CBD , or cannabidiol, still enjoys a rather ambiguous status under French law.
What French law says:
French law on this subject is undergoing significant change, as the applicable regulations—namely, the Decree of August 22, 1990, implementing Article R5132-86 of the Public Health Code for Cannabis, and as interpreted by the Ministry of Justice Circular No. 2018/F/0069/FD 2 of July 23, 2018, concerning the legal framework applicable to establishments offering cannabis products for sale to the public—stipulate that only hemp fibers and seeds may be used commercially. Since CBD is present only in small quantities in these parts of the plant, it is primarily extracted from the flowers.
Clarification thanks to Europe:
However, many European Union member states allow the production and marketing of food supplements made from Cannabidiol, and it turns out that the French ban may clash with the free movement of goods, an immutable principle of the European Union.
It is in these conditions, since the marketing of CBD-based products has multiplied in France over the last 3 years, that a preliminary question was posed by the Court of Appeal of Aix-en-Provence to the Court of Justice of the European Union, which was seized of an appeal by two natural persons who had been sentenced to prison terms of 18 and 15 months suspended, as well as a fine of €10,000, for an infringement of French legislation and in particular the decree of August 22, 1990.
These two individuals therefore appealed to the Court of Appeal of AIX-EN-PROVENCE, which questioned the conformity of French regulations with European Union law.
The Court of Justice of the European Union issued a landmark ruling on November 19, 2020, which will be binding on all jurisdictions and legislation of the member states.
The European Court of Justice in its ruling recalls that the ban imposed by the French State on the marketing of CBD-based products may conflict with the principle of the free movement of goods in the European Union, since CBD cannot be considered a narcotic (indeed, the legislation applicable to narcotics may obviously allow, for reasons of public health and public order, an infringement of the free movement of goods).
The Court of Justice of the European Union in its ruling reiterates the definition of the concepts of "drug" or "narcotic", and CBD is not expressly covered by any of the United Nations conventions applicable to the case, one on psychotropic substances and the other on narcotics.
An expansive interpretation of the second convention (the one on narcotics) could leave CBD in the category of narcotic as an extract of Cannabis.
The European Court notes, however, that this broad interpretation would be contrary to the general spirit of this convention and to its aim of protecting the health (physical and moral) of humanity.
The Court thus notes in a sovereign manner that "according to the current state of " scientific knowledge ", and unlike tetrahydrocannabiol commonly known as THC , which is another cannabinoid from hemp, the CBD in question does not appear to have psychotropic or addictive effects, nor harmful effects on human health.
In these circumstances, the Court considers that the French regulations are contrary to the free movement of goods, since the free movement of CBD cannot be called into question by a particular legislation of a Member State insofar as it cannot be considered a narcotic.
European regulations provide for other exceptions to the free movement of goods, when the Member State which has restricted it justifies one of the reasons of general interest listed in the European Regulation, such as the objective of "protection of public health", invoked by France, but on the condition that this regulation is "suitable for guaranteeing the achievement of said objective", and that it does not go beyond what is necessary for it to be achieved.
This latter assessment is a sovereign assessment of each Member State.
That being said, the Court of Justice of the European Union gives two indications in this regard which allow us to consider that in this case the French regulation could not claim the objective of protecting public health and thus constitute an exception to the principle of the free movement of goods.
The Court notes firstly that the French marketing ban does not affect synthetic CBD which has exactly the same properties as natural CBD, which leads to the conclusion that French regulations are not adequate to achieve, in a coherent and systematic manner, the objective of protecting public health.
Current situation:
France, pressured by Europe and various court rulings, will finally clarify and concretely regulate the marketing of CBD. A draft law is being prepared that will definitively establish the legality of this molecule. Previous legal cases have thus made the sale of CBD entirely legal in France; however, it is crucial to be very careful to:
– the product you market does not contain THC, or only in very small quantities (below 0.5%).
-Do not create confusion in the public mind between CBD and Cannabis, the marketing of which is strictly prohibited given its classification as a narcotic.
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