An opinion poll in the Netherlands in August 2013 showed that 54% of the Dutch are in favour of legalising cannabis, while 38% opposes it. There is now a clear pro-legalisation majority among the voters for the parties that form the current government, the liberal conservative VVD (58% in favour) and the social-democrat labour party PvdA (55% in favour) and in the Dutch Parliament. A range of recent polls indicate that the majority of the Dutch strongly disagree with the government on current cannabis policies.

Only voters on the centre-right christian-democrat party (CDA) are firmly opposed against legalisation: 72%. If political parties would take the views of those who voted for them at the September 2012 general elections seriously, there would be an overwhelming majority in favour of cannabis legalising: 129 out of 150 seats in the House of Representatives. Case closed one would say: why not finally regulate the supply of cannabis to the coffee shops where the sale of cannabis to adults is already tolerated under certain conditions for more than 35 years, and take the business out of the hands of criminal organizations?

Divergence on regulation

But that is not how democracy works, at least not in the Netherlands. The parties in favour of restricting the coffeeshops or outright abolishing them have 77 of the 150 seats, while those in favour of regulating the supply of cannabis to the coffeeshops have 73. The two right wing parties in parliament – the conservative liberal VVD and right wing PVV – compete on law and order issues and the perceived wariness among the Dutch with undue tolerance, and are in favour of restricting the room for manoeuvre of the coffeeshops.

Both parties were necessary in supporting the previous government which introduced the cannabis pass banning non-resident foreigners from the coffeeshops and to move cannabis with a tetrahydrocannabinol (THC) content of more than 15% percent to the list of dangerous drugs, excluding it from the allowed sale in coffeeshops. Both the VVD and the PVV ignore the clear majority among their voters, who may indeed be wary of the inconsistent cannabis policies in the Netherlands, but unmistakeably indicate in the polls what the majority in the country thinks is the best way out to tackle the inconsistencies: regulate a licit supply of cannabis to the so-called backdoor of the coffeeshops.[1]

Nevertheless, the minister of Justice, Ivo Opstelten, continues his intransigent position even against the wishes of his voters and many of his party’s local politicians. The upshot is a considerable divergence on the issue of regulation/legalisation between the parliamentarian majority (against) and the will of the voters (in favour). The subsequent stalemate in an indispensable breakthrough of effective cannabis policies at the national level has resulted in many local initiatives to regulate cannabis supply and increasing exasperation among magistrates.

Local initiatives

	Utrecht Alderman Victor Everhardt

At the local level initiatives to somehow regulate supply to the coffee shops are mushrooming. In Utrecht, the city council announced on September 10 that it would support a local social cannabis club and seek permission of the minister of Public Health to allow cultivation and distribution through an official exemption on the ban to cultivate and supply in the Opium Law. “The city of Utrecht wants to create the possibility for recreational users to use cannabis grown in a club. It is a small-scale initiative in which the members use cannabis recreationally that has been cultivated on a responsible and verifiable way by the club,” said the local alderman for Public Health, Victor Everhardt.

As a result, the sale of cannabis would not be simply tolerated as is common in many Dutch towns with coffeeshops, but the exemption will safeguard cannabis cultivation for club members from criminal prosecution similar to exemptions granted to the official producer of medical cannabis. On September 19, the city council of Leiden also voted in favour of regulating the backdoor, allowing coffee shops to grown their own under strict conditions.

These initiatives are the most recent attempts to resolve the legal inconsistency regarding cannabis in the Netherlands. Officially the substance remains illegal (only drug consumption is not a criminal offence), but licensed coffeeshops are allowed to sell small quantities under strict conditions.[2] Commercial cultivation, production and wholesale of recreational cannabis are not just outlawed but actively prosecuted, leaving coffeeshops without a legitimate and transparent supply chain.

The club model is an alternative complementing rather than replacing coffeeshops, and is specifically aimed at preventing the effects on public health of uncontrolled cultivation without quality controls. The plan was carefully prepared since its announcement in March 2011. Everhardt maintains that the initiative will be a scientific experiment allowed under the UN conventions and Dutch law, which could circumvent the opposition of the ministry of Justice – minister Opstelten already announced that he would not tolerate the plan – because the ministry of Public Health, nominally still in charge of Dutch drug policy, is the one that decides on allowing scientific experiments or not. However, the ministry of Public Health said it would consult the ministry of Justice on the issue and the plan would have little likelihood to be approved.

In addition, Utrecht will start a programme to treat a small group of about 80 problematic drug users with psychotic disorders; many of them probably as a result of heavy and chronic cannabis use. The idea is to supply them with a cannabis strain that would suppress the effects of anxiety, insomnia and psychotic attacks. The medical cannabis will be supplied by the Dutch Office of Medicinal Cannabis. In combination, the initiatives demonstrate a responsible way to try to resolve the problem of legal supply and use of cannabis, while not turning a blind eye to the potential negative consequences for a small group of problematic cannabis users.

Meanwhile, apart from Utrecht and Leiden, other municipalities are also considering experiments with the authorized supply of cannabis in different scenarios – from licensed private growers to municipal or intermunicipal cannabis gardens. In total, 18 municipalities have announced they want to experiment, while some – such as Rotterdam, Eindhoven, Tilburg and Leeuwarden – have already applied for a specific experiment to be approved by the national government. No decisions have been made yet and are not expected before the end of the year.

Cannabis pass failure

	Deaf and dumb for the critique on the 'cannabis pass'. Minister of Justice and Security Ivo Opstelten: "I'm not listening anyway" (from the newspaper De Pers)

The government’s policy to ban non-resident foreigners from buying cannabis is slowly breaking down. The previous government initiated the introduction of the cannabis pass, a registration scheme for clients of coffeeshops initially also including Dutch residents and aimed at banning non-resident foreigners, in the south of the country in May 2012. However, a change of government in September 2012 brought in the Labour Party who opposed the measure. The nationwide introduction of the pass was quickly abolished under pressure of the new government coalition partner and resistance of the mayors of the major cities in the Netherlands. Evidence indicated that the pass – aimed at reducing public disorder of foreign tourists in the south of the country – was either backfiring or not reaching the intended result.

Public disorder did not decrease but changed in nature, an interim report evaluating the implementation of the introduction of the cannabis pass and the residence criterion in the period May-November 2012 (i.e. before the measure was intended to be mandatory nationwide) concluded. The report, commissioned by the government, showed that although drug tourism decreased, it did not reduce public disorder in the towns in the south of the Netherlands. The measure has serious adverse side effects. Residents refused registration and started to buy their supply outside the coffeeshop from street- or mobile-phone dealers operating drug-supply scooters, creating new kinds of public disorder. Citizens experienced nuisance of aggressive drug runners and street dealers, including minors.

The measure seriously undermined the public health goal of the coffeeshop policy: to separate the user markets for hard drugs and soft drugs and to provide adult consumers with a safe and non-criminal environment to purchase and use their cannabis. In the emerging illegal drug market both cannabis and hard drugs were easily available. The report confirmed an earlier rapid assessment on the effects of the measure. Nevertheless, Opstelten still insists on maintaining the resident criterion nationwide, although a provisional opt-out was included in the measure – taking into account local circumstances for “a tailor-made approach per municipality” – for municipalities to decide if they would enforce the rule. In January this year the ban on selling cannabis to non-residents was rolled out in municipalities that chose to do so. Many of the larger towns in the north decided to use the provisional opt-out.

Surveys in January 2013 found that more than a dozen municipalities were not planning to enforce the rule that customers must show evidence that they live in the Netherlands, including Amsterdam – where one-third of the around 650 coffeeshops in the Netherlands are located – and other major cities such as Rotterdam and Utrecht. Despite the obvious resistance among most local municipal councils and a 60% opposition in the polls, Opstelten keeps on insisting that the policy has to be applied nationwide. A clear deadline on when the measure should be introduced is not announced, however.

Judge slams prosecution

The southern town of Maastricht did announce it would enforce the rule and became the battlefield between municipal authorities and coffeeshops. Coffeeshops opposed to the discrimination of foreigners and kept on selling cannabis to non-residents. Shops were raided and closed or closed voluntarily in protest. Arrests were made, but on September 4, after a series of court cases, a lower court ruled the prosecution’s case inadmissible, judging it an abuse of the criminal law.

The court concluded that the public prosecutor had been unable to explain the new coffeeshop policy and that various experts disagreed on whether the sale should be banned to foreigners. The court was aware that the ban had been introduced to reduce public disorder but ruled that “it is questionable whether this target will be met.” The judge also argued that “there is no doubt that public disorder has been caused by drug runners and street dealers” but said that “it is very well possible that the problem is bigger than before.” There is an obvious need, the judge continued, for legal clarity on the issue between the municipal authorities, the public prosecutor and the coffeeshops, but he considered it incomprehensible that the whole jumble of coffeeshop owners had been prosecuted while many were “willing to consult with the municipality to regulate selling soft drugs as sensibly as possible.”

In other words, the judge said the policies regulating coffeeshops were becoming incomprehensible and the strong-arm enforcement tactics of the mayor of Maastricht unacceptable. According to Dutch law everything but the use of cannabis is prohibited. Since the 1970s, however, succesive Dutch governments have issued so many guidelines to circumvent various aspects of the law, that its internal logic has disappeared and judges are now struggling to implement the many contradictions.

The public prosecution office announced that it would appeal the court ruling. However, it is almost certain that the nationwide resident criterion will die a silent death, although some municipalities might use the guideline for local purposes. Most municipalities, and in particular the larger towns in the Netherlands, will not introduce the resident criterion, because they are expecting an increase in public disorder and foresee more problems rather than a solution for a problem they do not really have. Nuisance by drug tourists is limited to a few towns close to the border with Belgium. Even if coffeeshops are creating nuisance other solutions are possible, such a street coaches employed by the coffeeshops to manage problems.

THC content

Opstelten’s plan to move cannabis with a tetrahydrocannabinol (THC) content of more than 15% percent to the list of dangerous drugs and hence excluding it from the allowed sale in coffeeshops is also considered unfeasible by almost every expert consulted, including the national police and prosecution office. From the outset experts said that the plan would be impossible to put into practice. The Justice ministry was forced to publish the recommendations of a range of consults due to a freedom of information request. All parties concerned advised against rescheduling of cannabis with a high THC content.

The recommendations were devastating for the intended move, both from the enforcement perspective as from the public health perspective. It would create a substantial burden on law enforcement capacity, a risk of creating parallel illegal selling markets, complicated and costly testing mechanisms, legal uncertainties, and all this while the effects on public health of high concentrations of THC remain unclear and controversial. In June 2012, the Trimbos Institute already published a study showing that the 15 percent THC threshold is arbitrary and does not give any indication about whether cannabis with higher THC content is more damaging.

The Dutch have not retracted on liberal cannabis policies

	The recent report published by the OSF Global Drug Policy Program.

The results of the poll in August 2013 clearly contradict the assumption in the international debates that state that the Dutch have retracted on their tolerant cannabis policies. A small but stubborn and influential inner circle in the government and among law enforcement officials in The Hague – including the current minister of Justice – has indeed retracted, but a substantial majority of the Dutch public disagrees and wants the government to take a more innovative approach and regulate cannabis supply to the coffee shops.

Earlier polls also showed a clear majority of the Dutch in favour of current policies and a trend to even more liberal policies. In May 2010, 64% did not agree on the question that soft drugs (= cannabis) should be completely banned and in February 2010 49% was in favour of legalisation and 11% were supported existing policies before the introduction of the cannabis pass.

It is becoming increasingly clear that current policies around cannabis and coffeeshops are unworkable and counterproductive. And if there is one lesson to learn from the Dutch experience, the recent report Coffee Shops and Compromise concluded, it is that when taking steps toward regulating cannabis, this should include the entire chain of supply, from production to consumption. The former leader of the VVD, Frits Bolkestein, also called for a regulated cannabis production, in which licensed growers should supply controlled cannabis to the coffee shops. He thinks that in many other European countries allies for regulation can be found. Therefore the Netherlands should stimulate a debate about legalising cannabis in Europe.

Ways forward

Having been in the forefront of sensible cannabis policies for decades, the Netherlands should not retract but follow the example set by Uruguay and in the US. Uruguay seems to be set to become the first country to legally regulate cannabis while the US Federal Government is now allowing regulation initiatives in the states of Washington and Colorado. The Dutch should wholeheartedly support these initiatives and use them to their own advantage by starting experimenting with domestic regulation schemes.

One way of expanding the room for manoeuvre for regulating cannabis is to actively engage at the international level to reform the UN drug conventions or broaden the limits of latitude in those conventions. Consumption-oriented variations of decriminalization, including schemes in which possession, purchase and cultivation for personal use are no longer punishable offences, operate reasonably comfortably inside the confines of the UN drug control conventions. However, according to both the spirit and the letter of the conventions, while permitted to ‘soften’ the criminal sanction requirements in various ways, governments cannot create a legally regulated market, including the supply, production, manufacture or sale of cannabis for non-medical and non-scientific, or put another way recreational, purposes. Proscriptions laid out in the conventions clearly prevent authorities from creating a legally regulated market for cannabis.

In the coming two-and-a-half years initiatives at the international level offer the possibility to engage with a reform agenda, preferably with a group of like-minded countries in the formation of which the Netherlands could play an active role. At the high-level review of the implementation of the 2009 Political Declaration and Plan of Action during the High-Level Seg­ment of the 57th ses­sion of Commission on Narcotic Drugs (CND) in March 2014 and the 2016 UN General Assembly Special Session (UNGASS) on the drug problem a serious review of current drug control policies is requested by Latin-American countries, notably Colombia, Mexico and Guatemala. The process was initiated with a recent report of the Organisation of American States (OAS) offering several scenarios for the future.

On October 30, the conference The Transparent Chain will be held in Utrecht in the Netherlands to map out a transparent chain of production and sale of cannabis that is organised in a responsible and professional manner. The conference, co-organised by the Epicurus Foundation and the Transnational Institute, is targeted towards local and national policymakers, law enforcement officials, professionals and other parties involved. Leading national and international experts, administrators, policymakers, politicians, academics and real-world experts will contribute to the debate. The outcomes of the conference hopefully contribute to a much-needed and overdue revision of Dutch cannabis policies and initiatives of the government at the international level.

For more information on recent developments in cannabis regulation, see: Highs and lows in cannabis policy reform

For the latest news on the coffee shops, click here.

[1] The problems surrounding the Dutch coffeeshop model rooted in the paradox that the [front door] sale and possession of small quantities are no longer prosecuted, while the [back door] supply to the coffeeshops (cultivation and trade in larger amounts) are still fully criminalised and therefore mainly controlled by criminal networks.

[2] Under the Dutch Opium Act the sale and possession of cannabis remains a statutory offence. However, the government employs the ‘expediency principle’, a discretionary option that allows the Public Prosecution to refrain from prosecution if it is in the public interest to do so. The investigation and prosecution has been assigned the ‘lowest judicial priority’. Based on that principle coffeeshops are tolerated when they follow a guideline – known as the AHOJG criteria – issued by the Ministry of Justice through the Public Prosecution Office: refraining from advertising (A), not selling hard drugs (H), not causing public disorder (O), no sales to minors (J), and sales limited to a small quantity per transaction (5 grams), as well as limits on inventory (500 grams) (G). The new measures added the private-club criterion (now abolished) and the resident-only criterion (I) to the AHOJG guideline.