Vade-mecum
To present as a hypothesis that the hemp I sold was to be taken as such, one must note that it is not an infringement to the law on narcotics, which addresses narcotics and nothing else. The hemp I sold is a drug. A drug is not a narcotic. Legally, a drug and a narcotic are completely different things that are treated by the law in a specific way. The drugs are found in the list E of the drugs of the OICM (Office Intercantonal du Contrôle des Médicaments) institution and the narcotics on the list of narcotics established by the OFSP (Office Féderal de la Santé Public) . What is a drug can not be at the same time a narcotic. Since a drug is not a narcotic, its consumption is not a consumption under the terms of the LStup (Swiss narcotics law). The consumption of drugs is not mentioned in the LStup, it is therefore free of punishment and conviction, which shows the non-sense of the accusation, such as is explained in what follows:
The LStup is a law covering the production and the commerce of pharmaceuticals specialties (medications), a few precisions on the terminology used in the LStup are useful for a general understanding. As a law on remedies and medicine (RS-812.121), the LStup uses the pharmaceutical and medical terminology of the Federal Legislation assignable to the health (RS-81). This terminology is essential if one wishes to understand the sense and the goal of the LStup.
What is "hemp" , a "raw material" (of hemp), a "production" (or "extraction"), a "narcotics" in the sense of the Article 1, 8 and 19 of the LStup ?
"hemp", Hanfkraut, canapa indiana" (article 1, line 2. letter a, number 4 LStup.) is not according to the law the plant which grows in our fields but the raw material (Rohmaterial) which is used by apothecaries for the production of extracts and of tinctures for a medical use (OICM list a and various - annex 3). The LStup, as federal law on pharmaceutical specialties, takes the definition of hemp from another text of the federal legislation on health, that is the pharmacopea, which is a federal law (RS-812.21). Hemp is defined, legally and pharmacologically, such as follows: "Herba cannabis (hemp, hanfkraut, cannapa)": " flower bearing or fructiferous dryed extremities of the female plant" (Pharmacopea Helvetica, Edition Quinta, number 429-annex 4). The federal definition is of mandatory usage to read the LStup concerning hemp reasons. The word "hemp" does not englobe, as supposed by the Federal Tribunal (ATF 16.11.94 not published) the entire plant but only the flowering extremities. Legally, the whole plant is called "hemp plant" (Hanfkrautpflanze). ("Definition", Art. 1, line 1, letter c, unique convention of 1961; RS-1970, page 807).
A raw material is not destined to be consumed immediately, it must be transformed in the final product. This economical definition of raw material is applicable to the LStup, because under this definition this is a law on commerce, production, and sales (of narcotics) (see page 5 under nota bene:). One "Raw material", in the sense of the law (marginal sub—heading of the article 1, line 2, letter a of the LStup), and cultivated hemp and produce in order to take extracts, tincture, oil or haschisch (see also the ordonnance on ecologically dangerous substances RS-814.013: "raw material are natural substances, the substances are finished products"). One "raw material", in the sense of the LStup, is a material which enters in a process of extract production, of tincture, oil, and haschisch. The Hemp, raw material, should be without seeds (or not mature) which is not the case of the agricultural indigenous hemp.
Hemp becomes a forbidden material uniquely if it is used or cultivated in the arrested goal to obtain narcotics. (Article 8 and 19 of the LStup). (mutatis mutandis: apples are forbidden if they are used for the illegal production of alcohol). A production is illegal when its goal is non-medical; the medical corp are entitlled to use these narcotics and the production which they require is legal (Article 9 LStup).
If the hemp is not a raw material for the production of extracts, of tincture, etc..., it is not a merchandise forbidden by the LStup (mutatis mutandis :if apples are not raw material, then they are not forbidden.). In the "list of forbidden substances" (LStup - OFSP-appendix d; RS-812.121.2), It is not the hemp in itself, but "cannabis (hemp) in view of narcotics extraction" which is mentioned.
It is interresting to consult the Italian version of the article 1 of the LStup, which speaks of "canapa indiana" (Indian Hemp) (Article 1 Legge federal sugli stupe facenti). The italian text reflexes the fact that it is indian hemp which is solely used as raw material and then the apothecaries extract therapeutic substances. In article 8 line 1, letter d of LStup these are all types of hemp (hemp EU, sativa and indica-ATF 16.11.1994, unpublished) which, for preventive reasons, are touched by the LStup. From the moment their culture aims at producing narcotics, because they become "raw material" (idem article 19, chiffre 1 line 1 and 2 ss LStup).
"Production" ("Gewinnung"), according to the Article 19 LStup, consists in extraction (see article 8 LStup : "hemp in view to extract ("Zur Gewinnung") of narcotics": "we mean by extraction the operation by which one separates a narcotic of a substance or a compound it belongs to as a component ", (article 1 of the convention of 26.06.1936, FF 1952, page 570): "the unique convention replaces all conventions on narcotics, (...) The 1936 convention remains as such" (Message of the Federal Counsel at the Federal Assembly, 20.03.1968; FF1968, page 825)). As long as no process of extraction, that is to say, as long as there is no finished product, There is no production in the sense of the LStup. The obtension of a tonic effect or a somnolence is not a production, because the light effects generated by the plant are intrinsic and cannot be considered as referring to extraction or production of a substance or a preparation.
Nota bene: The production must be commercial and aims at the sales, because the LStup does not cover the private usages, but well for the commerce and sales of narcotics (title, section 1, chapter 2 LStup.). This is found in the genesis of the law and of the decisions of the Federal Tribunal:
1924 : "The right for the confederation, to legislate on the commerce of narcotics, is prooved" and: "(...) that the article 69-CF can be used as a basis to write a federal law on the commerce of narcotics." (message of Federal Adviser at the Federal Assembly, FF 1924, no 65 page 286 ss.)
1951: "one wants to touch the illegal markets, the black market" (Stenographic bulletin of the Federal Assembly, 1951, page 627).
1974:"the case of people that have shops are treated meticulously in the Article 19 of the LStup"(Stenographic bulletin of the assembly, 1974, page 1435) and :"only the commerce is punished"(Federal Advisor Hurlimann, idem, page 1458).
"the various forms of commercial cannabis are submitted to the narcotics law" (ATF 124 IV 44 E2b + 120 IV 256 E 2a + 95 IV 179 E 1).
The word "production" according to the LStup, which is a commercial law, must be understood in the commercial state: for the production of a substance or a preparation, it is required to have a minimum of raw materials. A few grams of hemp do not suffice for the production of extracts, of tincture, etc... (mutatis mutandis : a few apricots do not suffice to produce apricot-plum).
The LStup, as the law on foods (LDA), is a law regulating the commerce and the sales of merchandise to a third party. The LDA is not applicable to foods procuced and eaten in private; as such, the LStup is not applicable to the production and private consumption, and even less so, if this production is destined to a private self-medication (The self medication is a fundamental right).
The "narcotics", according to the LStup, are substances and preparations somniferous and with analgesic properties that bring about a dependence: "one means by narcotic, products usually used as a medication" (see narcotics definition in the message of the Federal Advisor at the Federal Assembly; FF1932, page 524). A medication is a "substance or a preparation" (Article 3, pharmacopea law, 812.21 and article 1 bis - regulation of 25.05.1972, OICM; 812.21), which is obtained by the process of fabrication. A substance, according to the LStup, is therefore a pharmaceutical and therapeutic product. Narcotics with a hemp basis are therefore the four substances and therapeutic prepartions under a galenic form , ("ready to use") (Article 1, regulation OICM; RS 812.22) following production by man :"extract, tincture, oil, haschisch"(LStup - OFSP - appendix a + d; RS 812.121.2).
In the LStup, the word hemp means the floriferous extremities of the hemp plant. These are neither substances nor preparations (preparation: see article 1 of the LStup), they have not been produced (but cultivated) and are not in a galenic form. Hemp, as such, does not fit in the pharmacological definition of a narcotic and cannot be considered as a narcotic in the sense of the LStup. It is such that hemp, mentioned in article 19, number 1, is mandatorilly a raw material in the sense of the law, therefore a raw material for the production of the 4 preparations mentioned in the narcotics lists: extracts, tinctures, oil, haschisch (LStup - OFSP, appendix a, RS-812.121.2). Therefore, if hemp is a raw material for the production of extracts,
of tincture, oil, and haschisch, it is "considered as a narcotic" (Art 1 line 2 LStup), that is to say submitted to the narcotics law and therefore to the Article 19, number 1, line 2 ("the one that, without rights, produces, extracts, transforms, etc..."), but it is not yet a substance, neither a preparation in the sense of article 1, line 1 LStup. Hemp, in the article 19, number 1, line 2 LStup, and always - mandatorilly - is a raw material. When one speaks of hemp which is not a raw material, one speaks of hemp which is not destined to the production of extracts, of tincture, etc..., and is therefore not submitted to the control of the LStup, respectively to an interdiction. If it is not destined to the production of narcotics, hemp is free and its other uses necessitate no authorization.
The direct consumption, for example under the form of tea, is a use of hemp other than production of extracts, tinctures, etc..., such as was said in the Argovie Canton Tribunal (annex 5).
The phrase "the one which cultivates hemp in view of producing narcotics" was not in the original text of 1951 of article 19, number 1 of the LStup (RS-1952, page 247). This article was modified during the revision of 1968, which was necessary because of the ratification of the unique convention of 1961 (message of the Federal Council, FF 1968, page 777), and the next phrase added "the one which cultivates hemp in view of producing narcotics" (RS 1970 page 11).
One finds the same difference in the article 8 that, in the original law text of 1951, did not mention hemp as raw material "In view of the production of narcotics". The forbidding in time concerned only the preparation of resin, (haschisch): " the availability to the public of the resin of hemp, glandulous hair (haschisch) is forbidden" (RS 1952, page 243). The phrase " hemp in view of the production of narcotics" has been added. - Equally in view of the ratification of the unique convention of 1961 - during the 1975 revision (letter d, new) (message of the Federal Counsel of 09.05.1973, FF 1973, page 1317). Hemp as raw material was therefore put on the list of substances that are forbidden to commercial outlets to produce for non-medical reasons. (RS 812.121.2).
It is interesting to note that the sentence "in view of narcotics production" had already been proposed in 1951, in a slightly different version, to be included in the Article 1 (new) of the LStup. The proposition of the Federal Counsel (FF 1951, page 872) was the following: "Hemp, used for the production of substance or of preparation (...)" - (to compare to the text : "The straw of poppy used to prepare the substances or preparations...", of the article 1, LStup.). The legislator preferred a simplified version, leaving just the word "hemp". Given the numerous applications of hemp, it was normal that the hemp incriminated by this law only concerns the production of substance or of a narcotic preparation (stenographic bulletin of the Federal Assembly 1951, page 620 : "before we said: "hemp for the production of substance or for a preparation", etc..., now we only say "hemp"). Later, until 1975, one added the marginal article 1 LStup. "raw material", "Rohmaterial", " grezze matter", to underline that hemp must first be a raw material conditic sine qua non to fall under the control of the LStup. (Stenographic bulletin of the Federal Assembly,1974, page 1431 ad article 1 LStup. ) . If there is no extract production, of tincture, etc... foreseen, there is no control of the hemp: "It is not foreseen to control the culture of hemp as such, neither using the hemp for not in relation to the production of narcotics." (message of the Federal Counsel 09.04.1951-FF 1951, page 867). From this, one notices that any other utilization of hemp, such as its consumption as tea, is free, not submitted to the control of the authorities and, since not in violation of the LStup it is therefore not punishable.
From texts and documents comes clearly the will of the legislator: only hemp considered as raw material is submitted to the control or the interdiction foreseen by the Lstup. The culture, the use and the direct consumption of hemp which is not raw material, does not necessitate any authorization, are free and non-punishable under the Lstup.
Certain judges from various jurisdictions think that hemp, which in itself is not a narcotic, would become so as long as it is consumed "as a narcotic". This argument falls short, because either a product is a narcotic, or it is not & but it can not at one moment be a narcotic and not at another time, all this without even having undergone a transformation. A product which, neither pharmacologically , neither legally, or in any other way is a narcotic, could become one by the simple fact that we consume it. Hemp, as such, is not a narcotic, but a drug. The consumption of a drug is not an infraction to the Lstup., which concerns only narcotics, it is therefore not punishable under the Lstup...
If one would have wanted to forbid the direct consumption of hemp, one would have needed that the law forbid the plant as such, as it is the case everywhere abroad (annex 3)
"Any citizen should be able to read the law without having to resort to a language dictionary" (Revision Lstup., stenographic bulletin of the federal Assembly, 1951, page 334).
These past times, certain new terms and expressions relative to hemp have appeared, such as the "Betäubungsmittellfähigkeit" (capacity to be a narcotic) and the "Betäubungsmitteltauglichkeit" (aptitude to serve as narcotics) of hemp. These non-existing terms in the Lstup. lead to confusion and the good jurist will avoid them. The raw material for the production of extracts, tinctures, preparations of resin, oil. However, this aptitude is not only the attribute of a few varieties of hemp, but of all the varieties , including the hybrids of type Fedora 19, Felina 21, Kompolti, etc... (see ATF 16.11.94). If one means by "Betäubungsmittellfähigkeit" and Betäubungsmitteltauglichkeit" the effect that is made by the consumption of hemp on the consumer, it does not always have to do with the extraction as meant by the law, because this effect is immaterial, it is therefore neither a substance nor a preparation, that which is mandatory to be a narcotic in the sense of the law..
The question has been asked if the direct consumption of hemp raw material is a consumption of narcotics. The answer is no, because a raw material is not in itself a narcotic, but a drug (medicinal) and the consumption of drugs is not regulated by the Lstup, but by the List E of the OICM (see page X), which foresees no restriction in the use and the consumption of the drugs contained there.
A drug is not a narcotic, a narcotic is not a drug. A narcotic in the sense of the Lstup. (articles 19, number 1, line 2 FF , 19a and 19b), is the mandatory result of a manipulation, therefore a product, a pharmaceutical specialty, that is to say a galenic substance or preparation (ready to use). Dried flowers, such as hemp for example, are not galenic products. Hemp not being a galenic substance, its consumption is not touched by the Lstup.
Anyway the Lstup. does not say that the hemp is a galenic substance or preparation, but simply that it is considered as ("appartengono" "gehören zu") a narcotic if it is destined to the production of extracts, tinctures, preparation of resin or oil. The legal expression "hemp in view to extract narcotics" or "hemp in view of the production of narcotics" semantically speaking signifies that hemp in itself is not a narcotic, but that narcotics can be extracted from it.
Another fact attesting that hemp is not a narcotic, flows from the observation that, pharmacologically and legally , hemp is a medicinal drug. "The poppy and the hemp have been added to the group A which concerns the drugs" (message of the federal counsel at the federal Assembly, FF 1951, page 854, ad (new) article 2 Lstup.) Certain drugs have the ability to be medicinal, in the sense that they serve as raw material for the production of medicinal or pharmaceutical specialties. It is the case of hemp when it is used as raw material for the production of extracts, tinctures, etc...
Being legally (List E & OICM) a natural medication unsubmitted to a medical prescription and sold in drug stores, a drug would not legally be at the same time a narcotic. On the contrary, narcotics are not medical specialties, they are substances and preparations leading to an addiction and which are shown on the list of narcotics (LstupO article 3., AS 812.121.1); the drugs (flowers, herbs, roots, etc...) are commercializable as the name already indicates in itself, in drugstores, they are inscribed on the list E of the drugs of the OICM (annex 4). Legally speaking, the consumption of hemp is a consumption of drug and not a narcotic, it is therefore not punishable in virtue of the Lstup..
The active component in hemp is not the delta-9-tetra-hydrocannabinol (THC) but its resin (art 1, line2, letter b, Lstup).
In 1951, during the adoption of the Lstup, the THC was not yet known. It is only a few years after its discovery (1964) and its synthesis (1968) that the substance THC was inscribed, in 1972, in the LstupO of the OFSP : Indeed one can not extract THC from hemp, since that one does not produce it (dried hemp can contain in a natural manner this substance, it will be found in minute quantities and inferior to 0,1%). The hemp plant does not contain THC, but one finds inactive acids that can under an intense heat partially transform eventually in THC. These acids cannot in any case be assimilated legally or chemically to THC. Thus, the rate of THC given by various institute are erroneous, because these rates have not been found in the hemp itself, but in an altera res, that is to say in a preparation of hemp: the lab assistants have treated hemp with a solvant, have heated it at temperatures varying from 150° to 250° C. and have thus produced a decarboxilation of the inactive acids which has lead to the apparition of molecules of THC in the preparation. There has been preparation, so that the results of the analyses induce in error and are legally false, because the rate of THC found in the preparation does not correspond to the rate effectively contained in the plant (mutatis mutandis: one takes a fruit , you leave it to ferment, one distillates it and the C2H5OH ( chemical formula of alcohol) thus obtained would serve to prove that the fruit itself contains C2H5OH !
For these reasons, the Lstup. does not have a rate or percentage of THC. The application of the Lstup. can not be based on foreign norms to the Lstup. It is neither mentioned in the Lstup of different types of hemp that would be the "industrial hemp which contains less than 0,5 % of THC" and "the hemp for drugs that contains more than 0,5% of THC". These rates and expressions, unknown by the jurists just a few years ago have no legal basis, neither pharamaceutical and resort uniquely of recommendations issued be the federal offices such as the OFSP, the OFA, and the OFP. " The recommendations represent in principle the opinions published by the offices of the interpretation of the legal texts in vigour, they are created to obtain a harmony of the practices of different administrations. The penal qualification must be looked for elsewhere" (ATF, ASA, 66 (97/98), page 316 ff).
This qualification can it be done in the frame of the federal law on comestibles (LDAI) ? The answer in no, because the LDAI is "not applicable to substances and products submitted on the legislation on medication" (art.2, para 4, letter b, LDAI). However, the delta-9-THC is already submitted to the legislation on medications, since it is qualified as a hallucinogen substance, it is mentioned on the ordonnance of the OFSP on narcotics and psychotropic substances (Ostop-OFSP), ordonnance linked to the Lstup., itself taken from the federal legislation on the medications (therapeutic substance, serum, vaccines, narcotics) (RS-812.1). It is not allowed for the LDAI to pronounce itself on the delta-9-THC, even less so to proceed to its qualification of a merchandise or substance as a narcotic, qualification reserved uniquely to the Lstup.
In summary: If the hemp, whatever its species, is not raw material, it is not submitted to the law on narcotics. One deduces that he who consumes directly hemp, a drug, cannot be sued legally in application of the Lstup., which is reserved to narcotics exclusively.
Final note:
"the legislator has the obligation, when he creates norms, to lean on principles scientifically founded and use clear and univocal concepts" (Obligations Code, Hans Giger).
Before, one spoke when narcotics leading to addiction were in question "of alcaloid industry, of production and fabrication of alcaloids" (message of the federal counsel at the federal Assembly, federal data 1924, page 197, federal data 1932, page 523). Indeed, the alcaloids were synonyms to substances that lead to addiction.
1951, the legislator thought that the active substance of cannabis ("the resin of the glandoulous hair of hemp" art. 1, line 2, letter b, number 3 Lstup) was an alcaloid with similar effects than morphine (heroine) and of cocaine.
Not twenty years ago, the federal tribunal still wrote; "the marijuana contains a narcotic alcaloid, the cannabinol." (ATF 95, IV, page 179).
This assertion is wrong because the hemp contains no alcaloid, it does not belong to the group of plants with alcaloids (poppy, coca plant).
Indeed, all the natural narcotics leading to an addiction are, to the exception of alcohol, extracted from alcaloidic plants. A plant without alcaloid is unusable for the extraction of narcotics leading to addiction (mutatis mutandis: with a plant without sugar, it is impossible to produce alcohol). This is a scientific fact that cannot be bypassed and is uncontestable.
It is just as scientifically uncontestable that the hemp plant contains no alcaloid and that the cannabinol THC, its name proving it already, is not an alcaloid. To produce from a hemp field a substance which would contain alcaloids and thus leading to addiction is a perfectly impossible thing. The active substance in hemp "the resin of the glandoulous hair" (art. 1, line 2, letter b, number 3, Lstup.), has no potential for addiction, because it does not contain any alcaloids (mutatis mutandis: a plant without sugar, has no potential for alcohol). Products based on hemp are simply unable to lead to an addiction. The jurists must take into consideration this incontestable pharmacological reality. It is true that preparations based on hemp provoke effects said to be of a narcotic nature (medical and pharmacological term meaning: somnolence and analgesic, cf. annex 1), and one can therefore say that they are narcotics.
However, these preparations without alcaloids , cannot generate any dependency, they are not toxic and are not narcotics in the sense of the Lstup. (art.1,). Indisputable proof of this reality is the fact that, among the millions of users of hemp, not one victim of a toxicological dependency was found (which is not the case with morphine, nicotine, and alcohol).
To say that cannabinoids contained in hemp, from which the alcaloid is absent, provokes effects of dependency similar to alcaloids contained in cocaine or morphine, is an ascientific affirmation, to be compared to that which maintained the earth was flat and not round. The historical error of the federal legislator having considered the extracts and preparations based on hemp as being alcaloids, toxicomangenic and thus sufficiently dangerous to insert them in a legislation having to do with risky substances is explained not by a need for public health, here non-existing, otherwise to foreign influences. In effect, Switzerland did not have problems with hemp "thanks to the relatively healthy mentality of the Swiss, (...), thanks also to our integer civil servants to the service of the canton or the federation (...), Switzerland is in this matter a clean country" (stenographic bulletin of the federal Assembly 1951, page 616) the federal legislator has nevertheless introduced as such, without need, in the confusion and contradiction, legal norms unadapted to the country: "thus, in the view of the toxicomania spreading its ravages in the northern parts of the new world, it is needed to be sufficiently armed to stop an eventual invasion at our boarders" (modification Lstup., chairman, stenographic bulletin of the federal Assembly, 1951, page 616). Yesterday’s error, has become today an non-truth for the jurist (it has been so since always, in the pharmacological and medical sciences).
Among the principles founding our state of rights is found the one which forbids to someone to be prejudicial to another. An untruth recognizable as such can not serve to forge the conviction of the judge and bring him to punish a warrantable. Today, it is not responsable to maintain that the preparations or extracts of hemp would be substances leading to a similar addiction than the one generated by the abuse of alcaloidic substances . It is great time to refuse the historical error committed a half century ago, to refuse to repeat it and thus leading, to take ones distances vis-a-vis a penal repression applied to the hemp preparations. This done, one would only put in practice that which, 50 years ago, the federal counsel had promised to do. Indeed: "the preparations containing narcotics, but not leading to addiction are subtracted from the official surveillance" . "message at the federal Assembly, federal sheet 1951, page 844).
From this warranty, the legislator in 1951 had thus provisionally included the hemp in the Lstup., but on the condition that it bring nobody to an addiction. "the article 3 allows the federal counsel to subtract to a control the products that do not lead to an addiction. It is the reason for which the commission estimated that hemp should be considered as a narcotic" (stenographic bulletin of the federal Assembly, 1951, page 620, ad art. 2).
The Swiss penal judge is not allowed to bring changes to the written text of a federal law, but he can nevertheless, in the absence of a constitutional court, refuse to apply a disposition of the federal law if the application of this one constitute a manifest abuse of rights.
The application of the Lstup in the affairs having to do with hemp, is today no longer legitimate and constitutes an abuse of rights that must no longer be protected: "the manifest abuse of a right is not protected by the law" (art. 2, para 2, CC).
