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CBD and hemp flowers

some steps towards liberalisation

14/10/2021

While the trade in products containing cannabidiol (CBD) is visibly increasing (in cosmetics, vaping products, raw leaves and flowers, etc.), the French law applicable to this activity is not yet fixed.

A change in case law favourable to CBD sellers and importers

On 19 November 2020, in the so-called "Kanavape" case, the Court of Justice of the European Union (CJEU) ruled that the French regulation leading to a ban on the marketing of CBD legally produced in another Member State was illegal (CJEU, 19 November 2020, B.S. and C.A., C-663/18). It is in the name of the free movement of goods and merchandise within the European Union and the "non-narcotic" nature of CBD that the Court questioned the French regulation on the matter, unless it can be established that such a measure is necessary for the protection of public health.

Taking up the reasoning of the European court, the Criminal Division of the Court of Cassation issued two decisions on 15 and 23 June 2021 which demonstrate that the non-narcotic nature of CBD is no longer seriously debated (Cass. Crim, 15 June 2021, No. 18-86.932; Cass crim, 23 June 2021, No. 20-84.212).

Does this mean that all CBD-based products are legal? The answer must be qualified.

Firstly, French law has not yet evolved and the applicable principles remain those of the decree of 22 August 1990, i.e. the prohibition of all products derived from cannabis leaves and flowers. Secondly, even if this situation should evolve rapidly, the direction that seems to be taken by the French authorities provides for important restrictions.

Ongoing developments in French law

Following the "Kanavape" decision, the French authorities had to develop the applicable legal framework. The Government therefore prepared a draft decree (“arrêté”) which was published and notified to the European Commission on 21 July 2021. The Commission is due to give its opinion shortly on the conformity of this draft with the principles of European law.

The draft decree makes the applicable framework more flexible by abandoning the strict ban on products made from hemp leaves and flowers. This ban was a frontal obstacle to the establishment of a CBD production sector (agricultural and industrial) in France. Thus, if this draft were to enter into force as it stands, the cultivation, import, export and industrial and commercial use of Cannabis sativa L. would be authorised as long as the THC content of the products (the stupefying substance of cannabis) does not exceed 0.2%, without distinction according to the part of the plant (leaf, flower, seed, stem) concerned.

This is a reassuring development for the many industrial players who produce or incorporate CBD into their products. 

Beware, however, because the draft decree includes important restrictions, in particular the continued prohibition on the sale of raw flowers or leaves to consumers in any form, including as an herbal tea or smoking product, even if the THC content of the product is below 0.2%. According to the Government, this restriction is justified on grounds of public order, in particular the fight against drug trafficking. Public health protection (harmfulness of smoking products) could also justify this restriction.

It is now up to the European Commission to decide whether or not this new French decree complies with European law and in particular with the principle of free movement of goods.

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