A second decision on CBD (cannabidiol) in two weeks, and another victory for stores selling these products. In a long awaited stop, the Court of Cassation ruled on Wednesday 23 June that, by virtue of the free movement of goods within the European Union (EU), the marketing of CBD in a member state cannot be prohibited if this product is legally produced in another member state.
The Court of Cassation quashed a judgment condemning the manager of a shop in Grenoble that sold products based on CBD – the non-psychotropic molecule of cannabis – and ordered a new trial in Paris. In this case, the judges of the Grenoble Court of Appeal “Did not investigate, when requested, whether the CBD discovered in the store run by the defendant was legally manufactured in another EU state”, she explains.
In June 2019, the Grenoble Criminal Court acquitted the store manager on charges of complicity in the unauthorized acquisition, possession, offer or sale of narcotic products. The prosecution had appealed. A year later, in June 2020, the Grenoble Court of Appeal reversed the judgment and found the manager guilty, who had lodged an appeal in cassation.
This decision of the Court of Cassation thus applies the judgment rendered in November by the Court of Justice of the European Union (CJEU) which had come to contradict the French authorities. The CJEU considered that CBD is not a narcotic and that the free movement of goods does not allow an EU country to oppose its marketing when it is legally produced in another member state. And this, even “When it is extracted from the plant of Cannabis sativa in its entirety and not from its fibers and seeds alone ‘. It therefore authorized the sale of imported products, even if France prohibited their production on its soil.
According to Ingrid Metton, lawyer specializing in “light cannabis” cases, “This judgment of the Court of Cassation says that if CBD is legally produced in the EU and THC is at a trace level, the product cannot be qualified as a narcotic product in France, regardless of whether it is ‘act of flowers or processed product’. “These products can therefore be marketed”, she assures. “This decision makes CBD a lambda product, like all plant-based products. “
“The shops won their case”
For Yann Bisiou, specialist in drug law and co-founder of the L630 association, which campaigns for a reform of public policies on drugs, the decision of the Court of Cassation will put an end to the prosecution of shops that sold CBD imported from the EU: “The stores won their case. “ “It remains to be decided whether France will remain a country of consumers or whether it will authorize production, with the creation of a sector, etc.” “, he adds.
On June 15, the highest French judicial body had already ruled in favor of a Dijon store that sold CBD products and contested its closure, pronounced in 2018 by the authorities. But this decision had only a limited scope. She felt that the six-month closure of this shop had been ordered in a way “Premature”, because decided “In the absence of an expert determination of the origin of cannabidiol and of the presence of THC in the products seized, beyond the test carried out by the police services”. Without independent expertise, there was no proof “That the products in question fell into the category of narcotic products”, wrote the judges.
In the dozens of cases currently pending before the courts in France, the prosecution is always based on thecannabis decree 1990, according to which “The cultivation, import, export and industrial and commercial use (fibers and seeds) of varieties of Cannabis sativa L. ” if their “Delta-9-tetrahydrocannabinol content [ou THC] is not more than 0.2% ‘. However, since cannabidiol is mainly found in the leaves and flowers of the plant – and not in the fibers and seeds – the text as drafted theoretically prevents any commercialization of CBD-based products in France.
Pending new regulations
But since they were summoned by the CJEU in November to review their copy, the French authorities are working on new regulations. The Interior Ministry revealed at the end of May that the next framework provided that “Authorization for the cultivation, import, export and industrial and commercial use of hemp” is “Extended to all parts of the plant”, provided that the THC content as well as that of the finished products is less than 0.2%. A decision that would allow French farmers to cultivate CBD for the manufacture of derivative products and would clarify the activity of specialized shops which hitherto operated in the dark and risked legal proceedings.
According to this next regulation, specialized shops would thus be authorized to sell various products – foods, oils, cosmetics, e-cigarettes, etc. based on CBD -, but could not, on the other hand, sell raw flowers, as these contain traces of THC, are often smoked and mixed with tobacco, which is harmful to health. Moreover, in the event of a police check, they should be analyzed to distinguish them from narcotic cannabis.
In a statement, the Court of Cassation said on Wednesday that it “Did not settle the question of whether or not France can validly avail itself of the objective of protecting public health to prohibit the possession and marketing of CBD on its territory”. For this, the authorities would then have to demonstrate the health dangerousness of “light cannabis” on the basis of the most recent scientific data. However, as noted in November by the CJEU, “According to the current state of scientific knowledge”, CBD, unlike THC, “Does not appear to have a psychotropic effect or harmful effect on human health”.
Pending new regulations, the decision of the Court of Cassation represents, for Mr.e Metton, “A disavowal from the authorities and the very restrictive framework they hoped to put”. “The decision of the Court of Cassation sounds today like a new snub for the government”, also reacted in a press release Aurélien Delecroix, president of the Professional hemp union. “In this context, it no longer appears tenable for the government to maintain its dogmatic positions in this matter”, he insists, lambasting a “Prohibitionist position against CBD products” justified by “Reasons that have become coldly political”.