Cannabis law and legislation in Austria

According to the Addictive Drugs Act, only the Austrian Agency for Health and Food Safety (AGES; supervised by the Austrian Federal Ministry of Labour, Social Affairs, Health and Consumer Protection, as well as the Austrian Federal Ministry for Agriculture) is permitted to cultivate cannabis for the purpose of manufacturing pharmaceuticals as well as for related scientific purposes. The same right is granted to subsidiaries in which AGES holds at least 75% of the shares and that are founded for this purpose.

Production, manufacturing, conversion, purchase and possession of medical cannabis requires a specific authorisation for production of pharmaceuticals according to the Austrian Trade Act issued by the Federal Ministry for Health. Disposal is only permitted to certain authorized recipients and pharmacies.

There is no access for patients to cannabis in its purest form for medical use, as cannabis is considered an addictive drug according to the Addictive Drugs Act and the Ordinance for Addictive Drugs. Therefore, it in principle, may not be prescribed. However, there are two exemptions for pharmaceuticals containing cannabis which may be prescribed: (i) formulations of cannabis extracts that are authorised as proprietary medicinal products; and (ii) the active substance delta-9-tetrahydrocannabinol, if it has a standardised purity of more than 95% used for magistral preparations (production in the pharmacy on the basis of a medical prescription).

Violations of the Addictive Drugs Act are subject to administrative fines up to EUR 36,300 and – in case of non-collection – to imprisonment of up to six weeks. Besides, anyone who illegally purchases, owns, produces, transports, imports, exports or offers, transfers or procures cannabis to another, or cultivates the cannabis plant for the purpose of obtaining addictive drugs shall be punished with imprisonment of up to one year or with fines of up to 360 daily rates. When it comes to drug trafficking on a larger scale, harsher punishments may be given.

Production, import and sale of recreational cannabis are strictly forbidden according to the Addictive Drugs Act.

Products containing flowers or fruits from certain hemp varieties are not considered addictive substances within the meaning of the Addictive Drugs Act if their THC content does not exceed 0.3% before, during and after the production process. They can therefore be produced and distributed without obtaining a permit under the addictive drugs framework, but their commercialization is limited by other legal frameworks, such as the rules applicable to food or cosmetics (see below).

Similarly, CBD as a pure substance is not defined as an addictive drug and thus is not subject to the legal provisions applicable to addictive substances such as the Addictive Drugs Act and the Ordinance for Addictive Drugs.

Can CBD be used in food? The Federal Ministry for Health has issued an Opinion (which unlike a law or regulation is only binding for the enforcement authorities) according to which food containing CBD extracts is considered as novel food according to Regulation (EU) 2015/2283. Only authorised and registered novel food may be placed on the market or used in and on food. No CBD extracts have been authorised as of yet by the EU Commission. Following an ECJ judgment that considered CBD not to be a narcotic under the circumstances of the case, the EU Commission has resumed its examination of around 50 applications for approval. However, according to a statement by the European Food Safety Authority (EFSA), there are data gaps and uncertainties about potential hazards related to CBD intake. Therefore, the EFSA has so far not been able to establish the safety of CBD and it has thus not yet been approved as a novel food. If the EU Commission were to approve CBD extracts as novel food, the Federal Ministry for Health would likely have to change its guidance.

Can CBD be used in cosmetics? Natural and synthetic narcotics are prohibited in cosmetic products. According to the same Opinion of the Federal Ministry for Health, cannabis and its extracts are considered to be narcotics and thus cosmetics containing such extracts may not be placed on the market. However, the EU- Commission has recently added naturally extracted CBD to the CosIng database. The CosIng database lists substances which may be used in cosmetic products but it is not binding for the Member States.

Nevertheless, the Federal Ministry for Health may have to re-evaluate its guidance in light of this development.

It is possible to patent a cannabis-based product if the product consists of a technical invention that is new, inventive and commercially applicable.

The Austrian Chamber of Pharmacists has been lobbying for the use of cannabis for medical purposes. However, the revision of any cannabis related provisions or changes of policy are not expected.

In March 2023, the Austrian Ministry of Health has classified Hexahydrocannabinol (HHC) as a New Psychoactive Substance. HHC naturally occurs in the cannabis plant and is considered a psychoactive cannabinoid. Directly extracted HHC has been subject of the Narcotic Drugs Act. Synthetically produced HHC, however, has so far not been subject to legal restrictions. By classifying HHC as a New Psychoactive Substance, any production, sale and distribution of HHC are prohibited.