). 

The Polish hemp industry operates “in a kind of gap”. But it is not alone!

In Poland, these European regulations regarding hemp were not particularly well received, because in practice they form the basis for the liquidation of the hemp industry in our country in its current form, if only they were consistently implemented. Therefore, the Ministry of Health rightly writes in the justification for the project in question that the entire hemp industry operates in a kind of loophole – which consists mainly of the state’s failure to enforce the law. But exactly the same thing is happening all over Europe!

Unfortunately, it seems that instead of regulating the Polish hemp industry in the spirit of harm reduction, the Ministry of Health prefers to plough it, relying once again on bans and sanctions.

What does Poland's new law aim to establish?

1) The bill claims that the Anti-Drug Addiction Act lacks provisions that could effectively prevent the abuse of Art. 45 Section 3 of the Anti-Drug Addiction Act. The authors of the bill primarily have in mind the cultivation of hemp for the production of dried herb for smoking. I see some problems with this approach.

Firstly, contrary to the drafters’ claims, the existing provision of Article 65, paragraph 1 of the Drug Addiction Law prohibits the cultivation of hemp contrary to the Law, under penalty of a fine. However, the state authorities have so far not used it, allowing the hemp industry to operate. Secondly, how should the state authorities distinguish between the cultivation of hemp for smoking and cultivation for food purposes? Who should do this? Thirdly, it seems that the police will take care of this, because the idea of ​​the Ministry of Health is simply to introduce another criminal provision into the Drug Addiction Law. This is a very dangerous idea. 

2) The authors of the bill argue that in order to combat “the placing on the market or use of hemp or products derived from it for purposes other than those indicated in art. 45 section 3 of the Drug Addiction Combating Act, another criminal provision is necessary. They also state that this hemp does not come from national crops, but from abroad. Furthermore, they are “of unknown origin” and “may be harmful to health, cause intoxication and have addictive potential”.

“'Snorting cannabis' and 'injecting it into the veins', the classics of Polish narcophobia from the 1990s, are making a big comeback”

The problem is that exactly the same charges can be made against domestic hemp products. So why are foreign products being targeted for criminalization? Isn't it to calm the vigilance of domestic producers? 

As a consequence, the Ministry of Health proposes two provisions that will consider the cultivation, commercialization and distribution of hemp or products derived from it illegal if they are intended to be used for purposes other than those already permitted in art. 45.

Art. 65. 1. Who:

1) cultivates or purchases low-morphine poppy or hemp seeds in violation of the provisions of the Act, (…)

3) (…) intentionally places on the market hemp or products made from it [for purposes other than those permitted] in quantities other than a significant quantity, or, in order to obtain financial benefits, supplies hemp or products made from it in a quantity that is not a significant quantity to an adult person – is punishable by a fine.

Attempted offence referred to in section 1 point 3, with complicity being punishable.

Article 65a. Whoever [for purposes other than those permitted] places on the market fibrous hemp or products made from it in a significant quantity, or for financial gain, supplies hemp or products made from it in a significant quantity to an adult, or for financial gain, supplies fibrous hemp products or products made from them to a minor, shall be subject to a fine, restriction of liberty or imprisonment of up to one year.

The wholesale trade of hemp will therefore be a crime punishable by imprisonment and cultivation will be punishable by a fine, while selling hemp in shops, or even attempting to sell it, will be a misdemeanor. 

To perceive, that these regulations do not explicitly mention the sale of hemp for smoking and taking them literally, in my opinion, both provisions put an end to the functioning of the hemp industry in Poland in its current form, because the cultivation and sale of flowers and oils (from Poland or abroad) in its current form will be illegal.

The police will not play with subtleties and explain unclear regulations. Unless this is pure fiction and we assume that no one will enforce these regulations, because, for example, those who grow and sell hemp will claim that the dried herb is a raw material, for example, for making herbal teas. 

3) In light of the applicable legislation, the statement in the bill’s justification that the ban covers only “cases of trade in dried hemp intended for smoking” and does not include “the consumption of hemp or products derived from it (e.g. oils)” is false. In practice, there is no dried herb for consumption in stores today and there will not be in the future. Dried hemp is smoked or vaporized.

“The basic problem with the proposed regulations is their incompatibility with European and international law”

4) The authors of the project in question seem to base their “brilliant” idea on the linguistic distinction between “consume” and “use”. I quote: 

'However, inhalation by combustion or without combustion is not “food purposes”, it is not “consumption”, but is “taking” and therefore cultivation for this purpose is illegal.

Article 45 refers to food (not consumption) purposes, which means that it is about food production. However, hemp products are not legal foods in the EU. Unless the Ministry of Health wants to convince us that hemp, including hemp grass, is consumed but not as food. How then? 

After all, dry herb for smoking is the main product of the industry, so even if the vague translations quoted above made sense, a serious attack is still being planned. In my opinion, law enforcement authorities will simply take action and that is probably why these changes are being introduced. 

5) The authors of the project do not hide the fact that criminalization also applies to “other products that may emerge in the future and that will be ingested, for example, by injection or inhalation”.

Snorting cannabis and injecting it into your veins, the classics of Polish narcophobia from the 1990s are making a big comeback. Apparently, experts from those years are still on standby at the Ministry of Health. 

6) The project’s promoters rightly point out that CBD products have an intoxicating effect – even if consumed in sufficiently large quantities. The situation is similar to that of non-alcoholic beer with a negligible amount of alcohol. The problem is that the Ministry of Health views this very narrowly, writing (incorrectly):  

'So it's easy to miss that burning a few grams of hemp (several so-called joints) in a short period of time can lead to intoxication.'

But exactly the same thing, even easier, can be achieved… by drinking hemp oil. 

So why the fixation on smoking products? In my opinion, this is just a smokescreen, because the sale of virtually all products known today in cannabis stores will be punished. 

7) The basic problem with the proposed regulations is their incompatibility with European and international law.  

In December 2020, the United Nations Commission on Narcotic Drugs decided to remove hemp from Schedule IV of the 1961 Single Convention, and at the same time, CBD (hemp) products were recognized as substances and agents that are not subject to control under international drug agreements. 

In parallel, there was also a ruling by the European Court of Justice in the case of the French company Kanavape (reference number C-663/18). In November 2020, the ECJ concluded that the CBD cannot be treated as a narcotic drug under the terms of the 1961 Single Convention., however, it can be considered a food if its producers are able to comply with the food safety requirements in force in the EU.  

So why should CBD products now be regulated under the Drug Prevention Act if they are not a drug under the underlying international law? Why is there a criminalisation of the trade in these drugs? These are serious questions that the bill’s authors have passed over without any thought.

8) In my opinion, the regulations concerning cultivated hemp (fiber) should be transferred to a separate act, and the proposed sanctions should be of an administrative or fiscal nature, rather than criminal. It is difficult to understand why dried hemp should be treated as more dangerous than tobacco. Research shows that it is the opposite, because it does not contain the addictive substance nicotine. 

The first company to be punished under the proposed regulation and file a complaint with the ECJ will simply win, because all this has happened before. Perhaps it will even win in a Polish court, because decisions of international courts in Poland are also binding.

Furthermore, there are already final decisions from Polish administrative courts qualifying hemp herb as a food product. 

“Instead of changing the Anti-Drug Addiction Act, the CBD products market should be regulated by a separate law”

9) The proposed provisions appear to be in contradiction with the case law of the Polish criminal courts regarding the interpretation of the provisions of the Drug Addiction Act. They use the very vague and, in practice, practically discretionary term “significant amount”. This term is already used in the Act, including in its most famous criminal provision concerning possession – Art. 62. On the basis of this provision, the courts have for years tried to develop a uniform line of case law defining what constitutes a significant amount – without success. This should be an argument for removing this phrase from the criminal law provisions and not repeating it in subsequent provisions. 

Rather than a specific number, court decisions often state that a significant amount of a particular drug should be enough to intoxicate at least several dozen people. So now: how much CBD herb does it take to intoxicate at least several dozen people? If cultivated hemp (fiber) is not a narcotic, it is an infinite amount. Am I the only one who sees this problem? 

March for the legalization of cannabis in Poland. Photo: 420magazine.com

10) The authors assume that the proposed regulations “will reduce the availability of hemp and hemp-based products on the Polish market, sold for smoking or inhaling without combustion.” The problem is that they will likely simply reduce the availability of all cannabis products, without exception.  

However, dried hemp is purchased by patients who are treated with prescription cannabis from pharmacies. Thanks to the wide range of cheap dried herbs and the opportunity to try different varieties, patients have the opportunity to mix them with pharmacy cannabis – reducing its intoxicating effect and increasing the spectrum of interacting chemical compounds. And dried cannabis from pharmacies is also smoked. This is a quick and easy way to dose, although harmful. But preferred by many patients. This means that we are banning CBD flowers, but THC will still be available as a medicine. Where is the logic here? And of course, smuggling and illegal trade will begin – after all, CBD products are available all over Europe in legally operating stores. We are therefore creating another problem in the name of fighting hemp disease. This has never been played out in Poland before. 

11) The bill provides for a ban (under penalty of fine) on advertising of CBD hemp products, but limited to smokable products only: 

Art. 20a. Advertising or promotion of hemp or products made from hemp, suggesting that it can be smoked or inhaled without combustion, is prohibited.

Have you ever seen this type of ad? And what is the suggestion? However, the labeling of CBD products and their advertising as cure-alls requires urgent regulation. There is plenty of this on the internet, as I have said and written about many times before. 

In short…

Let us start with the fact that, in the current legal situation, the hemp industry is operating in a gap resulting from the lack of government action to enforce existing regulations. But this is exactly the same in all other European countries.

Instead of tinkering with the Drug Addiction Prevention Act, the CBD products market should be regulated by a separate law, and these products, if they can be smoked, should be defined as so-called related products (or tobacco related product), referred to in the Law of 9 November 1995 on the protection of health against the consequences of the use of tobacco and tobacco products. And this Law should be the main point of reference in the case of these products. 

The CBD Products Act may include: 

• recognition of CBD flowers as a related product (similar to tobacco);
• ban on the sale of pre-rolled cigarettes, disposable cigarettes, condensate heaters;
• ban on vending machines;
• labeling and packaging regulations;
• mandatory notices;
• prohibition of advertising as a product with beneficial effects (also applies to oils).

And many other provisions potentially needed for discussion. I have written about this in more detail, so I refer you to my text again. 

The motivation behind the Health Ministry’s proposal is not clear to me. Moreover, fellow activists and industry representatives who have already commented on the topic, such as Kuba Gajewski and Maciej Kowalski, seem to ignore the dangers arising from the discussed proposal to amend the law. I understand from Maciej that this is due to his belief in the rationality of the state and the strength of domestic industry. However, I remain sceptical. 

The proposed regulations potentially mean the liquidation of the entire hemp industry in Poland, and I really don’t know if that’s not your opinion. As a result, foreign companies will remain on the market, registering dried hemp as a pharmaceutical raw material and selling it at inflated prices in pharmacies. Of course, this herb will be used for… surprise! – smoking, as it happens today. 

And perhaps this is where we should look for the source of the solutions designed. Maciej Kowalski also points out that the bill aims to reduce budget revenues from excise taxes. Currently, hemp products for smoking are subject to excise taxes as so-called 'related products'. If we eliminate them from sale, the state will deprive itself of budget revenues. In my opinion, this may be the weakest argument for rejecting the bill in question. But it may appeal most strongly to politicians.

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Matteusz Klinowski

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A researcher, academic and political activist involved in local politics since 2010, Mateusz Klinowski holds a PhD in Law from the Jagiellonian University, specialising in philosophical logic, scientific methodology, ethics and political theory. Co-founder of the Polish Drug Policy Network, Mateusz has been pushing for legal reforms under the motto “treat rather than punish”. He was mayor of Wadowice and a councillor for several terms, promoting urban modernisation projects and attracting European funding. An advocate of transparency and change in the discourse on psychoactive substances, he has received scientific and activism awards. Author of academic publications and recognised blogs, Klinowski continues his career as a university lecturer and international researcher in various fields, including cannabis and hemp.

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