4 Coffee shops
The committee paid working visits, studied the literature and obtained information from key individuals involved with ‘coffee shops’ to gain an idea of how and in what context these facilities operate. The picture that emerged from this exercise differs markedly from what was originally envisaged: coffee shops as smallscale facilities with a largely local/regional role in the production and use of cannabis. The committee is convinced that the policy on coffee shops needs reviewing, in order to redress the balance between their positive and negative aspects.
4.1 Current situation
Quiet and safe
Coffee shops have a role chiefly as places where adult consumers can purchase and, if they wish, use cannabis in a quiet, safe setting, without coming into contact with individuals who deal in other drugs. In this sense, they play a role in the separation of the drugs markets. They do not apparently lead to a different level of cannabis use among adolescents or lower cannabisdependence in the Netherlands than in other European countries (Trimbos/WODC). It has also been found that minors, who are not allowed to use coffee shops, can easily obtain cannabis from these establishments via adults. The existence of coffee shops allows the authorities to keep an eye on consumers, make contact with them and provide information on the risks. Finally, coffee shops provide local government with a ‘safety valve’ that allows it to influence part of the cannabis market. Its ability to set criteria whereby cannabis production and supply will be tolerated provides a way of reducing the public nuisance sometimes associated with coffee shops.
Public nuisance and disruption
In many of the 100 or more municipalities with coffee shops, they can be regarded as a relatively troublefree phenomenon, providing within the existing policy framework a manageable facility that mainly supplies local users.
In the border areas, however, particularly in the south of the country, the presence of coffee shops causes problems, due to the large and evergrowing numbers of people crossing the border to buy drugs. The conflict this has caused has prompted a range of local, and sometimes regional, interventions: the closure of a large coffee shop in Terneuzen, the closure of all coffee shops in Roosendaal and Bergen op Zoom and plans in Limburg to impose major restrictions on access to coffee shops. The presence of large coffee shops causes public nuisance in terms of traffic and noise levels. The influx of consumers from Belgium, France and Germany has given rise to a market in which coffee shops have become permanent facilities serving customers from abroad, who come to buy drugs for their own consumption, and also to deal in them back home.
In Amsterdam, on the other hand, where more than one in four of all coffee shops in the Netherlands are located, most tourists cause virtually no problems in or near coffee shops. The nature of drugs tourism is different there. Many foreigners visit a coffee shop during their stay in the city, with no intention of taking drugs home with them. The large number of coffee shops in Amsterdam has been prompted by this type of ‘incidental tourism’, which occurs on a fairly substantial scale. Though their numbers have been substantially reduced over the years, the concentration of coffee shops in certain areas of the city is so great, in the view of the city council, that they have a negative impact on the neighbourhoods where they are located.
Over the past few decades Rotterdam has invested a great deal in counteracting major problems on the drugs market associated with the combination of coffee shops, drugs runners and drug houses, caused partly by their attractiveness to foreigners from countries to the south of the Netherlands.
This brief summary highlights the major local and regional differences in the coffee shop situation. We should also add that measures in one municipality have an impact on others. The closure of coffee shops in one can, for example, cause the market to partially or even completely relocate to another. Or a more stringent approach in one place can cause more problems elsewhere. Many drug runners in Limburg, for example, have come from the Randstad conurbation in the west of the country.
Article 71, paragraph 2 of the Schengen Convention 1990 states that: ‘The contracting Parties undertake to prevent and punish by administrative and penal measures the illegal export of narcotic drugs and psychotropic substances, including cannabis, as well as the sale, supply and handing over of such products and substances, without prejudice to the relevant provisions of Articles 74, 75 and 76.' Despite this, however, selling of cannabis in coffee shops is tolerated, under strict conditions.
The distinction between soft and hard drugs was introduced by the Opium Act 1976. The phenomenon of ‘house dealers’, which soon developed into coffee shops as tolerated points of sale for cannabis, was seen mainly as a way of keeping cannabis users away from the world of hard drugs. The rules applying to coffee shops are laid down in Public Prosecution Service guidelines (see sidebar), which define the conditions under which the selling of cannabis – technically a criminal offence – will not be prosecuted. They include restrictions on the amount of cannabis that coffee shops are allowed to stock and the weight that may be sold, a measure which is designed to curb crossborder drugs tourism.
Public Prosecution Service criteria
The sale of soft drugs in coffee shops is tolerated, subject to strict conditions. Coffee shops that are tolerated on the basis of local tripartite consultations (between the mayor, public prosecutor and chief of police) will not in principle be prosecuted provided they comply with the following conditions:
– no advertising: this means no advertisements other than a brief notice on the premises in question;
– no hard drugs: this means that no hard drugs may be present or sold on the premises;
– no public nuisance: this includes inconsiderate parking near to the coffee shop, noise annoyance, waste and/or customers hanging around in front of or near the premises;
– no selling to or admittance of young people: given the increase in cannabis use among young people, it has been decided that the minimum age of 18 should be strictly enforced;
– no sales of large quantities in a single transaction: in other words, amounts larger than are suitable for personal use (= 5 g). ‘Transaction’ is taken to mean any purchase or sale in a single coffee shop on the same day, involving the same purchaser.
– the tripartite authorities may determine the maximum quantity of cannabis that tolerated coffee shops may stock. In principle, no prosecutions will be brought against coffee shops stocking any amount up to the maximum. The stock may not in any event exceed 500 g.
Opium Act guidance (2000A019) (see www.om.nl)
The drugs policy document 1995 opted to enforce these criteria primarily under administrative law, so that the police and Public Prosecution Service could focus on enforcing the criminal law to tackle hard drugs and organised crime. As a result of this choice, the focus of enforcement in the case of soft drugs has come to rest above all on the public nuisance caused by certain coffee shops. The Trimbos/WODC evaluation report states that compliance with and monitoring of the maximum permitted stock of 500 g causes particular problems.
The criminal and fiscal enforcement agencies say the same. It is also difficult to ascertain whether drugs are sold to customers several times a day, and to prove that drugs have been sold on to minors.
The committee observes that, due partly to problems with enforcement (which is sometimes neglected), the original aims have not been achieved. It has proved difficult to protect young people, some coffee shops are now much larger than was ever intended, and some systematically supply the foreign market. As a result, commitments under the Schengen Convention and other international agreements are not being fulfilled.
Maastricht has attempted to keep away foreign customers by setting out rules on access to coffee shops in a General Municipal Ordinance. The Administrative Jurisdiction Division of the Council of State is currently considering an appeal against a decision by the mayor of Maastricht to temporarily close a coffee shop on the grounds that it had contravened the provision in the General Municipal Ordinance banning access to individuals who are not resident in the Netherlands. A request for a preliminary ruling has also been submitted to the European Court of Justice in Luxembourg. The issue at stake is whether the ban is compatible with the free movement of goods and services. The crucial questions are whether cannabis can be regarded as a good under EC law, and how this approach under administrative law relates to the EU’s provisions on drugs in the Maastricht Treaty. It is likely to be some time before a ruling is handed down.
Cannabis growing and organised crime
Permitting sales of cannabis in coffee shops has unfortunately given rise to the idea that soft drugs are not a big problem, with the result that less priority has been given to investigating cannabis growers and traffickers. This has allowed hemp growing to develop on a large scale, facilitated by legitimate commercial services (finance, consultancy, money laundering) and improvements in growing techniques (agricultural science, industry), and with little hindrance from the police and criminal justice authorities, who were focusing on the hard drugs market. A report recently compiled by Breda city council highlights a prime example of these developments.
The coffee shop sector is varied, and its character has changed dramatically. The image of small entrepreneurs who once opened coffee shops for idealistic reasons applies to only a small proportion of the sector these days. It is now dominated by largescale and often supraregional commercial operators, some of them with direct links to the world of organised crime. Largescale cannabis growers and dealers are not always too concerned about the quality of the cannabis, and in recent years, use of pesticides and growth enhancers that are damaging to the health of users has been on the increase. Substances added to the cannabis to increase its weight and so increase profits are also detrimental to quality. This increases the health risks to consumers. Coffee shop owners have little opportunity to screen the products supplied for this kind of contamination. It is also difficult for wellintentioned coffee shop owners to buy cannabis from smallscale producers (some of whom grow cannabis in their own homes), as they have largely been driven away or taken over by large producers whose objective is no longer to serve cannabis consumers but to protect their own financial interests, by violent means if necessary.
Coffee shops have become just a small element in the world of cannabis dealing. Cannabis growing and the crime associated with it have become virtually autonomous, and most cannabis is sold outside the region where it is produced, to either domestic or foreign consumers. Coffee shop policy can therefore have only a modest impact on the production of cannabis and the organised crime that goes with it (see also chapter 5).
4.2 Framework for solutions: development and dynamic
The committee has ascertained that coffee shop policy needs readjusting. The situation has got out of hand in several respects. Coffee shops have grown into something that was never intended, the original aim of protecting young people from hard drugs has met with only limited success, and there are considerable problems in specific regions and municipalities that cannot be adequately addressed at local level.
National clarity with scope for difference and more rigorous enforcement
The issues associated with coffee shops have given rise to a range of disparate actions, particularly at local level, designed to address the problems identified. The question is whether such local measures will ever be enough within the current framework, or whether the framework itself needs to be reconsidered. The committee believes that the scope for different approaches must be constrained by clarity on the desired direction of national policy. At the same time, the national framework must still allow for differences, given the fact that the committee has ascertained that the situation differs from one moment to another, from one place to another, and at regional and local level.
The multifunctional objective of coffee shops – to offer adults a safe, quiet place where they can use cannabis, to provide local administrators with a ‘safety valve’, and to give care workers an opportunity to identify problematic users – must therefore be clear. They are not intended as retail outlets for absolutely anyone from at home or abroad, nor as a breeding ground for organised crime.
This underlying intention can and must allow scope for local difference, for the parties in the tripartite consultations (the mayor, Public Prosecution Service and police, preferably with input from the municipal health service) to shape coffee shop policy as they see fit, in keeping with their circumstances. One essential precondition is that, more than in recent years, enforcement under the criminal law should be combined with administrativelaw measures to ensure strict compliance with the national and local conditions under which coffee shops are allowed to operate. The committee is thus saying that, no matter what form the regulation of coffee shops actually takes, enforcement – including under the criminal law – must be reinvigorated and tightened up to ensure that coffee shops once more become what they were intended to be.
This requires an end to the current reluctance among the police and Public Prosecution Service to use prosecution to enforce the criteria under which coffee shops are tolerated, and to make administrative enforcement in the interests of public order the main concern. This onesided attitude has, in the opinion of the committee, been partly responsible for the excesses that have occurred in several places in this country. The problems associated with coffee shops must no longer be tackled solely or primarily by the mayor, in the interests of public order (nuisance), but also under the Opium Act 1976 and in line with international agreements. This means that, in accordance with the clause in the Schengen Convention 1990 quoted above, policy on investigation and prosecution must be brought back into line with and support the objectives of our drugs policy, as laid down in Public Prosecution Service guidelines and supported by measures under administrative law, and that the authorities responsible must work closely together to enforce the policy. If these general principles are observed, the committee believes it may be possible to further develop coffee shop policy.
4.3 Further development of national coffee shop policy
Variation and scope for experimentation
The committee has distinguished six possible options for the further development of coffee shop policy. Each has its advantages and drawbacks, which must be discussed in order to establish a national policy framework with scope for local variation. The six options are represented in the figure below.
The most extreme options are legalisation of cannabis, and therefore also of coffee shops (I in the diagram) and an outright ban on coffee shops (VI). The latter would mean that coffee shops were no longer tolerated and would have to close down. Under the legalisation (or ‘minimum regulation’) option, coffee shops would be regarded as normal enterprises and cannabis as a normal commodity, subject to general rules, and sometimes to specific rules such as a minimum age for purchase, as with alcohol.
Four other forms of regulation lie between these two extremes. Regulation can be onesided, as it is now, since only sales of cannabis are regulated (II and IV), or it could be twosided, if supply were also regulated. In this case sales, production and trade would be tolerated, subject to certain rules (III and V).
Under models II and III, it is assumed that the coffee shop would be an open enterprise, subject to certain rules, such as the Public Prosecution Service’s criteria. Any adult would be able to enter the premises. However, coffee shops could also become closed enterprises, accessible only to a limited, known set of clients, with regulation of sales (model IV) and possibly also supply (model V).
Given the need for effective enforcement, the different circumstances that necessitate some variation in policy, and the different options that are theoretically possible, the committee feels it should indicate which course of action it would recommend. In order to do so, it will first discuss the current situation, then the different courses of action, highlighting which ones it regards as undesirable, and eventually pinpointing the option it regards as most appropriate.
No ban, no legalisation
The committee believes that a total ban on coffee shops (option VI) would not be a wise course of action, as it would mean the loss of the quiet, safe environment they offer adult cannabis users. They would then have to resort to the illegal market, bringing them into contact with other drugs and the crime associated with them. Nevertheless, an overall ban would make this country less attractive to foreign users. This can also be achieved by less drastic means, however. The other advantages of coffee shops (scope for monitoring users, role as ‘safety valve’) would also be lost if an outright ban were instituted.
At the other end of the spectrum, the committee does not favour legalisation (option I) in the current circumstances. It is aware of the calls for legalisation, on the grounds that the problems associated with cannabis are caused mainly by the fact that production and trade are banned, and that full liberalisation of the market could be achieved without many problems. The committee does not however believe that the advantages of liberalisation and the drawbacks of a ban are as blackandwhite as this would suggest. Legalisation would not, for example, rid us of all the problems associated with substance use (cf. the major alcohol problem in this country). And unilateral legalisation by the Netherlands would only serve to attract more foreign users, and possibly also producers, since they could grow cannabis for export in this country freely and without risk. The debate as to whether to legalise or ban cannabis must be conducted at international level. The committee believes it would be unrealistic for our country to go its own way on this issue (by unilaterally withdrawing from the international agreements on the matter).
In the current situation
The current situation corresponds to option II: coffee shops are open to the general public but subject to onesided ‘regulation’ (of sales, not of supply and the associated production and trade). As we have said, this causes few problems for many local authorities, other than the crimeinducing nature of a nonregulated supply side. Though this is not an ideal situation, it could in principle persist on condition that enforcement were tightened up. The committee does, however, have a few reservations.
The first concerns enforcement. As we indicated above, better criminal law enforcement, alongside administrative enforcement, is needed to link toleration of coffee shops more closely to supervision of compliance with conditions, and more sanctions in the event of noncompliance. This of course applies to the ban on hard drugs on the premises, but also to the number of transactions per client and selling (or reselling) to minors.
The second concerns the question of whether some general conditions currently applying at national level are actually appropriate in certain local circumstances. If not, the tripartite authorities must have the freedom to set local conditions within the national policy framework. This applies to the recently introduced condition that coffee shops must be situated a certain minimum distance from schools; having listened to the views of schools, the committee is not convinced that this national criterion is generally appropriate (or effective).
Thirdly, there is the problem of how to enforce the maximum stock limit of 500 g. Both the coffee shop sector and the law enforcement authorities (police, Public Prosecution Service, Tax and Customs Administration) have highlighted problems with this rule. Measures to prevent coffee shops expanding in size and to reduce the influx of drug tourists will not resolve this issue, as variation in the size of coffee shops will persist, depending on the local situation. The maximum quantity would then have to be based on the size of the customer base and the coffee shop’s turnover. The tripartite authorities may agree to the introduction of a maximum below 500 g; they may not exceed this limit, however. But prosecutions are rarely, if ever, brought against coffee shops found to be exceeding the limit (on the basis of cannabis actually found, or deduced on the basis of transactions). Since the committee believes that criminal enforcement needs tightening up, it might be worth considering adapting the rules on the maximum quantity of cannabis kept on the premises to give the tripartite authorities some room for manoeuvre.
Since the supply of cannabis to coffee shops is illegal, the owner and staff theoretically run the risk of prosecution if they pick up and transport cannabis to the premises. The ‘halfway option’ would involve an undertaking that these individuals would be protected from criminal prosecution if it were clear they were acting in accordance with the conditions for the operation of the enterprise and only with the aim of selling within these constraints. This would tie in with current practice, though the rules would have to be made clearer, in view of the desire to enforce the law more rigorously.
The committee strongly recommends that coffee shops once more become smallscale facilities. It is clear that the emergence of very large coffee shops, or even ‘mega coffee shops’, quickly causes problems (cf. Terneuzen). However, the committee regards it as the job of the local/regional tripartite authorities to strike the best balance between the size of coffee shops, their number and their distribution. Sometimes this will lead to the opening of more coffee shops, while in other cases coffee shops will have to close.
Further development towards regulated supply not an automatic step (from II to III)
The idea of proceeding from the current situation (option II) towards regulation of supply and also production of cannabis (option III) has been put forward in various quarters. This would give the authorities more of a hold over production, which in some parts of the country, like southeast Brabant, is occurring on such a huge scale that it is difficult to control. There would have to be a clear distinction between tolerated, regulated cannabis growing operations for similarly tolerated and regulated coffee shops, on the one hand and, on the other, the production of cannabis for the illegal market at home and abroad, which will have to be rigorously tackled.
The committee rejects the idea of such a development in the current circumstances. Coffee shop owners would have to serve a large clientele (since there would be no restrictions on the number or type of visitors, who would include foreigners) from stocks supplied hopefully by bona fide producers, who would have to operate in a market dominated by criminal organisations. It is difficult to drive organised crime out of such largescale, complex commercial processes, and it would take major efforts to keep them out. Given the problems currently associated with this, the risks would be too great.
Furthermore, the regulation of cannabis supply on the larger scale referred to here would not be compliant with the international agreements to which the Netherlands is party, and such a development would – as with ‘legalisation’ – mean that the Dutch had to withdraw from certain agreements, a prospect which the committee regards as unrealistic and undesirable.
Towards a more closed type of coffee shop (from II to IV)
As we have said, the committee would advise that coffee shops return to being smallscale facilities (or remain as such) serving the local market (i.e. residents of the municipality where they are located and the immediate surrounding area). Measures to restrict flows of customers to coffee shops are needed, as a matter of priority in regions where coffee shops systematically serve a crossborder market. Restricted access to coffee shops for crossborder consumers would reduce the influx of foreigners, many of whom come because coffee shops give them a quiet, safe environment in which to consume cannabis. If they were to stay away, the coffee shop market would shrink, and the associated sideeffects (drug runners, street dealing – including in hard drugs – and traffic nuisance) would be reduced.
This could be tested in practical experiments such as those planned for Limburg, where the authorities hope to restrict access to coffee shops by introducing passes (other places are planning to use iris scans and other methods of identification), limiting opportunities to consume (daily limits), restricting opening hours, and introducing payment by electronic transfer, which would no longer be anonymous, etc. If the desired effect is to be achieved, the regulations will have to be properly and consistently enforced. An attempt to discourage drugs tourism using the Public Prosecution Service criteria failed. The committee is also in favour of experimenting with other methods. The impact and results of the tests will however have to be closely monitored, supervised by experts and nationally evaluated to establish whether they have been effective (a role that could be performed by the new drugs authority; see chapter 5).
A more radical version of option IV would be to set up a coffee shop club. This would be a closed enterprise, and all customers would have to be members. The club would have a list of members (perhaps subject to a certain maximum) and nonmembers would not be admitted. If the club were truly to be closed, it would have to be prohibited from offering day membership. The club would therefore have a stable set of consumers who would all be members. One condition would be that membership would be open only to residents of the region. This would bring us close to the situation originally intended: coffee shops as local facilities for local or regional consumers. The committee believes this option is interesting enough for experiments to be set up.
The possibility of introducing a more closed version of coffee shops would reduce the problems in border areas. However, it would take extra enforcement. It is not clear what implications this would have for the market in drug production. If it became less attractive for foreigners to come to the Netherlands because they could no longer visit coffee shops, the illegal domestic target might shrink. But this would require a clear, stringent policy; halfhearted attempts at regulation could in fact lead to more illegal production and trading for the Dutch market. The vast majority of production and trade is now intended for export. Coffee shops play no role in this.
Closed coffee shops with regulated supply (option V)
Only if closed coffee shops were introduced, along with checks on users, does the committee believe it would be possible to consider regulating cannabis supply and production. It believes such a step could be countenanced only if the club model, with a clearly defined and fairly stable membership, were successfully introduced and maintained. Under option V, several plants could be grown for the personal use of each member of the club, which would grow the cannabis independently in this country. This option would tie supply to customer access, with no scope for supply of cannabis from abroad.
This idea is important, as it would help resolve one of the contradictions of current policy: the fact that coffee shops are allowed to sell cannabis, while production and distribution of cannabis are banned. Experimenting with this on a small scale would enable us to establish whether (in view of current developments in the market) this would be manageable, and identify any potential negative side effects. An experiment of this kind would provide an opportunity to see whether the idea of a coffee shop for the local market, supplied from smallscale growing operations, were viable.
The results of experiments might lead to regulation of cannabis production in a broader sense, if developments were to occur at international level that made this possible, or even desirable (this would mean progressing from V to III).
The committee recommends that the possibility of establishing coffee shop clubs with regulated supply be investigated further to reveal what legal conditions would need to be introduced, and how the production and consumption of cannabis and their supervision might be organised. If no insurmountable fundamental or practical problems were to arise, one or more experiments might be conducted, followed by scientific evaluation.
4.4 Further development of coffee shop policy through experimentation
Recent years have seen mainly local initiatives in response to specific problems. While the committee understands the need for such initiatives, it would call for a more systematic approach, with further development of drugs policy in a more systematic and controlled manner than we have seen over the past few years, along the lines set out, and with more guidance from central government. Simply responding to local developments would not be consistent with this approach. National policy will have to be more actively shaped, and this will include the setting up and evaluation of experiments. Such a development will require a national ‘authority’ (see chapter 5) to initiate and supervise experiments in close consultation with authorities at local level; to help define consistent administrative, health and legal conditions for local initiatives; to investigate the impact (including any displacement effects); and to translate any information gleaned into further measures.
Contacts with neighbouring countries will have a major bearing on any further development of coffee shops, if only because any changes to our policy will affect Germany, Belgium and France too. Our counterparts in those countries will have to be fully informed of our plans, and it would be useful to identify the implications for them of any changes to our policy. It might also be useful to involve them in evaluating our experiments, in view of the fact that this is a problem common to all EU countries.
The committee not only regards it as essential that we work on a structural basis, but also that we take an integrated approach to the entire issue, to ensure that the concerns of the administrative authorities (public nuisance, administrative enforcement), police and criminal justice authorities (crime and enforcement of the criminal law) and the health care sector are considered in a balanced way both in setting up the experiments and in identifying their implications. Local coffee shop policy does not always comply with the necessary conditions at present (these include input from and deployment of the police, and coordination of care and prevention). It is also essential that the conditions under which coffee shops are tolerated be enforced more frequently under the criminal law, in line with the relevant international agreements, to avoid proceedings against the administrative authorities.
The committee has concluded that coffee shop policy needs to be reinvigorated along the lines set out above, out of a desire to preserve their positive effects and counteract their negative effects, with local differentiation to allow for tailormade approaches. But even if we take this line, it will have only a modest impact on the production of and trade in cannabis, which has long outgrown the coffee shop scene. This issue will be dealt with in the following chapter.