Italy: Cannabis, Even If Light, Is Illegal. Sales Banned By Italy's Supreme Court?

Criminal Supreme Court en banc, judgment No. 30475 on filed 10 July 2019

The attentive reader will remember that in our first article, " Light cannabis in Italy: products are booming in Italy, but recreational consumption is still illegal", after highlighting the unquestionable success of light cannabis derivative sales, we emphasised the absolute obscurity of the text of Law no. 242/2016.

Said law does not clearly state whether conduct other than the cultivation of the hemp varieties listed in the catalogue referred to in Article 1, paragraph 2 – and in particular the marketing of cannabis sativa L. – is permitted, nor does Article 2, paragraph 2, which contains the list of the products that may be obtained from cultivated hemp, must be regarded as mandatory.

By the aforementioned provisions, the legislator limited itself to saying that Law 242 of 2016 applies to the varieties listed in the Common Catalogue of Varieties of Agricultural Plant Species, in accordance with Article 17 of Council Directive 2002/53/EC of 13 June 2002, and that the following products can be obtained from hemp grown in accordance with paragraph 1: a) foods and cosmetics, produced exclusively in compliance with the disciplines of the respective sectors; b) semi-finished products such as fibre, hemp, powders, wood chips, oils or fuels, for supplies to industries and craft activities in various sectors, including the energy sector; c) material intended for the practice of green manure; d) organic material for bio-engineering or products useful for bio-building; (e) phyto-purification material for the remediation of contaminated sites; (f) crops designated for educational and demonstration activities as well as research by public or private institutions; (g) crops intended for floriculture.

The ambiguity of the text of the law has inevitably given rise to asymmetries in interpretation by courts.

The view that it should be ruled out that Law No. 242/2016 allows the marketing of derivatives of the cultivation of cannabis sativa L. (see section 3, judgment No. 17387 of January 10, 2019) is in conflict with the more recent view expressed by the Sixth Criminal Division in judgment No. 4920 of 31 January 2019, according to which the lawfulness of the marketing of derivatives such as leaves and buds can be inferred, as a logical and legal corollary, from the lawfulness of the cultivation of cannabis sativa, provided that they contain a percentage of active ingredient less than 0.6% (see article of February 22, 2019, " For the Italian Supreme Court seizing light hemp inflorescences is unlawful").

The subject has been dealt with by the Joint Criminal Divisions of the Supreme Court, in judgment 30475, filed on 10 July 2019.

Starting from the assumption of having to dispel an apparent and alleged conflict between the Consolidated Law on Narcotic Drugs (Presidential Decree 309/1990) and Law No. 242/2016, the Supreme Court states that "The marketing to the public of cannabis sativa L. and, in particular, of leaves, buds, oil and resin obtained from the cultivation of the aforementioned variety of hemp, does not fall within the scope of Law No. 242 of 2016, which deems lawful only the activity of growing hemp of the varieties listed in the Common Catalogue of Varieties of Agricultural Plant Species, pursuant to Article 17 of Council Directive 2002/53/EC of 13 June 2002 and which exhaustively lists the derivatives of that cultivation that may be marketed", so that the transfer, sale and, in general, the marketing to the public of derivatives of the cultivation of cannabis sativa L. such as leaves, buds, oil, resin are conduct amounting to the offence under Article 73 of Presidential Decree No. 309/1990, even if the THC [Tetrahydrocannabinol]content is lower than the level under Article 4, paragraphs 4, 5 and 7 of Law No. 242 of 2016, unless such derivatives are in fact devoid of any dopant or psychotropic effect, in accordance with the principle of offensiveness".

The Supreme Court first and foremost argues that that the discipline introduced by Law 242/2016 poses the problem of coordinating the new provisions with those contained in the Consolidated Law on Narcotic Drugs.

In that regard, the Court refers to Article 14, paragraph 1, letter b of Presidential Decree No. 309/1990, as replaced by Article 1, paragraph 3 of Decree-Law No. 36 of 2014, which lays down the criteria for drawing up the tables of narcotic substances subject to supervision and provides for Table II to include 'cannabis and the products made from it', without any distinction being made between the different varieties.

Then, the Court points out that Table II includes, among the prohibited substances, "Cannabis (leaves and buds), cannabis (oil), Cannabis (resin)"as well as preparations containing those substances in accordance with the rules laid down in the table of medicinal products, without making any reference to THC.

Therefore, according to the Court, given the textual listing contained in Table II and the non-indication of a threshold value by the criminal legislator in terms of THC percentage, the cultivation of cannabis and the marketing of products obtained from it such as leaves, buds, oil and resin must be deemed to fall within the scope of Article 73, paragraphs 1 and 4 of the Consolidated Law on Narcotic Drugs.

With respect to the repressive plan described above, the only exception is Article 26, paragraph 2, of the Consolidated Law on Narcotic Drugs concerning "hemp grown exclusively for the production of fibre or for other industrial uses, other than those referred to in Article 27, permitted by EU legislation".

According to the reconstruction of the Supreme Court, the statutory provisions introduced in 2016 must be placed in that regulatory context, aimed at promoting the cultivation of the agro-industrial chain of hemp.

The purpose of Law 242/2016, and particularly of Article 1, paragraph 1, is to promote the cultivation and supply chain of hemp, as a crop capable of reducing environmental impact, soil consumption, desertification and loss of biodiversity, and as a substitute crop for surplus crops.

Moreover, paragraph 2 provides that the new law applies exclusively to the species of agricultural plants referred to in Article 17 of Directive 2002/53/EC, which, in fact, do not fall within the scope of application of the Consolidated Law on Narcotic Drugs and Psychotropic Substances under Presidential Decree No 309/1990.

In light of the above considerations, the Supreme Court attaches mandatory nature to the seven categories of products set out in Article 2, paragraph 2 of Law No. 242/2016.

It follows that no other products than those listed in Article 2, paragraph 2 of Law No. 242/2016 and, in particular, leaves, buds, oil and resin, can be lawfully produced from the cultivation of cannabis sativa L.

In this regard – the Court adds – there is no provision nor any systematic indication that could in some way bring the buds in the field of crops for floriculture.

Likewise, it must be ruled out that the legislator, when referring to food, may have meant to refer to the human intake of such derivatives, so much so that it imposes an obligation on producers to comply with the rules governing the food sector, if they intend to produce foods derived from hemp such as seeds and flours.
But there is more!

According to the Supreme Court, the exclusion of liability clauses in Article 4, paragraphs 5 and 7 of Law 242/2016 are provided for exclusively in favour of the farmer who develops the crops referred to in Article 1, in relation to legally grown crops, at the growth stage and with a THC content greater than the permitted threshold values.

Article 4, paragraph 5, provides that if, following the checks, it turns out that the total THC content of the crop is higher than 0.2% but within the limit of 0.6%, "no responsibility is placed on the farmer who has complied with the requirements of this law", while the following paragraph 7 provides that, in the event the threshold value of 0.6% is exceeded, the seizure and destruction of the crop may be ordered, with exemption of liability for the farmer.

The above is apparently confirmed by the fact that the incriminating provision of Article 73, paragraphs 1 and 4, of the Consolidated Law on Narcotic Drugs, concerning the circulation of the substances listed in Table II, makes no reference to the THC concentrations contained in the product marketed.

However, the Supreme Court ultimately refers to the principle of the actual offensiveness of the conduct, recalling that, at the time when a court verifies the criminal relevance of a particular conduct, it must in any event assess not the percentage of the active substance contained in the transferred substance, but its suitability to produce a concrete doping effect.

Therefore, even in the matter under consideration, as the offering and selling of derivatives from the cultivation of cannabis sativa under any circumstances amounts to the offence under Article 73 of Presidential Decree 309/1990, nevertheless, the judge must verify the concrete offensiveness of the conduct, in terms of the effective doping of the substances sold.

To conclude, the Supreme Court omitted to indicate the discriminatory threshold for the active ingredient, having regard to the more general principle of offensiveness and the aptitude of substances to produce psychotropic effects.

In the aftermath of the judgment, therefore, doubts and uncertainties still exist, that put at risk an entire sector in great expansion, but which the legislator might definitively overcome by taking again initiative on the matter to outline a different and precise regulation of the sector involving the marketing of cannabis products.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.