On 19 November 2020 the Court of Justice of the European Union ruled on one of the most debated and controversial issues of the moment: the marketing of CBD-based products.
According to the Court, "a Member State may not prohibit the marketing of CBD lawfully produced in another Member State when it is extracted from the Cannabis sativa plant in its entirety and not solely from its fibre and seeds"1.
In its judgment, the Court holds that EU law, in particular the provisions on the free movement of goods, precludes restrictive laws such as the French legislation which is the subject of the case.
As mentioned in our article of 5/06/2020, " What do we know about CBD? Opinion of Advocate General Evgeni Tanchev – Case C-663/2018", French national law restricts the cultivation, importation, exportation as well as the industrial and commercial use of hemp solely to its fibre and seeds.
The dispute in question originates from the marketing by a French company, Kanavape, of electronic cigarettes the liquid in which contains cannabidiol ('CBD'), imported from the Czech Republic, where extraction from the entire hemp plant, including leaves and flowers, is allowed.
The directors of the French company were convicted by the Criminal Court of Marseille (Tribunal Correctionnel de Marseille), inter alia, for breach of the rules on trade in poisonous plants, based on the restrictions under the French legislation, on the grounds that the production of hemp oil to be put into the electronic cigarette cartridges should be deemed lawful only if obtained by pressing the seeds, while, since the CBD oil imported from the Czech Republic had been extracted from the whole plant, such use should be deemed unlawful.
Subsequently, the Court of Appeal of Aix-en-Provence, hearing the appeal from the French company, decided to suspend the proceedings and to refer a question to the European Court of Justice for a preliminary ruling on the conformity of the French legislation with EU law, and, in particular, with Articles 34 and 36 TFEU.
Well, the Court of Justice of the European Union first and foremost clarifies that the regulations relating to the Common Agricultural Policy (CAP) apply only to the "agricultural products" under Annex I to the Treaties, which do not include CBD extracted from the Cannabis sativa plant in its entirety.
That being said, the European judges declare that the provisions relating to the free movement of goods within the Union must instead be deemed to apply, since cannabidiol (CBD) cannot be regarded as a "narcotic drug".
CBD is indeed not mentioned in the Convention on Psychotropic Substances signed in Vienna in 1971, nor, to date, is there any scientific evidence of its psychotropic effect or any other harmful effect on human health2.
Now, the prohibition on marketing CBD constitutes a measure having equivalent effect to quantitative restrictions on imports, prohibited by Article 34 TFEU3.
As is known, such a restriction can only be justified on the grounds of public interest set out in Article 36 TFEU, namely: grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States 4.
While that latter assessment is for the national court, the European judges clarify the reasons why, in the case at hand, the general grounds under Article 36 TFEU (and, particularly, the ground of protection of public health) allowing restrictions on imports among Member States cannot be deemed to exist.
First, it would seem that the prohibition on marketing does not affect synthetic CBD.
In this way, the legislation at issue would not seem appropriate for attaining, in a consistent and synthetic manner, the objective of protecting public health.
Second, the national court must assess available scientific data to be able to argue that there is a real risk to public health.
Well, as mentioned, to date there is no scientific evidence on the psychotropic, and therefore harmful, effects of CBD.
So much so that, in January 2019, the Secretary-General of the World Health Organization (WHO) recommended that the United Nations amend Schedule I to the Single Convention so as to clarify that CBD is not a narcotic drug, first, by deleting therefrom " extracts and tinctures of cannabis" and, second, by adding a footnote to read "Preparations containing predominantly cannabidiol and not more than 0.2 per cent of delta-9-tetrahydrocannabinol are not under international control".
The judgment under examination stands out as a particularly significant precedent, on the basis of which a process of harmonisation of the European laws on cannabis products may be undertaken.
1 Court of Justice of the European Union, press release No. 141/2020, Luxembourg, 19 November 2020: "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 fibre and seeds".
2 It is worth recalling here that, according to an opinion of the World Health Organization (WHO) of 2017, "the WHO Expert Committee on Drug Dependence (ECDD) concluded that, in its pure state, cannabidiol does not appear to have abuse potential or cause harm. As such, as CBD is not currently a scheduled substance in its own right (only as a component of cannabis extracts), current information does not justify a change in this scheduling position and does not justify scheduling of the substance".
3 Article 34 of the Treaty on the Functioning of the European Union (TFEU) provides that "Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States".
4 Article 36 of the Treaty on the Functioning of the European Union (TFEU) provides that "The provisions of Articles 34 and 35 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States".
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