Cannabis law and legislation in Belgium

Medical use

In principle, the cultivation, import, sale and possession of (medicinal or recreational) cannabis is not allowed under Belgian law.

An exception is made for the cultivation of hemp with a THC level less than or equal to 0.2% and for which a cultivation authorisation has been granted by the regional competent authority.

Medicinal cannabis cannot be sold in Belgium. Only cannabis-based medicines, for which a marketing authorisation has been granted (e.g. Sativex), can be delivered under a doctor’s prescription.

Pharmacists can also dispense magisterial preparations on pharmaceutical raw materials such as cannabidiol (CBD) if they meet the following criteria:

  • using raw materials such as CBD with trace amounts of THC for pharmaceutical compounding is only acceptable if the patient is exposed to up to 1 microgram Δ9-THC per kilogram of body weight per day.  To our knowledge, only one company in Belgium has been authorised by the FAHMP to supply CBD powder to pharmacists for use in magisterial preparations at this time.
  • cannabidiol-based preparations can only be supplied on a doctor’s prescription.

Since February 2020, CBD oil for external use can be sold in pharmacies.

It is also prohibited to sell food supplements based on hemp.

In 2003, personal possession of cannabis was differentiated from the possession of other controlled substances, with the result that the public prosecutor did not have to prosecute if there was no evidence of problematic drug use or of public nuisance. After the Constitutional Court found that these terms were insufficiently defined, a new directive, issued in February 2005, called for full prosecution for possession in cases where the ‘user amount’ (3g or one plant) was exceeded, public order was disturbed or aggravating circumstances were identified. This includes possession of cannabis in or near schools. Such cases are  punishable by three months to one year in prison and/or a fine of EUR 8,000 to EUR 800,000.

In the absence of aggravating circumstances, possession of cannabis for personal use is punishable by a fine of EUR 120 to EUR 200, based on a simplified police  report.

Recreational use

Producing, importing and selling recreational hemp is prohibited in Belgium.

However, a person who grows a single plant in their own home will, in principle, not be prosecuted, as long as the criminal policy classifies this type of offence as non- priority.

Industrial use

Hemp varieties of cannabis can be grown, with a  licence, for the commercial production of hemp fibre for industrial purposes (for use in cosmetics, for example).

In Belgium, it is prohibited to sell food supplements and other foodstuffs based on hemp and its preparations as    a foodstuff. For certain types of food, derogations may   be granted. However, the  THC  safety  limits  for foodstuffs are much lower than the 0.2% limit which applies to other products. For herbal  teas  made from hemp leaves and  flowers,  no  derogation  is granted, even in the case of very low THC levels.

Belgium has no specific regulation on CBD.

Patentability

There is no general prohibition on patenting cannabis- based products, but the Belgian Code of Economic Law provides that inventions whose commercial exploitation would be contrary to public order or morality shall not     be patentable. Pursuant to this principle, if the invention  is not contrary to public policy then it  is  possible  to obtain a patent.

Latest developments

By Law of 7 April 2019, Belgium has created a government agency for cannabis that will the exclusive right to distribute medicinal cannabis.
 
This “cannabis agency” will be established within the FAMHP and will be solely responsible for designating the areas where cultivation will be permitted, granting licenses to cultivators, purchasing and taking possession of the cannabis, and importing, exporting, wholesale trading and maintaining stocks of medicinal cannabis.

Hence, medicinal cannabis will only be available from growers licensed by the agency and through a regulated distribution chain.

The legal framework resembles the Dutch model. In 2000, the Netherlands established the Medicinal Cannabis Agency (Bureau Medicinale Cannabis), which also has the exclusive right to distribute cannabis for medicinal use.

The bill follows research promoting the benefits of cannabis for medicinal use. In 2014, a working group set up within the FAMHP issued an advisory report that concluded medicinal cannabis can be useful for certain pathologies where traditional drugs are less effective.

The cannabis agency is not yet active. We await the publication of the relevant implementing rules in the form of (a) Royal Decree(s).

Portrait of Bruno Fonteyn
Bruno Fonteyn
Senior Associate
Brussels