France must revise hemp regulations if it wants to comply with EU law
France's general ban on the marketing of all CBD products derived from hemp is contrary to EU law on the free movement of goods, a declared Thursday an advisor to the Court of Justice of the European Union in a legal opinion.
The Opinion of the Advocate General, if followed by the highest court in the EU, would create a binding precedent and have a significant impact on the CBD industry in Europe, paving the way for the challenge of similar provisions in other EU Member States before national courts.
The Court of Justice's decision on this case is expected this fall. In the vast majority of cases, the court follows the advice of the Advocate General.
In this case, Advocate General Evgeni Tanchev wrote that EU legislation on the free movement of goods prohibits France or any other EU member state from banning the import of CBD from 'another Member State where this oil is extracted from the whole hemp plant.
France allows the cultivation of hemp, but limits the legal uses of the plant to its fiber and seed components.
"If CBD oil were to be considered a narcotic, it would fall outside the scope" of regulations of the EU on the movement of goods, wrote Tanchev. “In my opinion, this is not the case. "
According to Tanchev, the French court must rule on the discovery or study of a risk associated with the non-intoxicating effects of CBD. If the French court were to conclude that such a risk existed, an alternative measure, for example, a maximum limit of the CBD content, which would not be as restrictive for the free movement of goods would be more adequate, a- he writes.
The case (Kanavape) arose from a dispute in France concerning the marketing of a CBD vape product, the content of which was imported from the Czech Republic.
The two entrepreneurs were thus accused of having used the entire hemp plant to harvest the necessary amount of CBD for their products.
Indeed, the France benefits from a specific exemption which is made possible by paragraph II of article R. 5132–86 PHC. It was incorporated into French law by the implementing decree of 22 August 1990 on cannabis which specifically authorizes:
"the cultivation, import, export and industrial and commercial use (fibers and seeds) of varieties of Cannabis sativa L. meeting the following criteria: (i) the delta-9-tetrahydrocannabinol content of these varieties does not exceed not 0,20% (ii), the determination of the delta-9-THC content and the taking of samples for this determination are carried out in accordance with the European Community method provided for in Annex […] '
Former Kanavape director Antonin Cohen and former co-director Sébastien Béguerie, who marketed the e-cigarette, were found guilty of a criminal offense by a Marseille court on the grounds that the CBD oil contained in the cartridges had been extracted from the entire hemp plant, including the leaves and flowers.
According to French law, only fibers and hemp seeds can be cultivated, imported, exported and used for industrial and commercial purposes. This means that all CBD products derived from the whole hemp plant are prohibited.
What constitutes "industrial and commercial use"? How restrictive is the reference to "fiber and seeds"? Is the mention "fibers and seeds" a simple expression to differentiate "hemp for fiber" (meaning for commercial and industrial use) from "cannabis for drugs"? And to what extent does it limit the use of these parts of the hemp plant?
Eveline Van Keymeulen, lawyer based in Paris at Allen & Overy, who represented Cohen in the CJUE case, described this opinion "as a crucial step towards the regulatory harmonization and legal certainty essential for the CBD industry in Europe" .
"This would not only oblige France to adapt its legislation in order to allow the marketing of CBD extracted from the whole hemp plant, but could also force other national regulators to (re) examine the existing restrictions linked to derived products hemp in the light of the free movement of goods in the EU, "Van Keymeulen wrote in a statement.
The EU Court of Justice interprets EU law to ensure that it is applied in the same way in all EU countries and settles disputes between national governments and the institutions of the EU.
"Clear and proportionate regulation of CBD products will ultimately benefit European consumers," she added.
The Kanavape case had been transferred to the EU court by the Aix-en-Provence court of appeal in France.