A ruling made by the European Court of Justice (CJEU) deemed CBD not be considered a narcotic. This will have wide ranging implications throughout the European CBD industry as the decision will result in large markets such as the French CBD market opening up. There is also a prospective change of opinion from the European Commission with regard to CBD being classified as a Novel Food.
The French Kannavape case was escalated by the European Court and a ruling has been a long time in the making. This landmark case has resulted in clarification that CBD is not a narcotic when accounting for the spirit of the 1961 UN Single Convention. This ruling means that a CBD market can now be launched in France and there is also the prospect of the European Commission reversing its opposition to CBD ingestible products, such as CBD capsules.
The Kannavape case involved the two directors of the company. Kannavape, a CBD vaping product that was marketed in France which used CBD that was grown legally and extracted in the Czech Republic.
Under French law, the sale and the production of whole-hemp products is banned and strictly prohibited. The only products that are legal for sale are products that only use hemp stems and seeds to formulate the product. CBD that is produced using hemp flowers is categorised as narcotics, while synthetic CBD is not categorised in the same manner. The Kannavape directors were prosecuted for selling the vaping device in France and were given a suspended sentence.
The Kannavape directors appealed on the basis of whether the Kannavape product’s sale violated EU single market principles. The French Court of Appeal then referred the matter to the European Court of Justice. The European Court of Justice is the judicial branch of the EU and was designated the responsibility to rule on the compatibility of EU and French law in the Kannavape case.
The law throughout the EU establishes the free movement of goods within the European Union, with the protection of public health being one of the few exceptions. Narcotic drugs are categorised as such and can only be produced under tight control with the view of being prescribed as a medication. The European Court of Justice considered whether CBD that was derived from the flower of hemp plants could be considered as a narcotic under EU law. If this was deemed to be the case, France would be within its rights to prohibit the sale of CBD derived from hemp flowers.
The Findings of The European Court of Justice
The United Nations controlled drugs treaties that the European Union laws refer to were written in the 1960s and do not contain any reference to CBD. The European Court of Justice conceded that a literal interpretation of the 1961 United Nations Single Convention may come to the conclusion that CBD is indeed a drug because it is extracted from the flowers of Cannabis genus. Under the Single Convention this would constitute an extract of cannabis.
However, the European Court of Justice noted that CBD doesn’t appear to have any psychoactive effects or any harmful effect on human health based on the available scientific evidence. The European Court of Justice also stated that international treaties should be enacted in line with their objectives. The objective of the Single Convention is to be concerned with the welfare and health of mankind and their duty to prevent and combat drug addiction. The European Court of Justice decided that it would be contrary to the purpose and the general spirit of the Single Convention to rule that CBD was a narcotic and could be encompassed by the definitions of drugs, because CBD has no know psychoactive effects.
In light of this decision the national French ban on whole-hemp CBD is deemed to be invalid and therefore must be reviewed. The European Court of Justice noted that the laws to restrict the public sale of CBD because of public health reasons is permitted, but this must be supported by scientific evidence rather than hypothetical concerns. The French courts will now review the country’s current laws and the government may have to amend French CBD legalisation to correlate with the European Union laws.
This ruling may be a historic landmark in the European CBD sector. It could potentially open up the second largest economy in the European Union. It may also encourage politicians and lawmakers to approve domestic CBD cultivation in France. French Hemp farmers already account for a significant percentage of all hemp that is cultivated within the EU.
Legal changes are unlikely to happen overnight, but the ruling is certainly positive news for the EU CBD industry as it prospectively could open up the French market which would substantially increase the number of prospective CBD customers throughout Europe. With the UK CBD market implementing definitive Novel Food legislation in March 2021 and the USA’s gradual movement towards serious regulation, now may be the best opportunity for the EU to construct legislation that will enable countries in the EU to compete with the UK and American CBD markets.