By / April 14, 2021

CBD, Cannabis and Legislation: European law changes the game in France

Thanks to new European regulations and laws, the regulatory and legislative status of CBD-only cannabis in France has finally stabilized, making CBD with less than 0.2% THC, a fully legal product. But how did we get here? What does it mean for buyers and sellers in the industry, and where is it headed next?

European Member State cannot ban the marketing of CBD legally grown in the EU

France is not even allowed to ban the marketing of cannabidiol (CBD), as long as it is obtained legally within existing European laws. For example, if obtained in the Czech Republic from legally grown hemp plants using the whole plant. This follows from a ruling of the European Court of Justice. While it is true that it is up to a national judge to examine whether a health protection justification is possible, according to current scientific knowledge, cannabidiol has no psychotropic effect.

But it took us a landmark case to get us to this compromise, on that spanned the EU from side to side, and the French and European judicial system from top to bottom.

French litigation concerning electronic cigarette cartridges containing CBD

Cannabidiol (CBD) is a molecule found in hemp (or Cannabis sativa) and belongs to the family of cannabinoids. In the case that was brought forward to European courts by France, CBD came from the Czech Republic, was made from legally grown hemp plants and extracted from the whole plant, including the leaves and flowers.

It was then introduced into France and put into electronic cigarette cartridges. Criminal charges were brought against the former managing directors of a company marketing and distributing these cannabidiol oil cigarette cartridges, because under French law, only hemp fibers and seeds can be used commercially (not, importantly, the flowers). The French criminal court sentenced the managing directors to 18 months in prison and 15 months probation and a fine of 10,000 euros each.

European court rules France’s CBD ban a “Violation of the free movement of goods”

The case was then taken to the Court of Appeals, where lawyers sought a higher authority. They wanted to know from the ECJ (European Court of Justice) whether the prohibition of the marketing of products containing cannabidiol produced in a recognized and certified way in an EU member state, if it is obtained from the whole cannabis plant and not only from its fibers and seeds, is compatible with EU law.

The ECJ ruled that such a regulation is contrary to EU law. In particular, it violates the free movement of goods. The regulations on the common agricultural policy are not relevant here, as they only apply to “agricultural products” listed in Annex I of the treaties.

However, unlike raw hemp, CBD, which is obtained from the whole cannabis sativa plant, is not an agricultural product. It therefore falls outside the scope of these regulations.

What about European health protections invoked by the French to ban CBD?

The CBD at issue in the main proceedings is not listed as an “addictive substance” by EU regulatory authorities. According to current research knowledge, unlike THC (tetrahydrocannabinol), CBD does not have psychotropic or harmful effects. Thus escaping from any possible health ban the French governmight seek to impose.

According to the ECJ, the ban on the sale and distribution of CBD is a prohibited measure, as it is a legal product and produced in Europe. A justification comes from one of the elements of Article 36 TFEU. The listed reasons of general interest, such as the objective of protecting public health invoked by France, are taken into account, as long as what is appropriate and necessary to achieve this objective falls under national law.

All this also leads us to reflect on the place of CBD and cannabis in other European countries…

Europe and cannabis: how other EU countries deal with cannabis.

Cannabis is by far the most consumed illegal drug in the European Union, but the applicable laws differ from country to country: notably medical cannabis is currently allowed as a legal prescription in five member countries.

Recreational consumption of cannabis however is prohibited throughout the EU. However, how countries handle violations differs considerably – as does the attitude of the population towards legalization.

Where are the cannabis consumers?

According to the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA), 90 million EU citizens have used cannabis at least once in their lives.

Most cannabis users are in France, where eleven percent of all adults consume it at least once a year. And young people in France are also among the leaders in cannabis use: 29 percent of 15- and 16-year-old schoolchildren reported in a Europe-wide survey that they had smoked pot at least once in the past 12 months.

There was as almost as much in the Czech Republic with 28%, followed by Bulgaria with 25%.

Thus the legalization Saga continues between France and the EU

The important thing to remember is that cannabis and classic marijuana are still prohibited in France and Europe, and even if progress is slowly being made, it is crucial to stay informed about all the latest developments and cannabis news.

That said, CBD with a THC level < 0.2% is now completely legal on the French territory and its marketing is also legal. As the latest outcome of the storied saga between France and the EU, but how and when regulatory forces will clash again on the topic of cannabis remains to be seen. Though undoubtedly any progress will only come with more legal showdowns.


(Featured image by  Christian Lue via Unsplash)

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