Cannabis law and legislation in Spain

Medical use

Cannabis cultivation for research, medical and scientific purposes is prohibited unless authorised by the Spanish Agency of Medicines and Medical Devices (AEMPS).

To date, the AEMPS has granted eight authorisations to cultivate “Cannabis sativa” to seven entities. Five for crops for research purposes, one of which is for content lower than 0.2% THC, one licence for cultivation for educational purposes only and two for cultivation for medicinal purposes.

As medicinal cannabis is not regulated in Spain, the cultivation of cannabis or the production of derivatives for commercialisation is only allowed in the case of export to a company duly authorised in its country of origin.

The authorisations that can be obtained from AEMPS in order to enter the cannabis business are:

  1. authorisation for the cultivation of cannabis plants for research purposes for the production of varieties or seeds of cannabis with therapeutic use or for the investigation of the physical and/or pharmacological properties, among others, of cannabis and its products and;
  2. authorisation for the cultivation of cannabis plants for medical and scientific purposes.

Patients can have access to a cannabis-based drug only on medical prescription if they suffer from sclerosis, cancer or other chronic pain diseases.

Notwithstanding the foregoing, a patient who decides to use it for these purposes should do so through a Social Club of Cannabis (CSC) in order to prevent their conduct from being considered illicit due to the fact that the CSC is apparently covered under the doctrine of “shared use”.

Article 368 of the Spanish Criminal Code criminalises the cultivation of cannabis when it promotes, favours or facilitates the illegal consumption of drugs and establishes a prison sentence of three to six years.

Nevertheless, the case law provides that cultivation and possession of narcotic substances that are not intended for trafficking but for one’s own consumption and certain hypotheses of shared consumption in which there is no purpose or risk of diffusion is unpunished. Consequently, if the cultivation is not intended for the purposes discussed but only for self-consumption or shared use within an organisation, is an act of impunity.

Furthermore, Spanish legislation on security protection establishes that the “consumption or possession” of “toxic drugs, narcotics or psychotropic substances, even if they are not intended for trafficking, in places, roads, establishments public or public transport” is considered as a serious offence, and imposes sanctions ranging from EUR 600 to EUR 30,000.

Recreational use

It is prohibited to produce, import or sell recreational cannabis. Notwithstanding, case law determines that the cultivation of cannabis for self-consumption is not a crime in Spain. Cultivation for lucrative purposes and cultivation in visible places is illegal.

Notwithstanding this, case law determines that the cultivation of cannabis for self-consumption is not a crime in Spain. Cultivation for lucrative purposes and cultivation in visible places is illegal.

Industrial use

Industrial cultivation of cannabis is legally permitted in Spain as long as it does not exceed the limits for THC content of 0.2% set by the European Union in Regulation (EU) No 1307/2013 of the European Parliament and of the Council of 17 December 2013 establishing rules for direct payments to farmers under support schemes within the framework of the common agricultural policy.

Royal Decree 1729/1999 of 12 November 1999 laying down the rules for applying for and granting aid for fibre flax and cannabis authorises 25 varieties of industrial cannabis for cultivation in Spain and lays down the rules for granting subsidies for crops intended for fibre production. In order for the crop to be legal, the seeds must be certified by the EU.

Spanish laws do not provide for special rules regarding CBD content.

In this regard, it has to be pointed out that CBD does not appear on the EU food list as an audited product and is therefore “not fit for human consumption”, which is why a large part of European production is being withdrawn from the market.

A company wishing to market in Spain parts of the plant Cannabis sativa L. (flowers, leaves and stems), extracts and cannabinoids, in the food area, must present an application to the European Commission in accordance with Regulation (EU) 2015/2283 of the European Parliament and of the Council of 25 November 2015 regarding novel foods and, once the risk has been assessed by the European Food Safety Authority (EFSA), the relevant authorisation or non-authorisation decision will be taken.

However, the CBD can be used for the manufacture of products not suitable for human consumption (cosmetics or for industrial or technical purposes) under certain conditions.

Patentability

In principle it is not forbidden to patent inventions containing cannabis as long as they comply with the patentability requirements. Nevertheless, as this substance is considered illegal in many countries including Spain, the possibility of using it is limited.

Latest developments

Last year, the Political Party “Ciudadanos” and the Polical Party “Podemos” tried, without much success, to establish a subcommittee in Congress to evaluate the regulation and sale of cannabis. The idea of legalisation of cannabis for medical use is regularly discussed in Spain. However, at this stage, it seems unlikely that any steps in this direction will be taken in the near future.

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Mariano Bautista
Partner
Madrid
Rocío Gros Abad