European Commission Releases Non-paper on Cannabis

The European Commission has released a non-paper with an overview of the EU acquis applicable to cannabis in its different forms and components. The non-paper was presented to the Horizontal Working Party on Drugs on the 28th of June.

After the Finnish Presidency in 2019 asked the Commission to provide a factual overview of the EU acquis (common rights and obligations that are binding on all EU countries, as EU Members) applicable to cannabis in its different forms and components, the Commission provided a description of the existing EU acquis regarding the recreational and medical use of cannabis, agricultural aspects and its use in other areas. In 2020, the Croatian Presidency collected a number of follow-up questions and requests for clarification, which were forwarded to the Commission services. On 19 November 2020, the Court of Justice of the European Union (CJEU) delivered a judgment on the marketing of cannabidiol in Case C-663/183, known as the KanaVape case, which has great implications in this issue. Finally, the vote of the WHO recommendations on cannabis and cannabis-related substances that took place on 2 December 2020 in the Commission on Narcotic Drugs was another important development.

The European Commission’s non-paper aims to reflect these developments and address the points raised by the Member States. The document contains all applicable regulations concerning a wide range of issues, from hemp import to medical marijuana.

The implications of the CJEU verdict

When it comes to CBD, the non-paper recognizes the ruling of the CJEU. ‘In light of the judgment in Case C-663/18 and current state of scientific knowledge, it appears that cannabidiol, whether obtained as an extract of the Cannabis sativa plant or artificially synthesized, should not be considered as a drug within the meaning of the Single Convention on Narcotic Drugs provided that it does not have any psychotropic effect’, states the Commission’s non-paper.

Here, the Commission informs that its services are assessing the implications of this judgment for other non-psychoactive cannabinoids.

In the section on cosmetics, the Commission also states that it will be necessary to assess the impact of the judgment of the Court of Justice in Case C-663/18 on the Cosmetics Regulation as regards cannabidiol extracted from the entirety of the Cannabis sativa plant.

EIHA: Are we joking?

In April 2021, the European Commission added cannabigerol (CBG) to its cosmetic ingredient database CosIng. That was the newest development in cosmetics regulation after Commission allowed natural CBD with a new entry for CBD in February 2021. At the same time, as we wrote in May, the Commission introduced a new categorization, placing all minor cannabinoids in the same group with THC.

After this non-paper, the managing director of the European Industrial Hemp Association (EIHA) Lorenza Romanese expressed her concerns to BusinessCann.

Ms. Romanese called for clarity on the legal framework going forward following the highest European court ruling, especially as the Commission already added CBG as a permissible component to the ‘CosIng’ cosmetics ingredient database. She dismissed the need to consider the consequences of the judgment on other non-psychoactive cannabinoids.

“My comment would be, are we joking or what? We want to impose a barrier on a substance that shouldn’t carry any barriers? What do you want me to do? To check the safety of CBG, CBN, and all the other millions of compounds that science will find in the next years?

“Where is it written that CBG is a controlled substance? We cannot go down the road of checking each and every single non-sequitur compound of the cannabis plant.

“It has surprised me as the reality is different on the ground. They gave us CBG and now they are saying they should have checked before giving it to us.”

Romanese also questioned whether there would be enough laboratories to do the testing. “What does it mean if they have to assess all? We know that the cannabis plant has 100 compounds more or less. I am not saying the Commission will check 100 compounds, but I’m reading the note and understanding it and stating that the reality is different.

“I would say that they will really check each and every one. But who the public organization is who should check is not clear. The Commission has no laboratories in-house. They have legal services but no laboratories.

“We know that in Europe you have less than five laboratories that can check all the cannabinoids.”, she said.

Nevertheless, the scene had changed quite rapidly following the November 2020 court case, and December’s UN rulings, said Romanese, concluding that ‘the scenario is far better than it was in summer 2020’.