The Dutch election result and the coffeeshops
The Dutch elections were hailed as decisive for the future of the coffeeshops. The result however is inconclusive given that a coalition government has to be formed.
The 2012 Dutch elections were hailed as decisive for the future of the coffeeshops, where the sale of small amounts of cannabis is tolerated. The result is inconclusive. The parties in favour of restricting the coffeeshops or outright abolishing them got 77 of the 150 seats, while those against the recently introduced 'cannabis pass' and/or in favour of regulating the supply of cannabis to the coffeeshops got 73. However, the issue is not that straightforward given that in the Netherlands no single party has an absolute majority and a coalition government has to be formed.
The Netherlands is considered to be a pioneer in cannabis policy reform. In the 1970s the Dutch made the transition from 'zero tolerance' to de facto legalization, at least at the 'front door' of the coffeeshop, where the sale of cannabis to users is tolerated. Problems persist at the 'back door', where the coffeeshop owner has to obtain his supply, which remains illegal and is subject to law enforcement. Suppliers can still be prosecuted for transporting cannabis to the shops. Coffeeshop owners can be arrested buying their inventory, even though they are allowed to sell it. "It's a crazy situation," a coffee shop owner once described his conundrum. "Every day I'm obliged to commit crimes because I have to stock up illegally. But at the same time I pay taxes on the sales."
The left and centre-left parties in the country are all in favour of regulating the supply of cannabis to the coffeeshops and introducing an excise on the trade. According to the Netherlands Bureau for Economic Policy Analysis (CPB), who offered interested political parties an analysis of the economic effects of the policy proposals in their election manifestos, these measures would bring in 500 million euros (300 million in excise and 200 million in reduced costs for the police and criminal justice system).
The block of Christian parties (who had the worst elections results ever, being reduced to 21 seats shared between three parties) are in favour of abolishing the coffeeshops altogether while the xenophobic Party of Freedom (PVV) led by Geert Wilders and the conservative-liberal party (VVD) are in favour of the recently introduced 'cannabis pass' that excludes non-resident foreigners and obliges residents to register as a member of private-club type coffeeshops. However, the current rightwing government has lost its parliamentary support and the most likely successor is a coalition government of the VVD and the social-democrat party (PvdA) which will have a majority in parliament, perhaps with a third party, possibly the progressive liberals of D66 – in favour of regulation – or the Christian democrats – in favour of abolishing the coffeeshop system.
Both parties won the elections with the VVD winning more (41 seats for the VVD and 38 for the social democrats), meaning that the current Prime Minister Mark Rutte of the VVD will have the initiative for the coalition negotiations. What the consequences for the coffeeshops will be remains unclear. At the moment both parties are diametrically opposed on the issue – increasing restrictions on the shops favoured by the VVD versus regulation of supply advocated by the PvdA – and an agreement seems not easy. However, under pressure to form a stable government that should tackle the financial crisis and European integration issues, both parties need to find common ground.
The ‘cannabis pass’
Due to the controversial introduction of the 'cannabis pass' in the south of the country on May 1, the issue of the future of cannabis policy in the Netherlands was one of the issues debated during the election campaign, something that had not happened for many years. A group of coffeeshop owners rallied behind the Socialist Party (SP), that advocated to abolish the pass and regulate supply the so-called backdoor of the coffeeshops. The new rules that aimed at curbing cannabis tourism linked disturbances such as late-night public disorder, traffic jams and illegal drug dealing have to be implemented nationwide on January 1, 2013.
The new rules do not actually require a cannabis card, but coffeeshop owners are obliged to show their membership list to the authorities when checked. The new prosecution guidelines to the Dutch Opium Law will effectively transform coffee shops into private clubs as it requires the coffee shops to sell only to registered members, excluding non-resident foreigners. Each shop is allowed to have just 2,000 members, who must be over 18 years' old and permanent residents of the country.
Four months after the controversial rollout of the 'cannabis pass' for coffeeshops in the south of the Netherlands foreign drug tourists and locals who resist registration are simply dodging the regulation by buying in the street or heading elsewhere in the country for their cannabis, a quickscan revealed. The new rules have entered into force in the three southern Dutch provinces Limburg, North Brabant and Zeeland so far. Unless the new government decides otherwise the pass will be introduced in the rest of the country on January 1, 2013. Critics of the measure argued that it would increase public disorder and illegal street dealing of all kinds of drugs, not only cannabis.
Just before the new rules entered into force, the government collapsed on April 21, 2012, when negotiations on new austerity measures buckled, paving the way for early elections on September 12, 2012. A poll on May 16 showed that the ‘cannabis pass’ has little support among the Dutch population; 61 percent said it did not agree that its introduction was a good idea and 60 percent favoured stopping its introduction.
Even among the coalition parties that supported the now defunct right-wing government – the Christian Democrats and the conservative liberal party, the People's Party for Freedom and Democracy (VVD) of Prime Minister Mark Rutte and Justice Minister Opstelten – only potential voters for the Christian Democrats were really in favour. Among potential VVD voters – the party that became the biggest party after the elections – 60 percent did not agree with the pass and 59 percent said its introduction should be stopped. Eighty percent of the people expected that street dealing would increase.
Although the amount of cannabis tourists has declined with the introduction of the cannabis pass in the South of the Netherlands last May, national and local media reported an increase of street dealers, cannabis cabs and drug runners in southern towns. A quickscan by drug researchers Nicole Maalsté and Rutger Jan Hebben confirmed what everybody with a little bit of common sense already expected: illegal street dealing increased significantly and police do not have the capacity to do anything about it.
The quickscan – based on personal observations and extensive interviews with coffeeshop-owners – concluded that the introduction of the cannabis pass has led to all kinds of unintended side-effects for local users. The separation of the market between cannabis and hard drugs is disappearing, as well as the age-limit that was strictly enforced in the coffeeshops on penalty of closure. In the city of Breda fights between rival local dealers to carve out territories have been reported. The police are unable to handle the emerging cannabis trade on the streets.
In protest against the move, many coffeeshops in Maastricht and other southern Dutch cities initially closed their doors. Although some are opening again to supply their regular clientele, one in Maastricht permanently closed its doors because of a lack of customers. Growing numbers of illegal drugs dealers are hanging out near coffeeshops harassing not only drugs tourists but also local residents. Many coffeeshops lost a significant part of their clientele who do not want to be registered, and started to buy their supply on the street, at special addresses or from so-called 'mobile phone' dealers. For some coffeeshops, revenue has declined by as much as 60%.
The customers of coffee shops buy their cannabis now almost exclusively in the illegal circuit, according to Marc Josemans of the Easy Going coffeeshop in Maastricht, one of the leaders of the protest. He was slapped with a note of summary closure by the municipality for selling cannabis to Belgians and Germans in the days when the pass was introduced. "There are youngsters that deliver cannabis on their scooter and earn around 250 euros a day, an amount of money they will never earn in a regular job," he said. "For the customer there are only advantages: it is brought to you at home, it is cheaper than in the coffee shop, the quality is the same and you do not have to register."
A coffee shop entrepreneur from Roermond interviewed for the quickscan counted 25 drug runners on a single day. The street dealers are working in shifts. They come by train or car from Rotterdam or Utrecht, do their shift and then go back to their own city. "They look like commuters," he said. A sophisticated network of alternative cannabis supply has emerged that had started even before the 'cannabis pass' was officially introduced, according to the quickscan.
The introduction of the cannabis pass symbolizes the shift in Dutch drug policy in the past decade: the focus on public health has been gradually replaced by a focus on security and repression of public disorder and organised crime. Although the Ministry of Public Health is still the lead ministry in name, the Ministry of Security and Justice (a merger of the former separate ministries of the Interior and Justice under the new conservative government) has the lead in practice.
While newspapers and drug control agencies abroad tend to say that the Dutch are rethinking their liberal attitude towards cannabis, support for liberal policies is still widespread. A 2008 poll among municipalities that have coffeeshops showed that over 75 percent want the national government to regulate wholesale supply to the coffee shops. A public opinion poll in February 2010 showed that 49 percent of the Dutch think that cannabis should be legalized while 13 per cent think that the current policy should continue. Only 26 per cent want cannabis prohibited. In May 2012, 64 percent of the population disagreed that cannabis should be prohibited.
A widening divide is emerging between the now defunct conservative law-and-order government and local municipalities about the future policy around coffeeshops and the backdoor problem. The majority of the municipalities that allow coffeeshops want to go in a different policy direction, and have proposed policies to finally regulate the backdoor supply. In November 2008, at a 'cannabis summit', around 30 mayors from different political parties including the VVD and the Christian Democrats asked for a "monitored pilot scheme" to assess if licensed growers could reduce cannabis supply-related crime.
The future of Dutch cannabis policy lies in the hands of the conservative liberal party (VVD) of the current – and most likely the next – Prime Minister Mark Rutte. In the past, until only two-and-half years ago, the VVD supported regulating the back door. In May 2010, its former leader and former European Commissioner Frits Bolkestein co-authored an Op-Ed calling for regulation and permitting the production and sale of all drugs under strict conditions designed to minimise use, while making it as safe as possible. The February 2010 poll showed that 50 percent of VVD voters are in favour of legalization of cannabis and 17 percent want continuation of the current policy.
The introduction of the ‘cannabis pass’ is based on a selective reading of therecommendations by the Van de Donk Commission that had been asked to lay the groundwork for a new memorandum on Dutch drug policies to be drafted in the fall of 2009 by the coalition government of a coalition of the Christian Democrats and the PvdA. The Commission recommended that the coffeeshops should go back to their original purpose: they should be limited in number and size and cater to registered local users rather than the "large-scale facilities that supply consumers from neighbouring countries." This should reduce the public disorder caused by tourists who cross the German and Belgian borders to buy drugs. However, it also suggested a limited experiment with regulating the supply for coffee shops.
The new drugs policy memorandum never materialised and the government fell in February 2010. It was the VVD-led rightwing coalition that came to power in October 2010 that narrowed down the recommendations to the introduction of the 'cannabis pass', as well as expanding no-coffeeshops areas around schools to 350 meters and defining cannabis with more than 15 percent of THC as a 'hard drug' that could not be sold in coffeeshops anymore.
The VVD basically sacrificed its previous liberal position on cannabis regulation to gain votes from the right and form a government with the Christian Democrat party and extra-parliamentary support of the Party of Freedom (PVV) of islamophobe Geert Wilders, in favour of closing the coffee shops as well.
The future of cannabis policy: a free issue?
Nevertheless, during the 2012 election campaign the VVD was standing by the policy until just a few days before the September 12 elections. Then the VVD mayor of Maastricht, a staunch defender of the 'cannabis pass', suddenly announced that because the number of foreigners trying to buy cannabis had fallen so sharply the membership cards for residents were no longer necessary. Prime Minister Rutte reacted by saying that it would be wise to face the practical problems arising in the implementation of the pass in joint consultation between the government and the local authorities, and to discuss the lessons learned so far to see if any changes are needed.
The mayor of Maastricht also said that while banning cannabis tourists in Maastricht made sense from a public disorder viewpoint, the introduction in Amsterdam – where one-third of the approximately 660 coffeeshops in the Netherlands are located – was not necessary since there are only minor problems with tourists in the capital. Amsterdam’s mayor Eberhard van der Laan (PvdA) and a majority of the city council are strongly opposed to the pass. The Amsterdam section of the VVD is also opposed and calls for a regulated cultivation of cannabis by licence to exclude organised crime from the production and wholesale distribution supply line and improve the quality of cannabis. The more liberal factions in the VVD were able to change the election manifesto of the party by lifting the membership limit of 2,000 and leaving it to the local authorities and the prosecution office to agree on membership thresholds.
Whether or not these are indications of a first step towards a revision of the current policies of the VVD remains to be seen. Yet, what the future of Dutch cannabis policy will be is depending very much on what position the VVD will take, the idiosyncrasies of Dutch politics and the complicated process of forming a government which can take months to complete. What the outcome will be of the coalition negotiations depends on the willingness of both the VVD and the PvdA to form a government and their willingness to bend or drop their positions on policy goals, including their views on drug policy. However the possibility that both parties do not find a solution to form a new government should not be excluded.
Any future decision on the 'cannabis pass' will probably depend on the official evaluation of the introduction of the pass in the south of the Netherlands, undertaken by the Bonger Institute of the University of Amsterdam and the Research and Documentation Centre of the Ministry of Justice. Indications are that while the measure might have had some impact in diminishing the amount of foreign cannabis tourists the negative consequences in terms of increased street dealing and public disorder, the increased risk of sales to under-aged youth and the evaporation of the separation of the market between cannabis and hard drugs – one of the main reasons for allowing coffeeshops – outweigh the benefits of the pass.
Based on the outcomes of the study a decision will be taken whether to continue, adapt or discontinue the pass. In the case of a negative evaluation, regulating the backdoor of the coffeeshop through a system of licensed cultivation might become an option, depending on whether the VVD is again willing to shift its views on regulating cultivation. The PvdA is in favour as is the centre left in Parliament, but there is no majority for that step unless the VVD or a section of the party decides to go along.
If the party leaderships are not able to reach an agreement while forming the new government, a solution could be to declare cannabis policy reform as a 'free issue', meaning that cannabis policy is not included in the sometimes very detailed and limiting coalition agreement and is left to the parties in parliament, or even individual parliamentarians, to decide. In that case the liberal section of the VVD has the opportunity to comprise a majority for reform.
Still, such a scenario depends on many as yet unknown factors and might fall apart any time. Even if a majority will decide for reform, the government still can refuse to enact the new legislation, arguing that regulation would be problematic within the limits of the UN conventions and would meet with strong international opposition, as happened in 2000 when a parliamentary majority voted to regulate the back door by allowing the cultivation of cannabis in a closed system, decriminalizing production of cannabis to be sold in the coffee shops. Growers would be allowed to produce for the shops on an exclusive basis, which in turn would be only allowed to sell cannabis produced by these growers. Similar proposals have been advance again during the 2012 election campaign by the social democrats.
In 2005 a second initiative proposing to experiment regulating supply of cannabis to coffee shops failed. The government asked for legal advice from the T.M.C. Asser Institute. Its controversial report, "Experiments in allowing the growing of cannabis to supply coffeeshops: International and European Law issues", concluded that cultivating cannabis for other than medical or scientific purposes was banned both under UN conventions and European Union law. Following the opinion that the experiment would not "comply with the spirit of existing treaties," the initiative failed in June 2006 when the VVD withdrew its initial support.
At the time, the VVD spokesman Frans Weekers said the government had to look for international political support for the Dutch cannabis policy through diplomatic channels in order to move forward. A suggestion that still has to be fulfilled, and which could have a better chance nowadays given the reform proposals in Uruguay aiming at state controlled cannabis cultivation, the debate in Denmark where the City Council of Copenhagen wants to start with state controlled cannabis shops and developments with cannabis social clubs in Spain for instance. A coalition of willing and like minded countries might open doors for reform of the UN drug conventions or coordinated opt-out scenarios for the cannabis provisions of the treaties as well.
 The backdoor problem: coffee shops are allowed to sell up to five gram of cannabis to consumers (the front door), but have to buy their stock on the illegal market (the back door). To draw coffee shops out of the criminal sphere entirely, the cultivation of cannabis needs to be regulated.
 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 and the resident-only criterion to the AHOJG guideline.
 The Trimbos Institute recently (June 2102) published a study showing that the 15 percent tetrahydrocannabinol (THC) treshold is rather arbitrary and does not give any indication about whether cannabis with higher THC content is more damaging. No statement can be made about the harmfulness of cannabis with a THC content of over 15% compared to hash with an equally high THC content and a relatively higher concentration of cannabidiol (CBD). However, it can be concluded that there is little to no negative effects that can be related to CBD. While CBD has an effect, it is usually in a positive way. Hash with a relatively high THC content and a high content of CBD seems less harmful than cannabis with high levels of THC and low CBD.
 According to some the Asser report was modified to fit the political decision envisaged by the Minister of Justice at the time, Piet-Hein Donner, who had strong links with the institute and currently is the head of the State Council that has to advice on all new legislation that passes the Parliament.