THE SWISS CANNABIS REPORT v1.05 Copyright By Mike Braben - May-September 2000 (Do not redistribute without author's permission) The following article was written in the hope of shedding some light on the controversial situation surrounding Marijuana / Cannabis here in Switzerland. Many things have been said during the last months, most unfortunately grossly inaccurate. I hope my views will be somewhat more balanced in that I have worked for one of Switzerland's most respected Cannabis retailers. Unfortunately I'm not in able to name my previous employer, in part due to a pending criminal investigation against him. It is my hope that this report will do be as objective and informative as possible. Please note that English is not my primary language and that I do not pretend to be a skilled writer.... CHAPTER I - The Beginnings Recently there has been talk that Cannabis has been legalized in Switzerland. This is incorrect in that - technically speaking - Cannabis has always been completely legal in this country. The Swiss Cannabis market started to emerge about 10 years ago when the first pioneers noticed how our Federal narcotics law is formulated. I decided to reproduce the four most relevant Articles in their original language (German)below and comment on their respective significance. Needless to say that I will focus only on the Cannabis related parts and that my translation is not guaranteed to be legally fully accurate. 1. Kapitel : Allgemeine Bestimmungen Art. 1 1 Betäubungsmittel im Sinne dieses Gesetzes sind abhängigkeitserzeugende Stoffe und Präparate der Wirkungstypen Morphin, Kokain, Cannabis. Zu den Betäubungsmitteln im Sinne von Absatz 1 gehören insbesondere: a. Rohmaterialien 1. Opium, 2. Mohnstroh, das zur Herstellung von Stoffen oder Präparaten dient, die unter die Gruppen b 1, c oder d dieses Absatzes fallen, 3. Kokablatt, 4. Hanfkraut; b. Wirkstoffe 1. die Phenantren-Alkaloide des Opiums sowie ihre Derivate und Salze, die zur Abhängigkeit (Toxikomanie) führen, 2. Ekgonin sowie seine Derivate und Salze, die zur Abhängigkeit führen, 3. das Harz der Drüsenhaare des Hanfkrautes; c. Weitere Stoffe, die eine ähnliche Wirkung haben wie die Stoffe der Gruppen a oder b dieses Absatzes; Chapter 1, Article 1 is called "General Statements", and defines what a "narcotic" means to this law and lists the raw materials used in the production of the major narcotics. These raw materials are: Opium, poppy straw for the production of narcotics, Coca leaf, Hemp and the Phenantrene alkaloids of Opium, Ecgonin, the resin of the glandular trichomes of Cannabis as well as other compounds having a similar effect (!). All of the above are strictly regulated and the Hemp plant is mentioned in the same category of raw opium, apparently making it strictly illegal. However the document doesn't end here, the next relevant part being Article 8: Art. 8 1 Die folgenden Betäubungsmittel dürfen nicht angebaut, eingeführt, hergestellt oder in Verkehr gebracht werden: a. Rauchopium und die bei seiner Herstellung oder seinem Gebrauch entstehen-den Rückstände; b. Diazetylmorphin und seine Salze; c. Halluzinogene wie Lysergid (LSD 25); d. Hanfkraut zur Betäubungsmittelgewinnung und das Harz seiner Drüsenhaare (Haschisch). "Art.8 - The following narcotics can't be cultivated, imported, produced or sold: a) smokable Opium and the residues created by it's production or use; b) Diacetylmorphine (aka Heroin) and it's salts; c) Hallucinogens like Lysergid (LSD 25); d) Hemp for the production of narcotics and the resin of it's glandular trichomes (Haschisch)." While Hemp is mentioned again in Article 8 - a very important article - it is explicitly stated that this applies only to hemp for the production of narcotics! Haschisch on the other hand is illegal in itself, regardless of the intended use. That should mean that all Cannabis which is not intended for the production of narcotics can be freely purchased, sold and possessed since it is quite evidently not regulated. 4. Kapitel: Strafbestimmungen Art. 19 47 1. Wer unbefugt alkaloidhaltige Pflanzen oder Hanfkraut zur Gewinnung von Be-täubungsmitteln anbaut, wer unbefugt Betäubungsmittel herstellt, auszieht, umwandelt oder verarbeitet, wer sie unbefugt lagert, versendet, befördert, einführt, ausführt oder durchführt, wer sie unbefugt anbietet, verteilt, verkauft, vermittelt, verschafft, verordnet, in Verkehr bringt oder abgibt, wer sie unbefugt besitzt, aufbewahrt, kauft oder sonstwie erlangt, wer hiezu Anstalten trifft, wer den unerlaubten Verkehr mit Betäubungsmitteln finanziert oder seine Finanzie-rung vermittelt, wer öffentlich zum Betäubungsmittelkonsum auffordert oder öffentlich Gelegenheit zum Erwerb oder Konsum von Betäubungsmitteln bekanntgibt, wird, wenn er die Tat vorsätzlich begeht, mit Gefängnis oder mit Busse bestraft. In schweren Fällen ist die Strafe Zuchthaus oder Gefängnis nicht unter einem Jahr, womit eine Busse bis zu 1 Million Franken verbunden werden kann. Chapter 4 has the appealing title "Measures of Punishment" and says: "Any person who - without permission - cultivates, produces, extracts, transforms, stores, ships, transports, imports, exports, offers, sells, distributes, transmits, procures, prescribes, possesses, buys,........ alkaloid containing plants or Hemp for the production of narcotics...... shall be punished....." Once again hemp - and all other alkaloid containing plants -, are regulated exclusively if intended for the production or extraction of narcotics. If you cultivate hemp for it's seed, it's pulp or essential oil you should not be affected in anyway by this law. It should be noted that a maximum value for THC-content is not mentioned anywhere. It follows that there is no legal distinction between high-potency and low-potency strains. It can still be argued that a high-THC strain is much more likely to be used for illicit purposes, however - technically - it's still not any less legal than growing EU-approved, THC-free strains. Anhang a (Art. 1) Verzeichnis aller Betäubungsmittel Bezeichnung EAN-A Anhang [...] Hanf siehe unter Cannabis a+d Haschisch 7611746999256 a+d [...] Cannabis zur Betäubungsmittelgewinnung Cannabisextrakt zur Betäubungsmittelgewinnung Cannabisharz Cannabisöl zur Betäubungsmittelgewinnung Cannabistinktur zur Betäubungsmittelgewinnung Appendix 1, Article 1 is called the "Index of all Narcotics" and is expected to contain an all-inclusive list of regulated compounds.The Appendix can be updated to include new substances if needed. Among the many synthetic narcotics we also find some natural products like Coca leaf, Catha edulis or raw opium, however the only references to Cannabis are those reported above/below: Hemp see Cannabis Haschisch [...] Cannabis for the production of narcotics Cannabis extract for the production of narcotics Cannabis resin Cannabis oil for the production of narcotics Cannabis tincture for the production of narcotics [...] Interestingly the Appendix is even more liberal than the rest of the law. While it confirms that Hashish is strictly illegal it also reconfirms that Cannabis - meaning the plant as a whole, from roots to flower - is not illegal in itself but only if intended for the production of narcotics. What surprises is that even Cannabis extract (literally any concentrate thereof, possibly including Hashish), Cannabis tincture, as well as the "oil" of Cannabis (which often has a THC content close to 90%) are not illegal or regulated if not intended to be used as narcotics!! While this looks pretty weird it respects the intention of the legislators, which back in 1951 had absolutely no intention to regulate the industrial or medicinal uses of hemp, and didn't believe a stricter wording was necessary. While this law dates back to 1951 and hasn't been significantly affected by any international treaties signed since then, it took 30 years for someone to notice and 10 more years to get the first positive sentences in court. For more than a quarter of a century, law enforcement has acted in an arbitrary fashion. It was automatically assumed that the hemp flowers in your pocket, or the two plants in your backyard were intended to be smoked/eaten. Obviously this has been possible only because no one ever took the time to research the legal situation and/or because nobody ever had the courage to "stand and be counted". It is certainly easier to accept a $100 fine for the illegal cultivation of Cannabis than to fight your way up to the supreme court (which costs an absolute minimum of $4000 even with legal assistance and is far from certain to help). This situation was changed by a handful of individuals who were convinced of their right to grow Cannabis and determined to fight for it regardless of the costs. Once again I will not mention any names but I can say that practically all of these pioneers are still active in the market and one of them has become almost "untouchable" legally speaking. PART II - The First Victories The most prominent example is that of a farmer who decided to plant one acre of what he calls "Swiss natural hemp", or what we would call medium-potency Cannabis. Since the law doesn't mention any THC-limits he didn't see any reason for planting low-THC strains. He also decided to pull all the males and prevent the plants from pollinating themselves - a practice normally used in the production of smokeable Marijuana and not for industrial purposes. He argued that by pulling the males he increased the ornamental value as well as the aroma of the flowers. Unsurprisingly local law-enforcement wasn't too convinced of his motives and decided to plow the whole field and accuse the farmer of illegal narcotics production. He obviously lost in the lower (local) courts but decided that he wanted a decision from the supreme-court. In his opinion law enforcement had acted in an arbitrary fashion by assuming that his hemp was intended for illegal purposes, while failing to show any proof for their assumption. Like in most countries, it can take several years to get your case to the the supreme court. In the meanwhile the farmer had to decide if he wanted to keep growing Hemp - risking further harassment and a harsher sentence - or await until the matter was settled in court. He ultimately decided that it was worthwhile to take the risk and planted another acre of Hemp the second year. Police followed-up and plowed the field again, but this time without a valid permission from a judge. The third year they "only" confiscated the whole crop after harvest! In the meanwhile the case surrounding his first crop had reached the supreme court which, to everyone's surprise, said that the farmer was right and that the government would have to come up for his economical losses which amounted (all in all) to over a million Swiss francs (USD $1 million = 1.6 million Swiss Francs)! A very similar case also took place in the French part of Switzerland where a farmer was repaid for his hemp after he proved that a large part of his (medium to high-THC) Hemp had been sold to a beer brewing company and thus excluding any possibility of illicit use. All of the above took place in the early '90s and since then it is (with some insignificant exceptions) pretty clear that growing hemp is not illegal unless there are strong reasons to suspect that it is going to be used illicitly. It should however be noted that there aren't any sentences yet regarding indoor-cultivation of Cannabis. Some state-prosecutors are currently arguing that if you grow a very high-THC strain with this kind of economic investment (lights, timers, electricity, pumps...) you cannot believably claim that you are not going to produce narcotics from the plants. The defendants are arguing that they are growing ornamental plants and cite indoor rose and orchid gardens as examples. Others play it even safer and justify their flowering plants with breeding projects (seeds not being illegal). Personally I refrain from making any predictions on how the courts will decide on the issue but a 50/50 chance of winning looks realistic to me. PART III - If it can be grown, it can be sold. If the cultivation of high-THC Cannabis is legal it follows that it's sale must be legal too. The only problem consisted in finding a product which could be marketed for legal uses but which contained the most psychoactive parts of the plant - the seedless flower. That was how the infamous aroma-bags and aromatherapy pillows were born, soon to be followed by collectible Hemp flowers and other ornamental products. All items feature sound warnings saying that the product must be handled in strict accordance with the national laws and not used as narcotic or exported. The first attempts consisted of hemp fiber bags containing low-medium potency hemp flowers and sold at rather modest prices. Customers had to show proof of age and sign a disclaimer stating that you agreed not to use the product illegally. As the market evolved, the quality went up and the selection greatly increased. At this time one can purchase everything from very cheap low-potency outdoor weed to super-high-potency Indoor primo bud from your local retailer. Some shops sell their products in Ziploc bags as you would expect from a street dealer, others invest in more serious and creative packaging, usually consisting of colorfully depicted Vacuumed plastic bags. For some time it was an almost surreal situation in that what was considered strictly illegal only six months ago was now sold openly for everyone to see. Kilograms of Cannabis and thousands of Swiss francs were traded every day and very briefly it looked as if nobody was bothered by it. During the first year of the boom, Switzerland reportedly produced enough high-THC Cannabis to supply the whole European market. Every larger town in the country having it's hemp-store and cities on the borders to neighboring countries (Germany, France and Italy) having 5-6 of them each. PART IV - Some Entrepreneurs The following is a short overview of the most daring, aggressive and/or creative pioneers of the market: - James Blunt in Zurich was the first busted shop to get serious attention from the mass medias. Like many others he was selling aroma-bags in various sizes and qualities. He had a reputation for good quality, large selection and creative marketing ideas. While others were selling their product in hand-labelled Ziploc's he had created an elaborate packaging and a shop with an atmosphere comparable to Holland's best coffee shops. He also distinguished himself by giving indications of potency and taste on the product, making it rather obvious that he wasn't selling them solely for aromatherapy. The cantonal prosecutor in Zurich decided to use him as example for the other shop-owners and dragged him to court. As expected he was quickly sentenced to several months on probation and ordered to pay hefty a fine for his activity. He was practically forced to accept the decision since the prosecutor promised to file a second case against him for tax evasion if he appealed the sentence. Tax evasion being a serious crime in Switzerland and not wanting to spend the next 10 years fighting in court the owner complied. This case constituted a major victory for the anti-hemp establishment in that it practically (but not technically) declared all hemp-shops in the Canton of Zurich to be illegal and open to prosecution. It also provided many other cantonal judges with "convincing" arguments to justify their sentences against hemp shops. It also was a turning point for the hemp-activists, who realized, that after all they could still be prosecuted and that they needed to improve their legal protection. The owner currently runs a grow-shop and has stopped selling hemp-flowers. - Genossenschaft Enetbrugg, located in Ossingen was a cooperative of Hemp growers which at some point controlled the near-totality of the Swiss Cannabis market. They had literally invested millions in hemp fields, greenhouses and indoor growrooms, producing tons of high quality Cannabis which was resold (at pretty steep prices) to retailers in the whole country. While people often complained about the "commerciality" of their product, it took many months before someone else started to approach their quality and manage to have a constant supply. While their approach was quite careful and serious, the size of the enterprise was practically certain to attract unwanted attention. After several years in business a cantonal court sentenced them to over a year on probation and the cooperative was ultimately dismantled (probably because no one was willing to take further risks). Many regarded them as aggressive opportunists who made millions from this business and not giving back anything. Personally I have a more moderate view in that it is open to question how much profit they really made in the end and at what price. The courage and professionality needed to build an enterprise of this size shouldn't be underestimated. Last but not least they have been pretty active in researching the legal possibilities and sharing them with the community. - Turbo Hanf Commando in the outskirts of Zurich was probably one of the weirdest companies in the industry. The owner was featured in an infamous TV program: Picture yourself a 40+ year old with bloodshot eyes and slurred speech, expressing his hatred against the State while smoking a fat joint in his office which features an AK-47 assault rifle as part of the furniture. After calling for a (leftist) revolution, he shows his Haschisch Factory to the whole nation. The factory consisted of several large rooms equipped with huge pollinators, producing tons of (mediocre) Haschisch. Almost everyone in the industry immediately distanced himself from this individual, expecting a police raid within days. To everyone's surprise nothing happened for over a year and he even started to sell his products on the Internet. When he was ultimately raided, the police confiscated several (!) tons of Haschisch and Cannabis. He is still awaiting trial but I honestly do not expect him to win. - K-PAX of Mendrisio was one of the first (the third to be exact) shops to open in the Italian part of Switzerland. At first they distinguished themselves locally by offering superior quality and service, similarly to what James Blunt did in Zurich. At the end of 1998, since no one had thought of doing so yet, they decided to make use of technology to market their product and created one of Switzerland's most visited Internet pages. During one year of Internet-activity they created a name recognized nationwide, supplying the most remote regions of Switzerland with high quality Cannabis through the postal system. A slew of imitators soon followed, all but a few without the creativity of the original and often lacking even the most rudimentary legal protections. In 1999 K-PAX opened a new shop in the center of Mendrisio (a very conservative place), investing large part of the Internet profits. Given it's high visibility the new shop immediately became the target of several cantonal initiatives against hemp and had to be closed for several months due to a silly debate about communal construction laws. Ultimately the company was forced to close by a pending federal criminal investigation. An emblematic example for Switzerland: as long as you play small it's OK, once you attract too much attention it isn't anymore. The outcome of the trial is of great interest to the community in that it will probably settle the legality issue once for all: if K-PAX was illegal everyone else is too. PART V - Cantonal Reactions The Swiss federation consists by 25 associated Cantons (or Republics) which are roughly the equivalent of American States. While the narcotics law is federal, it's application is of cantonal competence which means that the same crime can be treated very differently in various parts of Switzerland. For example, the consumption of drugs (including Cannabis), is illegal but some Cantons have decided not to prosecute for small quantities while others still fine you $100 if caught in the act. While the cultivation of Cannabis has been decreed legal by the highest court in Switzerland there is no such ruling for the sale of Cannabis which leads to quite disparate cantonal reactions. The French part (which includes the city of Geneva) reacted to the threat almost immediately by closing all the newly opened shops. While they never fully succeeded in eradicating the industry from the region they remained loyal to their no-tolerance policies up to this day. In cities like Zurich the reaction was somewhat different in that they closed and prosecuted many hemp-shops but never tried to eradicate them fully from the territory. Last but not least there's the Italian part which did not react at all for almost four years (!). During this period over 50 hemp shops opened in the territory (bordering on Italy), which is rather impressive considering the following statistics: Inhabitants of Canton Ticino: +/- 300'000 Hemp shops in Ticino: +/- 50 Percentage of Cannabis users (*) +/- 12% (about 36'000 people) (*) statistics from the Swiss ministry of health. If we don't count the foreign (= Italian) customers and the still-existant black-market that works out to one retailer for each 720 consumers. At this time (April 2000) authorities in Ticino seem to be doing all the work they haven't done in the past. A total of about 20 shops has been closed during the last three months, working out to +/- 6 busted shops each month. It is certain that the primary motivation for these busts were the recent communal elections. The leading political party has officially declared in their electoral campaign that their objective is to close all the remaining hemp-shops in the territory. How much the police actions have been motivated by international pressure can only be guessed. What is certain is that the neighboring countries complained quite soundly more than once. However it should be noted that during W.W.II, smuggling was the main source of income for the territory. Due to this long standing history of contraband, some people vainly hoped that the Cannabis-trafficking would be tolerated in the same way coffee and cigarette smuggling have been during the last 20 years. While less than 1% of the hemp seized in Italy is of Swiss origin, some retailers definitively went too far, among other things by advertising their aroma- bags in Italian clubs and discos. PART VI - The Long Awaited Legal Reform Given the current situation everyone, from hemp activists to law enforcement, agrees that a new narcotics law is badly needed. Most people also agree that Cannabis is not the dangerous drug it was thought to be and believe that prohibition is not a really acceptable "solution". Unfortunately, here in Switzerland a reform of this magnitude takes many years to complete. In 1998 the Government asked several commissions to evaluate the dangers of Cannabis and to suggest possibilities of regulating the market. All the commissions concluded that the danger was quite minor and that there is no reason to continue with the failed experiment of prohibition. During 1999 they proposed five different models to regulate Cannabis, only two of them being in accordance with international treaties. Surprisingly almost all experts suggested breaking the international treaties in that it would be the only meaningful way to regulate it's trade and free it from it's status as narcotic. Unsurprisingly this possibility wasn't given much political attention since no one ever seriously considered breaking international treaties. This leaves us with the two remaining proposals, one of which is fairly restrictive while the other is a little bit more liberal. The recent rumors about Cannabis legalization were fueled at least in part by the parliament voting - and accepting - one of the two proposed solutions. The current proposal is to legalize the possession and consumption of Cannabis and to tolerate it's sale under certain conditions. It is not yet clear what kind of conditions will be imposed on the retailers, nor is it clear if there will be an official license or not. In order to be successful, the proposed model will need to be evaluated very carefully and in an open-minded fashion. Both sides - hemp activists and government - want a regulated market in their respective interests. Evidently the government doesn't want the Cannabis market to be too visible while the activists want just that... exposure and acceptance after years of hiding! Probably the definitive proposal will include at least some of the following rules: - No sale to minors (already respected by most retailers). - No publicity. - No sales over x grams per customer (where x could be 5g). - Sales permitted only to Swiss residents. - A maximum daily stock of hemp in the shop. - No sales of Tobacco/Alcohol in the same place. - THC Content indication on the package. - Specially trained salespeople (probably hard to accomplish). During the next few years the revision will be completed and ultimately presented to the Swiss population which will have to accept it. If everything goes as planned it will hopefully become law by 2004!! PART VII - The Current Situation [April 2000] Currently there are still wide regional differences: most of the Swiss-German cantons Decided to tolerate the industry until the new law is accepted, the French cantons are doing exactly the opposite and here in Ticino nobody quite knows what's going on. Several shops have been closed in the last months but so far without any apparent logic, in that there still are about 30 such shops where business goes on as usual regardless of the repression-wave. Interestingly it looks as if the most reputable and serious shops have been busted in favor of the "gray" market. In simple words: if you want to play it safe do not declare your sales and do not pay taxes on them - at least that's what the casual observer has to assume! Very recently an association (called ACT!) was formed to defend the industry's rights here in Ticino. The association is asking the authorities why some shops have been closed while others are still open, considering that they are selling exactly the same product. Unfortunately I have reason to believe that it's effectiveness will be quite limited due to internal divergences about it's role. Sadly it seems that those involved with the association are now the first ones to be targeted by authorities! The situation concerning Internet-sales is even worse in that the semi-statal postal system has declared that it will stop all packages containing hemp and forward them to the respective authorities. Several people are currently trying to sue the postal system for this decision which we believe to be strictly illegal. It goes without saying that it is very hard to win against a company partially owned by the state. The supreme court has added even more to the confusion by sentencing two shop-owners for their actions. Apparently the supreme court is trying to respect the "political will" of the regions which means confirming all the sentences which can be confirmed. If you've been convicted in a repressive region (like Geneva) you will also be convicted by the supreme court. It should also be noted that the cantonal prosecutors in Ticino have acted in an unprecedented - and close to criminal - fashion when busting hemp-shops. It is evident that they are totally disorganized and that they will use almost every imaginable method to get what they want (an admission of guilt). Some people have been kept in prison for an unbelievable 13 days while others have been released under the condition that they admitted to "selling a narcotic". Psychological pressure is being applied without any reasonable motive - selling Cannabis may be illegal but the shop owners are certainly no dangerous criminals which need to be locked up to safe society. The latter is especially evident considering that none of them will be sentenced to a single day of prison (at most they will get away with probation). Other examples of illegal state-activities include the temporary seizure of cars, garages and other company-owned sites which were totally unrelated to the hemp-business. This is only the tip of the iceberg and constitutes a serious violation of fundamental constitutional rights. Suggested reading: For further informations about this complex issue I suggest to look at the following PDF document: http://www.admin.ch/bag/sucht/drog-pol/drogen/e/revbetmg/cannabise.htm. The URL points to a study commissioned by the Swiss Government which was realized by the Swiss Federal Commission for Drug Issues. It will hopefully give you a better understanding of the proposals which are currently being discussed. This document currently constitutes the basis for any discussion concerning drug-policy changes in this country! Conclusions and reflections: The battle is far from over and I suspect we will see some pretty interesting developments during the next months and years. Rumors indicate that the proposed law reform is taking a more prohibitive turn which could mean that the awaited decriminalization could be reduced to a facade. If there is enough feedback I'm considering publishing periodical updates or even a full-length book on the subject. Please let me know if YOU would be interested, what topics you'd like to see covered and - last but not least - if you would consider sending a small donation for such an update-project. Yours, Mike Braben, Switzerland, September 2000 -------------------------- eGroups Sponsor -------------------------~-~> <FONT COLOR="#000099">eLerts It's Easy. It's Fun. Best of All, it's Free! </FONT><A HREF="http://click.egroups.com/1/9699/16/_/475667/_/971617988/"><B>Click Here!</B></A> ---------------------------------------------------------------------_->
