Last week the EU Court of Justice overruled the French ban on cannabidiol (CBD) arguing that CBD is not a narcotic and had “no psychotropic effect or harmful effect on health”. This long-awaited decision is a big win for the CBD market in France and is significant for the future of CBD in the European Union – especially given that this ruling will undoubtedly influence the European Commission’s current review on whether to classify CBD as a narcotic rather than a novel food.
The Kanavape case
In July 2014, the French government launched a first offensive against CBD, bringing several people involved in the cannabidiol trade to court. This was notably the case of Sébastien Beguerie and Antonin Cohen who, in December 2014, launched Kanavape, a CBD electronic cigarette containing less than 0.2% THC. They were sentenced in January 2018 by the Marseille Criminal Court to 18 and 15 months suspended jail and a € 10,000 fine. The two men appealed and, to everyone’s surprise, in October 2018, the Aix Court of Appeal refused to rule and let the Court of Justice of the European Union (CJEU) decide on the possible incompatibility of European and French rights, the first one being more permissive than the second one.
Kannavape used a CBD oil made in the Czech Republic extracted from the plant in its entirety (leaves and flowers included) and sold it in France under the principle of free movement of goods in the internal market of the European Union. However, the French ministerial decree of 2014 only authorized the use of seeds and fibers.
The Aix Court of Appeal deferred to the Court of Justice of the European Union on account of the fact that any restriction on the free movement of goods within the EU can only be justified if the risk to public health is sufficiently established.
The CJEU sentence in the Kannavape case
It was last week, on November 19, that the CJEU made public its sentence on the matter. It declared that “according to the current state of scientific knowledge, which it is necessary to take into account, unlike THC, another cannabinoid in hemp, the CBD in question does not appear to have any psychotropic effect or harmful effect on human health”. The CJEU therefore considered that the protection of public health could not be invoked to refuse entry of Czech CBD into French territory.
Since international law takes precedence over national law, France must comply with this decision. Therefore, it no longer has the right to ban the commercialization of CBD, a decision that should dismantle the legal foundations of many ongoing trials in the country.
Industry players applaud the decision
On social media, there was a mixture of relief, satisfaction and bitterness that greeted this news. Relief because after so many years of working in uncertainty and having to face unclear and unevenly applied legislation, the managers of shops specializing in CBD will finally be able to face the future with more serenity. Satisfaction because everyone who works in this industry is convinced of the benefits of CBD and does not understand its ban by a government surprisingly blind to ever-growing scientific evidence demonstrating the benefits and the harmlessness of CBD. Bitterness, because the application of a repressive policy in recent years has brought countless people to court, caused the closure of numerous shops, dampened the enthusiasm of many people and caused significant financial losses. For example, Fox Seeds Gap published a post on Facebook on November 19, calling for their merchandise to be returned, having had it confiscated by an overly zealous legal system.
What about cannabis seeds?
In France, the purchase of cannabis seeds is allowed, but the cultivation of them is strictly prohibited in the vast majority of cases, even for personal and therapeutic use. The situation is slowly changing, however, since a two-year trial – initially scheduled for 2020 but postponed due to the coronavirus situation – has been validated by the government, which will give doctors the opportunity to prescribe therapeutic cannabis to their patients under certain conditions.