November 29, 2020

The European Justice considers it legal to commercialize cannabidiol produced in another Member State if it is extracted from the whole cannabis plant


A Member State may not prohibit the marketing of cannabidiol (CBD) legally produced in another Member State if it is extracted from the entire cannabis sativa plant and not only from its fibers and seeds. This has been established by the Court of Justice of the EU this Thursday.

The Government maintains that "no scientific evidence" to regulate medical cannabis while Podemos prepares a comprehensive consumer law

The Government maintains that “there is no scientific evidence” to regulate medical cannabis while Podemos prepares a comprehensive consumption law

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BS and CA are the former directors of a company that is dedicated to marketing and distributing electronic cigarettes with cannabidiol oil (CBD), a molecule present in hemp (or cannabis sativa) which is part of the cannabinoid family.

In this case, CBD was produced in the Czech Republic from legally grown and fully used hemp plants, including leaves and flowers. Later, it was imported into France to be packaged in cartridges for electronic cigarettes.

Criminal proceedings were brought against BS and CA because, under French regulations, only hemp fibers and seeds can be used commercially.

Sentenced by the Marseille court to 18 and 15 months in prison with suspension of the execution of the sentence, and a fine of 10,000 euros, BS and CA filed an appeal. This court has doubts about the conformity with Union law of the French regulations, which prohibit the marketing of CBD legally produced in another Member State, when it is extracted from the plant of cannabis sativa in its entirety and not only of its fibers and seeds.

In its ruling delivered this Thursday, the Court of Justice declared that Union law, and specifically the provisions relating to the free movement of goods, is opposed to French regulations.

First, the Court of Justice rules on the law applicable to the situation in question. In this regard, it discards the regulations relating to the Common Agricultural Policy (CAP): indeed, these texts only apply to “agricultural products”.

Now, CBD, extracted from the plant cannabis sativa whole, it cannot be considered an agricultural product, unlike, for example, raw hemp. Therefore, it is not within the scope of those regulations.

Instead, the Court observes that the provisions on the free movement of goods within the Union apply, since the CBD cannot be considered a “narcotic drug”.

To reach this conclusion, the Court of Justice recalls, firstly, that persons who sell narcotic drugs cannot invoke the application of the freedom of movement, since such marketing is prohibited in all Member States, with the exception of one trade strictly controlled for use for medical and scientific purposes.

Next, the Court of Justice indicates that, to define the concepts of “drug” or “narcotic drug”, Union law refers, in particular, to two United Nations texts: the Convention on Psychotropic Substances and the Convention Unique on Narcotics.

Well, CBD is not mentioned in the first and, although it is true that a literal interpretation of the second could lead to classify it as a narcotic, as an extract of cannabis, such an interpretation would be contrary to the general spirit of this convention and its purpose of protecting “the physical and moral health of humanity”.

The Court of Justice notes that according to current scientific knowledge, which it is necessary to take into account, unlike tetrahydrocannabinol (commonly referred to as THC), another cannabinoid in hemp, CBD does not appear to have psychotropic effects or harmful effects on human health.

Second, the Court considers that the provisions on the free movement of goods are contrary to legislation such as the one at issue.

Indeed, the prohibition of commercializing CBD constitutes a measure of equivalent effect to quantitative restrictions on imports, prohibited by Article 34 of the Treaty on the Functioning of the EU.

However, the Court specifies that such restrictive regulations may be justified by any of the general interest reasons listed in Article 36 TFEU, such as the objective of protecting public health invoked by France, provided that said regulations are adequate to ensure the achievement of the aforementioned objective and does not go beyond what is necessary to achieve it.

Although the latter assessment corresponds to the national court, the Court offers two indications in this regard. On the one hand, it points out that it appears that the commercial ban does not affect synthetic CBD, which has the same properties as the controversial CBD and can therefore be used as a substitute for the latter.

If this is demonstrated, it would be a possible indication that the French regulation is not adequate to achieve the objective of protecting public health in a consistent and systematic way.

On the other hand, the Court of Justice recognizes that France is certainly not obliged to show that the danger of CBD is identical to that of certain narcotic drugs.

However, the national court must examine the available scientific data to ensure that the actual alleged risk to public health is not based on purely hypothetical considerations.

Indeed, a ban on the marketing of CBD, which is also the most restrictive obstacle to trade in products legally manufactured and marketed in other Member States, can only be adopted if this risk is sufficiently proven.

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