Great news for CBD in France and the European CBD industry came from the Court of Justice of the European Union (CJEU) today! A Member State may not prohibit the marketing of cannabidiol (CBD) lawfully produced in another Member State when it is extracted from the Cannabis sativa plant in its entirety and not solely from its fiber and seeds, the CJEU decided on Thursday in a case based on the appeal before the French Cour d’appel d’Aix-en-Provence.
The case in question was one of two Marseille entrepreneurs, the pioneers of the electronic hemp cigarettes, Sébastien Béguerie and Antonin Cohen, who were sentenced at first instance in October 2018 by the Marseille Criminal Court to 18 and 15 months suspended imprisonment, as well as a 10,000 euros fine. The two men were accused of using an oil legally made in the Czech Republic containing CBD extracted from all Cannabis Sativa, leaves and flowers included, while France only allows the use of seeds and fibers. The French court of appeal considered that the French regulations could not be compatible with those of the EU.
On Thursday, the Court of Justice of the European Union (CJEU) ruled that the French ban on CBD marketing is illegal and emphasized that CBD has no psychotropic effect or harmful effect on human health.
“This decision is a slap in the face for France. We were led to believe for two years that the legislation had to be applied restrictively. Hundreds of shops have been closed, dozens of young entrepreneurs imprisoned. We are moved because today, the Court of Justice of the European Union confirms our reading of the law ”, said Bechir Saket, vice-president of the organization L630 for Le Parisien.
In its decision, the CJEU states that the prohibition may be justified by the objective of protecting public health but must not go beyond what is necessary in order to attain it. France will need to give scientific evidence on why would CBD present a risk for public health.
What is the stand of CJEU on CBD regulations?
In today’s judgment, the Court finds that EU law, in particular the provisions on the free movement of goods, precludes national legislation. The Court rules on the law applicable to the situation and leaves aside the regulations relating to the common agricultural policy (CAP). The CAP applies only to the agricultural products, and CBD, extracted from the Cannabis sativa plant in its entirety, cannot be regarded as an agricultural product, unlike, for example, raw hemp. It therefore does not fall within the scope of those regulations.
On the other hand, the Court observes that the provisions on the free movement of goods within the European Union (Articles 34 and 36 TFEU) are applicable since the CBD at issue in the main proceedings cannot be regarded as a ‘narcotic drug’. In arriving at that conclusion, the Court first recalls that persons who market narcotic drugs cannot rely on the freedoms of movement since such marketing is prohibited in all the Member States, with the exception of strictly controlled trade to be used for medical and scientific purposes. The Court notes, next, that, to define the terms ‘drug’ or ‘narcotic drug’, EU law makes reference inter alia to two United Nations conventions: the Convention on Psychotropic Substances and the Single Convention on Narcotic Drugs. CBD, however, is not mentioned in the former and, while it is true that a literal interpretation of the latter might lead to its being classified as a drug, in so far as it is a cannabis extract, such an interpretation would be contrary to the general spirit of that convention and to its objective of protecting ‘the health and welfare of mankind’.
The Court notes that, according to the current state of scientific knowledge, which it is necessary to take into account, unlike THC, the CBD does not appear to have any psychotropic effect or any harmful effect on human health.
France needs to give scientific evidence on how CBD is being a risk for public health
When it comes to the objective of protecting public health invoked by the French Republic, the Court provides two insights in that regard. First, it notes that it would seem that the prohibition on marketing would not affect synthetic CBD, which would have the same properties as the CBD at issue and which could be used as a substitute for the latter. If that circumstance were proved, it would be such as to indicate that the French legislation was not appropriate for attaining, in a consistent and synthetic manner, the objective of protecting public health. Second, the Court accepts that the French Republic is indeed not required to demonstrate that the dangerous property of CBD is identical to that of certain narcotic drugs. However, the national court must assess available scientific data in order to make sure that the real risk to public health alleged does not appear to be based on purely hypothetical considerations. A decision to prohibit the marketing of CBD, which indeed constitutes the most restrictive obstacle to trade in products lawfully manufactured and marketed in the other Member States, can be adopted only if that risk appears sufficiently established.
The newest development for French CBD retailers comes shortly after the Italian Ministry of Health decided to suspend a decree that classified CBD as a narcotic.
Today’s decision from the Court of Justice of the European Union is a milestone in the protection of the free movement of goods and the future legal unification of the European CBD market.