Austria sees record imports of medical cannabis in 2021 while a case at the Supreme Court challenges prohibition.
Austria is home to one of the largest populations of patients legally obtaining medical cannabis in Europe, though improvements in access over the past five years have been sluggish. Now a new challenge to the constitutionality of the ban on personal consumption of cannabis is raising hopes for the effective end of prohibition by 2023.
Dronabinol sales are growing slowly
New data obtained by Prohibition Partners by means of a freedom of information process shows that Austria likely continues to have one of the largest populations accessing legal medical cannabis in Europe. However, progress in patient access is slow, and remains very restricted when compared to neighbouring Germany and especially so when compared to North America. According to new data supplied by the Austrian Federal Ministry for Social Affairs, Health, Care and Consumer Protection (BMSGPK), 6,460 grams of dronabinol (pure THC) were imported into Austria in 2021, a 28% increase on 2020, but just 20% more than the previous peak in 2019.
Dronabinol of purity 95% or higher is the only form of unlicensed medical cannabis which is permitted in Austria and none is produced in the country, therefore these imports represent the entirety of product which can be made available to patients in the country. Licensed products like Sativex and Nabilone are also allowed.
It is not possible to directly extrapolate how many patients are accessing dronabinol from these import figures for several reasons. Most importantly, while an average dosage for an active user throughout the year might be calculated as 15mg/day or 5.5g/year, this does not take into account the fact that the majority of patients will not continue therapy for the full 12 months. Prohibition Partners are in the process of obtaining data on the number of individual patients accessing medical cannabis each year and will update readers when this becomes available. The last time these figures were published showed that 7,325 patients accessed dronabinol but also licensed cannabinoid medicines like Sativex® and Cesamet® in the first half of 2018. This places Austria in the company of the Netherlands, Poland and Denmark in terms of the size of its medical cannabis market, behind larger countries like Italy and Germany.
It is unlikely that reforms will increase access to medical cannabis for Austrian patients in the near future. The government has stated their opposition to introduction of more progressive regulations, or those allowing for extracts and flower products to be prescribed in the country. Klaus Hübner of Arge-Canna, a leading cannabis advocacy group in Austria told Prohibition Partners:
“The stagnation in patient access in the country has a lot to do with the lack of interest from doctors, and the reluctance of Insurance companies to pay for these therapies. Patients are increasingly having a hard time getting public healthcare companies to cover their costs.” This mirrors the situation in Germany where patients are increasingly paying without the help of public insurance.
“At the moment, only people with enough financial resources can access the medicines which can cost up to €200-500 per month; more than many can afford.” Klaus continued “Even for patients who can access dronabinol, lack of legal protections means that patients live with the fear of their driving licence being revoked, which deters many from starting treatment, and can ruin the livelihoods of others.”
Cultivation in Austria continues to stagnate
Medical cannabis cannot be cultivated in Austria by any party other than the Austrian Agency for Food and Health (AGES). For the past several years, the agency cultivates a few hundred kilograms of medical cannabis each year, all of which is exported to private companies for manufacture into finished products like dronabinol. In the past, the majority of this reportedly went to dronabinol producer C3-Cannabinoid Compound Company in Germany, but the list of dronabinol producers in Europe has since expanded and now AGES may sell to more manufacturers, though this information has not been disclosed.
The cultivation of medical cannabis in Austria has been kept at around 360kg per annum for the period 2018-2020, though the figures for 2021 were not yet available at the time of writing. This amount of cannabis flower could likely cover the entire current demand for product in Austria with a surplus left over for export if dronabinol manufacturing took place in the country. For example in 2020, 365kg of flower was obtained in Austria, if we estimate the THC potency on average was 20%, and that around 70% of this is retained in the extraction process, 51,201 grams of dronabinol could be obtained compared to the 5,040 grams imported for use in the country that year. Note that these figures should be considered indicative rather than precise.
A potential for the end of prohibition in Austria
The ban on the personal use of cannabis is currently being challenged at the courts in Austria. This mirrors events in Germany, where the constitutional court is set to determine the legitimacy of prohibition later this year. The progress in Austria stems from a court case involving Paul Berger, an activist who was caught smoking cannabis in public and his lawyer, Dr. Helmut Graupner. The pair brought Paul’s case to the Constitutional Court of Austria, where they are challenging the legitimacy of the prohibition on personal use of cannabis under Austrian law. The case has been passed from the Constitutional Court to the Supreme Court who asked the Government to prove the constitutionality of the ban on cannabis. Speaking to Klaus Hübner of Arge-Canna, Prohibition Partners have learned that as of May 2022, this justification has been supplied by the Government to the Supreme Court who must now rule whether the Government’s reasoning provides enough justification to enforce cannabis prohibition over the right of individual self-determination.
While also arguing for the self-determination of individuals, Dr. Helmut Graupner told local media “Legalising or decriminalising would free police and authorities to deal with real issues since 80 per cent of the cases caught end up being only for personal use. This is a waste of tax money”.
Prohibition partners estimate that over 462,000 people in Austria use cannabis each year, based on population estimates and a national survey of cannabis users. According to the EMCDDA, ~24,618 offences for the use of cannabis are registered in Austria each year, representing criminalisation of a large, mostly non-violent portion of the population.
Klaus Hübner told Prohibition Partners of extensive plans Arge-Canna and others have to support these efforts, and to put into effect a system of not-for-profit cannabis social clubs in Austria in the case that the ban is declared unconstitutional. Arge-Canna would seek the support of the government in setting these up, or if that was not given, would lend support to others who would take up the mantle in absence of direct government support.
“If the government decides that the ban on cannabis is unconstitutional, Arge-Canna are ready to roll out a programme of not-for-profit cannabis social clubs in Austria. This would be done with a very high level of control over who can grow, who can access at the clubs, as well as a monitoring system to provide data on the effects of access via a social club on consumers, similar to the experiments currently being run in Switzerland. We want this to be a blueprint for governments in Europe for dealing with the cannabis issue moving forward. If the court rules prohibition unconstitutional, then ideally we will also have the government on board with this proposal and we can proceed with a nationally recognised programme of social clubs but in the case of a positive result in the courts, then we believe that cannabis social clubs will be set up regardless of government approval.
This is the beginning of a big push from advocates in Austria to finally get laws in place which protect users, patients and their communities rather than harming them. Arge-Canna have many other ongoing efforts to support cannabis liberalisation, such as the upcoming publication of our study on the use of CBD by dementia patients in Austria, which showed positive results and which we hope will prompt the government to facilitate more research in the country by means of licensing for research purposes.”
The potential ruling by the Supreme Court will likely only apply to personal use of cannabis and not to the commercial production and distribution of the plant or its derived products. This would be similar to the situation in Malta, where personal use and cultivation is allowed but commercial operations of these activities are not. The ruling is expected either in June or at the next session of the court in October.
